Trends in Regulation of Stormwater and Nonpoint Source Pollution

Brian Weeks

Editors' Summary: Regulation of point source discharges under the Federal Water Pollution Control Act (FWPCA) has resulted in significant improvements in water quality. Further progress, however, will require attention to stormwater and nonpoint source discharges. This Article describes current legal schemes that regulate point source stormwater discharges and encourage control of nonpoint source releases. The author first discusses phases I and II of EPA's program to regulate stormwater under the FWPCA. He then discusses the Agency's watershed protection approach to management of nonpoint sources. Next the author describes incentive-based federal programs for reducing water pollution from agriculture and logging operations. Finally, the author provides a brief review of FWPCA reauthorization proposals considered by the 103d Congress and makes recommendations for future legislative action.

Brian Weeks is an associate in the environmental law department of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. in Roseland, New Jersey. His practice includes environmental regulatory advice and litigation, specializing in water pollution control and site remediation under federal and state law.

[25 ELR 10300]

Most surface water pollution in the United States today results from contamination of stormwater as it comes into contact with materials on the ground. The greatest opportunity for improvement of surface water quality lies in reducing this stormwater contamination. This Article describes the problem of stormwater contamination, and discusses current and proposed governmental efforts to control it. Most regulations that control stormwater contamination, whether or not designated as such, stem from the Federal Water Pollution Control Act (FWPCA)¹ or agricultural subsidy programs.²

Government efforts to control stormwater contamination have taken one of three general approaches: Imposing command-and-control regulations; encouraging the use of pollution prevention practices; or offering or denying financial incentives. In general, the government has imposed centralized controls on industry, while offering financial incentives, such as payments for temporary conservation easements and sewage treatment plant construction, to farmers and local governments.

This year, the U.S. Environmental Protection Agency (EPA) will report to Congress about the sources of stormwater contamination that require additional controls, and Congress will consider agricultural and water pollution control legislation containing measures to reduce this contamination.³ The United States has achieved significant improvements in water quality over the past 20 years. To make further progress, Congress and EPA must now decide whether to tighten effluent controls on industry still further or broaden the regulatory focus to include sources that currently are exempt or only lightly regulated.

Background

Every two years, EPA prepares a national water quality inventory report to Congress (Report) under § 305(b) of the FWPCA.⁴ EPA compiled its 1992 Report, the ninth and most recent, from water quality assessments submitted by 57 states, territories, interstate jurisdictions, and an Indian tribe, describing water quality conditions during 1990 and 1991.⁵ The 1992 Report assesses the quality of a large portion of the surface waters of the United States: 18 percent of its 3.5 million miles of rivers, 46 percent of its 39.9 million acres of lakes and 74 percent of its 37,000 square miles of estuaries.⁶

According to the 1992 Report, about two-thirds of U.S. surface waters are sufficiently clean to meet the "fishable and swimmable" goals established by Congress under FWPCA § 101(a).⁷ One-third of the waters assessed by the states in 1990 and 1991, however, had varying degrees of water quality problems. Another 10 percent, while fully supporting their state-designated uses, are threatened and face the risk of impairment if action is not taken to control pollution.⁸

At least once every three years, each state must review its water quality standards, including the designated uses [25 ELR 10301] of its navigable waters and its water quality criteria.⁹ These water quality standards must provide for "the protection and propagation of fish, shellfish and wildlife" and "recreation in and on the water,"¹⁰ that is, they must provide for "fishable and swimmable waters."¹¹ In connection with biennial reports to EPA, states rate the quality of a body of water based on the degree to which it supports its designated uses.¹²

The states report the pollutants that impair surface water quality and the sources of those pollutants. The pollutants and their sources vary across the country, but certain problems are widespread. The most commonly reported causes of impaired waters include silt, nutrients, pathogens, metals, and organic enrichment. Runoff from agricultural activity is by far the most extensive source of those pollutants; other leading sources are silvicultural (primarily lumbering) activities and runoff from urban areas. Nitrates from municipal sewage treatment plants (publicly operated treatment works or POTWs) are the largest remaining contaminant from point sources.¹³ The public, however, has not yet accepted the fact that modern factories are often less polluting than farms, streets, and parking lots. The FWPCA does not regulate the three largest sources of stormwater pollution and nonpoint source pollution: Agriculture, silviculture and urban runoff from municipalities with populations of less than 100,000.¹⁴

EPA Regulation of Point Sources

Congress has given EPA authority to regulate contaminated runoff that enters the waters of the United States through "point sources,"¹⁵ but not to regulate "nonpoint" sources of water pollution.¹⁶ Because of the point source element of the FWPCA, EPA regulates stormwater through a conceptual millrace that focuses on the water's entry into or passage through a "discrete conveyance."¹⁷ Thus, EPA can regulate runoff from a parking lot into a storm drain, but not from an adjacent parking lot that flows onto a dry sand lot. Unfortunately, stormwater falling on the ground washes away contaminants, whether or not it flows through a discrete conveyance before entering surface waters or groundwater.

Since the FWPCA's enactment EPA has regulated point source discharges by promulgating regulations that, on an industry-by-industry basis, set numerical limits on the concentration of specified contaminants in effluent.¹⁸ EPA and the delegated states¹⁹ issue and enforce national pollution discharge elimination system (NPDES) permits that allow permittees to discharge effluent with pollutant concentrations within these numerical limits.²⁰ EPA bases these limitations on technology that it considers appropriate to each regulated industry; for example "best available demonstrated control technology."²¹ NPDES permit standards may also be set at levels designed to attain or maintain water quality sufficient to support the designated uses of the waters receiving the effluent²² Under the FWPCA, delegated states must enforce effluent and water quality standards that are at least as stringent as those of EPA.²³

Twenty years of such command-and-control effluent controls have drastically reduced surface water pollution from point sources. The 1992 Report reveals, however, that one-third of the assessed surface waters still are not fishable or swimmable. Further improvements in water quality will require identifying those pollutants that affect the designated uses of particular bodies of water, and controlling the sources of those pollutants.

Phase I Stormwater Regulation

In 1987, Congress added § 402(p) to the FWPCA,²⁴ authorizing EPA to regulate stormwater discharges from point sources and establishing a program with two phases to control stormwater discharges. FWPCA 402(p) prohibited EPA and NPDES-delegated states from requiring stormwater discharge permits until October 1, 1994, except for five classes of discharges to be regulated under "phase I" of the stormwater program:

stormwater discharges with permits issued before February 4, 1987; [25 ELR 10302] stormwater discharges associated with certain industrial activities;²⁵

discharges from a municipal separate storm sewer system serving a population of 250,000 or more;²⁶

discharges from a municipal separate storm sewer system serving a population of 100,000 or more but less than 250,000;²⁷ and

stormwater discharges determined by EPA or an NPDES-delegated state to violate a water quality standard or to significantly contribute pollutants to the waters of the United States.²⁸

FWPCA § 402(p) provided for implementation of phase I of the stormwater program by establishing statutory deadlines for development of permit application regulations, submission of permit applications, issuance of permits for phase I sources, and compliance with permit conditions.²⁹

General Requirements

Stormwater discharges associated with phase I industrial activity must meet all applicable provisions of FWPCA §§ 301 and 402³⁰ including technology-based and water quality-based requirements.³¹ Permits for discharges from municipal separate storm sewer systems, which may be issued on a system- or jurisdiction-wide basis, must now include stricter stormwater controls, including controls to effectively prohibit nonstormwater discharges into storm sewers, and reduce pollutant discharges to the maximum extent practicable, using management practices, control techniques, and system design and engineering methods.³²

EPA phase I stormwater regulations apply to 11 general categories of activity that include dozens of very different operations, including manufacturing, mineral extraction, utilities, hazardous waste facilities, landfills, recycling facilities, power generation, transportation, sewage treatment, construction disturbing five or more acres of land, and certain "light" industries.³³ These light industries and construction activities disturbing less than five acres of land are largely exempt from the stormwater regulations.³⁴ The U.S. Court of Appeals for the Ninth Circuit has called the "light industries" exemption into question,³⁵ but EPA has not yet developed the more complete administrative record called for by the court's decision. Nevertheless, EPA will not require permit applications from these exempted categories of industrial and construction activities pending further rulemaking.³⁶

Types of Stormwater Permits

EPA has promulgated three types of NPDES permits for discharges composed entirely of stormwater: Individual, general, and group or "multisector" permits.³⁷ Individual stormwater permits are very similar to standard NPDES permits, setting specific numerical effluent limitations on conventional, nonconventional, and toxic pollutants, and on hazardous substances. An applicant for an individual stormwater permit must meet the requirements for a standard NPDES permit application.³⁸ This discussion focuses on general and multisector permits, which are more recent innovations.

Two distinctive elements are common to the general and multisector stormwater permits: They both use pollution prevention rather than end-of-pipe treatment, and avoid numerical effluent limitations in favor of "best management practices" to prevent the contamination of stormwater runoff. Best management practices are operational methods designed to reduce contact of stormwater with raw materials, machinery and waste, and are best characterized as good housekeeping practices.

General permits. EPA has promulgated, and has authorized NPDES-delegated states to issue, two general permits for stormwater discharges associated with industrial activity:³⁹ One for construction activities disturbing five or more acres of land,⁴⁰ and one for all other nonexempt industrial activities within regulated Standard Industrial Classification (SIC) codes.⁴¹ EPA has issued general stormwater permits in the 12 nondelegated states, and for certain federal facilities and Native American lands.⁴² The 38 NPDES-delegated states have almost all issued their own general stormwater permits.

Rather than applying for its own individual permit for a specific facility, the applicant indicates its intention to seek coverage under the aegis of the appropriate general permit covering the entire state where the facility is located. Applicants generally perform some initial stormwater effluent sampling to develop a baseline contaminant profile, and [25 ELR 10303] develop a site-specific pollution prevention plan. Each facility performs its own follow-up site inspections, and periodically samples and analyzes its own stormwater discharges. General permits allow regulated parties to select their own best management practices.⁴³

Multisector (Group) Permits. In 1990, EPA invited each industry regulated under phase I to apply for a "group" stormwater permit⁴⁴ tailored to its needs. These group permits were to be more "user friendly" than statewide general permits, containing industry-specific best management practices. EPA received over 1,200 group applications, representing over 60,000 facilities. In response, after three years' effort, EPA developed a draft multisector permit covering 29 of the many regulated industrial groups, including certain publicly operated sewers and POTWs.⁴⁵ This multisector permit includes requirements applicable to all 29 groups, as well as conditions and best management practices applicable to each specific industry group. The multisector permit offers a list of alternative best management practices for each industry group. EPA developed the best management practices lists to control the stormwater contamination identified in the baseline sampling data submitted by each industry group during the group application process. Due to the large volume of comments, EPA has not yet published the final multisector permit.

Practically every municipal separate storm sewer system serving a population of 100,000 or more people throughout the United States will be governed by a multisector municipal stormwater permit. Each municipality must develop a pollution prevention plan using best management practices to control contamination from identified sources within the municipality.

Limitations of Phase I

As noted above, phase I regulates stormwater discharges from several broad groups of industrial activity based on their SIC numbers. These SIC numbers, however, were developed for census and economic data collection, and do not necessarily describe the pollution generated by an industry. Many industrial, agricultural, and land use activities that generate at least as much contaminated runoff as the regulated industries remain unregulated. Ironically, several of the largest sources of water pollution have SIC numbers that are not regulated under phase I or are entirely exempt from regulation under the FWPCA (such as agricultural runoff, nitrates from many POTWs, and smaller urban and suburban POTWs).⁴⁶ On the other hand, industrial facilities have consistently demonstrated a higher rate of compliance with NPDES permits than have POTWs.⁴⁷

Phase II Stormwater Regulation

FWPCA § 402(p) required EPA, in consultation with the states, to conduct two studies on phase II stormwater discharges.⁴⁸ The first study, transmitted recently, identifies stormwater discharges not covered under phase I, such as agricultural activities, and addresses the nature and extent of pollutants in those discharges that adversely affect water quality.⁴⁹ The second study is of methods to control these sources of stormwater contamination.⁵⁰ EPA considers President Clinton's clean water initiative, released on February 1, 1994, to constitute this second study.⁵¹

FWPCA § 402(p) does not specify the type of phase II stormwater regulations that EPA must promulgate. Based on the findings of the two phase II studies, EPA was to have issued regulations by October 1, 1993, designating phase II stormwater discharge controls necessary to protect water quality.⁵² EPA, however, failed to meet this deadline and has yet to promulgate the regulations.⁵³ The regulations are to establish a comprehensive program to regulate the discharges identified in the first phase II study, setting priorities and requirements for state stormwater management programs, along with "expeditious" deadlines.⁵⁴ The phase II regulations may include performance standards, guidelines, guidance, best management practices, and treatment requirements. In phase II, EPA presumably will continue to encourage the use of best management practices rather than numerical effluent limitations to control stormwater contamination.

Under a tentatively promulgated EPA rule, each phase II discharger determined by the NPDES permitting authority to be contributing to a water quality impairment or a significant contributor of pollutants must apply for a permit within 180 days after receiving notice (unless permission is granted for a later date). All other phase II facilities must apply by August 2, 2001, if the phase II program in place at that time requires an application.⁵⁵

Watershed Management

During the 1990s, EPA and the states have moved toward a watershed protection approach to manage nonpoint source pollution and stormwater pollution, using ambient water quality, rather than effluent quality, standards. A watershed is the area drained by a common body of water such as a river. Before enactment of the FWPCA in 1972, state and federal regulators unsuccessfully tried various watershed management approaches to controlling surface water pollution. Without standards for the discharge of pollutants to the receiving body of water, however, regulators had no means of controlling any but the most egregious pollution [25 ELR 10304] sources.⁵⁶ The FWPCA required EPA to set numerical effluent standards, but also retained authority, in § 303, for regulation based on water quality standards.⁵⁷

Since nonpoint source pollution is less amenable to numerical effluent standards than pollutants carried by discrete conveyances, regulators are once again trying the watershed management approach to control water pollution. Under FWPCA § 303, each state can designate water quality standards and identify water bodies that require more stringent efforts to achieve those standards.⁵⁸ The state calculates the total maximum daily load (TMDL) of pollutants, from both point sources and nonpoint source pollution, that the applicable body of water can receive while attaining or maintaining its ambient water quality standard. The state then attempts to reduce below the TMDL the net amount of contamination from nonpoint source pollution and point sources. Management of nonpoint source pollution and stormwater contamination in a particular body of water requires the identification of pollution sources and the selection of effective stormwater management practices tailored to conditions within the watershed.⁵⁹ Regulators using watershed management select a target area for analysis, planning, and remediation. Local, state, and federal regulators have focused successfully on both small and large watersheds; for example, the small area drained by the Anacostia River in Maryland and Washington, D.C., as well as the massive Great Lakes region.⁶⁰ Rather than setting up a new bureaucratic structure, EPA has organized this effort by emphasizing coordination among the existing agencies responsible for controlling water pollution, for example surface water, groundwater, and soil erosion services.⁶¹

EPA has developed technical guidance on nonpoint source pollution management techniques, encouraged the states to develop nonpoint source pollution assessment reports (which all states and territories have now completed), approved a nonpoint source pollution management program for almost every state, and developed schedules for implementing the nonpoint source pollution management programs over a series of years.⁶² EPA issues grants to the states to assist them in implementing their EPA-approved programs. EPA also has developed a guidance document to prioritize its grant of nonpoint source pollution control funds.⁶³ That guidance required each of its 10 regions to grant funds for intensive water quality monitoring in selected watersheds, resulting in information that has helped clarify the causes of nonpoint source pollution and aided in selection of best management practices to control problems such as erosion of agricultural land and urban runoff. The FWPCA also allows states to use state revolving fund loans, originally established to upgrade POTWs, for nonpoint source pollution control.⁶⁴

Agriculture and Silvicultural

Preventing stormwater contamination from agricultural and silvicultural activities and urban runoff would produce greater and more cost-effective improvements in water quality than tighter controls on industrial point sources.⁶⁵ Agricultural and silvicultural controls would, in the process, reduce the net loss of topsoil from farmland and forests, the siltation of rivers, and the contamination of surface waters and groundwater with agricultural chemicals. Nevertheless, control of these nonpoint source pollution sources under the FWPCA would involve extending stormwater pollution prevention regulations to land uses such as farming, lumbering, and urban street cleaning and drainage management.

Political opposition and practical difficulties make such comprehensive expansion of nonpoint source pollution controls uncertain, and continue to present obstacles to reauthorization of the FWPCA during the 104th Congress. Interestingly, the greatest improvements in reducing the contamination of stormwater runoff during 1995 may result not from the FWPCA, but from reauthorization of the Food Security Act of 1985 and the Food, Agriculture, Conservation, and Trade Act of 1990 (1990 Farm Bill).⁶⁶ Through financial inducements, including access to various agricultural subsidy programs, Congress has used these laws to encourage farmers to control nonpoint source pollution and stormwater contamination.

Silt and adsorbed chemicals are the largest agricultural pollutant of surface waters. Most of the siltation results from the erosion of productive farm and forest land after tilling the soil on steep slopes and along waterways or clearcutting, i.e., cutting down all the trees. The types of [25 ELR 10305] crop planted can indirectly impair water quality. Some crops require intensive irrigation if planted in arid areas, generating a large volume of irrigation return flow. After flowing through farm fields, irrigation water concentrates naturally occurring minerals and salts, as well as agricultural chemicals, in areas receiving the irrigation return flows, for example in wetlands, lakes, and areas with sandy soil and shallow groundwater. At the same time, the large demand for water reduces the availability of uncontaminated surface water and groundwater to dilute these contaminants.⁶⁷ Planting crops appropriate for an arid climate could most effectively mitigate adverse effects on water quality and supply in arid agricultural areas.

In many areas, the impact of agricultural chemicals on groundwater is greater than on surface waters. The most widespread groundwater problem is elevated nitrate levels in shallow groundwater. The nitrates originate with fertilizer, and migrate fastest through sandy soils and more slowly through soils with a high clay content. Surface waters and groundwater in some areas also contains measurable amounts of herbicides and, less frequently, of pesticides. These residues vary with regions of the country, the specific crops being grown, and the individual farmer's chemical application practices. Corn and soybeans, for example, require less pesticides, while fruit and vegetables require more.

Congress has funded several financial incentive programs, administered by the U.S. Department of Agriculture (USDA), that encourage farmers to adopt best management practices to control erosion and other sources of nonpoint source pollution.⁶⁸ The Food Security Act of 1985 established, and the 1990 Farm Bill expanded, a "conservation reserve program."⁶⁹ Congress authorized the USDA to accept bids from farmers to place up to 38,000,000 acres of highly erodible land and at least 975,000 acres of wetlands into this conservation reserve program.⁷⁰ Under contract with the USDA, the farmer agrees to plant trees and other noncrop vegetation on the reserved land for 10 to 15 years, and receives a payment in exchange (about $ 50 an acre). USDA's Agricultural Stabilization and Conservation Service sets criteria defining highly erodible soil, selects the lands for the conservation reserve, and determines the price farmers will be paid.⁷¹

Farmers in the USDA's feed grains program are required to use conservation measures in exchange for receiving a guaranteed market price for their crops or a deficiency payment if the market price falls. The "sodbuster" and "swampbuster" programs deny financial incentives, such as price supports, to farmers who, respectively, farm on highly erodible land or convert wetlands to crop production.⁷² The U.S. Soil Conservation Service recommends methods and provides erosion control assistance, and conducts random inspections to insure compliance.

The 1990 Farm Bill also established an agricultural water quality protection program focusing on reducing the discharge of agricultural pollutants at their source. This program offers voluntary financial incentives for farmers to adopt best management practices that reduce or prevent water pollution from agricultural production on up to 10,000,000 acres of farmland.⁷³

Both the Agricultural Stabilization and Conservation Service and the U.S. Soil Conservation Service recommend similar erosion-control methods: preserving steep slopes, wooded areas and vegetated strips along waterways; planting or preserving wind breaks; keeping livestock out of waterways and off their banks; reducing tillage (discussed in detail below); reducing the amount and changing the rate and timing of agricultural chemical applications; and changing crop selection and rotation.⁷⁴

Farmers have reduced nonpoint source pollution by significantly changing their agricultural practices over the past 20 years. The USDA, through its Agricultural Extension Service and other educational programs, has encouraged farmers to control erosion and other sources of nonpoint source pollution using these new methods.⁷⁵ Farmers also have a financial incentive to control nonpoint source pollution from erosion, to preserve the soil that is perhaps their most valuable asset.

The largest single change in agricultural practice has been a dramatic reduction in the amount of "tillage." Tilling is the breaking up of soil by plowing or other means to clear old crop residue, facilitate seed planting, and control weeds. The former practice was to "clean till," leaving none of the last year's crop residue above the ground. Now, farmers leave some amount of organic matter on top of the ground and employ a range of tillage, reducing soil erosion and the use of tilling machinery. New machinery can plant seeds and apply agricultural chemicals by drilling into the soil through stubble in untilled or partially tilled fields, disrupting less soil and reducing fuel consumption through consolidating the trips made by each piece of equipment.⁷⁶

Reduced tillage effectively reduces erosion, since the crop residue prevents rainfall from loosening and then carrying away the soil. It also acts as a mulch to catch some of the soil that has begun to wash away. Today, most farmers use some form of reduced tillage, and some farmers successfully grow their crops using practically no tillage.⁷⁷

[25 ELR 10306]

FWPCA Reauthorization

If the 104th Congress reauthorizes the FWPCA, the new act will most likely focus any additional regulatory measures on controlling nonpoint source pollution and stormwater contamination. Although the last Congress did not pass a reauthorization bill, each of the three main proposals would have expanded nonpoint source pollution regulation. All FWPCA reauthorization proposals would have preserved existing point source controls, and recognized to varying degrees that further incremental improvements in such controls will be proportionately more expensive.

The three main reauthorization proposals in the 103d Congress were: The Senate Bill, S. 2093 (formerly S.1114), the House Bill, H.R. 3948,⁷⁸ and the Clinton Administration proposal.⁷⁹

S. 2093

Title III of S. 2093 contained broad-based provisions for nonpoint source pollution control and watershed planning. Among other provisions, it would have:

required states to identify navigable waters impaired or threatened by nonpoint source pollution;

required states to submit a management program for sources of nonpoint source pollution in impaired watersheds requiring mandatory nonpoint source pollution management measures;

required EPA to publish guidance documents for nonpoint source pollution management programs;

encouraged farmers to enroll in USDA programs to protect agricultural water quality; and

encouraged states to develop comprehensive water quality protection and restoration plans for each watershed.

Title IV of S. 2093 endorsed EPA's municipal combined sewer overflow (CSO) policy⁸⁰ and extended stormwater permit requirements to cities with populations of less than 100,000. CSOs occur in sewer systems that carry both sanitary sewage and stormwater, usually during or immediately after storm events. Large volumes of stormwater overload the handling capacity of the POTW, causing untreated mixed sewage to overflow directly into adjacent surface waters. Title VIII of S. 2093 would have required EPA to establish numerical water quality standards for interstate and coastal waters, and Title X would have implemented water quality programs for interestate watersheds including Chesapeake Bay, the Great Lakes, the Gulf of Mexico, the Gulf of Miami, Lake Champlain, the Mississippi River, and San Francisco Bay.

H.R. 3948

H.R. 3948 proposed amending § 304(a) of the FWPCA,⁸¹ by requiring EPA to develop water quality criteria for nonpoint source pollution. The bill would have required the states to impose enforceable best management practices for controlling nonpoint source pollution, required EPA to publish guidance documents on best management practices effective in controlling nonpoint source pollution, and required states to report the impact of nonpoint source pollution on groundwater. The bill would also have provided incentives to states to develop watershed management plans, required EPA to publish watershed management guidance documents, and authorized the states to submit watershed management plans to EPA for program approval. H.R. 3948 would have expanded phase II of the stormwater permit program to include construction activities disturbing less than five acres of land and discharges from municipal separate storm sewer systems for urbanized areas over 50,000 people.

The Clinton Administration Proposal

The Clinton Administration proposal listed the reduction of nonpoint source pollution as its primary objective. The Administration would have amended the FWPCA to require the states to focus on watershed management by setting water quality criteria for specific ecosystems. It would also have required municipal compliance with all stormwater permitting requirements and extended the deadline for phase II of the program to October 1, 1999.

Recommendations

Achieving further cost-effective improvements in surface water quality in the United States will require legislative and administrative measures to reduce stormwater contamination from both point and nonpoint sources. Congress should authorize EPA and the USDA to pursue one or more of three approaches to encourage the use of best management practices: offering or denying financial incentives; imposing on agriculture and silviculture command-and-control regulations of a type routinely imposed on industry under the FWPCA; or encouraging increased use of best management practices through the USDA's Agricultural Extension Service and other educational efforts.

Many farmers and loggers already have adopted certain best management practices, such as reduced tillage, to control nonpoint source pollution, without either financial incentives or regulatory penalties. Nevertheless, such voluntary best management practices are not used uniformly and government encouragement has been limited by funding constraints.⁸² EPA and USDA should provide additional guidance and coordinate their efforts to encourage widespread adoption of cost-effective best management practices for controlling nonpoint source pollution. POTWs and municipal separate storm sewers must also improve their performance, if EPA plans to cost effectively improve water quality.

In 1995, Congress will decide whether to renew the conservation reserve program and, if so, set its funding level. As a financial incentive program requiring temporary conservation measures, its effectiveness is subject to the availability [25 ELR 10307] of funds. The program has been very popular, so prospects for its cancellation are remote. If funds are reduced, however, the USDA may need to revise its criteria to reduce the level of participation. As a result, large areas determined by the Agriculture Stabilization and Conservation Service to be highly erodible may soon come out of the program and be placed back into agricultural production, accelerating the erosion on those lands. Congress should also consider funding longer term or permanent easements, to keep highly erodible lands out of production beyond the usual 10-year farm bill funding cycle.

FWPCA reauthorization should reexamine EPA's limited jurisdiction, which allows it to regulate and enforce contaminated discharges from point sources, but merely to encourage voluntary adoption of nonpoint source pollution control measures. A clarification of EPA jurisdiction could reduce confusion and allow regulation of significant pollution sources. Congress should also reconsider the FWPCA regulatory exemptions for irrigation return flows and contaminated agricultural runoff, especially in areas that use large volumes of irrigation water or on steep slopes or highly erodible soil.

1. 33 U.S.C §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

2. See infra notes 66-73 and accompanying text.

3. See infra note 4 and accompanying text.

4. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607; Id. § 1315(b), ELR STAT. FWPCA § 305(b).

5. U.S. EPA, OFFICE OF WATER, EPA 841-R-94-001, NATIONAL WATER QUALITY INVENTORY: 1992 REPORT TO CONGRESS (Mar. 1994) [hereinafter 1992 REPORT].

6. Id. at 7.

7. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

8. U.S. EPA, OFFICE OF WATER, EPA-841-F-94-002, FACT SHEET: NATIONAL WATER QUALITY INVENTORY, 1992 REPORT TO CONGRESS, 1-2 (Apr. 1994). Some of those threatened uses are sufficiently important to raise concern, at least within the affected state; for example, spreading residential and commercial development within the eastern Delaware River watershed has increased contaminated runoff into New York City's main reservoirs in the western Catskill Mountains. As a result, New York City may eventually need to spend hundreds of millions of dollars to construct drinking water treatment facilities.

9. 33 U.S.C. § 1313(c)(1)-(2), ELR STAT. FWPCA § 303(c)(1)-(2); 40 C.F.R. § 131.20(a) (1994).

10. 40 C.F.R. § 130.3(1994); see also 33 U.S.C. § 1313(c)(2), ELR STAT. FWPCA § 303(c)(2).

11. See 40 C.F.R. § 122.26(d)(1)(iv)(C)(l) (1994) (describing the FWPCA § 101(a)'s goals as "fishable and swimmable waters).

12. 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b); 40 C.F.R. § 130.8(a).

13. 1992 REPORT, supra note 5, at ES-9.

14. 33 U.S.C. § 1342(l)(1), ELR STAT. FWPCA § 402(l)(1) (EPA prohibited from requiring a permit for discharges composed entirely of return flows from irrigated agriculture); 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14)("point source" does not include agricultural stormwater discharges and return flows from irrigated agriculture). But see Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 115, 24 ELR 21480, 21481, (2d Cir. 1994) (liquid manure spreading operations are a point source), cert. denied, 63 U.S.L.W. 3771 (1995).

15. 33 U.S.C. §§ 1311(a), 1362(12), 1362(14), ELR STAT. FWPCA §§ 301(a), 502(12), 502(14); United States v. Villegas, 784 F. Supp. 6, 22 ELR 21027 (E.D.N.Y. 1991), aff'd in part, rev'd in part sub nom. United States v. Plaza Health Lab., Inc., 3 F.3d 643, 645, 23 ELR 21526, 21527 (2d Cir. 1993) (a human being is not a point source), cert. denied sub nom. United States v. Villegas, 114 S. Ct. 2764 (1994).

16. Although nonpoint sources have become the primary source of surface water pollution in the United States, EPA has a limited regulatory mandate and can only encourage the use of nonpoint source control measures. In 1987, Congress added § 319 to the FWPCA, granting EPA limited authority to investigate and encourage control of nonpoint sources. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319. Although regulators continue to debate and interested parties continue to litigate the appropriate conceptual and practical framework for regulating nonpoint sources, however, EPA still has no power to directly regulate them.

17. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14).

18. See, e.g., id. § 1311, ELR STAT. FWPCA § 301 (for sources other than those governed by new source performance standards); id. § 1316, ELR STAT. FWPCA § 306 (new source performance standards).

19. EPA has delegated to 38 states and the District of Columbia its authority to issue NPDES permits. 1992 REPORT, supra note 5, at 234; Fact Sheet for the Multi-Sector Stormwater General Permit, 58 Fed. Reg. 61146, 61146 (Nov. 19, 1983).

20. See 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

21. Id. § 1316(a)(1); ELR STAT. FWPCA § 306(a)(1).

22. See id. § 1313(e)(3)(A), ELR STAT. FWPCA § 303(e)(3)(A).

23. Id. § 1342(b), ELR STAT. FWPCA § 402(b).

24. Id. § 1342(p), ELR STAT. FWPCA § 402(p).

25. "Stormwater discharge associated with industrial activity" means "the discharge from any conveyance which is used for collecting and conveying storm water and which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 C.F.R. § 122.26(b)(14) (1994).

26. See id. § 122.26(b)(4).

27. See id. § 122.26(b)(7).

28. 33 U.S.C. § 1342(p)(2), ELR STAT. FWPCA § 402(p)(2).

29. Id. § 1342(p)(4), ELR STAT. FWPCA § 402(p)(4).

30. Id. §§ 1311 & 1342, ELR STAT. FWPCA §§ 301 & 402.

31. Id. § 1342(p)(3)(A), ELR STAT. FWPCA § 402(p)(3)(A).

32. Id. § 1342(p)(3)(B), ELR STAT. FWPCA § 402(p)(3)(B).

33. 40 C.F.R. § 122.26(b)(14)(i)-(xi) (1994).

34. Id. § 122.26(b)(14)(x) & (xi). EPA has exempted certain light industrial facilities from the stormwater permitting program unless stormwater is actually exposed to contaminants at those facilities.

35. Natural Resources Defense Council v. U.S. Environmental Protection Agency, 966 F.2d 1292, 22 ELR 20950 (9th Cir. 1992) (vacating the rule for light industries which would "work only if these facilities self-report, or the EPA searches out the sources and shows that exposure is occurring.").

36. Amendment to Requirements for National Pollutant Discharge Elimination System (NPDES) Permits for Storm Water Discharges Under Section 420(p)(6) of the Clean Water Act, 60 Fed. Reg. 17950, 17951 (Apr. 7, 1995) (pmbl.) [hereinafter Phase II Promulgation].

37. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402; 40 C.F.R. § 122.26(c)(1).

38. 40 C.F.R. § 122.21.

39. The application requirements for stormwater discharges associated with industrial activity are set forth at 40 C.F.R. § 122.26(c).

40. Construction activities disturbing less than five acres of land must apply to operate under a general permit when they are part of a larger common plan of development or sale. The construction general permit also regulates quarrying activities, unless the material is chemically treated onsite. 40 C.F.R. § 122.26(b)(14)(x).

41. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET, STANDARD INDUSTRIAL CLASSIFICATION MANUAL (1987).

42. Fact Sheet for the Multi-Sector Stormwater General Permit, 58 Fed. Reg. 61146, 61146 (Nov. 19, 1993).

43. Id. at 61156.

44. National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47990 (Nov. 16, 1990); 40 C.F.R. § 126(c)(2) (1994).

45. 58 Fed. Reg. at 61146.

46. See 40 C.F.R. § 122.27 (only a limited range of silvicultural activities are defined as point sources subject to the NPDES program).

47. 1992 REPORT, supra note 5, at 235-36.

48. 33 U.S.C. § 1342(p)(5), ELR STAT. FWPCA § 402(p)(5).

49. EPA transmitted the first report on about March 29, 1995. Phase II Promulgation, supra note 36, at 17952.

50. 33 U.S.C. § 1342(p)(6), ELR STAT. FWPCA § 402(p)(6).

51. Phase II Promulgation, supra note 36, at 17952.

52. 33 U.S.C. § 1342(p)(6), ELR STAT. FWPCA § 402(p)(6).

53. Phase II Promulgation, supra note 36, at 17950 ("additional phase II rules . . . will be finalized by March 1, 1999").

54. 33 U.S.C. § 1342(p)(6), ELR STAT. FWPCA § 402(p)(6).

55. Phase II Promulgation, supra note 36, at 17956-57 (to be codified at 40 C.F.R. § 122.26(g)). EPA published the rule as a direct final rule with a delayed effective date and, simultaneously, as a proposed rule. If EPA receives "significant adverse or critical comment" it will withdraw the rule and proceed with rulemaking based on the proposal. Id. at 17956.

56. See U.S. Environmental Protection Agency v. California, 426 U.S. 200, 202-03, 6 ELR 20563, 20564 (1976).

57. 33 U.S.C. § 1313, ELR STAT. FWPCA § 303.

58. Id. § 1313(d), ELR STAT. FWPCA § 303(d).

59. For example, the watersheds above two estuaries within the relatively small state of New Jersey require quite different strategies. New York Harbor and Newark Bay drain dense urban and suburban population areas with concentrated industries, while Barnegat Bay drains rural and suburban population areas scattered among relatively pristine forest and wetlands with very little industry. The primary sources of the deteriorated surface water quality of New York Harbor and Newark Bay are urban runoff, storm sewers and municipal point sources (although long-term industrial discharges have contaminated the sediments). See 1992 REPORT, supra note 5, at tbl. C-4; A. Frank, Port Authority Resumes Capping of Tainted Sediments, STAR-LEDGER, Sept. 21, 1993, at 17 (discussing cost of and opposition to underwater disposal of dredge spoils contaminated with trace amounts of dioxin). Construction, agriculture, and storm sewers are the leading sources of contaminated runoff to the significantly cleaner waters of Barnegat Bay. See NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, THE SEWAGE INFRASTRUCTURE IMPROVEMENT ACT: A STATUS REPORT TO THE NEW JERSEY STATE LEGISLATURE 16, 18-19 (Apr. 1994).

By contrast, Oregon reported that its extensive silvicultural activities contribute to 46 percent of the impairment of its rivers and streams which do not support their designated uses, well above the 7 percent average caused by silviculture nationwide. 1992 REPORT, supra note 5, at ES-12.

60. 1992 REPORT, supra note 5, at 172, 184.

61. U.S. EPA, OFFICE OF WATER, EPA 503/9-92-001, THE WATERSHED PROTECTION APPROACH: AN OVERVIEW (1991).

62. 1992 REPORT, supra note 5, at 247-48.

63. Id. at 247-49.

64. 33 U.S.C. § 1281(g), ELR STAT. FWPCA § 201(g).

65. See Phase II Promulgation, supra note 36, at 17951. ("While water pollution control measures in the United States for industrial process wastewater and municipal sewage have had major success, urban and agricultural runoff continue to contribute to our Nation's remaining water quality problems.") Most of the runoff from farming and logging activities constitutes nonpoint source pollution under the FWPCA. Surface water effects, however, do not recognize the legal distinction.

66. Pub. L. No. 99-198, 99 Stat. 1504 (Food Security Act); Pub. L. No. 101-624, 104 Stat. 3587 (1990 Farm Bill).

67. 1992 REPORT, supra note 5, at 18-20. The Kesterson Wildlife Refuge in the Sacramento River Delta in north-central California, is an example of an area heavily contaminated with selenium and other chemicals from unregulated irrigation return flows.

68. In contrast with agriculture, industrial activities and land uses such as construction on five or more acres of land must now apply appropriate best management practices to reduce nonpoint source pollution under the NPDES stormwater permit program, without any financial incentives.

69. 16 U.S.C. §§ 3801-3862 (1988 & Supp. V 1993).

70. Id. § 3801(a)(4), (a)(7)(A), (a)(16) (1988 & Supp. V 1993).

71. See K. Jack Haugrud, Agriculture in SUSTAINABLE ENVTL. L. 493-97 (Celia Campbell-Mohn et al. ed. 1993).

72. 16 U.S.C. §§ 3811-3813 (sodbuster program) & 3821-3824 (swampbuster program) (1988 & Supp. V 1993).

73. Id. §§ 3838-3838f (Supp. V 1993).

74. See Haugrud, supra note 71, at 551-52.

75. Id. at 553.

76. See Barnaby J. Feder, Farmers Find a New Scientific Intimacy With the Land, N.Y. TIMES, July 17, 1994, at E5.

77. There are some disadvantages to reducing tillage. More weeds and insects survive, wintering in the residue and reducing crop yield per acre. It is harder for the farmer to place seed at the correct depth in the soil, leading to additional inefficiency and reduced yield. With reduced tillage, farmers must select different herbicides, pesticides and equipment, and change the timing of chemical applications. It remains unclear whether additional chemicals will be necessary to control the residual weeds and insects, providing an additional source of nonpoint source pollution.

78. S. 2093, 104th Cong., 2d Sess. (1994); H.R. 3948, 104th Cong., 2d Sess. (1994).

79. Described in Phase II Promulgation, supra note 36, at 17952.

80. Notice of Final EPA Combined Sewer Overflow Control Policy, 59 Fed. Reg. 18688 (Apr. 19, 1994); National Combined Sewer Overflow Control Strategy, 54 Fed. Reg. 37370 (Sept. 8, 1989).

81. 33 U.S.C. § 1314(a), ELR STAT. FWPCA § 304(a).

82. See, e.g., Agriculture and Water Policy Coordination Act, 7 U.S.C. §§ 5501-5506 (Supp. V 1993) (establishing up an "inter-agency program to protect waters from contamination from agricultural chemicals and production practices").