Federal Legislative Solutions to Agricultural Nonpoint Source Pollution

David Zaring

Mr. Zaring is a graduate of Swarthmore College (B.A. 1992) and a student at Harvard Law School (J.D. expected 1996). The author thanks Judith Rosenberg for her advice and criticism, and Bruce Hay and Ricardo Revesz for their guidance.

[26 ELR 10128]

Environmental regulation of pollution in the United States is often maligned as costly and ineffective.¹ Pollution continues to plague and degrade the natural resources in the United States, and U.S. waters in particular. Nonpoint source pollution is currently the most significant source of water pollution, but it is also the most unregulated.² While other discharges into U.S. waters have been dramatically reduced since the Federal Water Pollution Control Act (FWPCA)³ was enacted, nonpoint source pollution — caused most by runoff from agricultural operations — has increased.⁴ Furthermore, the dangers of nonpoint source pollution are significant and well-documented.⁵ This Dialogue examines why the federal government has not enacted and enforced strong antipollution measures against agricultural emissions into water. After considering the dangers of nonpoint source pollution generally and agricultural nonpoint pollution in particular, this Dialogue analyzes FWPCA provisions that address nonpoint pollution and evaluates their efficacy. Next this Dialogue evaluates potential legislative solutions to nonpoint source pollution, including H.R. 961,⁶ a series of FWPCA amendments the U.S. House of Representatives of the 104th Congress passed in 1995. This Dialogue explains why Congress has not implemented potentially effective alternative solutions — such as pollution taxes on farmers or strengthening minimum federal standards — and why Congress may indeed pass a probably ineffective solution.

Consequences of Nonpoint Source Pollution

The FWPCA does not define nonpoint pollution sources,⁷ though the phrase often appears in its text. Courts and commentators usually describe them as any source of water pollution that cannot be attributed to a point source,⁸ which the Act defines as a discrete conveyance.⁹ So defined, nonpoint source pollution is a catch-all category¹⁰ that includes all agricultural operations that are exposed to precipitation or irrigation that leads to runoff.¹¹

Nonpoint source pollution constitutes a substantial portion of all water pollution and significantly affects the quality of surface water and groundwater.¹² Nonpoint sources have been blamed for 65 to 75 percent of the pollution in the nation's most polluted waters,¹³ but all U.S. surface waters have suffered from some nonpoint pollution. In 33 states, nonpoint source pollution is the most significant form of pollution affecting streams and rivers, and in Iowa, Missouri, Montana, Nebraska, and Wisconsin, nonpoint source pollution accounts for over 90 percent of stream and river pollution.¹⁴ In 42 states, nonpoint sources are the [26 ELR 10129] predominant source of pollution in lakes — in 6 states it accounts for 100 percent of lake pollution.¹⁵ Nonpoint sources also account for 43 percent of the pollution in the nation's estuaries.¹⁶ And nonpoint source discharges also contaminate groundwater.

Agricultural Operations as a Nonpoint Source of Pollution

Surface Water Pollution

Agricultural operations are the largest nonpoint source of surface water pollution.¹⁷ They introduce pesticides and herbicides into U.S. waters and are the primary source of soil erosion, which deposit silt and sediment in surface waters.¹⁸ Recent statistics support a 1972 congressional assessment that "agriculture is now one of the most major contributors to the degradation of the quality of our navigable water."¹⁹ Runoff of eroded topsoil, silt, sediment, and other pollutants from agricultural nonpoint sources contribute as much as 64 percent to pollution of the country's rivers²⁰ and impair more than 100,000 assessed U.S. river miles.²¹ Agricultural runoff also impairs two million acres of lakes in the country.²² According to the U.S. Environmental Protection Agency (EPA), 25 to 40 percent of the soil that runs off a field will ultimately reach a water body.²³ Livestock operations also significantly contribute to nonpoint source pollution of surface waters. Livestock in the United States produce approximately 1.8 billion metric tons of wet manure per year, much of which reaches surface water supplies after being applied to fields as fertilizer.²⁴

Groundwater Pollution

Groundwater is a vital source of drinking water and surface waters, supplying roughly 30 percent of stream flow in the United States.²⁵ Approximately 117 million Americans rely on groundwater for their drinking water.²⁶ This groundwater, however, is also becoming increasingly contaminated with agricultural chemicals that play a predominant role in modern farming.²⁷ In 1986, 41 states determined that agricultural activities were a major source of groundwater contamination.²⁸ Pesticide use on farms has nearly tripled since 1964;²⁹ today about 750 million pounds of pesticides are applied to agricultural crops yearly.³⁰ In 1985, 23 states reported that 23 pesticides, some of which are suspected carcinogens, had been detected in their groundwater.³¹

Agricultural fertilizer application rates have also increased. Between 1979 and 1981 they rose 68 percent.³² Currently, nitrogen, phosphorous, and potassium are applied to the nation's major crops in amounts exceeding 19 million tons per year, up from 7 million tons per year in 1960. Nitrates attributable to fertilizers have been found in the groundwater of every agricultural region of the United States.³³

The Effects of Agricultural Nonpoint Source Pollution

Agricultural chemical and manure runoff introduces to U.S. waters carcinogens, such as nitrates, and excess nutrients, such as nitrogen and phosphorous.³⁴ Nitrogen and phosphorous foster aquatic plant growth, which in turn reduces the water's dissolved oxygen content. With less available oxygen, aquatic animal populations shrink, and the water develops an unpleasant smell and taste.³⁵ As much as one-third of the continental United States show a potential for nitrate contamination and/or pesticide contamination in drinking water.³⁶ Furthermore, large numbers of U.S. rivers, [26 ELR 10130] lakes, and estuaries have been impaired by sediment and silt from soil erosion.³⁷

Increased cancer levels and other disorders in humans are correlated with high levels of nitrates in drinking water.³⁸ The most serious of these disorders, methemoglobinemia (blue baby syndrome), which reduces the blood's ability to carry oxygen and is particularly harmful to infants,³⁹ has been linked to human consumption of nitrate-contaminated drinking water.

These disturbing effects of nonpoint source pollution on humans are more than matched by the plight of nonhumans exposed to agricultural nonpoint source pollution. For example, approximately 37 percent of the 436 species listed in the Endangered Species Information Database are endangered in part by irrigation and pesticide use.⁴⁰

FWPCA Provisions Addressing Nonpoint Source Agricultural Pollution

The FWPCA does not strictly regulate nonpoint source pollution or agricultural polluters,⁴¹ but it does consider the problem. The Act has as its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."⁴² FWPCA § 502(6) defines "pollutant" to include "agricultural waste discharged into water."⁴³

The FWPCA, however, subjects agricultural pollution to relaxed regulation. The Act largely defines agricultural pollution as nonpoint source pollution, perhaps because much of it stems from disparate and uncollected runoff from fields. Yet much agricultural pollution that originates from discrete sources is nonetheless not subject to federal regulation as a point source. The Act explicitly excludes from its definition of point sources two major sources of agricultural pollution that can manifest themselves in discrete discharges — irrigation return flows and agricultural stormwater discharges.⁴⁴

Of all types of feedlots in the United States, only concentrated animal feeding operations (CAFOs) currently fall under the constraints of the Act's point source regulations. CAFOs include only large feedlots — those containing over 1,000 "animal units."⁴⁵ The feedlots this provision regulates include only a fraction of all those in the United States.⁴⁶ But runoff from manure and other discharges from these feedlots comprise a significant part of agricultural water pollution.

FWPCA § 208

The Section's Requirements

The 1972 FWPCA Amendments, in which the federal government first manifested a strict approach to regulating water pollution, contain Congress' first formal acknow-ledgement of nonpoint source pollution. The Senate observed that "it has become clearly established that the waters of the Nation cannot be restored and their quality maintained unless the very complex and difficult problem of nonpoint sources is addressed."⁴⁷ Under FWPCA § 208,⁴⁸ states were required to draft areawide waste treatment management plans⁴⁹ that include procedures for identifying nonpoint source pollution.⁵⁰ Each governor was required to identify areas that had "substantial water quality control problems"⁵¹ and then designate an agency or other organization to develop an areawide waste treatment plan and a "continuing areawide waste management planning process" for these problem areas.⁵² These plans were ultimately supposed to create

a process to (i) identify, if appropriate, agriculturally … related nonpoint sources of pollution, including return flows from irrigated agriculture, and their cumulative effects, runoff from manure disposal areas, and from land used for livestock and crop production, and (ii) set forth procedures and methods (including land use requirements) to control to the extent feasible such sources.⁵³

Although initially Congress provided federal funds to assist states in developing and implementing § 208 plans, the funding ceased in 1980.⁵⁴

Section 208 in Practice

Section 208 was criticized as a "planning provision,"⁵⁵ with a toothless system of incentives.⁵⁶ The planning did [26 ELR 10131] not create controls at the state level necessary to reduce nonpoint source pollution. Instead, states only had to develop plans that would comply with § 208(b)(2)(F)'s malleable "to the extent feasible" standard, and so engaged in very limited pollution regulation.⁵⁷ Section 208 essentially promoted voluntary compliance by planning agencies rather than mandatory controls of nonpoint source pollution — the latter were too "controversial" and "politically sensitive" for agricultural interests who opposed what they envisioned could amount to command-and-control regulation.⁵⁸ States were unwilling to provoke powerful agricultural constituencies with strict regulation when they were not obligated to do so.

The resulting nonpoint source pollution control plans were totally voluntary in 41 states and in 8 states included a significant number of voluntary provisions.⁵⁹ The permissive nonpoint pollution regulation standards of § 208 were matched with ineffective implementation of its limited mandates. Congress blamed EPA for poorly managing the oversight of the section programs in failing to encourage states to develop comprehensive and significant nonpoint source pollution programs.⁶⁰ Although 176 § 208 plans were ultimately created, most were abandoned in the 1980s due to their ineffectiveness and the lack of federal funds.⁶¹

Section 208's Soil Erosion Amendments

Congress amended § 208 again 1977, providing for a Rural Clean Water Program, that offered financial incentives to landowners to implement "best management practices" (BMPs) to control nonpoint source pollution.⁶² The foremost incentive was to provide up to 50 percent of the cost of carrying out the practices.⁶³ The Senate concluded:

A system of technical and financial assistance for instituting soil conservation practices for improving water quality will encourage individuals to control nonpoint source pollution voluntarily. Such an arrangement will make it easier for operators and owners to implement those soil conservation measures identified under Section 208 management plans for reducing soil erosion and improving water quality.⁶⁴

EPA defined these practices to include:

Methods, measures, or practices selected by an agency to meet its nonpoint source control needs. BMPs include but are not limited to structural and nonstructural controls and operation and maintenanceprocedures. Landowners can apply BMPs before, during, and after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters.⁶⁵

Congress provided some funding for the U.S. Department of Agriculture to implement a program using these practices on a cost-share basis with voluntary contracts between landowners and the agency;⁶⁶ however, it never funded the program as planned.⁶⁷ Nonetheless, the Senate took the opportunity of the 1977 revisions to emphasize that it "clearly intend[ed] 208 to produce specific nonpoint source abatement programs."⁶⁸

FWPCA § 319

The 1977 amendments ultimately did not change Congress' dissatisfaction with the pace of nonpoint source pollution reform and § 208. In 1985, the Senate observed that "nonpoint pollution looms as a larger and larger problem. The evidence of nonpoint pollution continues to grow."⁶⁹ By 1987, Sen. David Durenberger (R-Minn.) concluded that "it is clear that in many watersheds the goals of the [FWPCA] — fishable, swimmable water — will not be met unless we can significantly reduce farm and urban runoff and other nonpoint problems."⁷⁰

Eventually Congress acted in 1987 to add to the Act's nonpoint source provisions, explicitly adding nonpoint source pollution control to the Act's goals. The Act now reads: "it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution."⁷¹

Section 319's Requirements

Section 319 provided the most important substantive requirement to nonpoint source pollution control. Under § 319, states were to produce an assessment report and a proposed management program within 18 months of the section's enactment.⁷² The assessment report was to include identification of both navigable waters that could not maintain water quality standards without further nonpoint source pollution control and nonpoint sources that harm water quality.⁷³ States also had to identify processes to reduce nonpoint source pollution "to the maximum extent practicable."⁷⁴ [26 ELR 10132] The management program proposal had to contain an identification of BMPs, programs to implement the BMPs, and a schedule of annual implementation milestones.⁷⁵ States whose management programs were approved and funded were required to report to EPA on their progress in combating nonpoint source pollution and their success at meeting the milestones they had set for themselves.⁷⁶ Section 319 also required the EPA Administrator to report to Congress on the success of the section and "the progress made in reducing pollution in the navigable waters resulting from nonpoint sources and improving the quality of such waters."⁷⁷ The section further provided for the expenditure of federal funds to assist states in implementing programs to reduce nonpoint source pollution and to protect groundwater quality.⁷⁸

Section 319 in Practice

Section 319 failed to solve the nonpoint source pollution problem.⁷⁹ Its failings can be characterized as not enough carrot, not enough stick, and too much of the same planning imperatives that characterized § 208.

The failure of § 319's carrot lies in congressional unwillingness to provide sufficient incentives to states to initiate a strict pollution control program. The General Accounting Office (GAO) concluded that state officials believe § 319 funding has been insufficient to pay for significant pollution control.⁸⁰ The GAO noted that "although some states have or will allocate millions of dollars to deal with the problem, they maintain that it will require billions to correct."⁸¹ Federal appropriations for § 319 have been comparatively small, and have lagged behind the amount Congress authorized in 1987.⁸² Indeed, from 1987-1989, only $ 3.8 million was appropriated for the program.⁸³ Between 1990-1993, funding never exceeded $ 50 million per year, though the 1987 amendments provided for much more — as much as $ 130 million per year by 1991.⁸⁴ These appropriations do not compare favorably to the money invested in, for example, sewage treatment under the FWPCA — even though nonpoint sources contribute more pollution than ineffective sewage treatment.⁸⁵

Section 319's stick — the consequence of noncompliance with the section — is insignificant. Like § 208, § 319 did not require states to implement nonpoint source pollution plans. Indeed, if states failed to submit a report, EPA was required to prepare one for them and report to Congress or, alternatively, to provide assistance in creating a report (and funding upon approval) to a local public organization experienced with water pollution control.⁸⁶ States faced the specter of losing control over their nonpoint programs if they failed to come up with a plan. But initiating a plan is no blessing to states, because it offers the administrative and financial burden of issuing regulations that the federal government has only partially funded. Furthermore, the political costs of imposing burdensome regulations on powerful agricultural interests could be significant.⁸⁷ Thus, "without a meaningful federal mandate, the states, with a few … exceptions[,] have not implemented polluted runoff programs on their own."⁸⁸

Even so, the push to develop management plans further under § 319 offers little to the existing § 208 framework. While somewhat more specific than those of § 208, § 319's requirements do not represent a major departure from the gist of § 208's requirements.⁸⁹ Section 319 management programs must identify procedures to reduce nonpoint source pollution that states plan to implement, and must include milestones against which state performance may be measured.⁹⁰ But § 208 also required plans to treat areawide waste, to identify nonpoint sources, and to develop methods to control pollution.⁹¹

Although the §§ 208 and 319 programs are designed to compensate for the disincentives to enter voluntary programs by providing grants, Congress has underfunded them.⁹² As a result, state programs have largely remained voluntary. It is not surprising that such voluntary programs have been ineffective. Agricultural operations create externalities, forcing users of water they pollute to bear the costs of off-farm pollution and erosion. To these operations, pollution is an inexpensive disposal method and an opportunity to shift costs related to that waste to others. Such economic incentives make it unlikely that agricultural operations would voluntarily reduce erosion and chemical inputs.

Potential Solutions for the Agricultural Nonpoint Source Pollution Problem

There are essentially three types of legislative responses to agricultural nonpoint source pollution: traditional standard-setting; economic incentives to curb pollution; and deregulation/subsidization.

Traditional Standard-Setting Regulation

Tightening nonpoint source pollution regulation by raising [26 ELR 10133] the standard of pollution reduction and/or raising the minimum management measures by which states are required to reduce pollution could reduce nonpoint source pollution. Congress has, in fact, attempted both strategies in the context of controlling runoff in coastal watersheds that affect 29 states and territories.⁹³ The 1990 Coastal Zone Act Reauthorization Amendments (CZARA) require states to adopt management measures that are

economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting [sic] criteria, operating methods, or other alternatives.⁹⁴

The CZARA's "greatest degree of pollutant reduction achievable" standard is more stringent than § 319's "maximum extent practicable" management practice standard or § 208's "to the extent feasible" standard.⁹⁵ The CZARA also requires that EPA issue minimum standards for state nonpoint pollution control programs.⁹⁶

The CZARA's high goals and nationwide minimums could, in theory, be applied under the FWPCA to all agricultural nonpoint source pollution. Indeed, environmentalists have long advocated mandatory provisions in the FWPCA imposing some management requirements on state nonpoint source pollution programs,⁹⁷ and they have praised the CZARA.⁹⁸ The Clinton Administration agrees, advising Congress that "while the Clean Water Act Amendments do not need to duplicate CZARA, we believe that it is very important that amendments to § 319 of the Clean Water Act be comparable with these programs."⁹⁹ And some in Congress have enthused about national baselines, noting that "they protect against states and cities having to choose between protecting water quality and losing business and jobs to competitors in states which roll back water quality protection to attract industry."¹⁰⁰

The national approach, however, could create an inflexible regime for environmental regulation. EPA has concluded that in the context of nonpoint source pollution, site-specific decisionmaking that considers the nature of the watershed, the waterbody, the point sources, and the management practices to be regulated are more effective than uniform technical controls.¹⁰¹ Wholesale controls are problematic because they may not respond well to the diverse regulatory needs, perhaps requiring too much pollution control in some areas, and too little in others.¹⁰²

Imposing national minimums also raises federalism concerns. "In 1972 the Congress made a clear and precise distinction between point sources, which would be subject to direct federal regulation, and nonpoint sources, control of which was specifically reserved to the state and local governments through the Section 208 process."¹⁰³ Strict national standards would impair such a state-first strategy.

Finally, an approach that sets regulatory minimums clearly lacks some of the advantages an approach implementing economic incentives offers. For example, agricultural operations that meet the regulatory standards have no incentive to reduce their discharges further, as they might if they were provided with appropriate economic incentives in, for example, the form of taxes.

Regulation Through Economic Incentives

Drafting economic incentives is another response to the nonpoint source pollution problem. In theory, economic incentives can align private interests with public goals. If identified and applied correctly, they could cause agricultural operations to want to reduce pollution by making it financially attractive to do so. This regulatory strategy has been referred to as the "public use of private interest."¹⁰⁴ Economic analysis would allow the development of theoretically efficient legislative responses to agricultural nonpoint source pollution.

Incentives for Agricultural Operations

Agricultural operations create externalities, discharging pollutants and thereby imposing the costs of pollution on other water users that have not agreed to bear those costs. The usual economic solution to this well-documented problem of externalities is to attempt to internalize in agricultural operations the costs they are creating for others to bear. Pollution taxes would allow agricultural operations to choose how much they wish to pollute, theoretically to the point of economic efficiency. Those who find pollution reduction inexpensive will dramatically reduce their discharges, while those who cannot reduce discharges inexpensively will pay the taxes to continue to pollute.¹⁰⁵ Therefore, agricultural operations engaging in the most pollution control would be those most capable of it — a cost-effective reallocation of control burdens that could produce significant [26 ELR 10134] savings. Furthermore, such a tax system provides agricultural operations with an incentive to develop new agricultural techniques that limit pollution discharges in order to reduce their tax bills.¹⁰⁶

The taxing of discharges would lower administrative costs, allow more experimentation with pollution abatement strategies, and take advantage of the relative strengths of government and the regulated agricultural operations. The government can outline environmental quality goals based on information that it can best assemble, while individual operators can decide and negotiate for themselves how best to meet those goals.¹⁰⁷ A system imposing such taxes is an extremely promising and modern alternative for the future of pollution control.

But such a system is not perfect. A "polluter pays" mechanism faces its own political, efficiency, and coverage drawbacks in an agricultural setting. Though often the values of regulation through economic incentives are praised in a competitive environment,¹⁰⁸ moving to a "polluter pays" system is ironically problematic in the context of farming, which is a paradigmatically competitive market. Agricultural operations may not be able to pass along the costs of pollution control, making their work less remunerative.¹⁰⁹ The prospect of driving some operators out of business by overburdening them with new environmental taxes is understandably unappetizing to politicians impressed with the political strength of farmers and their allied interests.¹¹⁰

Exactly how such a system would function is also unclear.¹¹¹ Though the theory behind pollution taxes is compelling, implementing those taxes raises some practical problems, even apart from the political difficulties involved with raising taxes.¹¹² For example, establishing who causes nonpoint source pollution is often difficult, precisely because the pollution does not come from a discrete conveyance, such as a sewage pipe, but from field and feedlot runoff.¹¹³ It can be hard to identify how much runoff from each field adjoining a polluted stream got into that stream. Combatting runoff through erosion taxes also creates administrative problems. Though it would be efficient to tax farmers based on the amount of erosion they caused, measuring erosion and topsoil depletion over regular intervals would be rather difficult and expensive.¹¹⁴

As an alternative to an erosion tax, special purpose district property taxes could be levied on all land in areas beset by nonpoint source pollution. But although such taxes would raise money that could be used to combat the effects of the pollution in those areas, they would not distinguish between the pollution control techniques of varying efficiency that each landowner in the special purpose district used — landowners would be taxed based on the amount of land they owned.¹¹⁵ The district tax would therefore fail to provide farmers with incentives to reduce the amount of pollution they created.

Taxing farmers by the amount of fertilizers and pesticides they use is a more promising, albeit limited, pollution tax. The tax could be implemented reasonably easily on pesticide and fertilizer sales (akin to federal "sin taxes" on alcohol and tobacco). Farmers would adjust their application of pesticides according to their willingness to pay the higher price for them.¹¹⁶ The tax would only cover a portion of the nonpoint source pollution problem, however; it would not affect other large pollution contributions, such as livestock waste runoff and soil erosion. Therefore, implementing pollution taxes, though promising, would not be a perfect solution to the nonpoint source pollution problem.

Taxing Other Water Users

The difficulties of implementing a tax system based on the polluter pays principle raises interest in finding other economic incentive regulatory schemes in the agricultural context. For example, other water users, who presumably value the water, could pay for its cleanliness through a variety of tax assessments. Downstream water users, such as factories, could be taxed by the amount of water they use. The proceeds could be applied to agricultural nonpoint pollution control programs.¹¹⁷ Similarly, any downstream property owners could be taxed according to the amount of riparian [26 ELR 10135] land they owned.¹¹⁸ And recreational water users — swimmers, for example — could be taxed or licensed as well.¹¹⁹ State already commonly grant fishing licenses for a fee. While seemingly unfair to make other people pay for the pollution of agricultural operations, those payments to some extent reflect underlying assumptions of water rights, which are owned by riparian users such as agricultural operators, who are entitled to use the water.¹²⁰

Whatever its drawbacks, a tax program on downstream water users roughly describes the current state of the law, which emphasizes voluntary participation in nonpoint pollution control programs. This participation is encouraged by state and federal funding that is meant to compensate for the costs of pollution control measures. The 1977 amendments to § 208, which created the Rural Clean Water Program that offered agricultural operators up to 50 percent of the costs of soil erosion control measures, provide an example of this regulatory technique.¹²¹ Certainly, the current regulatory apparatus does not exactly match the downstream tax economists envisioned. Rather than taxing only other users of water polluted by agricultural operations, it taxes all Americans, even those with no recreational or property interest in surface waters polluted by erosion and other runoff. In that sense, our current system is overinclusive in terms of who it taxes. Nonetheless, the emphasis on subsidies to farms for nonpoint pollution control suggests that to the extent Congress has considered using economic incentives to control nonpoint agricultural pollution, it has adopted an approach that taxes other water users rather than the actual polluter.

Deregulation: H.R. 961

The proposed 1995 amendments to the FWPCA neither adopt a tax on agricultural operations nor impose strict minimums on effluents from such operations. Instead, H.R. 961,¹²² a bill that has passed the House of Representatives but not the Senate, continues the combination of lax regulation and subsidies on an extreme level. Indeed, the bill's drafters "explicitly rejected proposals for broader revisions [that would place] greater command-and-control authority within EPA and [the National Oceanic and Atmospheric Administration]."¹²³ Instead, the bill grants states broad power to regulate nonpoint source pollution. The bill declares "it is the national policy to recognize, support and enhance the role of state, tribal, and local governments in carrying out the provisions of this Act."¹²⁴ The drafters observed:

Congress has chosen to address diffuse, nonpoint source activities like land application of livestock manure and agricultural inputs, in a separate nonpoint source section, with States responsible for determining how best to work with farmers and ranchers in managing nonpoint source runoff.¹²⁵

The amendments to § 319 accordingly declare:

The purpose of this section is to assist States in addressing nonpoint sources of pollution where necessary to achieve the goals and requirements of this Act. It is recognized that State nonpoint initiatives represent the approach mostly likely to succeed in achieving the objectives of this Act.¹²⁶

The bill requires states to implement water pollution management practices only "to the degree necessary to provide for reasonable further progress toward the goal of obtaining water quality standards within 15 years" of submitting a nonpoint pollution report to EPA.¹²⁷ Furthermore, "adequacy of federal funding is a factor in determining reasonable progress" toward that goal.¹²⁸ Before then EPA must issue guidelines to states in preparing a management plan that will provide for reasonable further progress toward meeting water quality goals.¹²⁹ EPA, however, would not be permitted to disapprove any programs "solely because the program … does not include enforceable policies or mechanisms."¹³⁰

Agricultural operators will not suffer from government regulation under H.R. 961. Indeed, they may benefit from its largesse. The bill encourages only voluntary programs and delays the timetable for implementing any regulatory plan. As Rep. Charles Roberts (R-Kan.) observed, "to the extent agriculture is responsible for nonpoint source discharges, the [bill] rightly chooses to avoid the top-down approach to regulation."¹³¹ Avoiding that approach to regulation allowed the House of Representatives to preclude concerns about an overbearing federal regulatory presence, which the majority in the House particularly dislikes and which would have been less possible had it chosen to regulate nonpoint sources more strictly.¹³² H.R. 961 does, however, contain funding for voluntary nonpoint source pollution control under the Act. Rep. Bud Shuster (R-Pa.), the bill's chief sponsor, noted that the bill provides for appropriations of up to $ 3 billion annually in grants, [26 ELR 10136] with as much as $ 300 million going to nonpoint source pollution programs.¹³³

Support for the bill is sharply divided. The chief concern for those interested in solving the nonpoint source pollution problem is that "all this money may go directly to agribusiness … without any accountability."¹³⁴ Environmentalists have strongly criticized H.R. 961,¹³⁵ as has EPA Administrator Carol Browner.¹³⁶ President Clinton has vowed to veto the bill.¹³⁷ Rep. Norman Y. Mineta (D-Cal.) called the bill "a polluter's dream come true, a nightmare for the rest of us."¹³⁸ Rep. Sherwood Boehlert (R-N.Y.) and Rep. Wayne Gilchrest (R-Md.) concluded "H.R. 961 simply does not provide the framework for effectively addressing nonpoint source pollution."¹³⁹

Institutional Difficulties of Implementing Effective Nonpoint Source Pollution Control Legislation

Congress has shied away from "polluter pays" legislation and strict minimum antipollution legislation in the context of agricultural nonpoint source pollution for at least two reasons. The first is a prudential concern: nonpoint pollution causation is difficult to establish, which explains some of the congressional or regulatory restraint.

Congress may be unwilling to engage in complicated economic incentives plans to control nonpoint source pollution because it is concerned with the ability of the law to identify nonpoint source polluters. EPA has recognized that "it is hard to establish a cause and effect relationship between many nonpoint sources and particular water quality problems."¹⁴⁰ A legal system developed to establish precise causation may be uncomfortable with regulating nonpoint source pollution, for which it is often difficult to pinpoint which runoff came from which farmland. Not only is causation difficult to trace to any individual polluter, but it also will vary as the landscape of any given watershed is altered, affecting the manner and amount of water moving through it.¹⁴¹ As Congress has noted, "nonpoint source pollution from animal wastes, fertilizers, pesticides, and eroded soil is difficult to control because of the diffuse nature of the problem."¹⁴²

The more significant reason for congressional and regulatory restraint, however, lies in the political process itself. Even if causation could be established conclusively, strict nonpoint source regulation will continue to be difficult to effect because of the nature and strength of the groups that oppose it and those that support it. As with all statutes, legislation regulating nonpoint source pollution is shaped by political and policy considerations. In many instances, the regulatory process is a competition between two or more groups with opposing interests.¹⁴³ The group that ultimately bears the brunt of others' legislative benefits may be the one that does not find it cost-effective to resist an adverse legislative outcome.¹⁴⁴

Agricultural interests constitute a relatively small group with a lot at stake in the nonpoint source pollution debate, and therefore were willing to expend significant resources on the political process — more than the much larger group of other water users who stood to benefit much less on a per person basis from further clean water regulation. Public choice theory provides an interesting interpretive lens through which the competition between farmers and other water users over pollution control may be analyzed. Legislation that mandates strict regulation would suggest that the other water users had exerted more influence over Congress than did the agricultural operations, while lax regulation would be a product of an agriculture lobby more powerful than the environmental lobby. This competition, however, would not match equally committed foes — it would be between a "public," widely dispersed interest group (the water users) and a "private" concentrated group threatened with regulation.¹⁴⁵ Because the groups threatened with regulation are relatively small, they are also likely to be able to police free rider problems (each agricultural operator has an incentive to rely on the lobbying efforts of his fellow farmers — but each member of the even larger water user group has a similar incentive and will be more difficult to organize).¹⁴⁶ It is no accident that "where agriculture is a small component of a country's economy as in Japan, Israel, and the United States, it is heavily subsidized. But where agriculture is a large part of the country's economy, as in Poland, China, Thailand, or Nigeria, it is heavily taxed."¹⁴⁷

The "wide[] popular[ity]" of the FWPCA did not save [26 ELR 10137] it from the "major scaleback" H.R. 961 represents.¹⁴⁸ In fact, the "bill will make it much easier for polluters to pollute. But that is no surprise. Polluters wrote the bill."¹⁴⁹ The bill was drafted by the set of task forces in which agricultural and other interests potentially restricted by nonpoint source pollution were invited to participate, while environmental and other "public interest" groups were not.¹⁵⁰ Environmental groups thus were "shut out" of the drafting process.¹⁵¹ Representative Mineta, a former chair of the House Transportation and Infrastructure Committee that reported out the bill, characterized H.R. 961 as a "polluter's bill of rights"¹⁵² written by "special interests."¹⁵³

Indeed, agricultural interests supported H.R. 961, and that support produced the kind of regulation that agricultural interests advocated.¹⁵⁴ "It is essential that top-down programs which rely on enforceable water quality goals be avoided," one agricultural trade association urged in hearings for H.R. 961, which in its final form emphasizes voluntary participation in pollution reduction programs.¹⁵⁵ Another trade association commended the sponsors of the bill for their work.¹⁵⁶ Thus, it is clear that agricultural interests had a strong influence on the development of the bill.¹⁵⁷

Conclusion

The prospects for federal legislation to reduce nonpoint source pollution are poor. This Dialogue has focused on legislative fixes rather than regulatory solutions to the nonpoint source pollution problem in the agricultural context because Congress' role in water pollution has proved to be extremely important. In addition to making the FWPCA a detailed law, thereby limiting administrative flexibility in interpreting the Act, Congress has exercised "intense" supervision over its implementation.¹⁵⁸ Furthermore, some of the most promising alternatives to the current regulation of nonpoint discharges — pollution taxes, for example — would require congressional action.¹⁵⁹ Congress' central role in the water pollution control process thus cannot easily be supplanted by creative administrative initiatives.¹⁶⁰

It appears that agricultural nonpoint source pollution control efforts should focus on pollution taxes imposed on agricultural operations. Though potentially tricky to implement, such taxes represent the most efficient approach. But given the political strength of agricultural interests, as evidenced by the content of H.R. 961, pollution taxes may be impossible to enact.

1. See, e.g., In re Bell Petroleum Servs., Inc., 3 F.3d 889, 908 23 ELR 21474, 21481 (5th Cir. 1993) (criticizing particular expenditures by the U.S. Environmental Protection Agency (EPA) as unnecessary and unsuccessful attempts to prevent chromium contamination of groundwater); Richard Stewart, Environmental Regulation and International Competitiveness, 102 YALE L.J. 2069, 2085(1993) (suggesting environmental regulations inefficiently burden American industry); Environmentalism Runs Riot, ECONOMIST, Aug. 8, 1992, at 11-12.

2. See infra text accompanying notes 13-16, 41.

3. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

4. A number of commentators have made this observation. See, e.g., Kurt A. Strasser, Environmental Law in the U.S. Federal System, 9 CONN. J. INT'L L. 719, 731 (1994); David Letson, Point/Nonpoint Source Pollution Reduction Trading: An Interpretive Survey, 32 NAT. RESOURCES J. 219 (1992).

5. See infra notes 11-15 and accompanying text.

6. H.R. 961, 104th Cong., 1st Sess. (1995).

7. Though undefined in the FWPCA, "nonpoint source" appears in the Act and its legislative history with some frequency to describe pollution having diffuse origins.

8. See, e.g., National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 166 & n.28, 13 ELR 20015, 20018 & n.28 (D.C. Cir. 1982); WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 292 (1994); Charles R. Cogbill, Nonpoint Pollution Control in Virginia, 13 U. RICH. L. REV. 539 n.4 (1979) ("The term 'nonpoint source' is almost as difficult to define as it is to control. It is generally considered to be any source which is not a point source.").

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

10. The potentially large scope and undefined nature of nonpoint sources has made them a subject of great interest to environmental law commentators. See RODGERS, supra note 8, at 292-313, 361-75.

11. Nonpoint pollution sources have been defined to include many aspects of agricultural operation areas, such as fields or feedlots on which rain falls and runoff follows. See Daniel R. Mandelker, Controlling Nonpoint Source Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479, 480 (1989). This broad definition of nonpoint sources, and its reach over almost all agricultural operations render water pollution regulation relevant to agricultural operations. In fact, "water quality and related environmental considerations" may be among the most significant issues facing agriculture today. See Neil D. Hamilton, The Role of the Law in Shaping the Future of American Agriculture, 38 DRAKE L. REV. 573, 578 (1988-1989).

12. See Association of State and Interstate Water Pollution Control Administrators, America's Clean Water: The States' Nonpoint Source Assessment (1985), reprinted in Impact of Nonpoint Source Pollution on Coastal Water Quality Hearing Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 100th Cong., 2d Sess. 84 (1988); Mandelker, supra note 11, at 482.

13. One quarter of U.S. waters may be characterized as degraded based on state water quality standards. See EPA, ACTIVITIES AND PROGRAMS IMPLEMENTED UNDER SECTION 319 OF THE CLEAN WATER ACT AS AMENDED BY THE WATER QUALITY ACT OF 1987, FISCAL YEAR 1987, A REPORT TO CONGRESS 2 (1987) [hereinafter EPA, ACTIVITIES AND PROGRAMS].

14. See EPA, NATIONAL WATER QUALITY INVENTORY: 1986 REPORT TO CONGRESS 24 [hereinafter EPA, INVENTORY].

15. See id. at 31. The six states are Iowa, Kansas, Mississippi, New Jersey, New Mexico, and West Virginia.

16. See id. at 43.

17. NRC, ALTERNATIVE AGRICULTURE 89 (1989): EPA, MANAGING NONPOINT SOURCE POLLUTION: FINAL REPORT TO CONGRESS OF SECTION 319 OF THE CLEAN WATER ACT 17 (1989).

18. See EDWIN CLARK ET AL., ERODING SOILS: THE OFF-FARM IMPACTS 2 (1985).

19. S. REP. No. 414, 92d Cong., 1st Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3682.

20. See EPA, NONPOINT SOURCES: AGENDA FOR THE FUTURE 2 (1989) [hereinafter EPA, AGENDA].

21. See ROBERT W. ADLER ET AL., THE CLEAN WATER ACT TWENTY YEARS LATER 173 (1993).

22. See id. at 173. The Conservation Foundation has estimated that cropland produces $ 2.2 billion in net damages from erosion-related pollutants per year. This estimate accounts for a variety of different nonpoint source pollution damages, including the decreased recreational value of sediment-filled water, reduced water storage capacity in lakes and reservoirs, increased water treatment costs, increased flood damages, increased navigational problems, and increased clogging of drainage ditches and irrigation canals, among other impacts. See CLARK ET AL., supra note 18, at xiv. The cost of cropland erosion into water, however, even if measured accurately and given an exact dollar figure, does not necessarily provide a gauge of the amount of dollars that should be spent on control. "At some point each dollar spent on control returns less than a dollar in benefits — so complete abatement would not be cost effective." J.B. BRADEN ET AL., REVENUE SOURCES FOR NONPOINT SOURCE POLLUTION ABATEMENT: AN ECONOMIC ANALYSIS, IN NONPOINT POLLUTION: POLICY, ECONOMY, MANAGEMENT, AND APPROPRIATE TECHNOLOGY 99 (Vladimir Novotny ed., 1988).

23. See EPA, REPORT TO CONGRESS: NONPOINT SOURCE POLLUTION IN THE UNITED STATES 2-6 to 2-7 (1984) [hereinafter EPA, REPORT TO CONGRESS].

24. See id. at 2-11.

25. See R. PATRICK ET AL., GROUNDWATER CONTAMINATION IN THE UNITED STATES 2 (2d ed. 1987).

26. See EPA, GROUNDWATER PROTECTION STRATEGY 10 (1984).

27. See, e.g., John W. Mill, Agricultural Chemical Contamination of Groundwater: An Economic Analysis of Alternative Liability Rules, 1991 U. ILL. L. REV. 1135.

28. See EPA, INVENTORY, supra note 14, at 60-61.

29. See ELIZABETH G. NIELSEN & LINDA K. LEE, THE MAGNITUDE AND COSTS OF GROUNDWATER CONTAMINATION FROM AGRICULTURAL CHEMICALS: AGRICULTURAL ECONOMIC REPORT NO. 576, 2 (1987).

30. See Thomas W. Culliney et al., Pesticides and Natural Toxicants in Food, 41 AGRIC., ECOSYS. & ENV'T 297, 304 (1992).

31. See EPA, PESTICIDES IN GROUNDWATER: BACKGROUND DOCUMENT (1986).

32. See Richard A. Smith et al., Water Quality Trends in the Nation's Rivers, 235 SCL 1607, 1612 (1987); NRC, ALTERNATIVE AGRICULTURE 40 (1989). Use of nitrogen fertilizer quadrupled between 1960 and 1980. See NIELSEN & LEE, supra note 29, at 2.

33. See Stephen Halberg, From Hoes to Herbicide: Agriculture and Groundwater Quality, 41 J. SOIL & WATER CONSERV. 356 (1986).

34. See GAO, ANIMAL AGRICULTURE: INFORMATION ON WASTE MANAGEMENT AND WATER QUALITY ISSUES 11 (1995).

35. See THOMAS PHIPPS & PIERRE CROSSON, AGRICULTURE AND THE ENVIRONMENT: AN OVERVIEW IN AGRICULTURE AND THE ENVIRONMENT 6-7 (Thomas Phipps et al. eds., 1986).

36. See NIELSEN & LEE, supra note 29, at 15. It is estimated that 19 million people drink from private wells and 34 million from public wells in these counties. Id.

37. See supra notes 16-18 and accompanying text.

38. AGRICULTURAL LAW & POLICY INSTITUTE, FARMING AND GROUNDWATER: AN INTRODUCTION 32 (1988).

39. See FRANK P. GRAD, ENVIRONMENTAL LAW 23 (3d ed. 1985).

40. See ADLER ET AL., supra note 21, at 177.

41. See, e.g., L. Alenna Bolin, An Ounce of Prevention: The Need for Source Reduction in Agriculture, 8 PACE ENVTL. L. REV. 63, 76 (1990); NRC, INVESTING IN RESEARCH: A PROPOSAL TO STRENGTHEN THE AGRICULTURE, FOOD, AND ENVIRONMENTAL SYSTEM 52 (1988).

42. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

43. Id. § 1362(6), ELR STAT. FWPCA § 502(6).

44. See id. § 1362(14), ELR STAT. FWPCA § 502(14). Irrigation return flows also introduce a number of harmful chemicals into surface and groundwater. These flows can include toxic pesticides that introduce ingredients such as selenium, boron, molybdenum, and chromium into the ecosystem. See ADLER ET AL., supra note 21, at 242. An amended FWPCA could, of course, include these sources as point sources. Indeed, the prospect of turning everything into a point source may be a potential mechanism for bringing an increasingly narrowed category of nonpoint source pollution under control.

45. One "animal unit" is equivalent to one slaughter or feeder cow. See 40 C.F.R. § 122, App. B (1994).

46. See ADLER ET AL., supra note 21, at 242.

47. S. REP. NO. 414, 92d Cong., 1st Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3705.

48. 33 U.S.C. § 1288, ELR STAT. FWPCA § 208. For a general discussion of the components of § 208, see Richard J. Lazarus, Nonpoint Source Pollution, 2 HARV. ENVTL. L. REV. 103 (1977); Richard A. March et al., Nonpoint Source Water Pollution and Section 208 Planning: Legal and Institutional Issues, 1981-1982 AGRIC. L.J. 324, 349; Lawrence P. Wilkins. The Implementation of Water Pollution Control Measures: Section 208 of the Water Pollution Control Act Amendments, 15 LAND & WATER L. REV. 479 (1980) (a critical account of § 208).

49. See 33 U.S.C. § 1288(b)(1)(A), ELR STAT. FWPCA § 208(b)(1)(A).

50. See id. § 1288(b)(2)(F), ELR STAT. FWPCA § 208(b)(2)(F).

51. Id. § 1288(a)(2), ELR STAT. FWPCA § 208(a)(2).

52. Id. § 1288(b)(1), ELR STAT. FWPCA § 208(b)(1).

53. Id. § 1288(b)(2)(F), ELR STAT. FWPCA § 208(b)(2)(F).

54. See J.A. Jurgens, Agricultural Nonpoint Source Pollution: A Proposed Strategy to Regulate Adverse Impacts, 2 J. LAND USE & ENVTL. L. 195, 201 (1986).

55. See RODGERS, supra note 8, at 296-97.

56. See March et al., supra note 48, at 349.

57. 33 U.S.C. § 1288(b)(2)(F), ELR STAT. FWPCA § 208(b)(2)(F).

58. See Centaur Management Consultants, Inc., Areawide Water Quality Management Program Survey, Pts. I & II at 8 (Mar. 1977 Summary). Pt. II at 20-21 (Aug. 1976 Summary). EPA's regulation of point sources embraces a much more highly regulated form of pollution control that, among other things, authorizes the Agency to set effluent limitations. Agricultural interests may have campaigned to avoid a similar regulation of their discharges. See infra discussion accompanying notes 148-157.

59. See EPA, REPORT TO CONGRESS, supra note 23, at 3-3 to 3-4.

60. See House Comm. of Public Works and Transportation, Oversight Hearing on the [§] 208 Program 18 (1980). EPA decided it would not attempt to control nonpoint source activities aggressively shortly after the Act became law. See RODGERS, supra note 8, at 296 n.24.

61. See ADLER ET AL., supra note 21, at 184.

62. See 33 U.S.C. § 1288(j), ELR STAT. FWPCA § 208(j).

63. See id. § 1288(j)(2), ELR STAT. FWPCA § 208(j)(2).

64. S. REP. NO. 370, 95th Cong., 1st Sess. 37 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4362.

65. 40 C.F.R. § 130.2(l) (1994).

66. See Robert D. Fentress, Nonpoint Source Pollution, Groundwater, and the 1987 Water Quality Act: Section 208 Revisited?, 19 ENVTL. L. 807, 817 (1989).

67. See RODGERS, supra note 8, at 140-41.

68. S. REP. NO. 370, 95th Cong., 1st Sess. 32 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4362 (1977).

69. S. REP. NO. 50, 99th Cong., 1st Sess. 7-8 (1985).

70. 132 CONG. REC. S1019 (daily ed. Jan. 21, 1987) (statement of Sen. Durenberger).

71. 33 U.S.C. § 1251(a)(7), ELR STAT. FWPCA § 101(a)(7).

72. Id. § 1329(a)-(b), ELR STAT. FWPCA § 319(a)-(b). EPA extended the deadline, however, to Aug. 4, 1989. See Fentress, supra note 66, at 821 n.62.

73. See 33 U.S.C. § 1329(a)(1)(A)-(B), ELR STAT. FWPCA § 319(a)(1)(A)-(B).

74. Id. § 1329(a)(1)(C), ELR STAT. FWPCA § 319(a)(1)(C).

75. See Fentress, supra note 66, at 821.

76. See 33 U.S.C. § 1329(h)(11), ELR STAT. FWPCA § 219(h)(11).

77. Id. § 1329(m)(l), ELR STAT. FWPCA § 319(m)(l).

78. See id. § 1329(i), ELR STAT. FWPCA § 219(i).

79. See supra text accompanying notes 12-16; ADLER ET AL., supra note 21, at 241 ("Implementation of 319 has failed to stem the flow of polluted runoff: the majority of state programs are ineffective and unfocused.").

80. See GAO, WATER POLLUTION: GREATER EPA LEADERSHIP NEEDED TO REDUCE NONPOINT SOURCE POLLUTION 28-29 (1990).

81. Id.

82. See Hearings Before the House Water Resources and Environment Subcomm., 1995 WL. 76952 (Feb. 24, 1995) (testimony of John J. Vroom, President, American Crop Protective Ass'n).

83. See id.

84. See id.; 33 U.S.C. § 1329(j), ELR STAT. FWPCA § 319(j).

85. See ADLER ET AL., supra note 21, at 189.

86. See 33 U.S.C. § 1329(c)(3), (e), ELR STAT. FWPCA § 319(c)(3), (e). Governmental entities are envisioned to play this role. "Public organizations" are supposed to have "expertise in, and authority to control, water pollution resulting from nonpoint sources." Id. § 1329(e), ELR STAT. FWPCA § 319(e).

87. See John H. Davidson, Thinking About Nonpoint Sources of Water Pollution and South Dakota Agriculture, 34 S.D. L. REV. 20, 44 (1989).

88. See Hearings Before the House Water Resources and Environment Subcomm., 1995 WL 76953 (Feb. 24, 1995) (testimony of Steven N. Moyer, Government Affairs Director, Trout Unlimited).

89. See Davidson, supra note 87, at 44.

90. See 33 U.S.C. § 1319(a)-(b), ELR STAT. FWPCA § 319(a)-(b).

91. See id. § 1288(b)(2)(A)-(K), ELR STAT. FWPCA § 208(b)(2)(A)-(K).

92. See supra notes 54, 61, 80-85, and accompanying text.

93. See RODGERS, supra note 8, at 298 n.39.

94. 16 U.S.C. § 1455(g)(5), ELR STAT. CZMA § 306(g)(5).

95. See 33 U.S.C. § 1329(a)(1)(C), § 1288(b)(2)(F), ELR STAT. FWPCA § 319(a)(1)(C), § 208(b)(2)(F).

96. EPA released its final standards in 1993. See EPA, GUIDANCE SPECIFYING MANAGEMENT MEASURES TO SOURCE OF NONPOINT POLLUTION IN COASTAL WATERS (1993).

97. See Water Pollution: Nonpoint Source Provisions of S.1114 Good Basis for CWA Reform, Panel Told, 25 Env't Rep. (BNA) 134 (July 15, 1993).

98. See Hearings Before the House Water Resources and Environment Subcomm., 1995 WL 76953 (Feb. 24, 1995) (testimony of Steven N. Moyer, Government Affairs Director, Trout Unlimited); ADLER ET AL., supra note 21, at 191-93.

99. Hearings Before the Senate Clean Water, Fisheries, and Wildlife Comm., 1993 WL 760940 (Aug. 5, 1993) (testimony of Douglas K. Hall, Ass't Secretary for Oceans and Atmosphere, NOAA).

100. H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995) (dissenting views of Congressman Oberstar et al.).

101. See EPA, AGENDA, supra note 20, at xiii.

102. See Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 156 (1988).

103. S. REP. NO. 370, 95th Cong., 1st Sess. 8 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4334.

104. THOMAS K. McCRAW, PROPHETS OF REGULATION 309 (1984). The strategy has long been recognized: in 1979, the American Bar Association's Commission on Law and the Economy concluded that "where possible, … in dealing with problems of 'spillovers' (such as environmental pollution …), less restrictive tools (such as taxes, disclosure, or bargaining), should be considered as supplements to, or as partial substitutes for, classical standard-setting." ABA COMM. ON LAW AND THE ECONOMY, FEDERAL REGULATION: ROADS TO REFORM I (1979).

105. See Stewart, supra note 102, at 159.

106. Id. at 160; Richard L. Ottinger & William B. Moore, The Case for State Pollution Taxes, 12 PACE ENVTL. L. REV. 103-06 (1994) (discussing the benefits of pollution taxes generally).

107. For an analysis of the potential of economic incentives, see J.B. BRADEN ET AL. supra note 22, at 57.

108. ABA COMM. ON LAW AND THE ECONOMY, FEDERAL REGULATION: ROADS TO REFORM I (1979).

109. See PIERRE CROSSON, TRENDS IN AGRICULTURE AND POSSIBLE ENVIRONMENTAL FUTURES, IN AGRICULTURAL MANAGEMENT AND WATER QUALITY 425, 447 (Frank W. Schaller & George W. Bailey eds., 1983). This conclusion assumes that differently situated agricultural operators would be obligated to pay different pollution control costs — that some are more at risk of weeds and therefore have to spread more herbicides, which in turn would create more groundwater contamination problems than it would for agricultural operators in other areas. Similarly, some operators might be situated close to streams or be endowed with especially thick topsoil, putting them more at risk for erosion and its attendant cleanup costs than operators who produce similar crops. Heavy polluters would pay more, meaning that some operators would be placed at a competitive disadvantage to others.

Disadvantaging agricultural operators who are heavy polluters, however, would not necessarily be bad policy. Other operators who have to farm on relatively poor land or in relatively bad weather do not expect to be compensated for their disadvantages. If they are forced to bear the full cost of their operations, perhaps polluting operators should be obligated to do the same. Id. at 447.

110. See id. at 449.

111. Academics and policymakers have seriously considered pollution taxes. In 1990, the House, Ways and Means Committee held hearings to examine the ways that federal tax policy might promote environmental objectives; the Committee then considered pollution taxes on water discharges. See Economic and Tax Incentives for a Cleaner Environment: A Survey of Marketable Pollution Permits and Pollution Taxes, 1 DICK. J. ENVTL. L. & POL'Y 40, 47 (1991). For a recent overview of how those taxes might be implemented, see the Pollution Tax Forum in 12 PACE ENVTL. L. REV. (1994)

112. Richard L. Ottinger (a former member of Congress himself) and William B. Moore note that passing pollution tax laws is especially difficult given the "tremendous aversion to taxes in the United States today." Ottinger & Moore, supra note 106, at 117. Farmers are particularly opposed to pollution taxes. A tax reduces farmer net returns, while subsidies and restrictions may actually help farmers. The latter approaches are more popular in the agricultural community. See C. ROBERT TAYLOR, POLICY AND THE REGIONAL ECONOMICS OF IMPLEMENTING NPS CONTROLS, IN AGRICULTURAL MANAGEMENT AND WATER QUALITY, supra note 109, at 387.

113. Congress and EPA have recognized the difficulties of establishing nonpoint source pollution causation. See infra notes 140-42 and accompanying text.

114. See J.B. BRADEN ET AL., supra note 22, at 101.

115. See id. at 101-02.

116. See id. at 102.

117. See id. at 102-03.

118. See id.

119. See id.

120. See id.

121. See supra text accompanying notes 62-68.

122. H.R. 961, 104th Cong., 1st Sess. (1995).

123. H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995).

124. H.R. 961, § 101(b)(9), 104th Cong., 1st Sess. (1995).

125. H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995).

126. H.R. 961, § 319(p), 104th Cong., 1st Sess. (1995).

127. Id. § 319(b)(2)(B). The House of Representatives, however, indicated its willingness to relax the deadline even further. "Specific and unrealistic deadlines should not be mandated from Washington, D.C. Instead, each state should tailor its program so that reasonable further progress can be made. A rigid 15 year deadline … can be counterproductive." H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995).

128. H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995). Congress rejected the Clinton Administration's FWPCA amendment proposal that would have more strictly regulated agricultural nonpoint source pollution and would have imposed $ 1.2 billion in compliance costs on agricultural operations, according to an EPA estimate. Cost of Clinton Clean Water Plan Estimated by EPA at $ 70 Billion Per Year, 26 Env't Rep. (BNA) 48 (Mar. 15, 1994).

129. See Peter H. Lehner, The Debate of Clean Water: Amendments Point to Costs of Pollution, N.Y.L.J., June 12, 1995, at S1.

130. H.R. 961, § 319(d)(2)(B), 104th Cong., 1st Sess. (1995).

131. 141 CONG. REC. H4690-01, H4698 (daily ed. May 10, 1995).

132. See supra note 103 and accompanying text.

133. Bud Shuster, Clean Water Bill Stays True to '72 Act, N.Y. TIMES, Apr. 5, 1995, at A24; NRDC, SAVE OUR SUMMER: CONGRESS' ASSAULT ON CLEAN WATERS 24 (1995).

134. NRDC, supra note 133, at 24.

135. A spokesman for the American Oceans Campaign claimed that "this is the most regressive environmental bill passed for a generation. We hope that it never becomes law." Gary Lee, House Passes Rewrite of Water Act; Measure Would Ease Industry Compliance, WASH. POST, May 17, 1995, at A1.

136. See Browner Blasts CWA Rewrite: Says EPA "Will Not Be a Partner" to GOP Rollbacks, 27 Env't Rep. (BNA) 113 (June 14, 1995).

137. See Kimberly Music, Clinton Vows Veto of Clean Water Legislation if Version Like House Bill Comes to His Desk, OIL DAILY, May 31, 1995, at 1.

138. Bob Benenson, Water Bill Wins House Passage, May Not Survive in Senate, CONG. Q., May 20, 1995, at 1413.

139. H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995) (Supplemental Views of Congressmen Boehlert and Gilchrest).

140. See EPA, REPORT TO CONGRESS, supra note 23, at 1-17.

141. See id.

142. S. REP. NO. 370, 95th Cong., 1st Sess. 37 (1977), reprinted in 1972 U.S.C.C.A.N. 4326, 4362.

143. Characterizing the political process of promulgating various pollution control methods can also be accomplished by applying the framework of three legislative decisionmaking processes: a redistributive decision that might be characterized by ideological adherence; a regulative process characterized by bargaining and resulting in compromise; and a distributive process characterized by vote — and pork — trading. See Theodore J. Lowi, Four Systems of Policy, Politics, and Choice, 32 PUB. ADMIN. REV. 298 (1972). A redistributive debate might feature an ideological struggle between environmentalism and ideals of family farms and industrious use of fertile land, while a bargaining process might feature information gathering over the exact effects and efficacy of reforms of water pollution, and would involve experts as opposed to mass movements. Vote trading would encourage pollution control projects that convey some of the largess of the state to various districts with political clout. For a more detailed application of this choice theory to water pollution control, see HENRY P. CAULFIELD JR., THE FEDERAL ENVIRONMENTAL LEGISLATIVE PROCESS, supra note 22, at 1.

144. See Robert D. Tollison, Public Choice and Legislation, 74 VA. L. REV. 339, 343 (1988).

145. See RICHARD J. PIERCE ET AL., ADMINISTRATIVE LAW AND PROCESS 16 (2d ed. 1992) (discussing "public" and "private" interest groups).

146. See Jonathan Macey, Public Choice: The Theory of the Firm and the Theory of Market Exchange, 74 CORNELL L. REV. 44, 50 (1988).

147. Id. at 48.

148. Bob Benenson, Clean Water Law Revisions Mark Arrival of New Era, CONG. Q., Apr. 8, 1995, at 1018.

149. Bud Shuster's Dirty Water Act, N.Y. TIMES, Apr. 2, 1995, at D14.

150. See id.

151. Panel Shuts Out Environmentalists, EPA From Task Forces Revising CWA, 27 Env't Rep. (BNA) 49 (Mar. 14, 1995).

152. Bob Benenson, House Panel Easily Approves Revision of Clean Water Act, CONG. Q., Apr. 1, 1995, at 935.

153. Bob Benenson, Action on Clean Water Bill Certain to Provoke Fight, CONG. Q., Mar. 25, 1995, at 870. Dissenters to the bill complained that "there is very little that the polluters and special interests asked for that they did not get in this bill. This is their dream come true." H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995) (dissenting views of Congressman Oberstar et al.).

154. Members of Congress opposed to the bill observed this demanding that agriculture "do its share." H.R. REP. NO. 112, 104th Cong., 1st Sess. (1995) (Clean Water Amendments of 1995) (dissenting views of Congressman Oberstar, et al.).

155. Hearings Before the House Water Resources and Environment Subcomm., Feb. 24, 1995, 1995 WL 76950 (testimony of John Long, First Vice President, American Soybean Ass'n) ("H.R. 961 would allow states and local watershed authorities to design flexible, voluntary, site-specific solutions to nonpoint source problems, and we believe that this approach must be encouraged."). For a similarly enthusiastic response to the bill, see Hearings Before the House Water Resources and Environment Subcomm., Feb. 24, 1995, 1995 WL 76951 (testimony of Steven Hoefer, Vice President, Agway, Inc.).

156. Hearings Before the House Water Resources and Environment Subcomm., Feb. 24, 1995, 1995 WL 76951 (testimony of Steven Hoefer, Vice President, Agway, Inc.).

157. H.R. 961, therefore, is a particularly stark example of the competition public choice theory posits. But even § 319 permits an interpretation under a somewhat more subtle theory of public choice. The 1987 amendments to the Act began with the declaration that "it is the national policy" to control nonpoint source pollution. 33 U.S.C. § 1251(a)(7), ELR STAT. FWPCA § 101(a)(7). That policy, however, was implemented with § 319's ineffective and uncreative incentive structure. See supra text accompanying notes 79-92. The combination of a bold pronouncement to appeal to the general public interested in environmental legislation with a regulatory scheme unlikely to upset special interests is unsurprising to public choice scholars, who "assert that … legislators allow the general public its apparent triumphs such as pro-environmental … legislation, but since they respond ultimately to the electoral power — special interest groups — they eviscerate this legislation at the implementation stage." Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 22 (1991).

158. See Richard J. Lazarus, The Neglected Question of Congressional Oversight of EPA: Quis Custodiet Ipsos Custodes (Who Shall Watch the Watchers Themselves)? 54 LAW & CONTEMP, PROBS. 205, 227 (1991) (congressional oversight characterized by its "intensity and negative quality"); 3 WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW: PESTICIDES AND TOXIC SUBSTANCES § 5.4 (1988). ("Legislative oversight by the congressional committees is aggressive and skeptical, supplying the courts with tempting snippets of legislative history and emboldening them with tales of the frailties of EPA decisionmaker.").

159. Observers believe that Congress is unlikely to enact pollution taxes anytime soon. To create pollution taxes, Congress needs "a leadership commitment that the externality costs of pollution have to be reduced, and the realization that fees or taxes are an effective means to realize those reductions." Yet such leadership does not currently exist at the federal level. Henry Lee, The Political Economy of Energy Taxes: An Assessment of the Opportunities and Obstacles, 12 PACE ENVTL. L. REV. 77, 79 (1994).

160. Nonetheless, EPA can improve some aspects of nonpoint source regulation. It can, for example, pursue favorable interpretations of FWPCA provisions in the courts, which have proven willing to broaden the definition of important statutory terms like "point source." See CARE v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995) (vehicles spreading manure that reaches water are themselves point sources; dairy farm with 2200 animals is a "concentrated animal feeding operation" and therefore a point source.). For a discussion of Southview Farm, see Stacy K. Garrett, Second Circuit's Holding Limits Scope of Agricultural Exemption Under the Clean Water Act, 4 S.C. ENVTL. L.J. 67 (1995). EPA could also consider reviewing some of the interpretations it has given some of the terms of the Act. For example, CAFOs qualify as point sources under the Act. See 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14). Currently, EPA has defined CAFOs to include only the largest of livestock farms — those containing over 1,000 slaughter or feeder cattle, or its equivalent. See 40 C.F.R. Pt. 122, App. B. It could, however, revise downward the number of animals it takes to create a CAFO and thus subject substantially more livestock operations to regulations. And finally, it and other agencies could seek increased funding of the voluntary programs that do exist to help prevent nonpoint source pollution, such as the Rural Clean Water Program, which is largely administered by the Department of Agriculture.