The mythical giant: Clean Water Act section 401 and nonpoint source pollution.

AuthorJohnson, Kristi
  1. INTRODUCTION

    The Clean Water Act (CWA)(1) was passed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(2) Few Americans would disagree that this was a laudable goal, and America's waters have improved significantly since the enactment of the CWA in 1972.(3) However, the focus of the CWA is point source pollution,(4) and many of the nation's waters remain impaired because of nonpoint source pollution.(5) Unlike point source pollution, nonpoint source pollution cannot be traced to a specific source and is often described in terms of diffuse runoff.(6) According to the General Accounting Office, the leading cause of nonpoint source pollution is agriculture.(7) In fact, a 1995 General Accounting Office briefing report indicated that agricultural nonpoint source pollution impaired seventy-two percent of the miles of affected rivers and streams, fifty-six percent of the affected lake acres, and forty-three percent of the square miles of affected estuaries.(8) Obviously, something must be done about nonpoint source pollution.

    Environmentalists advocate using section 401 of the CWA to address the nonpoint source pollution problem.(9) Section 401 requires anyone applying for a federal permit or license for any activity that may result in a discharge to obtain certification from the state in which the discharge originates.(10) Traditionally, section 401 applied only to point source pollution.(11) Some commentators, however, interpret the Supreme Court's treatment of section 401 in PUD No. 1 of Jefferson County v. Washington Department of Ecology (PUD No. 1)(12) as blessing the use of section 401 for nonpoint source pollution.(13) Proponents of applying section 401 to nonpoint source pollution also point to Oregon Natural Desert Ass'n v. Thomas (ONDA I),(14) in which a federal district court held that section 401 applies to grazing permits on public lands. The Ninth Circuit Court of Appeals declined to adopt that interpretation in Oregon Natural Desert Ass'n v. Dombeck (ONDA II).(15) However, that opinion was withdrawn in response to the plaintiffs petition for reconsideration.(16)

    Although the holding in ONDA H persuasively determined that section 401 does not apply to nonpoint source pollution, the question remains open pending reconsideration. Another unresolved question is whether the application of section 401 would have any effect on agricultural nonpoint source pollution. Targeting agricultural users of federal lands with more unnecessary government regulation will do little to reduce nonpoint source pollution. Time, money, and energy needed to deal with nonpoint source pollution on farm and ranch land is wasted fighting court battles over the applicability of section 401, and other ways must be found to deal with the problem.

    This Comment addresses the issue of section 401 and nonpoint source pollution. Part II discusses the historical use of section 401 and why it has been applied solely to point source pollution. Part III discusses attempts to apply section 401 to nonpoint source pollution, specifically in light of PUD No. I and ONDA I. Part IV briefly examines the Ninth Circuit decision in ONDA II and takes a more in-depth look at the CWA and its legislative history to illustrate that the Ninth Circuit's initial conclusion, that section 401 does not apply to nonpoint source pollution, is the correct interpretation of the statute. Part V discusses the likely impact of section 401 on the agricultural community if it were applied to nonpoint source pollution. Particularly, Part V analyzes the impact on ranchers who graze livestock on public lands and farmers who use federal reclamation water for irrigation. Finally, Part VI explores alternative ways of dealing with agricultural nonpoint source pollution.

  2. TRADITIONAL APPLICATIONS OF SECTION 401

    The full text of section 401 requires that:

    Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of section 301, 302, 303, 306, and 307 of this title.(17) Section 401 ensures that federal agencies cannot override the states' water quality standards.(18) It allows states to certify the activity first, to ensure that the activity meets the specific provisions of the CWA and the states' water quality standards. This allows for a balance between the states and the federal government, similar to the balance preserved in the section 402 permit process of the CWA.(19) Section 402 allows either the Environmental Protection Agency (EPA) or a state, if it has been approved to do so, to issue permits for the discharge of pollutants.(20) The national pollution discharge elimination system (NPDES) in section 402 was designed to prevent polluters from "shopping around"(21) for a state with a weak permit program by allowing EPA to withdraw a state's permitting authority if the state was not running its program correctly.(22) In a similar manner, section 401 maintains a balance between the states and the federal government. If a state has a weak program, the federal government still reviews the activity after the state has issued its certification.(23) Likewise, if the federal permitting agency is not taking water quality standards seriously, the state can impose conditions under section 401 to prevent degradation of its waters.(24)

    Technically, section 401 applicants must apply for state certification first. Once state certification is received, the applicant sends it with a federal permit or license application to the responsible agency.(25) If the state denies certification, the project is essentially dead. In reality, the section 401 process does not always work this way. States sometimes allow responsible federal agencies to review an application first. Following federal review, the application goes to the state for, in essence, rubber-stamp certification.(26) States reason that federal agencies have the expertise to determine whether a project meets the provisions of the CWA. While this may not be how Congress intended states to use section 401, it still allows states to maintain some control over the quality of their navigable waters.

    1. Sections of the CWA that States Must Consider in Granting a Section 401 Permit

      Section 401(a) outlines certain provisions of the CWA that states must consider in the certification process. These provisions deal almost exclusively with point source pollution.(27) Section 301, the first listed provision, makes the discharge of pollutants unlawful and sets up a two phase program for applying effluent limitations.(28) "[A]ny restriction established by a State or the Administrator [of the EPA] on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters" is an effluent limitation.(29) Obviously, section 301 deals with regulation of point source pollution. The same is true of section 302, which allows for stricter effluent limitations if the "discharges of pollutants from a point source or group of point sources" would affect a certain portion of a navigable waterway and would interfere with the designated uses of that waterway.(30) Section 306 establishes federal standards of performance for controlling discharge of pollutants.(31) The CWA defines the phrase "discharge of pollutants" as "any addition of any pollutant to navigable waters from any point source."(32) Therefore, this section also applies to point source pollution only. Section 307 establishes toxic and pretreatment effluent standards.(33) This section subjects each toxic pollutant to effluent limitations,(34) which, as previously noted, are limitations on discharges from point sources. Pretreatment standards are established to prevent the discharge of pollutants from treatment works,(35) and treatment works are point sources under the CWA.(36) Therefore, section 307 deals with point sources as well.

      Lastly, section 303 requires the states to establish water quality standards and to implement plans to achieve these standards.(37) While effluent-limitation-based regulation controls water pollution by regulating the amount of pollutants discharged by a particular source, water quality standards control pollution by regulating the amount of pollutants discharged into a particular segment of water.(38) Therefore, water quality standards could include point and nonpoint source pollution.(39) However, section 303 only mentions effluent limitations, which apply to point source pollution.(40) Specifically, the section requires each state to look at its own waters and determine if the effluent limitations required by section 301 are strict enough to meet state water quality standards.(41)

      The provisions of the CWA that a state must look at before issuing a section 401 certification basically address point source pollution. Because of this, when the states use their section 401 power, they apply it to activities that result in discharges from point sources and not to activities that result in nonpoint source pollution.

    2. The Three Traditional Uses of Section 401

      States use their section 401 power in three federal permit and license processes. These are section 402 permits issued by EPA, section 404 permits issued by the Army Corps of Engineers (Army Corps), and hydroelectric plant permits issued by FERC.(42) All three permits deal with point source pollution.

      1. Section 402 Permits

        National Pollution Discharge...

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