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A Brief History of CWA

March 2005

Citation: ELR 10148

Author: Sara Hilbrich

In 1987, the U.S. Congress amended the Clean Water Act (CWA) to establish a national nonpoint source (NPS) program under §319.1 The statute allows states meeting preliminary criteria to receive federal grant money from the U.S. Environmental Protection Agency (EPA) to address NPS pollution. To be eligible for grants, first, each state must identify and report which of its water bodies have not attained or will not maintain state water quality standards, the sources of nonpoint pollution into those waters, and the potential for remedial action. Second, each state must submit to EPA a management program plan that identifies and implements best management practices and other measures to control NPS pollution. Once EPA approves a state's assessment report and management program plan, the state becomes eligible for federal grants to implement the program. Although §319 specifies a 10% cap on administrative spending, it does not otherwise delineate what types of projects or programs may or may not receive funding. Section 319 emphasizes that priority will be given to "effective" activities.

Under §319, a state may receive grant funds only if EPA determines that the state has made satisfactory progress meeting the goals in its management plan during the previous year. To this end, the statute contains some general reporting provisions. EPA may request information, data, and reports as necessary to assess a state's continuing eligibility. And states must report annually both on their progress in meeting milestones, and, as available, information on reductions of NPS pollutant loadings and/or improvements to water quality.0 Additionally, all grants are subject to EPA's general grant requirements under 40 C.F.R. Parts 31 and 35, Subpart A.1

Instead of implementing the §319 program via static regulations, EPA has published a succession of guidance documents and, more recently, rules published as guidelines, since the program's inception. Thus, the Agency has retained the flexibility to adapt to changing circumstances. While the baseline requirements mandated by the statute have remained the same, implementation and grant priorities have changed over time. This Article reviews the evolution of the §319 grants program with particular attention to EPA funding priorities and state accountability and reporting requirements. It should be of value to environmental policy analysts, lawyers, and environmental historians seeking to understand the development of this modern-era federally funded but state-implemented program to deal with the largest remaining threat to U.S. water quality--NPS pollution.

Sara Hilbrich is a third-year student at the Hastings College of Law (J.D. expected 2005). Environmental Law Institute (ELI) Senior Attorney James McElfish contributed to this Article. This research was supported in part by a grant from the Andrew W. Mellon Foundation to ELI.

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