CIRCLING THE DRAIN: REGULATING NUTRIENT POLLUTION FROM AGRICULTURAL SOURCES.

• Author: Gutermuth, William

1. INTRODUCTION 82 II.TOOMUCHOFAGOODTHING:HOWPHOSPHORUSAND NITROGENHAVEHARMFULEFFECTSONTAPWATER SOURCES 84 A. Then and Now 84 B. What is Nutrient Pollution? 85 1. Eutrophication 85 C. Phosphorus: It's What Plants Crave 86 1. Algae 87 2. Harmful Algal Blooms 87 3. Cyanobacteria 88 4. The Harmful Effects of Cyanotoxins 89 D. Nitrogen: Reduce, Reuse, Recycle 91 1. Nitrogen Fertilizers 92 2. Blue Baby Syndrome 92 III.THE LONG ARMOF THE LAWIS NOT LONGENOUGH: THE CLEANWATERAND THESAFEWATERDRINKING ACT 94 A. The Ins and Outs of the Clean Water Act 94 1. Point Sources 95 2. Nonpoint Sources 96 3. National Pollutant Discharge Elimination System 97 B. The Safe Water Drinking Act 97 1. Contamination Standards 98 2. Tap Water Coverage 98 IV.TILE DRAINAGE SYTEMS:THE DOUBLE EDGEDSWORD99 A. Agriculture as a Nonpoint Source 99 B. Changes in Farming Practices 100 1. No-Till Farming 100 2. Tile Drainage Systems 101 C. Dissolved Nutrients; Out of Sight, But Not Out of Mind 103 V. THE ANSWER LIESWTIHIN:ACLOSER LOOKAT THE DEFINATION OF APOINT SOURCE 104 A. Agriculture: Can it be Regulated? 104 B. Tile Drainage Systems are the Key 105 1. Tile Drains as a Point Source 106 2. The Agricultural Exemption 106 C. Influencing Change: The Role of the Court 107 VI.CONCLUSION 109 I. INTRODUCTION

   How often do Americans think about the fresh water that comes from their faucets? Those living in rural areas who have their own wells and filter their own water may think about it quite frequently, but for the enormous number of Americans living in urban cities and suburbs, tap water is a bit of an enigma. For example, it is commonly known that as long as the water bill is paid, clean water will be readily available; however, where the water came from, the treatment process it may have undergone, and the path it took to reach the specific faucet are all questions that few Americans could answer with confidence.

   For Americans, access to clean tap water is the norm. (2) Tap water has become an essential part of everyday life in the United States as it is used for numerous daily tasks such as bathing, cooking, and drinking. Therefore, it could be said that the United States would be a very different society than what exists today without clean tap water.

   Yet, despite its importance and widespread usage, tap water is rarely given the consideration it deserves. Rather, it is only when tap water becomes unavailable that people are reminded of what a luxury it really is. Take Toledo, Ohio in 2014, for example. Toledo, the state's fourth largest city, was forced to issue a large scale ban on all municipal tap water because of high concentrations of a toxin that could not be filtered out. (3) As a result, approximately 500,000 people were left without fresh water and a rush to obtain bottled water ensued. (4) In response, Ohio Governor John Kasich declared a state of emergency, activating the Ohio National Guard and an estimated 33,000 gallons of drinking water were immediately transported to the region. (5)

   The Toledo tap water ban has, at least temporarily, put a spotlight on United States water supplies. (6) Consequently, many Americans have begun to take a closer look at the quality of the fresh water bodies being used to supply tap water to their homes. Therefore, this Note analyzes the problems currently threatening the lakes, rivers, and other surface waters which are the source of fresh drinking water for huge populations in the United States. Part II examines the problem of nutrient pollution and explains the harmful effects it has on human health. Part III provides an overview of the current laws governing nutrient pollution and tap water quality. Part IV analyzes the source of the problem and demonstrates that agriculture is largely responsible. Lastly, Part V suggests that the problem of nutrient pollution can be resolved through a reinterpretation of the Clean Water Act's definition of a point source.

   II.TOOMUCHOFAGOOD THING:HOW PHOSPHORUSANDNITROGEN HAVE HARMFULEFFECTSONTAPWATER SOURCES

   1. Then and Now

      On June 22, 1969, the Cuyahoga River in Cleveland, Ohio burst into flames. (7) For years, sewage and industrial waste were dumped directly into the river making it highly contaminated and practically uninhabitable. (8) Although this was not the first time the river had caught fire, Time magazine used the fire of 1969 to shed light on the national problem of water pollution in the United States at that time. (9) Ohio quickly became the face of water pollution as the fire spurred efforts to enact sweeping federal environmental legislation. (10) In response, Congress enacted the Clean Water Act ("CWA") in 1972, (11) and the Safe Water Drinking Act ("SWDA") in 1974. (12)

      After nearly half a century, Ohio has returned to once again be the poster child of water pollution in the United States. This time, however, there is no oil, industrial waste, or burning river. Rather, in recent years, Ohio and Toledo more specifically, have become representative of the nation's battle against the newest threat to water quality--nutrient pollution. (13)

      Similar to the Cuyahoga River Fire of 1969, Toledo's tap water ban garnered national media attention. (14) While both events were merely local in nature, their significance extended far beyond Ohio's borders. For example, to this day, the image of the burning river "endures as a symbol of rampant environmental despoliation prior to the enactment of federal environmental laws." (15) Likewise, Toledo's tap water ban has been symbolic of the current threat that nutrient pollution poses to the sources of United States tap water.

   2. What is Nutrient Pollution?

      Nutrient pollution can be defined broadly as "the process where too many nutrients, mainly nitrogen and phosphorus, are added to bodies of water and can act like fertilizer, causing excessive growth of algae." (16) Nitrogen and phosphorus are natural nutrients in most aquatic ecosystems, but when too much enters the water, it creates problems for drinking sources all over the country. (17) Currently, "nutrient pollution is one of America's most widespread, costly and challenging water quality problems." (18)

      1. Eutrophication

      Eutrophication is the process by which a body of water becomes enriched in dissolved nutrients that stimulate the growth of aquatic plant life. (19) In other words, eutrophication is the ecosystem's response to the presence of excessive nutrients, mainly dissolved phosphorus and nitrogen, in the water. (20) Eutrophication is particularly evident in slow-moving rivers and shallow lakes where water temperatures are ideal for plant growth. (21) The process occurs naturally, but it transpires over multiple centuries as nutrient concentrations in aging lakes and rivers gradually build up over time. (22) However, eutrophication can also be human-caused, (23) in which case, waters can become eutrophic very quickly as human activity greatly increases the flow of nutrients into the water. (24)

   3. Phosphorus: It's What Plants Crave

      Phosphorus is an essential nutrient for plant growth. (25) For plants in fresh water, phosphorus is an especially important nutrient because the functions of it cannot be performed by any other nutrient. (26) Also, it exists naturally in the least amount in comparison to how much plants could use. (27) Consequentially, plant growth in fresh water is usually limited to the amount of phosphorus that is available in the water for plants to utilize. (28)

      Phosphorus can be found in nature in different forms. (29) The nutrient can either be attached to sediment ("particulate" phosphorus) or dissolved in water ("dissolved" phosphorus). (30) The form that phosphorus is important because it dramatically affects its overall usefulness for plants. (31) In comparison, dissolved phosphorus is much more bioavailable, or usable. (32) For this reason, when excessive amounts of dissolved phosphorus make its way into fresh water bodies, it can lead to massive plant growth. (33)

      1. Algae

         The term "algae" is a scientifically informal term that is used to categorize a diverse range of aquatic plants. (34) Algae, like other plants, are broadly characterized by their ability to photosynthesize, make chlorophyll, and use sunlight an as energy source for growth. (35) Additionally, like other plants in fresh water, the growth of algae is limited by the amount of phosphorus available. (36) Thus, when sunlight and phosphorus are abundant and readily available in fresh waters, algae has the potential to "bloom," or multiply very rapidly. (37)

      2. Harmful Algal Blooms

         In general, algae are not harmful whatsoever, but rather, they are crucial to a healthy fresh water ecosystem since they form the base of aquatic food webs. (38) While most algae are not harmful, some types, such as blue-green, can produce hazardous toxins (39) that can be very harmful to humans when touched or consumed. (40) When these toxin producing blooms occur, they are known as harmful algal blooms ("HABs"). (41) HABs have been documented as a problem in waters across the United States, (42) but nowhere has received more attention than Ohio and Lake Erie. (43) Since the 1990s, HABs have become a reoccurring problem in Lake Erie and they have come to be particularly intense and extensive in recent years; (44) however, HABs are not new to Lake Erie or the region. (45) In the 1960's, Lake Erie's coast was full of foul-smelling algae that scientists identified as "blue greens." (46) As a result, drinking water developed taste and odor problems, and beaches along the northern shore of Ohio had to be closed because of high levels of bacteria. (47)

      3. Cyanobacteria

         In the United States, and worldwide, the majority of the freshwater HAB problems that are reported are due to one group of algae, the cyanobacteria. (48) Though technically classified as a bacteria, cyanobacteria is commonly known as blue-green algae because of distinct characteristics it shares with algae. (49) Like...