Nonpoint Source Water Pollution

1. Nonpoint Source Water Pollution • The nation’s largest water quality problem: - The “main reason that approximately forty percent of [the nation’s] surveyed rivers, lakes, and estuaries are not clean enough to meet basic uses such as fishing or swimming”; - In the event that further reduction in the pollution of national watercourses is to be achieved, the regulation of nonpoint sources will need to be improved. 2. What are nonpoint sources of pollution? - Definition of “point source”: 33 U.S.C. §1362(14); - Difficulties in characterization. 3. What problems does the regulation of nonpoint sources pose? - Detection; - Attribution; - Enforcement.

2. Regulatory Responses to Nonpoint Source Water Pollution • Areawide Waste Treatment Plans: • 2. State Management Programs: • 3. Water Quality Trading Schemes - § 208. - § 319; - Challenges in enforcement; - Best Management Practices; - State Management Programs and SIPs. - Disparity in costs of pollution reduction between point and nonpoint sources; - Potential efficiency gains; - Difficulties in implementing successful market.

3. Considerations in Designing Water Quality Trading Schemes What type of trading scheme should be implemented? - credit trading v. cap-and-trade. What should be the applicable unit of trade? - difficulties in establishing translation ratios. Should trading be permitted between point and nonpoint sources? - efficiency v. effectiveness of market. At what level should the baseline, against which reductions in nonpoint source pollution are measured, be set? - appropriate timing?

4. Setting Water Quality Standards • § 303(a)(3)(A): States must adopt water quality standards for all water within their jurisdiction and submit them to EPA. • § 303(a)(3)(C): EPA has the authority to reject those standards if they are inconsistent with the applicable requirements of the Act. • § 303(b)(1)(A): If a state fails to submit its own standards to EPA for approval, EPA may then issue water quality standards for the state. • § 302: Requires the establishment of effluent limitations sufficient to meet state water quality standards, in circumstances where the technology-based effluent standards are unable to achieve these standards.

5. Water Quality Standards: Key Components • Designated Uses: • Water Quality Criteria: - 40 CFR § 131.10(a): A state must first determine what use is attainable; - 40 CFR § 131.10(d): At a minimum, a use is deemed attainable if it can be achieved by the imposition of the CWA technology based standards; - 40 CFR § 131.10(g): A state must undertake a Use Attainability Analysis (UAA) in order to designate a use lower than “fishable/swimmable”; - Idaho Mining Assn v. Browner: A rebuttable presumption in favor of “fishable/swimmable” uses. - § 303(c)(2)(A): Having designated uses for their waters, states must next establish water quality criteria necessary to achieve and maintain those uses; - 40 CFR § 131.3(b): Criteria are defined as “elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements representing a quality of water that supports a particular use”; - 40 CFR § 131.11(b): Criteria may be numeric or narrative.

6. Water Quality Standards: Key Components (Cont.) 3. Antidegradation: - § 303(d)(4)(B): States are required to adopt an antidegradation policy; - 40 CFR § 131.12(a): At a minimum, an antidegradation policy must establish 3 tiers of antidegradation protection: - Tier 1 applies to all waters and requires that existing water uses be protected; - Tier 2 applies to high quality waters (fishable/swimmable) and requires that water quality be maintained and protected (with an exception for economic or social necessity); - Tier 3 applies to high quality waters that constitute an “outstanding national resource” and requires that water quality be maintained and protected (without an exception for economic or social necessity); - Ohio Valley Environmental Coalition v. Horinko: Consequences of tiering. - Antidegradation under the CWA v. PSD under the CAA.

7. TMDLs: Key Components • § 303(d): States must create more stringent water quality-based controls in circumstances where technology-based controls are inadequate to achieve state water quality standards. • § 303(d)(1)(A): States must first list bodies of water that have failed to attain applicable water quality standards. The list must establish a priority ranking, taking into account the severity of the pollution and the uses to be made of such waters. • § 303(d)(1)(C): States must then set TMDLs for each pollutant—defining the maximum amount of a pollutant that can be discharged into the water segment without violating the water quality standard. • Waste Load Allocations: Applicable to point sources and incorporated within NPDES permits; • Load Allocations: Applicable to nonpoint sources and incorporated within State Management Programs.

8. TMDLs: Controversies • Pronsolino v. Nastri: Applicability of TMDLs to waters impaired exclusively by nonpoint sources of pollution. • NRDC v. Muszynski: Scope of discretion afforded EPA to approve TMDLs. • San Francisco BayKeeper v. Whitman: Responsibilities on the part of EPA to promulgate TMDLs in the absence of state action.

9. Interstate Water Pollution: Arkansas v. Oklahoma3 Questions before the Court • Must the Agency, in crafting and issuing a permit to a point source in one State, apply the water quality standards of downstream States? • Even if the Act does not require as much, does the Agency have the statutory authority to mandate such compliance? • Does the Act provide, as held by the Court of Appeals, that once a body of water fails to meet water quality standards no discharge that yields effluent that reach the degraded waters will be permitted? Not addressed by the Court Yes. EPA’s requirement that Arkansas comply with Oklahoma’s water quality standards was a reasonable exercise of the Agency’s substantial statutory discretion. No. The Court of Appeals made a policy decision that it was not authorized to make.

10. Interstate Water Pollution: “Actually Detectable or Measurable” • What does “actually detectable or measurable” mean? • What are the practical difficulties in applying the standard? • How does the standard differ from the standard favored by the Court of Appeals? • What are the consequences of the competing standards on upstream and downstream states? • How does the “actually detectable or measurable” standard under the CAA compare with the “significant contribution” standard under the CAA?