Little Waters: The Relationship Between Water Pollution and Agricultural Drainage

John H. Davidson

Editors' Summary: Drainage from farmland is a major source of water pollution in the United States, but is largely unregulated under the Federal Water Pollution Control Act. In this article, Professor Davidson analyzes why this is an improper reading by the Environmental Protection Agency of the 1977 amendments to the FWPCA, and why new provisions in the 1987 legislation codifying the exclusion are bad policy and destined to create confusion. As this article goes to press, the 1987 amendments to the FWPCA have passed both houses of Congress, but presidential action is uncertain.

Mr. Davidson is a Professor of Law at the University of South Dakota School of Law.

[17 ELR 10074]

Beneath hundreds of millions of acres of America's farmlands lie complex agricultural drainage systems which gather water and speed it toward streams and rivers. These "little waters"¹ add materially to the nation's water pollution.

When, in 1972, Congress enacted legislation to regulate water pollution, it focused on pollution generated by industrial plants and municipal sewers.² The now familiar statutory dichotomy is between "point sources" and "nonpoint sources." "Point sources" are described in the statute as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating facility, from which pollutants are or may be discharged."³ Pollution discharged from a point source is prohibited unless the polluter first obtains a national pollutant discharge elimination system (NPDES) permit, which in turn is conditioned upon compliance with industry-wide effluent limitations. "Nonpoint sources," on the other hand, which are all other pollution sources, are addressed only in planning provisions. Generally, the effect has been that a source of pollution which evades legal definition as a point source also evades effective regulation and control.

Under the 1972 amendments to the Federal Water Pollution Control Act (FWPCA), the Environmental Protection Agency (EPA) has treated waters from agricultural field drainage systems as nonpoint sources and not subjected to the regulatory permit program. This article analyzes why, except for irrigation return flows, agricultural drainage can qualify as a legal point source under the amended 1972 FWPCA, and argues that there are strong policy reasons not to codify the EPA position as proposed in the pending 1987 amendments.

Background on Agricultural Drainage

There are at least four incentives for draining agricultural land. First, some soils, either due to their structure or their topography, are waterlogged during a portion of the growing season. This interferes with the flow of oxygen to plant roots, compresses soil, and hinders crop growth.⁴ Second, drainage may lengthen the crop growing season on a particular farm. When fields are slow to lose the moisture that builds up after the spring thaw or heavy rains, the farmer must delay planting, weed control, harvesting, and other vital field work. If the land is seeded to pasture, there are delays in turning livestock in.⁵ Third, drainage allows farmers to bring into production land which nature has [17 ELR 10075] otherwise claimed as swamp, wetland, slough, or marsh.⁶ Despite the loss to water conservation and wildlife habitat the opportunity to "make land" is an inviting prospect for the landowner. Fourth, drainage is a device which allows farmers to improve the productivity of land already in production. For example, land that is naturally wet, and has supported only grass may, after drainage, be brought into row-crop production.⁷

In addition, agricultural drainage pipe systems are essential to most organized irrigation projects. Land under irrigation is exposed to the risk of waterlogging with resultant leaching of chemical salts into the plant root zone. By placing drainage pipes beneath the root zone, the risk of salinity is reduced. Thus, irrigation usually means providing for irrigation return flows.

A rapid expansion of agricultural drainage is presently under way in the United States.⁸ Excess water continues to be a "major problem" on an estimated 25 percent of the total cropland.⁹ Moreover, as more of America's productive farmland accumulates in the hands of larger operating entities, "bottom-line" demands for profit might further the expansion of agricultural land drainage.¹⁰

Typical drainage resembles a municipal sewer collector system. A large number of small pipes carry flows to larger conduits where the waters are gathered for disposal. The waters are collected on the surface and the subsurface of the land. Surface water passes rather quickly over the soil without infiltrating it. As it does so it picks up suspended and soluble material. Subsurface water moves slowly through the soil, and in so doing leaches chemicals from it.¹¹ Typical agricultural field drainage is accomplished by a combination of field shaping and leveling, as well as surface and subsurface drains.¹² Surface ditches and pipe drains, in combination with open channels, are the most frequent methods used.¹³ Because drainage rarely honors surveyor's lines, it is customary for neighboring landowners to cooperate in developing drainage, and large municipal drainage districts are commonplace.

Water from farm fields is the primary carrier of pollutants from farmland and also increases soil erosion.¹⁴ All natural waters and soils contain chemical salts, which drainage water will collect and concentrate. Drainage water will always gather sediment as well. One effect of most drainage systems is to accelerate the flow of water during spring thaw or immediately following rainfall. Waters that would naturally be retained in fields, or flow quite slowly toward watercourses, are gathered rapidly and cast into watercourses. As flows accumulate in open channels the soil is scoured and sediment loads increased. Though by some accounts sediment is the major nonpoint (unregulated) pollutant of American waters,¹⁵ and an estimated three billion metric tons or more of soil are washed annually from fields and pastures,¹⁶ in the long haul the presence of fertilizers, agricultural chemicals, and trace materials attached to the sediment probably make agricultural drainage an even more serious source of water pollution.

Agricultural Drainage Under the Federal Water Pollution Control Act

In the last several years there has been an increasing realization that nonpoint sources convey a major share of the pollutants which reach our watercourses.¹⁷ Since 1972 EPA has operated on an assumption that developed agricultural drainage systems are nonpoint sources. A review of the FWPCA and its interpretation in the courts suggests that the opposite conclusion is the better legal position.

Nonpoint sources are not required to obtain an NPDES permit prior to allowing pollutants to enter watercourses, nor are they required to comply with industry-wide effluent limitations. Instead, nonpoint sources are addressed by FWPCA "Section 208" planning, which has received a fairly low priority from all involved. Each state governor is required to designate areas in his or her state with "substantial water quality control problems,"¹⁸ and select an areawide planning agency for each designated area. Each agency must develop a pollution control plan (known as a "management strategy") which identifies pollution control techniques and the legal tools, such as zoning, through which the comprehensive management scheme will be carried out. The federal government must approve the plan.

There are numerous problems with this approach. Although the EPA regulations seem to encourage a regulatory response by the states¹⁹ and develop the concept of Best Management Practices as a substantive concept to guide planners,²⁰ there has been little movement in that direction. In fact the great majority of plans call not for regulatory control programs but rather for the expansion of voluntary programs of the type long associated with the federal cost-sharing efforts of the Soil Conservation Service.²¹ Efforts to cure a serious water pollution problem are better addressed under the now-proven NPDES permit system.²²

[17 ELR 10076]

FWPCA § 304(f) refers to nonpoint sources as including "agricultural and silvicultural activities, including runoff from fields and crops and forest lands."²³ "Runoff" does not include all agricultural drainage. Most agricultural drainage is the result of carefully engineered collection systems. The legal and factual question seems to be at what point "runoff from fields" is so collected as the result of careful engineering, that it enters watercourses through point sources.

Courts have clearly recognized that the definition of point source "does not include unchanneled and uncollected surface waters."²⁴ But, the issue changes sharply when systems are engineered to cause water to be gathered, guided, or controlled. As one commentary recently concluded, a "man-induced gathering mechanism plainly is the essential characteristic of a point source."²⁵

The leading judicial decision is United States v. Earth Sciences, Inc.,²⁶ a suit brought by EPA to require that a polluter acquire an NPDES permit and comply with effluent limitations.²⁷ Earth Sciences operated a gold leaching facility on the Rito Seco Creek in Colorado. The process involved spraying cyanide over a gold ore heap, resulting in a separation of the gold from the ore. The leachate solution was then collected and gold removed from it. The ore heap sat upon a plastic barrier covering nearly four acres and was sloped so that the leachate flowed to a sump. After gold removal, the cyanide liquid was again sprayed upon the heap. Extra or runoff leachate flowed into a reserve sump. Fast snow-melt due to an unusually warm spring caused flows to exceed the capacity of the reserve sump. As a result, cyanide flowed into Rito Seco Creek.

EPA initiated enforcement, identifying as a point source an open ditch between the reserve sump and the Rito Seco Creek. EPA sought in its order to compel Earth Sciences to submit a plan to assure that further discharges would not occur. Though the district court ruled in an unreported decision that the FWPCA exempted all mining activities from point source regulation, the Tenth Circuit Court of Appeals held that although flows from mining activities may be from nonpoint sources, it is possible for pollutants to be conveyed through a point source and thus subject to regulation. The court found Earth Sciences' arrangement to be such a point source.

The court found support for its view in legislative history, which it felt shows that Congress "was classifying nonpoint source pollution as disparate runoff caused primarily by rainfall around activities that employ or cause pollutants."²⁸ Also the FWPCA

was designed to regulate to the fullest extent possible those sources emitting pollution into rivers, streams and lakes. The touchstone of the regulatory scheme is that those needing to use the waters for waste distribution must seek and obtain a permit to discharge that waste with the quantity and quality of the discharge regulated. The concept of a point source was designed to further this scheme by embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the United States. It is clear from the legislative history Congress would have regulated so-called nonpoint sources if a workable method could have been derived; it instructed the EPA to study the problem and come up with a solution.²⁹

Most importantly, the court concluded, "We believe it contravenes the intent of FWPCA and the structure of the statute to exempt from regulation any activity that emits pollution from an identifiable source."³⁰ The important factual finding was that the sump was designed to and did serve as a collection or drainage system for excess flows.³¹

Shortly after the Tenth Circuit ruled in Earth Sciences, the Fifth Circuit decided Sierra Club v. Abston Construction Co., Inc.,³² a citizens suit brought against a coal mine operation. At issue was a strip mine in which the overburden was removed from the coal seam and pushed aside into highly erodible "spoil piles." Rainwater runoff and water draining from within the mined pit carried the material to adjacent streams, causing siltation and acid deposits. The miners occasionally constructed sediment basins in order to catch this runoff before it reached the creek, but these overflowed. Though the district court held in an unreported decision that the mining operation was not a [17 ELR 10077] point source, the Fifth Circuit Court of Appeals reversed, finding that the pollution originated from a point source.

In its opinion the court first concluded that mining operations were not exempted from the Act altogether. Instead, it recognized that some mining operators were nonpoint sources while others were point sources. In this case, they were point sources.

[S]urface runoff collected or channeled by the operator constitutes a point source discharge. Simple erosion over the material surface, resulting in the discharge of water and other materials into navigable waters, does not constitute a point source discharge, absent some effort to change the surface, to direct the waterflow or otherwise impede its progress. …

Gravity flow, resulting in a discharge into a navigable body of water, may be part of a point source discharge if the miner at least initially collected or channeled the water and other materials…. The ultimate question is whether pollutants were discharged from "discernible, confined, and discrete conveyance(s)" either by gravitational or nongravitational means. Nothing in the Act relieves miners from liability simply because the operators did not actually construct those conveyances, so long as they are reasonably likely to be the means by which pollutants are ultimately deposited into a navigable body of water. Conveyances of pollution formed either as a result of natural erosion or by material means, and which constitute a component of a mine drainage system, may fit the statutory definition and thereby subject the operators to liability under the Act.³³

The court specifically concluded that the point source definition excludes unchanneled and uncollected surface waters,³⁴ but that surface runoff from rainfall, when collected or channeled by coal miners in connection with mining activities constitutes point source pollution.³⁵

A roughly contemporaneous decision to address the issue was United States v. Oxford Royal Mushroom Products, Inc.,³⁶ a criminal prosecution for discharge of a pollutant. The defendant had a spray irrigation system, designed to spray waste water onto fields in quantities small enough to be absorbed. It was not intended that the waste water run into surface water. The defendants sprayed excess amounts of waste water onto the fields, which in turn ran off into a nearby stream through a break in the berm around the fields. The court held that the discharges are point sources, noting "uncollected surface runoff may, but does not necessarily, constitute discharge from a point source."³⁷ The Oxford court found that whether a source is a point source is a factual question and observed that even where water is uncollected the pollution may be from a point source.

A closely related case is O'Leary v. Moyer's Landfill, Inc.,³⁸ involving a 55-acre landfill about 300 to 1,300 feet from a navigable stream. As originally designed, leachate from the dump was to be collected at an interceptor trench, then reconveyed by pumping to a storage tank located at the top of the dump. The leachate was to be allowed to again flow through the dump as a device for reducing its strength and its volume. Liquids regularly escaped this recirculation system, overflowing the surface or seeping through the ground to the creek. The court held that the leachate is a point source, observing, "Notwithstanding that it may result from such natural phenomena as rainfall and gravity, the surface run-off of contaminated waters, once channeled or collected, constitutes discharge by a point source."³⁹

In the most recent case on point, Quivira Mining Company v. United States Environmental Protection Agency,⁴⁰ several companies deposited pollutants into gullies. Although the gullies led ultimately to navigable watercourses, the flows of polluted discharges were insufficient to carry them that far. Instead the flows seeped into the ground where they traveled to navigable streams by way of underground aquifers. The court upheld EPA's determination that the pollution was from a point source.⁴¹

These decisions support a position that runoff from agricultural fields is discharged from a point source when there is an identifiable conveyance employed to gather the water in order to guide and control its flow. In Abston, rainfall and other surface water flowing toward a stream came within the point source definition when the flow was altered in order to direct the flow. In Earth Sciences surface flows became point sources when they were collected in a sump pit designed to facilitate the removal of excess flows. The court in Oxford Royal found that when waste water was sprayed onto a field but then ran into a stream, it was a point source. Congress designed the statute so that "point source" was broadly defined. Pollutants controlled in discrete pipe systems are point sources notwithstanding the fact that they might, in associated circumstances, be nonpoint.

The Earth Sciences line of cases is not contradicted by the "dam cases," two of which reject claims that a discrete source is a point source. Both decisions involve large mainstem hydroelectric dams. The basic factual allegation in each case was that dams contribute to river pollution by lowering the levels of dissolved oxygen in the water and creating increased amounts of various minerals in the water, such as iron, manganese, phosphorous, and mercury. In National Wildlife Federation v. Gorsuch⁴² EPA took the position that the dam was serving merely to pass pollutants, which were already in the water, on down the river. As stated in the opinion:

EPA responds that addition from a point source occurs only if the point source itself physically introduces a pollutant into water from the outside world. In its view, the point or nonpoint character of pollution is established when the pollutant first enters navigable water, and does not change when the polluted water later passes through the dam from one body of navigable water (the reservoir) to another (the downstream river.)⁴³

The District of Columbia Circuit Court upheld the EPA's position that a dam is a nonpoint source, that EPA's interpretation of the statute was reasonable and not inconsistent [17 ELR 10078] with congressional intent, and therefore was entitled to great deference. The court also determined that EPA's position was not inconsistent with the policy of the FWPCA.

On the other hand, dam-caused pollution is unique because its severity depends partly on whether other sources have polluted the upstream river. The NPDES program however, requires EPA to issue nationally uniform standards, and thus would not allow the agency to take full account of the interrelationship between dam-caused pollution and other pollution sources. Moreover, dams are a major component of state water management, providing irrigation, drinking water, flood protection, etc. In light of these complexities, which the NPDES program was not designed to handle, it may well be that state areawide water quality plans are the better regulatory tool.⁴⁴

This opinion was followed by the Sixth Circuit in United States ex rel. Tennessee Valley Authority v. Tennessee Water Quality Board.⁴⁵

There are several key differences between the dam cases and the case of developed agricultural drainage. First, drainage, of course, does not merely pass along water that is already flowing in a watercourse. It does in fact physically introduce pollutants with water from the outside world, as EPA in National Wildlife Federation insisted a point source must. Second, the text of the statute was silent as to dams; as the court noted, Congress just had not thought of the problem.⁴⁶ This is not so with developed agricultural drainage. Third, the great regulatory complexities that so worried the court in National Wildlife Federation⁴⁷ are not present to the same degree with drainage because the solution, in the form of sound soil conservation practices, is well understood.⁴⁸

The Exemption for Irrigation Return Flows

Although the general rule is that organized agricultural drainage constitutes a "point source," the 1977 amendments to the FWPCA do provide an exception for irrigation return flows. Water to be used in irrigation is typically collected behind a dam or other diversion work from which it is transported by open ditch to the irrigation project to be served. From there it is diverted to smaller canals which carry the water to the high side of fields where it is introduced to individual crop rows. By force of gravity the water moves down the row to the low end of the field where it is picked up in other delivery canals, mixed with other waters, and used again on other fields. Water that survives this process of use and reuse is returned to a watercourse in the form of "irrigation return flows."⁴⁹

When the 1972 FWPCA was enacted, irrigation return flows were understood to be point sources and subject to the NPDES requirement.⁵⁰ In 1977 Congress specifically exempted irrigation return flows from the Act's definition of "point source" by adding the words: "This term does not include return flows from irrigated agriculture."⁵¹ Thus, the best reading of the current FWPCA (without any 1987 amendments) is that except for irrigation return flows, organized agricultural drainage constitutes a point source.

The Senate Committee report accompanying this exemption added to the definition of "point source" suggests that the drafters intended all agricultural drainage excluded from regulation as point sources and covered instead only by the planning process of FWPCA § 208.

Testimony in field hearings suggested that effluent limits based on technological methods may not be appropriate for control of return flow pollutants and the committee determined that these sources were practically indistinguishable from any other agricultural runoff, which may or may not involve a similar discrete point of entry into a watercourse. All such sources, regardless of the manner in which the flow was applied to the agricultural lands, and regardless of the discrete nature of the entry point, are more appropriately treated under the requirements of section 208(b)(2)(F).⁵²

Nonetheless, because this amendment to the definition of "point source" is clear on its face, applying only to irrigated return flows, the better view remains that generally organized agricultural drainage systems are point sources.

Recent Legislation

Recently Congress comprehensively amended the FWPCA, but this legislation was vetoed by the President on November 6, 1986. Congress in January 1987 again passed identical legislation, which as of this writing awaits presidential action. The legislation would amend the definition of point source to specifically exclude "agricultural stormwater discharges," just as irrigation return flows had been exempted in 1977. The amended provisions of the Act would provide (changed language in italics):

§ 502(14)⁵³

The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operations, or vessel or other floating craft from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

§ 402(l)⁵⁴

(1) AGRICULTURAL RETURN FLOWS. — The Administrator shall not require a permit under this section for discharges composed entirely of return flows from irrigated agriculture, nor shall the Administrator directly or indirectly, require any State to require such a permit.

(2) STORMWATER RUNOFF FROM OIL, GAS, AND [17 ELR 10079] MINING OPERATIONS. — The Administrator shall not require a permit under this section, nor shall the Administrator directly or indirectly require any State to require a permit, for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, by-product, or waste products located on the site of such operations.

The revisions of Section 402(e)(2) are clearly aimed at reversing, in part at least, the holdings in Abston and Earth Sciences. The amendment to Section 502(14), exempting "agricultural stormwater discharges" from the definition of a point source is less clear in its intent. The word "agricultural" is clear enough, but the words "stormwater" and "discharges" demand some interpretation. Since a "storm" most likely refers to rain or snow, does this exemption apply only to the flows which occur just following? Does it refer to the flow of excess water (water that soil cannot absorb or otherwise hold) that flows toward watercourses just after a heavy rain? If so, its definition may be close to the familiar "diffused surface water" of common law drainage doctrine.⁵⁵

"Agricultural stormwater discharges" applied to developed agricultural drainage systems creates further problems of interpretation. A good portion of the water which drainage systems deliver to watercourses is not water which would flow there as the result of a rain storm, but would instead be absorbed and held by the land, or, alternatively, would flow gradually to the watercourse over a period of days, months or years. Farmers build drainage systems largely in order to accelerate the flow of those waters which want to remain in the soils or on the land in sloughs and lakes. Thus, the proposed exemption for agricultural drainage may have only partial application, particularly if the exemption is construed narrowly under standard rules of interpretation.

The proposed amendments would also add the words "Agricultural Return Flows" as a subtitle to § 402(e)(1) although that subsection refers only to "discharges composed entirely of return flows from irrigated agriculture." No reason is given for the addition of this conflicting language to the statute. Clearly, "irrigation return flows" is a specific phrase which has never been used to encompass all forms of agricultural drainage. The amendment creates confusion, at best.

If Congress intended that no "agricultural return flows" of any type or condition should be regulated, it would presumably have said so explicitly in these amendments. While creating lots of space for confusion it has not been explicit. Perhaps this is one of those instances where drafters of the bill could not agree and therefore used unclear language, leaving the answers to be found by the courts and EPA. It may also be that although Congress is well aware that enormous amounts of pollution are delivered by drainage systems, it lacks the political will to subject farmers to direct regulation.

Policy Argument In Favor Of Treating Developed Agricultural Drainage Systems As Point Sources

The policy objections to bringing agricultural drainage systems under the point source permit and effluent limitations (ELs) requirements of the Act may be readily anticipated. They were raised by EPA in Natural Resources Defense Council, Inc. v. Costle.⁵⁶ In that case EPA had attempted to exempt from the permit process all silvicultural point sources, confined animal feeding operations below a certain size, irrigation return flows from areas below a certain size, and non-feedlot, non-irrigation agricultural point sources (including developed agricultural drainage).⁵⁷ The primary argument offered by EPA in support of its position was administrative infeasibility.

The first aspect of EPA's argument was that a system of national ELs was intended by Congress to precede and be incorporated into individual permits of dischargers. This being the case, implementation as to agricultural sources (smaller animal feedlots in that case) is not possible "with the type of point sources involved in the … regulations, which essentially involve the discharge of runoff — i.e., wastewaters generated by rainfall that drain over terrain into navigable waters, picking up pollutants along the way."⁵⁸ EPA's argument that runoff pollution was not amenable to ELs was quoted by the court.

The major characteristic of the pollution problem which is generated by runoff … is that the owner of the discharge point … has no control over the quantity of the flow or the nature and amounts of the pollutants picked up by the runoff. The amount of flow obviously is unpredictable because it results from the duration and intensity of the rainfall event, the topography, the type of ground cover and saturation point of the land due to any previous rainfall. Similar factors affect the types of pollutants which will be picked up by that runoff, including the type of farming practices employed, the rate and type of pesticide and fertilizer application, and the conservation practices employed….

An effluent limitation must be a precise number in order for it to be an effective regulatory tool; both the discharger and the regulatory agency need to have an identifiable standard upon which to determine whether the facility is in compliance. That was the principle of the passage of the 1972 Amendments.⁵⁹

As the court then correctly observed, the legal issue at the core of this argument is whether uniform ELs must issue prior to a permit. If so, ELs would in this case be difficult to draft, and EPA should not therefore have to require NPDES permits.⁶⁰ However, the court found ELs need not precede permits. The primary purpose of ELs, according to the court, "was to provide uniformity among the federal and state jurisdictions enforcing the NPDES program…. The effluent limitations were intended to create floors that had to be respected by state permit programs."⁶¹ Permits can issue before ELs, and permits issued subsequent to promulgation of uniform ELs could be [17 ELR 10080] modified to take account of special characteristics of point sources.⁶² Every type of point source need not be subject to precise ELs. Where technological or administrative constraints exist to deter the development of effective ELs, permits will still be required. As the experience and knowledge of the agency develop, national ELs can develop also. Thus, while permit programs may be adjusted to reflect technological or administrative difficulties, they may not be discarded.

The second aspect of EPA's argument in Natural Resources Defense Council v. Costle was that "the special characteristics of point sources of runoff pollution make it infeasible to develop restrictions on a case-by-case basis."⁶³ In other words, even without ELs a permit must contain a limitation in terms of a numerical effluent limitation. The court also rejected this, concluding that § 402⁶⁴ gives EPA considerable flexibility in framing the permit to achieve a desired reduction in pollution discharges. The permit may, for example, "proscribe industry practices that aggravate the problem of point source pollution."⁶⁵

We only indicate here that when numerical effluent limitations are infeasible, EPA may issue permits with conditions designed to reduce the level of effluent discharges to acceptable levels. This may well mean opting for a gross reduction in pollutant discharge rather than the fine-tuning suggested by numerical limitations. But this ambitious statute is not hospitable to the concept that the appropriate response to a difficult pollution problem is not to try at all.⁶⁶

The court suggested that one appropriate response would be to require a permittee to monitor and report effluent levels.

The court then approved the use of area or general permit schemes leading to area-wide controls.⁶⁷

There is also a very practical difference between a general permit and an exemption. An exemption tends to become indefinite: the problem drops out of sight, into a pool of inertia, unlikely to be recalled in the absence of crisis or a strong political protagonist. In contrast, the general or area permit approach forces the Agency to focus on the problems of specific regions and requires that the problems of the region be reconsidered at least every five years, the maximum duration of a permit.⁶⁸

Of course, in Natural Resources Defense Council v. Costle the court and EPA were confronted with the issue of runoff from a large number of relatively small animal feedlots. EPA's concern with this category of point sources was that it lacked the experience and knowledge necessary to draft ELs. Applying these considerations to point sources from agricultural land drainage systems, however, would appear to lead to a sharply different result. This is so because the techniques for controlling the flow of pollutants from agricultural land are well understood and have been agreed upon for many years.⁶⁹ Drainage and erosion control engineering is among our most proven and predictable. There is nothing speculative about the nature of the practices that will work. Terracing, grass waterways, contour farming, strip cropping, crop rotation, conversion to grass, correct tillage, construction of drainage structures, and responsible use of chemical soil additives are techniques known in the 1930s and have been regularly improved upon since that time.

Additionally, the existence of cooperative or municipal drainage districts and systems helps to moderate the problem of a large number of applicants associated with individual farm feedlots. A permit need only be required at that point where the drainage system finally empties. Agricultural drainage naturally combines a number of sources into one. One drainage district may combine hundreds of farm operations into one system of outlets. How the system chooses to meet the permit requirements can be flexibly addressed by system managers. This will be in effect, a type of area permit as contemplated by the court in Natural Resources Defense Council v. Costle.⁷⁰

The existence of cooperation or municipal drainage systems also mitigates the effect of the argument that farmers, being "price-takers" in the marketplace are therefore unable to pass on costs when they sell their crops, and should not be subjected to police power regulation. Drainage districts can develop systematic pollution control measures for all land within their jurisdiction and plan to implement those measures according to their corporate financial ability. Adherence to the plan could then be the condition of an NPDES permit. The economic effect on particularly vulnerable members of the district would be lessened by spreading control costs fairly among all members of the district. In addition, such districts qualify for low interest Farmers Home Administration loans.

The approach taken by EPA in United States v. Earth Sciences, Inc.⁷¹ suggests the range of possibilities available. There EPA sought to require defendant's gold leaching facility to obtain a permit as a point source discharger of pollutants. The source was an open ditch running from an overflow pump. EPA asked simply that the permit application be accompanied by a plan to assure avoidance of further discharges. As applied to agricultural drainage systems, this approach might require that all members of a drainage system adopt and be current in the development of an adequate soil conservation plan. These plans are prepared by the U.S. Department of Agriculture's Soil Conservation Service (SCS), and normally incorporate the time-tested engineering practices for soil and water runoff controls. They reflect "state-of-the-art" practices in the context of a realistic time schedule for implementation. The advantage of incorporating the conservation plan with the NPDES permit is that the plan, adherence to which is voluntary in the hands of the SCS, could be made mandatory as part of the permit. As it is, under § 208, pollution control efforts begin after the fact. Farmers dig and drain, knowing that at the worst they may come under some vague § 208 areawide plan. They also know that such plans have always avoided regulation and will no doubt continue to do so. There is absolutely no incentive to plan ditches and drains that will not harm receiving waters. [17 ELR 10081] There is, in effect, an absence of law which results in a freedom to drain limited only by private common law drainage doctrine. At a time when drainage practices are increasing, the hazard to watercourses is serious.

There is also a bureaucratic angle on this issue. If developed agricultural drainage is finally declared to be a point source, EPA (and state agencies) would be charged with enforcement. But since 1972, EPA has been unwavering in its desire to avoid regulating all sorts of agricultural pollution; it does not want those programs and it may be presumed that the agency has found ways to communicate this to the Congress.

On the other hand, if agricultural drainage is finally declared to be a nonpoint source, a fair measure of responsibility would pass to the SCS. This is so because the great majority of areawide plans to date have recommended that implementation be in the hands of local conservation districts, which are ultimately dependent on the SCS. The SCS would presumably like to have this potentially expansive plot of bureaucratic turf. Its traditional programs have not been growing. In fact, the justifications offered for treating drainage as nonpoint sources could have been written by the SCS, since they lead inevitably to a conclusion that such sources should be addressed through the type of program which the SCS has traditionally administered. Also, if these programs go to the SCS as nonpoint sources, state environmental control agencies will have been spared the painful duty of enforcing needed permit requirements on allegedly cantankerous farmers and ranchers. Bringing the SCS in would mean that enforcement of the FWPCA is spread among federal agencies.

The pending 1987 FWPCA amendments suggest Congress will soon declare the status of developed agricultural drainage systems. Taking its cue from EPA or the SCS, the 1987 amendments lean toward at least partial exemption of this enormous source of pollutants. Such an exemption is bad pollution control policy and inconsistent with prior use of the point source category. Not only does agricultural drainage use a pipe system to convey its load of pollutants, but the practices which can control that pollution are well understood and practical in application. All that is lacking is the political will to regulate farmers just as most other polluters are regulated.

Those who are in a position to influence the language of the FWPCA in the Congress and Executive Branch are urged to reconsider the manner in which developed agricultural drainage is regulated. To allow this major category of pollution to fall into the nonpoint source category is to forego a unique opportunity for progress in water pollution control.

1. For the title, the author acknowledges H.S. PERSON, LITTLE WATERS: A STUDY OF HEADWATER STREAMS AND OTHER LITTLE WATERS, THEIR USE AND RELATIONS TO THE LAND (1935). This small volume was published by the Soil Conservation Service, Resettlement Administration and Rural Electrification Administration, and provided impetus for the New Deal program in erosion control and watershed development. It remains an eloquent statement of the need for management and preservation of our soil and water resources.

2. Zener, The Federal Law of Water Pollution Control, in FEDERAL ENVIRONMENTAL LAW 766 (Environmental Law Institute 1974); Beck & Goplerud, Water Pollution and Water Quality Legal Controls, in 3 WATERS AND WATER RIGHTS 133 (R. Clark 2d ed. 1985) [hereinafter Beck & Goplerud].

3. 33 U.S.C. § 1362(14).

4. FIELD DRAINAGE: PRINCIPLES AND PRACTICE 21 (D. Castle, J. McCunnell and I. Tring eds. 1985); DRAINAGE FOR AGRICULTURE 7 (J. Van Schilfgarde ed. 1974). See also L. SMEDEMA & D. RYCROFT, LAND DRAINAGE: PLANNING AND DESIGN OF AGRICULTURAL DRAINAGE SYSTEMS 39 (1984).

5. DRAINAGE FOR AGRICULTURE, supra note 4, at 55.

6. Id. at 20. See also G. SCHWAB, R. FREVERT, T. EDMINSTER & K. BARNES, SOIL AND WATER CONSERVATION ENGINEERING 1 (3d ed. 1981) [hereinafter G. SCHWAB].

7. FIELD DRAINAGE: PRINCIPLES AND PRACTICE, supra note 4, at 20.

8. Luoma, Twilight in Pothole Country, AUDUBON, Sept. 1985, at 75.

9. G. SCHWAB, supra note 6, at 5.

10. The potential for problems is worldwide, as so many countries are feeling pressure to bring new land into production in order to achieve domestic food requirements. DRAINAGE FOR AGRICULTURE, supra note 4, at XV.

11. Id. at 490.

12. Id. at 93.

13. G. SCHWAB, supra note 6, at 8.

14. Keene, Managing Agricultural Pollution, 11 ECOLOGY L.Q. 135, 137 (1983); G. SCHWAB, supra note 6, at 387.

15. R. BEASLEY, J. GREGORY & T. McCARTY, EROSION AND SEDIMENT POLLUTION CONTROL 3 (2d ed. 1984) [hereinafter R. BEASLEY]. In six of the ten EPA regions, pollution from such nonpoint sources as farms is the principal cause of water quality problems. RESOURCES FOR THE FUTURE, RESOURCES, Winter 1984, at 24.

16. G. SCHWAB, supra note 6, at 3. Others suggest a figure of four billion tons. R. BEASLEY, supra note 15, at 12.

17. RESOURCES FOR THE FUTURE, supra note 15, at 24; S. GOLDMAN, K. JACKSON & T. BURSZTYNSKY, EROSION AND SEDIMENT CONTROL HANDBOOK (1986).

18. FWPCA § 208, 33 U.S.C. § 1288, ELR STAT. 42122:2.

19. 40 C.F.R. § 35.1521-4(c)(2) (1986).

20. 40 C.F.R. § 35.1521-4(c)(1) (1986); see Beck & Goplerud, supra note 2, at 200-01.

21. Beck & Goplerud, supra note 2, at 202-03. A detailed review of some 136 plans is in Beck, Agricultural Water Pollution Control Law, in 2 AGRICULTURAL LAW 222 (J. Davidson ed., Supp. 1986).

22. A more complete critique of § 208 planning is at F. ANDERSON, D. MANDELKER & A. TARLOCK, ENVIRONMENTAL PROTECTION: LAW AND POLICY 362-64 (1984). Cf. Comment, Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law, 15 ELR 10386 (1985).

23. 22 U.S.C. § 1314(f)(A), ELR STAT. 42128.

24. Appalachian Power Co. v. Train, 545 F.2d 1351, 1373, 6 ELR 20732 (digest) (4th Cir. 1976).

25. Beck & Goplerud, supra note 2, at 89. In W. RODGERS, ENVIRONMENTAL LAW 376 (1981), the author mentions, as part of a discussion of point sources: "sedimentation, pesticide residues and other pollutants from a farm may be collected in a ditch connected to a waterway." (emphasis added). In Zener, supra note 1, at 766-67, writing shortly after enactment of the FWPCA, the author accurately foresaw the issues raised here:

In § 208 of the Act, an attempt is made to deal withvarious forms of non-point source pollution. Among the non-point sources covered by § 208 are "agriculturally … related non-point sources of pollution, including runoff from manure disposal areas, and from land used for livestock and crop production," and "construction activity related sources of pollution." These are areas, however, in which some of the sources of pollution may fall within the statutory definition of "point source." For example, what if the run-off of silt from a farm, carrying with it pesticides and fertilizers, is collected in a ditch before leaving the farm, or after leaving the farm, with the ditch then discharging into the navigable waters? Literally, a ditch carrying silt and associated pollutants from a farm falls within the definition of point source; and yet it hardly seems rational to conclude that the regulatory system applicable to agricultural run-off depends on the more or less fortuitous circumstances of whether or where the run-off is collected into a ditch before reaching navigable waters.

Similar problems can occur in an urban setting. Run-off from industrial sites, or from large parking lots, will frequently be collected in a drain from which the run-off ultimately flows to navigable waters. Literally, the drain would constitute a "point source" under the statutory definition. Similarly, storm sewers collect run-off of silt, oil, and other pollutants from the streets, from which they are discharged into the navigable waters; and storm sewers are clearly "pipes" which fall within the statutory definition of "point source."

It seems probable that some of these "point sources" of run-off pollution can usefully be subject to the standard-setting and permit provisions of the Act, while for others different regulatory solutions must be found. However, the statutory definition of "point source" is so broad that the EPA may be forced to establish standards and issue permits for every pipe or ditch through which run-off is discharged into the navigable waters, even where the monitoring, measurement, and control techniques necessary to make this system of regulation work may not exist.

26. 599 F.2d 368, 9 ELR 20542 (10th Cir. 1979).

27. Enforcement was pursuant to FWPCA § 309(a)(3), 33 U.S.C. § 1319(a)(3), ELR STAT. 42130; violation of FWPCA § 301, 33 U.S.C. § 1311, ELR STAT. 42123, was asserted.

28. 599 F.2d at 373, 9 ELR at 20543.

29. 599 F.2d at 373, 9 ELR at 20544.

30. Id.

31. Beck & Goplerud, supra note 2, at 89.

32. 620 F.2d 41, 10 ELR 20552 (5th Cir. 1980).

33. 620 F.2d at 44-45, 10 ELR at 20553 (emphasis added).

34. 620 F.2d at 47, 10 ELR at 20555.

35. Id.

36. 487 F. Supp. 852, 10 ELR 20549 (E.D. Pa. 1980).

37. 487 F. Supp. at 854, 10 ELR at 20549.

38. 523 F. Supp. 642 (E.D. Pa. 1981).

39. Id. at 655.

40. 765 F.2d 126, 15 ELR 20530 (10th Cir. 1985), cert. denied, 106 S. Ct. 791 (1986).

41. Fishel v. Westinghouse Elec. Corp., 640 F. Supp. 442, 16 ELR 20634 (M.D. Pa. 1986) held a hazardous waste site to be a point source where it contained a lagoon from which there were discharges of unchanneled and uncollected surface water into a stream.

42. 693 F.2d 156, 13 ELR 20015 (D.C. Cir. 1982).

43. 693 F.2d at 175, 13 ELR 20023-24 (emphasis added).

44. 693 F.2d at 182, 13 ELR at 20028.

45. 717 F.2d 992, 14 ELR 20598 (6th Cir. 1983), cert. denied, 466 U.S. 937 (1984).

46. 693 F.2d at 166, 13 ELR at 20018.

47. 693 F.2d at 182, 13 ELR at 20028.

48. Beck & Goplerud, supra note 2, at 92, offer the following comment:

The decision in National Wildlife Federation can be viewed in contrast to the goals of the act to stem the tide of pollution discharge. It seems that in interpreting the act courts should err on the side of inclusion within the coverage of the act activities in question. It is apparent then, despite National Wildlife Federation, that once a source of pollutants is identifiable in the broadest sense of the word, the subsequent discharge of pollutants into navigable waters by that source is subject to regulation under Section 402.

49. Hertz, Federal Law, Irrigation and Water Pollution, 22 S.D.L. REV. 553, 556-572 (1977).

50. Id. at 570-72.

51. Clean Water Act of 1977, Pub. L. No. 95-217, § 33(b), 91 Stat. 1577 (1977), amending FWPCA § 502, 33 U.S.C. § 1362, ELR STAT. 42146.

52. S. REP. NO. 370, 95th Cong., 1st Sess. 35 (1977).

53. H.R. 1, 100th Cong., 1st Sess. § 503, 133 CONG. REC. H211 (daily ed. Jan. 8, 1987), amending FWPCA § 502(14), 33 U.S.C. § 1362(14), ELR STAT. 42146.

54. H.R. 1, 100th Cong., 1st Sess. § 401, 133 CONG. REC. H209 (daily ed. Jan. 8, 1987), amending FWPCA § 402(l), 33 U.S.C. § 1342(l), ELR STAT. 42142.

55. Shaffer, Surface Water in Indiana, 39 IND. L.J. 69 (1963).

56. 568 F.2d 1369 (D.C. Cir. 1977), 8 ELR 20028.

57. 568 F.2d at 1372, 8 ELR at 20028.

58. 568 F.2d at 1377, 8 ELR at 20032.

59. 568 F.2d at 1377-78, 8 ELR at 20032 (quoting EPA's Memorandum to the Court on the Issue of Impossibility).

60. 568 F.2d at 1378, 8 ELR at 20032.

61. Id.

62. 568 F.2d at 1378-79, 8 ELR at 20032-33.

63. 568 F.2d at 1380, 8 ELR at 20033.

64. 33 U.S.C. § 1342(a), ELR STAT. 42141.

65. 568 F.2d at 1380, 8 ELR at 20033.

66. Id.

67. 568 F.2d at 1381, 8 ELR at 20034-35.

68. 568 F.2d at 1382, 8 ELR at 20034-35.

69. H. BENNETT, ELEMENTS OF SOIL CONSERVATION (1947).

70. In footnote 2 of Judge MacKinnon's concurring opinion, he said, "As an example, an area permit with appropriate conditions and modifications could issue for the agricultural point sources within the Grand River Irrigation District, or the watershed of the Roaring Fork River and tributaries, etc." 568 F.2d at 1383, 8 ELR at 20035.

71. 599 F.2d 368, 9 ELR 20542 (10th Cir. 1979).