Nonpoint Source Water Pollution

1
Nonpoint Source Water Pollution

1. The nations largest water quality problem

- The main reason that approximately forty
percent of the nations 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

1. 303(a)(3)(A) States must adopt water quality
   standards for all water within their jurisdiction
   and submit them to EPA.
2. 303(a)(3)(C) EPA has the authority to reject
   those standards if they are inconsistent with the
   applicable requirements of the Act.
3. 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.
4. 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

1. Designated Uses
2. 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.
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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.
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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 pollutantdefining 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.

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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. EPAs requirement that Arkansas comply with
Oklahomas water quality standards was a
reasonable exercise of the Agencys substantial
statutory discretion.
No. The Court of Appeals made a policy decision
that it was not authorized to make.
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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?