Overview
Diffused surface runoff of agricultural fertilizer and other chemicals into water sources as well as irrigation return flows are classic examples of nonpoint source pollution that isn’t discharged from a particular, identifiable source. The primary source of nonpoint source pollution is agricultural runoff. As nonpoint source pollution, the Clean Water Act (CWA) leaves regulation of it up to the states rather than the federal government. But, that’s not to say that the federal government doesn’t have a role to play in the regulations of nonpoint source pollution. It does. But, it’s a role that plays out in the background as a potential backstop to what a particular state does. The CWA sets-up a “states-first” approach to regulating water quality when it comes to nonpoint source pollution.
A recent case illustrates the deference that courts give to the decision of the Environmental Protection Agency (EPA) to not create federal rules for agricultural runoff and instead let the states take the lead in addressing the issue.
The CWA and Nonpoint Source Pollution
The CWA recognizes two sources of pollution. Point source pollution is pollution which comes from a clearly discernable discharge point, such as a pipe, a ditch, or a concentrated animal feeding operation. As noted, point source pollution is the concern of the federal government.
Pollution from nonpoint agricultural sources, particularly that originating from soil erosion, is more extensive than pollution resulting from feedlot operations. But, because nonpoint source pollution is largely dependent upon local topographical conditions, the Congress believed it was best left to the control of the states through the continuing planning process required by §303 (relating to water quality standards) and §208 (areawide waste management plans) of the CWA. In addition, in 1987, the Congress amended the CWA to establish a national nonpoint source program under §319.
Section 303 (“Water Quality Standards and Implementation Plans”), requires states to adopt water-quality standards, to the extent not previously done, and to carry forward those already adopted subject to EPA approval. Standards are to be set for both interstate and intrastate waters, and the standards must be updated periodically and submitted to EPA for review and approval. The standards are to take into account the unique needs of each waterway including “propagation of fish and wildlife” as well as “agricultural…and other purposes.” Any state that fails to set water quality standards is subject to the EPA imposing its own standards on the state. Section 303 does not exempt any rivers or waters, but covers all waters to the full extent of federal authority over navigable waters.
Total Maximum Daily Loads (TMDLs)
The states are to establish total maximum daily loads (TMDLs) for watercourses that fail to meet water quality standards after the application of controls on point sources. A TMDL establishes the maximum amount of a pollutant that can be discharged or “loaded” into the water at issue from all combined sources on a daily basis and still permit that water to meet water quality standards. A TMDL must be set “at a level necessary to implement water quality standards.” The purpose of a TMDL is to limit the amount of pollutants in a watercourse on any particular date.
Regulation of nonpoint source pollution via TMDLs. A couple of legal issues related to TMDLs have arisen recently. Both of them are important to agriculture. One issue involves the question of whether the EPA has the authority to regulate nonpoint source pollutants under §303 through the TMDL process and thereby require reductions in nonpoint source discharges. Indeed, the TMDL requirements were challenged in early 2000 by farm interests as being inapplicable to nonpoint source pollution. In Pronsolino v. Marcus, 91 F. Supp. 2d 1337 (N.D. Cal. 2000), aff’d, sub. nom., Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), cert. denied, 539 U.S. 926 (2003), the plaintiffs had obtained a permit to harvest timber and became subject to restrictions designed to reduce soil erosion. The plaintiffs theorized that the restrictions were a by-product of the TMDL criterion and challenged the EPA’s authority to impose TMDL requirements on rivers polluted only by timber-harvesting and other nonpoint sources. The court, however, held that the TMDL requirements, as a comprehensive water-quality standard under the CWA, were designed to apply to every navigable river and water in the country. Although the court noted that the CWA applied TMDL to point and nonpoint sources differently, it stressed that TMDL was clearly authorized for nonpoint sources. Thus, according to the court, any polluted waterway – whether the source of pollution is point or nonpoint – is subject to TMDL requirements.
The case was affirmed on appeal, but the appellate court, in dictum, noted that the statute did not require states to actually reduce nonpoint source pollution flowing into these waters. The appellate court made clear that TMDL implementation of nonpoint source pollution is a matter reserved to the states. Thus, the court appeared to substantially limit the EPA’s ability to require nonpoint source pollution reduction – the EPA can develop TMDLs that highlight the need for aggressive control of nonpoint source pollution, but cannot address nonpoint source pollution by itself. Where a state fails to establish TMDLs, the EPA has the power to implement them. TMDL rules exemplify cooperative federalism between the EPA and the states. See, e.g., American Farm Bureau Federation, et al. v. United States Environmental Protection Agency, et al., No. 1:11-CV-0067, 2013 U.S. Dist. LEXIS 131075 (M.D. Pa. Sept. 13, 2013).
Deference to the EPA. In two recent cases involving TMDLs, the courts denied attempts by environmental groups to force the EPA to create additional federal regulations involving TMDLs. In Conservation Law Foundation v. United States Environmental Protection Agency, No. 15-165-ML, 2016 U.S. Dist. LEXIS 172117 (D. R.I. Dec. 13, 2016), the plaintiff claimed that the EPA’s approval of the state TMDL for a waterbody constituted a determination that particular stormwater discharges were contributing to the TMDL being exceeded and that federal permits were thus necessary. The court, however, determined that the EPA’s approval of the TMDL did not mean that EPA had concluded that stormwater discharges required permits. The court noted that there was nothing in the EPA’s approval of the TMDL indicating that the EPA had done its own fact finding or that EPA had independently determined that stormwater discharges contributed to a violation of state water quality standards. The regulations simply do not require an NPDES permit for stormwater discharges to waters of the United States for which a TMDL has been established. A permit is only required when, after a TMDL is established, the EPA makes a determination that further controls on stormwater are needed.
In the other case, Gulf Restoration Network v. Jackson, No. 12-677 Section: “A” (3), 2016 U.S. Dist. LEXIS 173459 (E.D. La. Dec. 15, 2016), numerous environmental groups sued the EPA to force them to impose limits on fertilizer runoff from farm fields. The groups claimed that many states hadn’t done enough to control nitrogen and phosphorous pollution from agricultural runoff, and that the EPA was required to mandate federal limits under the Administrative Procedure Act – in particular, 5 U.S.C. §553(e) via §303(c)(4) of the CWA. Initially, the groups told the EPA that they would sue if the EPA did not write the rules setting the limits as requested. The EPA essentially ignored the groups’ petition by declining to make a “necessity determination. The groups sued and the trial court determined that the EPA had to make the determination based on a 2007 U.S. Supreme Court decision involving the Clean Air Act (CAA). That decision was reversed on appeal on the basis that the EPA has discretion under §303(c)(4)(B) of the CWA to decide not to make a necessity determination as long as the EPA gave a “reasonable explanation” based on the statute why it chose not to make any determination. The appellate court noted that the CWA differed from the CAA on this point. On remand, the trial court noted upheld the EPA’s decision not to make a necessity determination. The court noted that the CWA gives the EPA “great discretion” when it comes to regulating nutrients, and that the Congressional policy was to leave regulation of diffused surface runoff up to the states. The court gave deference to the EPA’s “comprehensive strategy of bringing the states along without the use of federal rule making…”.
Conclusion
Both of the recent cases reemphasize that the CWA leaves the regulation of nonpoint source pollution up to the states. The cases also point out that the EPA is owed substantial deference under the CWA when it decides not to regulate water quality issues in situations where it is clear that the Congress has left the regulation up to the states under a scheme of cooperative federalism.
Environmental groups have pushed for many years for the direct federal regulation of nutrient pollutants found in farm field runoff. They have also pushed for federal regulation of field tile drainage systems even though such systems are exempt from CWA regulation via the exemption for return flows from irrigated water, and even though the EPA has repeatedly said that it has no interest in regulating farm field tile drainage. These two recent opinions bolster the point that diffused surface runoff is not subject to federal regulation, and that EPA can’t be forced to give the environmental groups what they want, when what they want is contrary to the statute and Congressional intent. The cases also illustrate that sometimes the EPA refuses to enter into a settlement agreement with special interest groups that have sued them in order to get federal rules created outside of the normal process of rulemaking that are beyond public review and comment.
Both of these points also have implications for the ongoing Des Moines Water Works litigation against Iowa farmers.
To all of the readers, a very Merry Christmas!