Agriculture and the Clean Water Act

• Author: Mary Jane Angelo and James F. Choate
• Pages: 147-161

Page 147

Chapter 9

Agriculture and the Clean Water Act

Mar y Jane Angelo and James F. Choate

Agriculture has the potential to impact signicantly both water quality and water quantity. e pri-

mary federa l authority for addressing the environmental impacts to water resources from agricul-

ture, as well as impacts from industrial and domestic sources of water pollution, is the federal Clean

Water Act (CWA). e CWA includes both regulatory and nonregulatory provisions designed to protect

the integrity of the nation’s waters. Its focus is on protecting water quality through a range of permitting

and incentive-based programs.

is chapter covers the role of t he federal CWA in addressing water resource impacts associated with

agricultural activities. It is importa nt to note, however, that in addition to water qua lity impacts, agricul-

tural activities also cause water quantity impacts. Enormous volumes of groundwater and surface water are

withdrawn to irrigate crops.1 In 2008, for example, farmers in the United States irrigated nearly 55 million

acres of agricultural land.2 ese water withdrawals ca n severely impact existing natural systems, as well as

the availability of water for other human uses, such as public water supply. However, water quantity issues

are not directly addre ssed by federal law and the CWA does not include provisions speci cally designed

to address water quality concerns. Water use and its associated water quality impacts are regulated on a

state-by-state basis in accordance with state law.3 (A detailed discussion of the environmental impacts of

agricultural irrigation is provided in Chapter 4.)

A. A Brief Overview

As one of the most signicant features of the CWA, the National Pollutant Discharge Elimination System

(NPDES) permit program requires a permit for any addition4 of a “pollutant” from a “point source” into

“navigable waters” (i.e., “waters of the United States”).5 Either the U.S. Environmental Protection A gency

(EPA) or a state to which EPA has delegated the authority administers the NPDES permit program.6 Cur-

rently, 46 states administer the NPDES permit program on beha lf of EPA.7 Idaho, Massachusetts, New

Hampshire, and New Mexico are t he states that do not administer the NPDES permit program.8

e NPDES permit program has been relatively successful at reducing t he amount of pollutants dis-

charged from point sources, dened under the CWA as “any discernable, conned and discrete convey-

1. J.B. Ruhl, Farms, eir Environmental Harms, and Environmental Law, 27 E L.Q. 263, 279 (2000).

2. U.S. Dep’t of Agric., National Agric. Stat. Serv., 2008 Census of Agriculture, Farm and Ranch Irrigation Survey, available at http://www.

agcensus.usda.gov/Publications/2007/Online_Highlights/Farm_and_Ranch_Irrigation_Survey/index.php (last visited July 29, 2012).

3. Christine A. Klein et al., Modernizing Water Law: e Example of Florida, 61 F. L. R. 403 (2009).

4. “Addition” is undened within the CWA, but is found in 33 U.S.C. §1362(12)(a) (dening “discharge of a pollutant” as “any addition of any

pollutant to navigable waters from any point source”).

5. 33 U.S.C. §1311; 33 U.S.C. §1342. See also 33 U.S.C. §1362(7) (dening “navigable waters”). For the denition of “waters of the United

States,” see 40 C.F.R. §230.3(s).

6. See U.S. EPA, National Pollutant Discharge Elimination System (NPDES): State Program Status, http://cfpub.epa.gov/npdes/statestats.cfm (last

visited July 29, 2012).

7. Id.

8. Id.

James Choate’s contributions to this chapter are expressed in his individual capacity and do not necessarily reect those of the U.S. Department of

Defense, the U.S. Army, or the U.S. Army Corps of Engineers, which have indicated neither approval nor disapproval of the positions Mr. Choate

takes in this chapter.