Des Moines, Iowa Water Works has filed a federal lawsuit against three Iowa counties, several drainage districts and Iowa's farmers. DMWW claims the drainage districts are point sources under the Clean Water Act. DMWW seems to forget about the CWA's "agriculture stormwater runoff exemption" and two sections dealing with water runoff from farms and other nonpoint sources.
Not much has been written about the CWA and Sections 208 and 319, which deal with agriculture's nonpoint source water runoff. Counties, drainage districts and farmers everywhere best acquaint themselves with the protections the CWA provides to nonpoint water runoff from farm fields.
A recent law review article from Vermont declares, "One of the last great intractable problems of environmental law is the pollution of America's waterways by agriculture." This article also claims pollutants such as fertilizers and runoff of animal waste from livestock operations are devastating downstream watercourses.
The authors making these statements are professors of law with degrees from Wisconsin and Yale.
Agricultural activities generate sediment runoff when it rains. In 1972, Congress recognized that controlling nonpoint source pollution from agriculture would be required to achieve water quality goals. Congress also recognized the magnitude and sheer number of nonpoint sources and realized that nonpoint source pollution from farms could be addressed only through land use controls, which are a traditional state function, not federal.
In the 1972 amendments, Congress created Section 208 to address agricultural and other nonpoint source runoff. Congress did not define the term "nonpoint source" but assumed any water pollution not caused by point source would come from a nonpoint source and would include, according to EPA, pollution from land runoff, precipitation, atmospheric deposition, or percolation.
So the CWA treats point and nonpoint source pollution differently.
Point source pollution is subjected to command and control regulation. Nonpoint source pollution was subjected to Section 208 and Congress left the control of nonpoint source pollution to the states.
Section 208 deals with plans and declares state plans must contain a process to control the disposal of pollutants on land, and must have a process to protect ground and surface water quality.
Section 208 essentially requested the states to identify and develop solutions for their agricultural nonpoint source pollution problems. This section required each state Governor to identify areas experiencing "substantial water quality control problems."
Section 208 required plans to address agriculturally related nonpoint source pollution and specifically mentioned land use requirements to be used. Even though Section 208 did not require federal regulation of nonpoint source polluters, it did direct states to utilize regulation, if necessary, to control nonpoint source pollution. (A number of commentators and lawyers miss this point.)
EPA and Congress did not pay a lot of attention or provide money to fund Section 208 and the lack of progress under this section led to the adoption of Section 319 in the Water Quality Act of 1987. Section 208 was not repealed.
DMWW is claiming, apparently, no progress has been made to control the runoff of nitrates from farmers' fields. (Not correct.)
Farmers need to be aware that Section 319 is there to help them manage nonpoint source pollution, which effects occur downstream or off the farm. Again, Section 319 requires states to utilize regulation, if necessary, to control nonpoint source pollution.
Iowa and other states apparently have chosen not to regulate farmers' nonpoint source runoff. But, Section 319 has even clearer regulatory requirements than did Section 208. For example, the Section requires that state management programs submitted to EPA for approval "must" identify programs to achieve implementation of best management practices, including "non regulatory or regulatory programs." In addition, a state must certify that its laws create adequate authority to implement the state's management plan, and if it does not have such power, it must seek such legislative authority.
In the coming weeks, months, and possibly years, tillage and animal agriculture operators will hear that Sections 208 and 319 have failed because they are purely voluntary…not so! Congress put power into Section 319 and EPA, through its review on an annual basis, has a major role. For example, Section 319 requires EPA to submit to Congress annual reports on activities and programs implemented under Section 319 and on the progress made in reducing nonpoint source pollution.
As the litigation proceeds in the Iowa federal court, maybe someone should look at EPA's review and approval of Iowa's 319 annual reports. It might be an interesting read and dispel some of the pipedreams being argued.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.