Clean Water Act: Nonpoint Source Pollution Included?

The Clean Water Act (CWA) is the primary federal law in the US that governs pollution control and water quality in the country's waterways. The CWA was enacted in 1972 as an amendment to the Federal Water Pollution Control Act of 1948 and has since been amended several times. While the CWA has been successful in reducing water pollution from point sources, it has been criticized for not adequately addressing nonpoint source pollution (NPS). NPS, which includes runoff from farms, construction sites, and stormwater in urban areas, is the leading cause of water impairment in the US. Despite this, the CWA does not provide a detailed definition of nonpoint sources and leaves their regulation largely up to individual states. However, the CWA does include some provisions to address NPS, such as Section 319, which provides grants to states for implementing programs and projects that target NPS pollution reduction.

The Clean Water Act's (CWA) history and purpose

The Clean Water Act (CWA) is the primary federal law in the United States that governs water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The CWA was one of the United States' first and most influential modern environmental laws. The basis of the CWA was enacted in 1948 as the Federal Water Pollution Control Act, but it was significantly reorganised and expanded in 1972. The 1972 amendments provided the core statutory basis for the regulation of point source water pollution and created the National Pollutant Discharge Elimination System (NPDES) permit program. The Clean Water Act became the Act's common name with the 1972 amendments.

The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. The EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls these discharges. The CWA also established grant programs to support the construction and modernisation of municipal sewage treatment works.

The CWA has been amended many times. The 1977 amendments included a set of six section 404 exemptions for certain agricultural activities and other selected activities, allowing them to continue without the government's supervision. In 1987, Congress passed the Water Quality Act, which included a new section 319 to address the problem of nonpoint sources. This provision, also non-regulatory, authorises the EPA to fund demonstration programs and provide technical assistance to state and local governments. The 1987 amendments also included a major policy shift: federal support for the construction and maintenance of municipal wastewater treatment works switched from grantmaking to low-cost financing.

The CWA is administered by the U.S. Environmental Protection Agency (EPA) in coordination with state governments, though some of its provisions, such as those involving filling or dredging, are administered by the U.S. Army Corps of Engineers. The EPA has also developed national water quality criteria recommendations for pollutants in surface waters.

Nonpoint source (NPS) pollution and the CWA

Nonpoint source (NPS) pollution is the most significant source of pollution in the United States. NPS pollution is caused by the runoff of precipitation (rain or snow) over or through the ground, including stormwater associated with industrial activity, construction-related runoff, and discharges from municipal separate storm sewer systems (MS4s).

The Clean Water Act (CWA) is the first federal law designed to directly address water pollution. The CWA has been amended many times, with the 1972 amendments providing the core statutory basis for the regulation of point source water pollution and creating the National Pollutant Discharge Elimination System (NPDES) permit program. However, the 1972 act did not meaningfully regulate nonpoint sources of water pollution, including fertilizers, herbicides, pesticides, oil, and toxic chemicals from urban stormwater runoff.

In 1972, Congress acknowledged the problem of NPS water pollution by requiring states to prepare area-wide water quality management plans under Section 208. However, Section 208 was widely considered a failure as it did little to reduce NPS pollution and provided no enforcement mechanism. In 1987, Congress passed the Water Quality Act, which included a new Section 319 to address nonpoint sources. This section authorizes the EPA to fund demonstration programs and provide technical assistance to state and local governments.

Under Section 319 of the CWA, the EPA provides grants to states to implement programs and fund projects that address nonpoint source pollution. States, territories, and delegated tribes are required to develop nonpoint source pollution management programs to receive 319 funds. The EPA then provides grants to these entities to implement NPS management programs. Section 319 is a significant source of funding for NPS management programs, but funding has been limited and has not kept pace with inflation.

While the CWA does not provide a detailed definition of nonpoint sources, it defines them by exclusion—anything not considered a "point source" according to the act and EPA regulations. A “point source” is defined as any discernible, confined, and discrete conveyance from which pollutants are or may be discharged, such as pipes, ditches, or tunnels.

In summary, NPS pollution is a significant problem in the United States, and the CWA has evolved to address this issue through Section 319 grants and funding for NPS management programs. However, challenges remain, including limited funding and the lack of a detailed definition of nonpoint sources in the CWA.

The Environmental Protection Agency's (EPA) role in the CWA

The Environmental Protection Agency (EPA) plays a crucial role in implementing and enforcing the Clean Water Act (CWA), the first federal law designed to directly address water pollution in the United States. The CWA established a national framework for improving water quality, and the EPA is responsible for ensuring its effective implementation in partnership with the states.

One of the EPA's key roles is to regulate waste streams generated from offshore oil and gas activities. The EPA issues permits for discharges into ocean waters, ensuring compliance with the guidelines established under Section 403(c) of the CWA. These guidelines aim to prevent the degradation of the marine environment and require an assessment of the potential impacts on sensitive biological communities and various economic and recreational values. The EPA's interpretation of "significant site preparation" for offshore effluent guidelines is essential in this context.

Additionally, the EPA has the authority to approve or deny permits for the discharge of dredged or fill material into waters under the CWA Section 404 Program. These permits are issued by the U.S. Army Corps of Engineers but are subject to EPA review. The EPA may deny permits if they are likely to cause unacceptable degradation or if there are alternative options available that would not have adverse impacts on water bodies. The EPA also ensures that permit holders restore or create wetlands to compensate for any losses that cannot be avoided.

The agency also oversees the National Pollutant Discharge Elimination System (NPDES) permit program, regulating point sources that discharge pollutants into US waters. While state governments administer many aspects of the NPDES program, the EPA's regional offices manage the program in areas without state approval. The EPA's role includes ensuring compliance with effluent limitations guidelines, new source performance standards, and pretreatment standards for indirect dischargers.

Furthermore, the EPA provides grants to states under Section 319 of the CWA to address nonpoint source pollution. The EPA's 10 regional offices oversee state programs and ensure the feasibility of state projects. However, the EPA has been criticized for not providing sufficient guidance to its regions on overseeing these state programs effectively. The EPA also approves state plans for controlling nonpoint source pollution based on "best management practices." While states are not required to implement these plans, the EPA must develop plans for states that fail to do so.

The EPA's role extends to water quality planning and management, where states are required to identify waters that do not meet applicable quality standards, even with technology-based controls in place. The EPA also works with federally recognized Tribes through Direct Implementation Tribal Cooperative Agreements (DITCAs), allowing Tribes to assist in implementing federal environmental programs in Indian country. Additionally, the EPA reviews environmental impact statements prepared by other agencies and maintains a national filing system for these statements.

The CWA's impact on nonpoint source pollution

The Clean Water Act (CWA) is the primary federal law governing pollution control and water quality in the United States. The CWA was enacted in 1972 as an amendment to the 1948 Federal Water Pollution Control Act, and its objective is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters".

While the CWA has been successful in reducing water pollution from point sources, it initially lacked meaningful regulation of nonpoint sources of water pollution. Nonpoint source pollution (NPS) refers to any source of water pollution that does not meet the legal definition of a point source, and it is primarily caused by runoff from rainfall or snowmelt, as well as atmospheric deposition. NPS pollution includes a wide range of pollutants, such as fertilizers, herbicides, pesticides, oil, toxic chemicals, sediment, salt, and bacteria.

The CWA's impact on NPS pollution has been through the addition of Section 319 in the 1987 amendments, which created a federal grant program to provide funding to states, tribes, and territories for developing and implementing NPS management programs. The EPA provides grants to these entities to implement NPS management programs under Section 319(h), with recipients required to provide a 40% match in funds or in-kind services. The grants are intended to support projects that address NPS pollution, such as reducing runoff from farms or construction sites, and restoring impaired water bodies.

However, there are several limitations to the CWA's approach to NPS pollution. Firstly, the CWA does not provide a detailed definition of nonpoint sources, instead defining them by exclusion – anything not considered a "point source" according to the act and EPA regulations. Secondly, there is no federal regulatory authority over nonpoint sources, and states are not required to implement the plans they create or to penalize nonpoint source polluters. Additionally, funding for NPS control projects has been inadequate, and the EPA's primary measures of program effectiveness may not fully demonstrate the achievements of these projects. As a result, critics argue that Section 319 has provided limited improvement in addressing NPS pollution.

The future of the CWA and nonpoint source pollution

The Clean Water Act (CWA) was the first federal law designed to directly address water pollution. While the CWA has been amended many times, the 1972 amendments provide the core statutory basis for the regulation of point source water pollution. However, the 1972 act did not meaningfully regulate nonpoint sources of water pollution, which include everything from fertilizers, herbicides, and pesticides from agricultural production to oil and toxic chemicals from direct drainage of urban stormwater runoff.

In 1987, Congress passed the Water Quality Act, which included a new section 319 to address the problem of nonpoint sources. This provision, also non-regulatory, authorizes the Environmental Protection Agency (EPA) to fund demonstration programs and provide technical assistance to state and local governments. Section 319 includes minimum conditions that states must meet to receive grants. By regulation, EPA’s 10 regional offices oversee state programs and are to ensure that states’ projects can be feasibly implemented.

Despite these efforts, nonpoint source pollution remains the leading cause of impairment to the nation's waters. The current approach to nonpoint source pollution and polluted urban runoff is insufficient to restore and maintain the chemical, physical, and biological integrity of the nation's waters. To achieve the goals of the CWA, Congress must provide grant funding and financing to state and local authorities, as well as private landowners, commensurate with the scope of the pollution challenge. The EPA must also leverage its legal authority to push for more rapid water-quality improvements.

While the EPA has made some efforts to address nonpoint source pollution, there are still issues with the implementation of section 319. Funding to develop the plans has been scarce, and there is no enforcement mechanism to ensure that states penalize nonpoint source polluters who fail to adopt best management practices. Additionally, the EPA has not provided its 10 regions with guidance on how to oversee the state programs, and its primary measures of program effectiveness may not fully demonstrate program achievements.

To address these challenges, the EPA should work with Congress to increase funding for section 319 grants and develop an enforcement mechanism to hold states accountable for reducing nonpoint source pollution. The EPA should also provide clear guidance to its regional offices on overseeing state programs and consider additional measures of program effectiveness to fully demonstrate the achievements of the section 319 program.

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