Section 319 and Hydrologic Modifications: Another Assault-part I
| Publication year | 1990 |
| Pages | 2251 |
1990, November, Pg. 2251. Section 319 and Hydrologic Modifications: Another Assault-Part I
The author of this article has represented the Water Department of the City of Colorado Springs in proceedings on this topic before the Water Quality Control Commission, where the issue currently is being debated. The points made in this two-part article, therefore, are from the viewpoint of the author. An opposing view will appear in the "Natural Resource Notes" column of The Colorado Lawyer in the January 1991 issue.
Nonpoint source pollution includes any source of water pollution or pollutants not associated with a discrete conveyance.(fn1) Nonpoint source pollution, such as that caused by urban and agricultural runoff, has been identified by the EPA as causing more than 60 percent of the remaining pollution problems in the nation's estuaries, lakes and rivers.(fn2) Therefore, Congress has been under increasing pressure from environmental organizations and the EPA to plug this perceived gap in the federal water quality protection program.
In 1987, Congress amended § 101(a) of the Clean Water Act ("Act") to provide that:
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 chapter to be met through the control of both point and nonpoint sources of pollution.(fn3)
However, as a result of the diversity and complexity of nonpoint sources and the host of differing hydrological, meteorological and geographic conditions under which such sources were found to exist, Congress chose to establish a state-controlled, ostensibly "voluntary" program for nonpoint source control, as outlined in § 319 of the 1987 Amendments to the Act.(fn4)
Included within the various categories of nonpoint sources as identified by the EPA was hydrologic/habitat modification.(fn5) Under this broad categorical umbrella, the EPA further delineated certain subcategories, such as dam construction and flow regulation/modification.(fn6) As a result of such references to traditional water storage and conveyance activities, Colorado water purveyors should be concerned over the future interpretation and application of the § 319 program because of its potential impact on their ability fully to develop and place to beneficial use decreed water rights.
Part I of this article describes the issues surrounding the application of § 319 to hydrologic modifications. It also identifies the provisions of § 319 and federal judicial determinations which, in the opinion of this author, limit the scope of the nonpoint source program. Part II, to be published in December, will address the distinction between "pollutants" and "pollution," state law constraints and the "voluntary" nature of the program.
The EPA's 1987 identification of hydrologic modification activities as nonpoint sources was consistent with existing statute and case law. The seminal federal decision on the appropriate treatment of dam-induced water quality changes was rendered in 1982 by the D.C. Circuit Court of Appeals in National Wildlife Federation v. Gorsuch.(fn7) The Gorsuch Court held that such dam-induced changes were indeed nonpoint source pollution and, therefore, not subject to the discharge permit provisions of § 402 of the Act.(fn8) Application of the latter was limited to the addition of pollutants from a point source.
The Colorado legislature also has stated explicitly that
[a]ctivities such as diversion, carriage, and exchange of water from or into streams, lakes, reservoirs, or conveyance structures, or storage of water
However, the flames of controversy are rekindled when the diversion activity, although not resulting in the addition of pollutants to a waterbody, removes dilution flows which (1) previously masked other point or nonpoint source pollution or...
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