Field Notes from an Alternative Water Quality Reality.

• Author: Owen, Dave

CONTENTS INTRODUCTION I. THE CLEAN WATER ACT AND NONPOINT SOURCES II. WATER QUALITY PROTECTION AND CALIFORNIA'S NORTH COAST. A. The Setting B. The Regulators and Their Authority C. The Programs III. LESSONS FROM THE NORTH COAST A. The Possibility of Nonpoint Source Regulation B. The Potential of Familiar Regulatory Models C. The Challenges of Nonpoint Source Regulation D. The Importance of Complementary Tools E. The Value of Phased Regulation CONCLUSION INTRODUCTION

Ask any expert to identify the biggest failing of water quality regulation in the United States, and the answer is likely to be the same: controlling nonpoint source pollution. (1) The Congresses that enacted and amended the Clean Water Act (2) had different concerns: they were worried about wastewater treatment plants and industrial outfalls, and the prohibitions and permitting systems they created for those sources have been effective. (3) Water quality in many American waterways is better--in some places, much better--than it was in 1972. (4) But the failings also are significant, and have been documented in article after article, including some of the works in this symposium issue. (5) For nonpoint sources of water pollution, including but not limited to agricultural pollution, the Act creates a variety of measures that are likely to be effective only if implemented by enthusiastic state authorities. (6) In most places, that enthusiasm has been lacking. (7) Consequently, nonpoint sources remain major causes of water quality impairment, (8) and many water quality lawyers are pessimistic about the prospects for change. (9)

Rather than simply retell that story, this Article considers a place where things are different. California delegates much of the work of Clean Water Act implementation to regional water quality control boards. In recent years, one of those boards--the North Coast Regional Water Quality Control Board (the "North Coast Board")--has been building ambitious regulatory programs to address nonpoint source water pollution. (10) The North Coast Board has developed, or is in the process of developing, programs to address nonpoint source water pollution from dairies, vineyards, cannabis farming, forestry operations, and rural roads, among other sources. (11) It also has used Clean Water Act and state-law tools to address legacy impacts from past forestry practices and ongoing impacts from dams. (12) Many of the efforts are relatively new, but the North Coast Board is working toward the kind of integrative, holistic water quality regulatory program that many water quality advocates have long seen as a wishful fantasy.

This Article describes the North Coast Board's efforts. As with any case study, particularly one of mostly recent initiatives, the ability to draw generalizable lessons is limited, and that is particularly true because the North Coast Board governs a unique place, even by California standards. Nevertheless, the study supports several conclusions. Most importantly, a somewhat comprehensive nonpoint source regulatory program is not just a mythical creature; it can exist. Such a program also can draw on traditional regulatory tools, (13) rather than requiring some major rethinking of environmental law, and it can emerge incrementally. (14) No one suggests that nonpoint source regulation is easy, but it is well within the realm of the possible.

This Article's analysis proceeds as follows. Part I describes the Clean Water Act's troubled history with nonpoint sources. Because other authors have chronicled that history eloquently and in great depth, the review will be brief. Part II describes California's North Coast region and its water quality challenges and then explains how the North Coast Board has gone about regulating those challenges. The discussion in Part II draws on documentary research and interviews with environmental advocates, farmers, and regulators. (15) Part III explains lessons, conclusions, and possibilities for additional research.

1. THE CLEAN WATER ACT AND NONPOINT SOURCES

   In 1972, when Congress enacted the Federal Water Pollution Control Act (later renamed the Clean Water Act), many American waterways were open sewers. (16) Municipal wastewater treatment technologies existed, but they were unevenly deployed, and fecal waste clogged many rivers. (17) Industrial pollution was also rampant. (18) The Cuyahoga River had famously burned not long before, (19) and fumes off some rivers were so strong that they peeled the paint off nearby houses. (20) Not surprisingly, one of Congress's central focuses in drafting the statute was pollution from municipal and industrial waste disposal. (21)

   Initially, that municipal and industrial focus led to regulatory exemptions for agricultural sources. (22) But regulatory exemptions soon hardened into specific statutory text. The heart of the Clean Water Act is section 301, which prohibits unpermitted discharges of pollutants from point sources. (23) In the early years of Clean Water Act implementation, EPA chose not to apply that prohibition to agricultural sources and to stormwater runoff, and environmental groups sued, challenging this choice. (24) The environmental groups won, (25) but Congress reacted by amending the statute (26) to exempt "agricultural stormwater discharges and return flows from irrigated agriculture" from the definition of "point source." (27) The 1977 Congress did not exempt other forms of stormwater runoff from the definition, and many of them still are defined as point sources. (28) But it created a default presumption that stormwater runoff would not require permitting unless it fell into several discrete categories of sources, none of which, according to EPA and the Supreme Court, explicitly includes silviculture activities. (29) Consequently, agriculture and silviculture--activities that cover much of the American landscape and that create huge amounts of water pollution--were largely exempted from the Act's primary prohibition and its flagship permitting program.

   Congress did enact other provisions designed to address nonpoint as well as point sources of water pollution. (30) But a common and problematic theme unites these other provisions. All envision implementation primarily by state authorities, and all lack federal teeth to compel state activity. (31) Section 303, for example, requires states to develop water quality standards and to identify waterways that fail to meet those standards. (32) Section 303 also requires states to prepare total maximum daily loads (TMDLs), which are essentially reports that document the causes of water quality impairment and establish budgets for allowable pollutant loading. (33) If states fail to fulfill any of these steps, EPA is obliged to act in the state's stead. (34) But EPA has no obligation or ability to compel states to implement their TMDLs, except to the extent those TMDLs govern point sources of water pollution. (35) The Act does require states to have "continuing planning processes]" for addressing nonpoint source pollution, but there is no federal-law remedy if states prepare ineffectual plans, or if states prepare strong plans but then leave them on shelves to collect dust. (36)

   Section 303 is not unique in this respect. Section 208 requires states to develop areawide management plans for nonpoint source water pollution, but it does not specify the content of those plans or mandate that they be implemented at all, let alone implemented effectively. (37) Section 319 authorizes grant funding for state nonpoint source control programs, but participation is voluntary, and the amounts of funding are too small to give the federal government any real leverage. (38) The Coastal Zone Management Act (39) also mandates planning for nonpoint sources, albeit only for portions of some states, and again without strong enforcement mechanisms. (40)

   In theory, this soft approach might have been enough. The Congresses that enacted early environmental laws were clearly exasperated with slow state progress on environmental protection, (41) but some progress did exist, (42) and one might have thought that the same shifting politics that energized federal environmental law would achieve similar results at state levels, especially with a few pushes from EPA. That is not how things worked out. Study after study has documented the failings of state regulation of nonpoint sources, and particularly of agriculture. (43) In most states, programs are largely voluntary and there is little evidence of volunteers. (44) Consequently, agriculture remains among the nation's largest sources of water quality impairment. (45) Agricultural exemptions also are economically inefficient, as Sheila Olmstead's contribution to this symposium pointed out. (46) The lack of effective nonpoint source regulation often means that regulators must ratchet up restrictions on point sources, even when less costly nonpoint source controls would do much more environmental good. (47) Likewise, many urban areas must spend huge sums on drinking water treatment--sums that would be smaller if agricultural water pollution were more effectively controlled. (48) Many of the resulting problems do not stay in the states that have chosen to leave agricultural water pollution largely unregulated. The most notorious example is the massive dead zone that forms at the mouth of the Mississippi River, largely because of nutrient pollution from corn and soybean fields in the Upper Midwest. (49)

   Nonpoint source agricultural pollution is our largest poorly addressed water pollution problem, but it is not the only one. In many waterways, dams and diversions are major sources of water quality impairment, (50) but the Clean Water Act provides only modest federal levers to deal with the former problem (51) and none to deal with the latter. (52) State regulation is likewise uneven, and many states have relegated water quantity and water quality regulation to largely...