EPA's 319 nonpoint source plan

EPA's 319 nonpoint source plan

The EPA and the courts are confused about a key section of the Clean Water Act

EPA issued a plan on April 12, 2013, outlining its implementation of its nonpoint source program which covers farms' stormwater runoff. The memorandum also focuses on how to apply for 319 funded grant activities.

Related: The court simply got it wrong on the Clean Water Act

EPA claims it is issuing revised guidelines to states on how to implement nonpoint source management programs.  The memorandum declares, "Congress enacted Section 319 of the Clean Water Act in 1987, establishing a national program to control nonpoint sources of water pollution."

The EPA and the courts are confused about a key section of the Clean Water Act

It also quotes CWA Section 101(a)(7), saying, "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."

EPA says this will include programs for "nonregulatory" and "regulatory" actions.  There is discussion in the EPA memorandum of 303(d) listing and the total maximum daily load program. EPA says that the Section 319 program is critical in implementing TMDLs where nonpoint source pollution is a contributor to water quality impairment. EPA states clearly, "…these TMDLs [are] not enforceable under the Clean Water Act, for waters impaired solely or partly by nonpoint sources, the primary implementation mechanism is generally the state NPS management program coupled with state, local, and federal land management programs and authorities." 

Typical bureaucratic exercise
EPA's memorandum  is a typical bureaucratic exercise. However, It does have nuggets in it such as Section III Nonpoint Source Management Programs, on page 14. This section lays out EPA's views on what elements should be included in a state Nonpoint Source Management (NSP) program. The background paragraph never once describes regulatory programs, or the fact the statute requires a program to have a certification from the state's Attorney General of sufficient authority to enforce the program.

EPA claims nonpoint source pollution dominates water quality impairments in the United States and declares, "…53% of the nation's assessed rivers and streams, 66% of the nation's estuaries and bays, and 69% of the nation's lakes are impaired…are impacted primarily by nonpoint sources." These statistics all come from EPA websites which you can read on page 16 of the memorandum.  

Appendix VIII (A) of the 78-page memorandum outlines EPA's plan of an effective nonpoint source management program and outlines key elements.

• State program must contain explicit goals, objectives and strategies "to restore and protect surface and ground water"

• A state's plan must include working partnerships with other states, tribal, regional and local entities and of course citizen groups

• A state must use a combination of statewide programs and on-the-ground projects to achieve water quality benefits. This component requires a state management program which works with state agricultural conservation, state nutrient control and control of storm water coming from confined feeding operations plus the program must include protections for drinking water, wetlands and pesticide management among several others.

• The state program must describe how resources will be allocated between water quality impairments from nonpoint source pollution on threatened and high quality waters. (This section is one that only an EPA bureaucrat could appreciate.)

• The state program requires identifying waters and watersheds impaired by nonpoint source pollution. EPA requires the state to establish a process to assign a priority to these waters and then includes a list of factors which are virtually impossible to decipher.

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• The state must implement all program components of Section 319 and establish "…strategic approaches and adaptive management to achieve and maintain water quality standards as expeditiously as practical." Finally, this component of guidance declares "The state program includes a mix of regulatory, nonregulatory, financial and technical assistance…"  Finally EPA admits that a state management program includes regulatory aspects and is not voluntary. The plan, of course, must (according to EPA) implement its nonpoint source management plan "efficiently and effectively, including necessary financial management." In essence, EPA wants the state to guarantee that it will leverage its funds sufficiently.

• There must be appropriate measures of progress in meeting programmatic and water quality goals. EPA appears to miss the point from the statute which makes it clear water quality standards are the targets and must be met.

• The last element in Appendix VIIl required of the state is that there must be a nonpoint source management program that uses an environmental and functional measure of success and of course, "The state NPS management program is reviewed and revised every five years."

Section 319 of the Clean Water Act makes it very clear that it is to control nonpoint source programs. It may not be clearly drafted, but it does deal with nonpoint sources and not in the way EPA and the 3rd Circuit Court of Appeals have concluded.

The opinions of Gary Baise are not necessarily those of Farm Futures or the Penton Farm Progress Group.

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