Virtual Guest Speakers 

March 27:

Robin Craig - Professor, Western New England Law School
Topic:  Local or National? The Increasing Federalization of Nonpoint Source Pollution Regulation
 

Biography
Transcript of Lecture
Other links
Discussion List   (Professor Craig will participate from March 27 - March 31).

Short Biography of Robin Craig

Biography: Professor Craig obtained a B.A. in English from Pomona College in Clarement, California, with a minor in biology and chemistry.  She earned a M.A. degree from The Johns Hopkins University in Science Writing, and then spent two years
teaching marine biology and island ecology at the Catalina Island Marine Institute.  She returned to academia in 1988, and earned a Ph.D. in English from the University of California, Santa Barbara and a J.D. from the Lewis & Clark School of Law in Portland, Oregon (with a certificate in Environmental Law).

Professor Craig has worked for the Natural Resources Section, General Counsel Division of the Oregon Department of Justice, and served a judicial clerk for the Honorable Robert E. Jones, U.S. District Court for the District of Oregon.   She taught Civil Procedure and Administrative Law as an Adjunct and Visiting Professor at Lewis and Clark's Law School, and is currrently an Assistant Professor of Law at the Western New England College School of Law in Springfield, Massachusetts. 
 


Transcript of lecture
©2000 by Robin Kundis Craig

I'd like to thank Professor Stephen M. Johnson and the Mercer University School of Law for the opportunity to present this paper as part of the Virtual Environmental Law Visiting Professor Program.

Since 1972, the Clean Water Act(1) has incorporated a basic division of regulatory authority between states and the federal government based on the source of the water pollution. The federal government, acting largely through the Environmental Protection Agency (EPA) and, to a lesser extent, the Army Corps of Engineers, is the ultimate regulatory authority over point source pollution - that is, over the addition of pollutants to the navigable waters from "discernible, confined, and discrete conveyances" such as pipes or channels. States, in contrast, are the exclusive regulators of nonpoint source pollution. Nonpoint source pollution, logically enough, is water pollution from any source other than a point source, including dams and air transportation of pollutants to water. The quintessential example of nonpoint source pollution, however, is unconfined runoff from rain or snowmelt that travels over land to the nearest waterway, picking up various kinds of pollutants - oil and grease from parking lots, sediment from construction sites and logged forests, and pesticides, fertilizers, and manure from farms - along the way.

In delineating state and federal regulatory responsibility on the basis of the point source/nonpoint source distinction, the Clean Water Act establishes a scheme of statutory federalism - a division of power between the national and local levels of government. Federalism is one of the basic constitutional structures of the American system of governance, a result of the Founders' deep desire to prevent governing power from becoming concentrated in a single, centralized (and, they feared, dictatorial) body. Federalism creates a balance of power between a centralized but limited national government and the relatively unfettered but dispersed state governments. The U.S. Supreme Court generally determines the exact legal boundaries of each government's regulatory authority, through interpretation of the Constitution itself.

Were the state and federal spheres of regulatory authority always mutually exclusive, constitutional boundary-drawing would be the only inquiry relevant to the interactions of the state and federal governments in environmental law. As the Supreme Court has repeatedly recognized, however, in the regulation of commerce (which is the constitutional basis of most federal environmental statutes) there is a potentially broad overlap of federal and state authority. Within this constitutional overlap, therefore, statutes like the Clean Water Act embody Congress' political judgment as to how to best divide state and federal regulatory authority - not a fixed constitutional mandate.

So long as Congress observes the constitutional federalism requirements, therefore, its statutory judgment calls are subject to revision if new information or awareness indicates that the initial statutory division of power incorrectly reflects the true balance of national and local interests at stake. The Clean Water Act's point source/nonpoint source division is arguably one such misjudgment, because there is growing recognition in this country that nonpoint source pollution is the last national water pollution problem to solve. In 1998, for example, in the Clean Water Action Plan commissioned by Vice President Gore, the Environmental Protection Agency (EPA) and the Department of Agriculture (USDA) declared polluted runoff to be the most important source of water pollution preventing the country from achieving the Clean Water Act's goal of restoring "the chemical, physical, and biological integrity of the Nation's waters."

In recognition of the national scope of nonpoint source pollution, Congress during the 1980s directly and indirectly adjusted the Clean Water Act's original scheme of statutory federalism to give the federal government more authority over this problem. After 1990, however, increasing attention throughout the federal government to federalism concerns coupled with partisanship battles in Congress to stall further statutory assumption of federal nonpoint source regulatory authority. The division of federal and state regulatory authority along point source/nonpoint source lines is not, from a federalism perspective, arbitrary. Point sources, as noted, discharge pollutants through a conveyance, and point source regulation of industry consists primarily of "end-of-the-pipe" controls that clean up waste water before it is discharged, generally requiring little direct interference with the point source's main activity. In contrast, as noted, nonpoint source pollution most characteristically consists of runoff that picks up pollutants as it flows over the land itself, and regulation of nonpoint source pollution most typically relies on actions - generally referred to as best management practices (BMPs) or management measures - that directly modify how the land is used. Comprehensive federal regulation of nonpoint source pollution would thus arguably engage the federal government in land use planning - a type of regulation historically viewed as belonging almost exclusively to more local levels of government.

Nevertheless, I argue in this presentation that the time has come for more effective federal regulation of nonpoint source pollution. Increased federal regulation has two prerequisites: constitutional authority and political viability. The latter of these is the most dubious at the moment, but the amendments I propose would actually increase truly local involvement by assuring a voice to the purported beneficiaries of all this federalism concern: private citizens. What nonpoint source pollution regulation desperately needs is a guaranteed private right of action against the land owners and operators who continue to foul the nation's waters with nonpoint source pollution.

Constitutional Federalism: The Commerce Clause

Lopez, Locke, and Federal Regulatory Authority of Truly Navigable Waters

For federal environmental legislation, it is Commerce Clause jurisprudence that raises the division between "local" and "national" regulation to the level of constitutional federalism. This jurisprudence seeks to strike a balance between the states' use their police powers to government "local affairs" and "matters of local concern" and the federal government's power to oversee matters of "national interest." However, until recently, the Supreme Court's modern Commerce Clause decisions served primarily to expand the federal government's regulatory authority, generally by recharacterizing traditionally "local" concerns as "national" interests because of their potential to affect interstate commerce. As Chief Justice Rehnquist has described this transition:

In part, [the Supreme Court's expansion of the federal government's Commerce Clause authority] was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.(2)

Nevertheless, in 1995 the Court re-asserted the long-muted distinction between local concerns and national interests in United States v. Lopez,(3) striking down the Gun-Free School Zones Act on the ground that it exceeded Congress' Commerce Clause power. Emphasizing that the interstate commerce power "'may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectively obliterate the distinction between what is national and what is local and create a completely centralized government,'" the Lopez Court "identified three broad categories of activity that Congress may regulate under its commerce power." "First, Congress may regulate the use of the channels of interstate commerce." "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may come only from intrastate activities." "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."

Since 1995, property rights proponents and other persons opposing federal regulation have seized on the Lopez decision to challenge federal environmental law "interference" with local use of land. For example, in National Association of Home Builders v. Babbitt,(4) local governments and land developers filed an as-applied Commerce Clause challenge against the U.S. Fish and Wildlife Service and the Department of the Interior because those agencies had required design modifications to and a habitat mitigation plan for a multi-million-dollar, state-of-the-art regional hospital in order to protect the approximately 300 remaining Delhi Sands Flower-Loving Flies, an endangered species protected under the federal Endangered Species Act. The Fly is neither traded in interstate commerce nor found outside California. A two-judge majority of the D.C. Circuit panel nevertheless upheld the federal government's regulatory authority on the basis of the cumulative effects endangered and threatened species in the aggregate have substantial cumulative effects on interstate commerce. The dissenting judge, however, vociferously announced that the federal government had crossed the national/local line:

What business, one might ask, does the federal government have in disrupting these activities of the unit of local government, which range from the purely local to the generally local? . . . [B]y what constitutional justification does the federal government purport to regulate local activities that might disturb a local fly? . . . Can Congress under the Interstate Commerce Clause regulate the killing of flies, which is not commerce, in southern California, which is not interstate? . . . I think the answer is "no" . . . .(5)

While the Clean Water Act has not been immune from post-Lopez Commerce Clause challenges, the federal government's regulatory jurisdiction under that Act rests on what has been, historically, much firmer "national" ground. The Act's statutory limitation on the federal government's authority to regulate water pollution derives from its prohibition on pollutants being added to the "navigable waters," the "contiguous zone," or the ocean. The federal government's general authority over these three media is long-established and well-respected. Indeed, at the beginning of this month the Supreme Court emphatically re-asserted the federal government's supremacy in regulating these watery channels of commerce in United States v. Locke,(6) declaring them to be

According to the Locke Court, this broad federal authority over the navigable waters and ocean includes pollution regulation such as the Oil Pollution Act of 1990. Moreover, the national interest in the navigable waters is so significant that the Court reversed the normal presumption that federal law does not preempt state regulation and eliminated the "beginning assumption that concurrent regulation by the State is a valid exercise of its police powers."

Therefore, were Clean Water Act regulatory authority limited to "navigable waters" in the traditional sense of that term - that is, to waters that are navigable in fact - the Lopez Court's recognition that Congress has constitutional authority to regulate the channels of interstate commerce and the Locke Court's sweeping endorsement of federal regulatory authority over such waters would together virtually eliminate any constitutional challenge to federal regulation of nonpoint source water pollution.

The Clean Water Act's Expansion to "Waters of the United States"

As students of environmental law quickly learn, however, "navigable waters" for purposes of the Clean Water Act is a much broader concept than "navigable waters" in almost any other context. The Clean Water Act defines "navigable waters" to be "waters of the United States," and federal courts have been nearly unanimous in enforcing Congress' intention to extend Clean Water Act jurisdiction to the limits of the federal government's Commerce Clause authority. The EPA and the Army Corps of Engineers, the federal agencies that administer the Act's two major point source permit programs, have each promulgated regulations defining "waters of the United States" to include not only the traditionally navigable waterways and "all interstate waters" but also "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce" and any wetlands adjacent to such waters.(8)

Wetlands are particularly emblematic of the expanding "national" interest in, and jurisdiction over, water pollution. As the Seventh Circuit has observed:

In extending Clean Water Act jurisdiction to "local" and intrastate waters and wetlands, however, the EPA and the Army Corps of Engineers exposed the federal government to Commerce Clause challenges. In 1985, in United States v. Riverside Bayview Homes, Inc,(10) the Supreme Court upheld, as a matter of statutory interpretation, the extension of federal water quality regulatory authority to wetlands adjacent to larger water bodies. Although in this pre-Lopez decision the Court did not consider possible Commerce Clause violations resulting from the expanded definition of "waters of the United States," its justification for upholding federal jurisdiction emphasized the national interests that prompted Congress to enact the Clean Water Act in the first place and strongly suggests that federal regulation of adjacent wetlands fits into Lopez's third category of activities that can substantially affect interstate commerce: Because adjacent wetlands are part of and can affect this hydrological cycle, the Court concluded, they are reasonably considered "waters of the United States."
 
More troublesome has been the issue of isolated wetlands - wetlands that have no direct connection to larger waters and thus appear to be outside the scope of national concern. The EPA and Army Corps assert Clean Water Act jurisdiction even over some such isolated waters, however, through the so-called "migratory bird rule": the EPA and Corps consider a wetland to come under federal jurisdiction if the wetland serves as habitat for migratory birds. Although the Supreme Court declined, after Lopez, to review the constitutional legitimacy of this rule, Justice Thomas argued in dissert from the denial of certiorari that the migratory bird rule is constitutionally suspect because the fact "that substantial interstate commerce depends on the continued existence of migratory birds does not give the Corps cart blanche authority to regulate every property that migratory birds use or could use as habitat. The point of Lopez was to explain that the activity on the land to be regulated must substantially affect interstate commerce before Congress can regulate it pursuant to its Commerce Clause power."(12)
 
In 1997, the Fourth Circuit agreed with Justice Thomas, declaring in United States v. Wilson(13) that the "intrastate waters" portion of the Army Corps' rule is invalid under Lopez because "[t]he regulation requires neither that the regulated activity have a substantial effect on interstate commerce, nor that the covered waters have any sort of nexus with navigable, or even interstate, waters." The Fourth Circuit delineated its view of federal regulatory authority over water pollution as follows: In contrast, in 1999 the Seventh Circuit upheld the migratory bird rule in the face of a post-Lopez Commerce Clause challenge in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers.(15) The Seventh Circuit, unlike the Fourth, emphasized that Lopez "expressly recognized, and in no way disapproved, the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce."(16) It then asked whether destruction of the habitat of migratory birds, in the aggregate, substantially affected interstate commerce. Citing evidence that millions of Americans travel across state lines and spend billions of dollars to hunt and watch migratory birds, the Seventh Circuit readily concluded that destruction of wetland migratory bird habitat through water pollution (dredging and filling are, after all, point source discharges of pollutants) substantially affected interstate commerce.
 
The wetlands controversy indicates that the crucial legal issue for federal regulation of nonpoint source pollution of non-navigable waters is whether the Seventh Circuit's use of cumulative impacts is correct, or whether Lopez demands the more site- or activity-specific nexus that Justice Thomas and the Fourth Circuit would require. Although the Lopez majority was less than crystal clear on this issue, nine other circuits appear to agree with the Seventh that cumulative or aggregate impacts are sufficient,(17) and only the Fourth insists on the more specific "nexus" requirement.
 
As a matter of constitutional authority under the Commerce Clause, therefore, the federal government has plenary power to regulate nonpoint source pollution that enters waters that are navigable in fact, which traditionally includes all waters subject to the ebb and flow of the tide. As for non-navigable waters, the federal government can, under Lopez, regulate nonpoint source pollution from activities that, in the aggregate, substantially affect interstate commerce.

Nonpoint Source Pollution and Interstate Commerce

As the EPA has noted, "[w]hile the impact from individual nonpoint sources may be small, the cumulative impact from numerous unregulated activities can significantly degrade water quality." Connections between nonpoint source pollution of non-navigable waters and the navigable and interstate waters and/or interstate commerce arise mainly from three facts. First, nonpoint source water pollution moves downstream. As it does so, it accumulates, crosses state lines, and reaches navigable waters and the oceans. Second, even non-navigable waters are habitat for numerous species of plants, insects, amphibians, fish, reptiles, birds and mammals, many of which are the direct objects of interstate commerce. Finally, non-polluted waters are sources of ecosystem services, the value of which pervades interstate commerce.

Nonpoint source pollution travels downstream across state lines and into traditionally navigable waters. For example, runoff from agricultural, construction, forestry, and urban activities carries significant quantities of sediment to downsteam harbors and reservoirs, imposing dredging costs of about $1 billion per year. In addition, fertilizer- and sewage-contaminated runoff along the Mississippi River and its tributaries has created seven "dead zones" - areas lacking enough dissolved oxygen to support animal life, more properly referred to as "hypoxic zones" - in the Gulf of Mexico. Three more dead zones exist off the western coast and four more have been identified off the eastern coast of North America. Even when it doesn't "kill" coastal waters, moreover, such contamination runoff can still cause harm. "[A]bout half of all American estuaries are oxygen-starved," and dead zones are expected to double in the next decade.(18) Polluted runoff reaches even the coral reefs off of Florida and in the Caribbean, killing coral-dependent species. Accumulated nonpoint source pollution thus clearly reaches and damages those navigable waters and seas over which the federal government has unquestionable regulatory authority.

Nonpoint source pollution also interferes with commercial activity associated with the nation's waters. The hypoxic zones in the Gulf of Mexico, for instance, have severely interfered with commercial fishing in the Gulf as fish flee these areas; less mobile commercial species, such as mussels, lobsters, and clams, simply die. Other kinds of nonpoint source pollution poison fish and seafood that might otherwise be harvested and sold. For example, polluted runoff from mines and pesticide runoff from agricultural operations can include toxic metals, such as mercury, and other toxic substances, such as DDT and dioxin, that fish and shellfish bioaccumulate in their tissues, rendering them unsafe to eat. Over 2,193 fish consumption advisories were issued in 48 states in 1996. Polluted runoff in the Maryland and Virginia tributaries to the Chesapeake Bay and in the Neuse River in North Carolina have been associated with outbreaks of the microorganism Pfiesteria, which kills fish and threatens human health.

As the Pfiesteria outbreaks indicate, nonpoint source pollution can also interfere with human health and recreational opportunities, affecting the often-interstate commerce associated with those two industries. Polluted runoff in Wisconsin has been associated with Cryptosporidium contamination of Milwaukee's drinking water, killing as many as 100 people and causing many more to get sick. Pollution-related bacterial outbreaks led to 2500 beach closings and advisories in 1996 because of swimming dangers.

In one of the most direct connections between nonpoint source pollution and interstate commerce, agricultural nonpoint source pollution not only causes extensive harm to the nation's waterways but also harms continued agricultural production itself. Nationally, agriculture affects hundreds of thousands of streams, rivers, and lakes. At the same time, however, the EPA and USDA estimate that over 70 million of the nation's 382 million acres of croplands "suffer erosion rates that threaten long-term productivity."

Finally, nonpoint source pollution destroys habitat and interferes with the natural ecosystem services on which all commerce ultimately depends. "Ecosystem services" is a relatively new concept in environmental regulation and refers those non-goods benefits that the environment provides, such as gas regulation, climate regulation, nutrient cycling, and waste treatment. A 1997 article in Nature suggested a new perspective for both Commerce Clause and cost-benefit analyses regarding environmental regulation when the authors estimated the value of ecosystem services throughout the world to be approximately $16 to 54 trillion per year - an estimate that they considered conservative but which already exceeds the world's GNP.(19) From this perspective, even isolated wetlands provide services that cumulatively have a substantial effect on interstate commerce. Wetlands, the authors specified, provide services of gas regulation, disturbance regulation, water regulation, water supply, waste treatment, habitat, food production, raw materials, recreation, and culture worth, on average, approximately $14, 785 per hectare per year.(20)

Congress and Nonpoint Source Pollution, 1972-1990
 
The Commerce Clause is thus no hindrance to the federal government's authority to regulate nonpoint source pollution. However, while Congress has expanded federal authority over nonpoint source pollution regulation since 1972, it has also repeatedly declined to fully exercise that authority, leaving the majority of nonpoint source regulation to the states.
 
Nonpoint Source Regulation under the Clean Water Act Prior to 1987
 
The Clean Water Act took its modern form in 1972,(21) and Congress was already aware that nonpoint source water pollution was a significant problem at that time. Congressional hearings made the extent of nonpoint source pollution clear: "Agricultural runoff, animal wastes, soil erosion, fertilizers, pesticides and other farm chemicals that are a part of runoff, construction runoff and siltation from mines and acid mine drainage are major contributors to the Nation's water quality problem." In fact, the Congress concluded, "[i]t has been clearly established that the waters of the Nation cannot be restored and their quality maintained unless the very complex and difficult problem of nonpoint sources is addressed." Nevertheless, "many nonpoint sources of pollution are beyond present technology to control." Moreover, regulation of certain nonpoint sources involved regulating land use practices - including, in the case of mining, "total elimination of the practice in certain areas because of soil and geologic factors."

As a result, Congress did not directly regulate nonpoint source pollution in the 1972 Act. Instead, it relegated nonpoint source management to general areawide waste management planning. Under Section 208,(22) state governors were supposed to designate local management authorities for areas with waste treatment problems. These local authorities, in turn, were supposed to engage in comprehensive areawide waste treatment planning. Waste management under section 208 was primarily devoted to treatment works, but the plans were also supposed to take account of various nonpoint sources of pollution, including agricultural and silvicultural nonpoint sources, "mine-related sources of pollution," and "construction activity related sources of pollution." In return for such planning, the states would receive financial and technological assistance from the federal government.

Although it probably did not realize it at the time, Congress provided another, oblique, mechanism for reaching nonpoint source pollution in the 1972 Act's section 303.(23) Section 303 begins by requiring states to set water quality standards for all water bodies within the state. States must then identify those waters that don't meet the water quality standards; prioritize waters so identified; and set total maximum daily loads, or TMDLs, of pollutants for each such water in order of priority. A TMDL is the total amount of a given pollutant that can be added to a given waterway on a daily basis and still have the waterway meet the applicable water quality standards. This total load is divided among three categories of sources: (1) natural background pollution; (2) pollution loading from nonpoint sources (termed the "load allocation," or LA); and (3) pollution loading from point sources. Each point source discharging the pollutant at issue is given a waste load allocation, or WLA, stringent enough to ensure that water quality standards can be met. However, the TMDL process can also encourage states to reduce the pollution loading from nonpoint sources - a fact that EPA has recently captialized upon.

Nevertheless, in 1972 section 208 was the means for addressing nonpoint source pollution. Section 208, however, is sorely lacking in enforcement mechanisms, and Congress began to question its effectiveness in controlling nonpoint source pollution in the Clean Water Act Amendments of 1977.(24) Noting that few states had completed section 208 plans, Congress financially underscored its concerns by making cost-sharing funds available "only to those areas of States which have approved management plans under section 208."

Nevertheless, in 1977 Congress both emphasized and preserved the point source/nonpoint regulatory distinction.

In 1972, the Congress made a clear and precise distinction between point sources, which would be subject to direct Federal regulation, and nonpoint sources, control of which was specifically reserved to State and local governments through the section 208 process. . . .

Between requiring regulatory authority for nonpoint sources, or continuing the section 208 experiment, the committee chose the latter course, judging that these matters were appropriately left to the level of government closest to the sources of the problem.

Congress' reasons for preserving the Clean Water Act's statutory federalism had thus shifted by 1977 from the difficulty in regulating nonpoint sources to the local character of nonpoint source pollution. Moreover, the 1977 Congress found encouragement in that fact that "States are finally beginning to assume their responsibilities under the section 208 program" and continued that program without significantly modifying the 1972 regulatory scheme.

The 1987 Amendments: Nonpoint Source Management Plans
 
By 1987, Congress was ready to adjust the 1972 scheme. It added section 319(25) to the Clean Water Act, providing $400 million over four years to encourage states to adopt EPA-approved nonpoint source management programs. Section 319 also "establishe[d] a 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 Act to be met through the control of both point and nonpoint sources of pollution." For the first time, therefore, Congress committed to public law a recognition that nonpoint sources are nationally important sources of water pollution.

The new section 319 created a two-step process for nonpoint source regulation. In order to receive federal funding and technical assistance, states first had to submit to EPA a report that "identifies those navigable waters within the State which, without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain applicable water quality standards or the goals and requirements" of the Clean Water Act. States then had to submit a nonpoint source management program to the EPA for EPA's approval.

The 1987 amendments thus imposed a previously non-existent layer of federal oversight on the state regulation of nonpoint source pollution. In addition to imposing EPA approval, section 319 requires states to set milestones in implementing BMPs and to make satisfactory progress toward those milestones in order to keep getting federal funding. As originally enacted, moreover, section 319 provided for continuing federal monitoring of state nonpoint source progress through states' annual reports to EPA and EPA's annual reports to Congress. The federal government was thus palpably more involved in nonpoint source regulation after 1987, demonstrating a slight but nevertheless real shift toward the federal government in the Clean Water Act's federalistic balancing of regulatory authority.

Nevertheless, section 319, like section 208, provides no real means of enforcement. Nothing in EPA's approval process requires states to include any particular level of nonpoint source management or to provide for - let alone ensure -- state enforcement of whatever BMP requirements the state chooses to impose. "Section 319 does not require states to penalize nonpoint source polluters who fail to adopt best management practices; rather it provides for grants to encourage the adoption of such practices."(26) To the extent that section 319 shifted the balance of statutory federalism, therefore, it did so only slightly, leaving nonpoint source control as a practical matter largely to the states' individual discretion. As the EPA has noted, "Under the Clean Water Act, nonpoint source control is largely voluntary, not regulatory as is point source control. As a result, local nonpoint source regulation varies among states, territories, and tribes in both scope and types of controls required."

The 1987 Amendments: Storm Water Permitting
 
Although storm water runoff is generally a nonpoint source of water pollution, in 1987 Congress recognized that much storm water is actually collected and channeled before reaching waterways, such as in city drain systems. It explicitly extended the federally-overseen permit program for point sources to cover these municipal and industrial discharges of storm water. The amendments required a progressive phase-in of the permitting requirement, beginning with the largest cities and industrial activities.

From one point of view, the storm water amendments, unlike section 319, made no change in the Clean Water Act's division of regulatory authority. Instead, Congress simply made clear that confined and channeled storm water was in fact a point source water pollution subject to federal regulation like any other point source discharge. As a practical matter, however, the storm water amendments extended federal regulatory authority to matters that had previously been deemed to be primarily of local concern - as the extended phasing-in process demonstrates. Like section 319, therefore, storm water permitting shifted the Clean Water Act's federalism scheme toward the federal government.

Like section 319, however, the storm water permit provisions also demonstrate a continuing congressional unwillingness to step too far into land use regulation. In the 1987 amendments Congress exempted a long list of storm water discharges from the permit requirement, including a four-year moratorium on permits for "discharges composed entirely of stormwater." In addition, "permits are not required where a storm water runoff is diverted around mining operations or oil and gas operations and does not come in contact with overburden, raw material, product, or process wastes." Finally, Congress amended the Act's definition of "point source" to make it clear that agricultural storm water discharges are not point sources subject to the permitting requirement. These exceptions demonstrate Congress's reluctance to interfere directly with uses of land, particularly when the land use is not itself contributing to a water quality problem. However, the mining, oil and gas exception also demonstrates Congress' willingness to use its point source regulatory authority to prevent nonpoint source pollution, because the exception allows mining, oil, and gas operations to channel stormwater away from potential nonpoint source contaminants without becoming point sources in the process.

Other Federal Statutes
 
Congress has not significantly amended the Clean Water Act's nonpoint source provisions since 1987. However, the Clean Water Act is not the only vehicle through which Congress has extended federal control over nonpoint source pollution. In 1977, for example, Congress enacted the Surface Mining Control and Reclamation Act(27) to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." These adverse effects include "'[a]cid drainage which has ruined an estimated 11,000 miles of streams; . . . recurrent landslides; [and] siltation and sedimentation of river systems'" - all nonpoint sources of pollution. The Act requires coal mining operations to get permits, and in the permit application the mining operator must: identify "the name of the watershed and location of the surface stream or tributary into which surface and pit drainage will be discharged"; determine "the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site"; and provide climate and precipitation data when requested. In addition, each applicant must submit a reclamation plan that will control surface water drainage and water accumulation to protect surface and ground waters both on- and off-site. Mining operations must put up a performance bond(28) and are subject to civil penalties for violations.

In 1985, Congress passed the Food Security Act(29) to help prevent erosion of cropland and, incidentally, to control sediment runoff from farms. In its current version, the Act renders "any person who in any crop year produces an agricultural commodity on a field on which highly erodible land is predominate" ineligible for a long list of federal financial benefits, including farm subsidies, farm loans, and disaster relief, unless the person implements a conservation plan that includes erosion control measures.

Most significantly, in 1990 Congress amended the Coastal Zone Management Act (CZMA)(30) specifically to address nonpoint source pollution in the nation's coastal zones - a relatively narrow band that includes the coastal waters and shorelands but which extends inland "only to the extent necessary to control shorelands." The CZMA provides funding to states to develop programs to define and regulate permissible land and water uses within this zone. The 1990 amendments required that these state coastal zone management programs implement "the best available, economically achievable measures to reduce nonpoint source pollution in coastal waters." They also required state programs to include enforcement provisions.

The 1990 amendments significantly expanded federal involvement in coastal nonpoint pollution regulation despite its land use connections. In fact, Congress amended its findings to "emphasize the importance . . . of controlling land use activities which result in nonpoint pollution of the coastal waters . . . ." In addition, to achieve federal approval for their Coastal Nonpoint Pollution Control Programs - a prerequisite to continued federal CZMA funding - coastal states had to implement nonpoint source management measures that conformed to guidance issued by the EPA and the National Oceanographic and Atmospheric Administration (NOAA). These two agencies identified five major categories of coastal nonpoint pollution - agricultural runoff; urban runoff; silvacultural runoff; hydromodification, dams and levees, and shoreline erosion control; and marinas and recreational boating - and prescribed management measures for each category.(31) In addition, the guidance defined the kinds of land uses that states must identify in order to receive approval.

Thus, the 1990 amendments to the CZMA again shifted the balance of regulatory authority over nonpoint source pollution control toward the federal government. Not only is federal agency approval required for continued federal funding, as in section 319 of the Clean Water Act, but federal agencies also prescribe the basic management measures that states must incorporate into the plans. Moreover, Congress made effective enforcement an explicit requirement for state programs under the CZMA, eliminating state discretion in that area as well. Nevertheless, states are the only administrators of the coastal nonpoint source management programs, and the CZMA only applies in the narrow coastal zone.

Nonpoint Source Regulation, the Tenth Amendment, and Political Reality Since 1990
 
Land Use Planning, Environmental Regulation, and the Tenth Amendment
 
Congress' increasing assertion of federal regulatory control over nonpoint sources has only underscored the intimate connection between nonpoint source pollution and land use regulation. In the 1987 amendments to the Clean Water Act, for example, the heart of a state's section 319 management program is its identification of land-use-oriented BMPs for particular categories of nonpoint sources. The Surface Mining Control and Reclamation Act, the Food Security Act, and the Coastal Zone Management Act's nonpoint source program also all rely on BMPs or similar nonpoint source management measures.

BMPs are techniques that land owners or operators can use to reduce nonpoint source pollution. Agricultural and forestry operations near streams, for example, can leave strips of untouched vegetation ("buffer zones") along the waterway to slow and absorb runoff. Miners on steep slopes can erect highwalls, above which they do not disturb the land, and contain their mining spoil so as to minimize its contact with runoff. Farmers can rely on integrated pest management techniques instead of pesticides. Construction sites can erect barriers to prevent disturbed ground from being carried away from the site. Miners can restore the mine site when operations are finished instead of leaving on open pit. Loggers can do select cutting rather than clearcutting and replant immediately. Farmers can use terracing and channeling to minimize soil erosion. Developers can respect floodplain designations and incorporate "green zones" into neighborhoods rather than covering all available surface with asphalt and concrete.

BMP controls are thus intimately connected with the use of land, and land use decisions have traditionally been viewed as a function of the states' and local governments' police powers. Nevertheless, under Supreme Court precedent, BMP requirements are still arguably "environmental regulation" rather than "land use planning." In California Coastal Commission v. Granite Rock Co.,(32) the Supreme Court distinguished these two activities in delineating states' authority to impose "environmental" restrictions on activities that take place on federal land, where the federal government has the land use planning authority. Noting that the "core activity" described by "land use planning" and "environmental regulation" "is undoubtedly different," the Court concluded that "[l]and use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." Like other kinds of environmental regulation, therefore, BMP requirements do not designate how any particular plot of land is to be used; instead, once a given land use is chosen, they simply prescribe measures to keep environmental harm - polluted runoff -- to a minimum.

While such a technical distinction might work in court, even the EPA admits that "[e]ffective control of nonpoint source pollution requires changes in land use practices . . . ." Even so, assertions that the states have exclusive land use planning authority have failed to overturn federal regulation of land uses when the federal regulation is otherwise valid under the Commerce Clause. In Hodel v. Virginia Surface Mining and Reclamation Association,(33) a coal producers' association and other plaintiffs asserted that the Surface Mining Control and Reclamation Act was unconstitutional under both the Commerce Clause and the Tenth Amendment, which reserves to the states all powers not given to the federal government. The plaintiffs argued that, because of the Tenth Amendment, the normal Commerce Clause analysis could not apply, "because the Act regulates land use, a local activity not affecting interstate commerce." The district court agreed with the plaintiffs, holding that the Act violated the Tenth Amendment "because it interferes with the States' 'traditional governmental function' of regulating land use." The Supreme Court was not convinced, "even assuming that [plaintiffs] correctly characterize the land use regulated by the Act as a 'local' activity . . . ." When the plaintiffs continued to insist "that the Act interferes with the States' ability to exercise their police powers by regulating land use," the Court overturned the lower opinion:

[Plaintiffs'] claims accurately characterize the Act insofar as it prescribes federal minimum standards governing surface coal mining, which a State may either implement itself or else yield to a federally administered regulatory program. To object to this scheme, however, [plaintiffs] must assume that the Tenth Amendment limits congressional power to pre-empt or displace state regulation of private activities affecting interstate commerce. This assumption is incorrect.(34)

Instead, the Court emphasized, the federal government can rely on the Commerce Clause to displace state police power.
 
Since Hodel, the Court has become more protective of states' Tenth Amendment rights and of federalism in general. Nevertheless, even in New York v. United States,(35) where the Court struck down the "take title" provisions of the Low Level Radioactive Waste Policy Act as being inconsistent with the Tenth Amendment, the Court emphasized that the Tenth Amendment does not modify the federal government's Commerce Clause powers.

In a case like these, involving the division of authority between federal and state governments, the two inquiries [Commerce Clause and Tenth Amendment] are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.(36)

Moreover, the Court upheld Congress' authority "to offer States the choice of regulating [private] activity according to federal standards or having state law pre-empted by federal regulation," explicitly offering Hodel as a proper analysis of this kind of federal regulation.
 
Congressional Negotiation Regarding Nonpoint Source Pollution in the 1990s
 
Because the federal government has Commerce Clause authority to regulate nonpoint source pollution, and thus would not unconstitutionally interfere with states' Tenth Amendment rights, the federal government could directly regulate individual nonpoint sources regardless of traditional state authority over land use planning. Legal authority, however, does not make full federal regulation a politically viable solution to the nonpoint source water pollution problem, as congressional legislation and, more illustratively, failed legislation throughout the 1990s have made clear.

Increased attention to the states' rights side of federalism in the late 1980s and 1990s, coupled with partisan battles in Congress that ranged from moderate to severe, have brought statutory adjustments to nonpoint source regulatory authority in the Clean Water Act to a virtual standstill. In 1994, the Senate proposed the Water Pollution Prevention and Control Act of 1994 (S. 2093), which would have provided $600 million per year in federal funding and allowed states to provide grants to individual nonpoint sources to implement pollution control measures. Despite its acknowledgement that nonpoint source pollution needed better control, however, the bill emphasized that "there has been general agreement that because of the diversity and variety of sources and site-specific factors (such as climate, soil, and geography), management and control decisions require greater flexibility than Federally established controls on industrial and municipal point sources. Moreover, nonpoint source control typically requires better management of land uses, which has traditionally been the primary responsibility of State and local governments." The House proposed H.R. 3948, which would have required the EPA to develop water quality criteria for nonpoint source pollution and to publish guidance documents regarding BMPs. In addition, the bill would have required states to impose enforceable BMP requirements. Both bills failed to become law.

Nonpoint source legislation in 1995, after the Republican takeover of Congress, was markedly divided. The House Republicans proposed the Clean Water Act Amendments of 1995 (H.R. 961), concluding in general that "Federal mandates are forcing communities to make funding choices that can be detrimental to the environment." For nonpoint source pollution specifically, "the most effective method of control is the prevention of pollution in runoff through management practices and measures. However, cause and the nature of runoff are extremely site-specific. Accordingly, a top-down approach for the development and implementation of management practices is not appropriate." The bill would have extended the deadline for state nonpoint source management programs for another 15 years and "express[ed] the belief that nonpoint source programs should be built upon a foundation of voluntary initiatives that represent the approach most likely to succeed in achieving the objectives of the Act." The bill would also have decentralized storm water regulation and allowed States to develop their own storm water programs to meet a national goal. H.R. 961 passed in the House but died in the Senate. It nevertheless demonstrated a significant swing back toward the state end of Clean Water Act federalism - a change in sentiment that more willing would-be federal regulators had to acknowledge.

In both 1995 (H.R. 1132) and 1997 (H.R. 550), for example, members of the House proposed the Nonpoint Source Water Pollution Prevention Act, which acknowledged that the "major cause" of the Clean Water Act's failure to achieve its goals "are nonpoint sources of pollution: the neglected legacy and unfinished agenda set forth in 1972 in the Federal Water Pollution Control Act." The Act would have required states to identify and prioritize target watersheds, then notify the land owners and operators in the highest priority watersheds that they had to implement site-level programs to control nonpoint source pollution. The states would have had to include enforcement mechanisms in their programs and to make state water quality standards enforceable against land owners and operators eight years after notification. In addition, the Act would have established a Citizen Watershed Management Program. Despite this extensive federalization of nonpoint source control requirements reaching down even to the level of private polluters, however, the drafters still felt it necessary to assert that "[n]onpoint sources are best addressed on a watershed basis by State and local and public and private organizations and by citizens. The Federal Government is a contributor, and must accept its share of responsibility, but the prime authority and most effective means are the province of State and local entities." Even so, the 1995 proposal died in committee, while the 1997 proposal failed to be carried over into the 1998 session.

Congress did manage to amend the Food Security Act in 1996,(37) but those amendments worked primarily to increase farmers' flexibility and to decrease federal control of nonpoint source pollution. The amendments require the Secretary of Agriculture to ensure that its guideline permit farmers to use conservation plans that are "technically and economically feasible" and "based on local resource conditions and available conservation technology." Farmers can provide their own binding certifications of compliance, and the Secretary can allow farmers to include "practices that are not currently approved but that the Secretary considers to have a reasonable likelihood of success."

Congress also amended the CZMA in 1996,(38) but in doing so it emphasized the Act's state-centered and voluntary nature:

More recent wrangling over proposed CZMA amendments demonstrates the continuing political volatility of federal nonpoint source pollution regulation. For the proposed Coastal Community Conservation Act of 1999 (H.R. 2669), the House Subcommittee on Fisheries Conservation, Wildlife, and Oceans voted to include nonpoint source provisions in the bill after hearing testimony in favor of such provisions. Two months later, the full Committee on Resources voted to strike the nonpoint source amendments that the Subcommittee had added and voted to include measures prohibiting the Secretary of Commerce from "requiring a state, as a condition of a grant under the CZMA or the approval of a state coastal zone management program, to take actions that would constitute a use of non-federal property for a public purpose without just compensation." The Senate's proposed Coastal Zone Management Amendments Act of 1999 (S. 1420), in contrast, would have added explicit recognition that "[l]and and water uses in the coastal zone and coastal watersheds may significantly affect the quality of coastal waters and habitats, and efforts to control coastal water pollution from activities in these areas must be improved."

The Executive Branch and Nonpoint Source Pollution

In the face of congressional stalemate, the Executive Branch has taken an active lead in trying to control the nonpoint source problem. In the late 1990s, the federal agencies responsible for controlling water pollution began to signal their willingness to again shift more nonpoint source pollution control to the federal government. In August 1997, for example, the EPA issued guidance for the Clean Water Act's Section 303 total maximum daily load (TMDL) requirement in which it explicitly expects states to achieve nonpoint source pollutant load reductions through the state nonpoint source management programs. A year later, the EPA published a comprehensive advanced notice of proposed rulemaking regarding water quality standards regulation that proposed using a special kind of water quality standard - the antidegradation policy - to help promote nonpoint source pollution control by requiring states "to implement cost effective and reasonable best management practices for nonpoint source control before allowing lowering of water quality in a water body." In the past, the EPA had required such BMP enforcement only if the state had already enacted applicable BMP requirements for other purposes. Together, these agency suggestions demonstrate the EPA's willingness to use existing federal oversight of current statutory requirements to increase, as a practical matter, federal requirements for nonpoint source pollution.

In late 1999, the EPA also began implementing storm water regulation of cities of less than 100,000 people and construction sites involving five acres or less. Its regulations emphasize the close connection between storm water permitting for point sources and nonpoint source regulation, because they promote the use of BMPs in controlling storm water pollution.

The most significant Executive Branch statement of increased federal involvement in nonpoint source pollution control, however, is the EPA's and USDA's Clean Water Action Plan (CWAP), presented to Vice President Gore on February 19, 1998. The CWAP is the agencies' response to Vice President Gore's October 1997 direction to chart a "course toward fulfilling the original goal of the Clean Water Act - "fishable and swimmable waters for all Americans." It is also the centerpiece to President Clinton's Clean Water Initiative, announced in January 1998, which "aims to achieve clean water by strengthening public health protections, targeting community-based watershed protection efforts at high priority areas, and providing communities with new resources to control polluted runoff."

The CWAP emphasizes that "40 percent of the nation's waterways assessed by states are still unsafe for fishing and swimming." The agency authors conclude early and often that current regulation of polluted runoff is inadequate and that "Polluted Runoff is the Most Important Source of Water Pollution." "Implementation of the existing programs will not stop serious new threats to public health, living resources, and the nation's waterways, particularly from polluted runoff." "The success in cleaning up pollution from point sources (e.g., factories and sewage treatment plants) has not yet been matched by controls over polluted runoff from sources such as farms, urban areas, forestry, ranching, and mining operations."
 
The CWAP emphasizes four tools in achieving the next level of water quality: (1) a watershed approach to water pollution; (2) stronger federal and state water quality standards; (3) better natural resource stewardship for cropland, pasture, rangeland, and forests; and (4) better information for citizens and government officials. All four of these tools affect nonpoint source pollution control and incorporate both federal and state or local measures. For example, the watershed approach allows states and the EPA to link urban and upstream runoff programs and to combine natural resources stewardship with polluted runoff prevention strategies in order to protect pristine portions of the watershed and minimize the damage from the worst sources of polluted runoff. Similarly, "[f]ederal, state, and tribal standards for water quality and polluted runoff are key tools for protecting public health, preventing polluted runoff, and ensuring accountability." In particular, at the federal level EPA has committed itself to establishing numeric criteria for nutrients such as nitrogen and phosphorus that reach surface waters primarily through agricultural runoff, an increased federal participation in nonpoint source pollution regulation.

More important than any strategy within the CWAP, however, is the very existence of the CWAP - a federal management plan for water quality with a strong emphasis on bringing nonpoint source water pollution under control. This federalization of nonpoint source management is only underscored by federal budgeting. In conjunction with the CWAP, President Clinton budgeted an additional $568 million for water pollution control in 1999. Polluted runoff control grants for states' section 319 nonpoint source control programs received a total of $200 million, up $95 million from the 1998 budget, and NOAA received a new allocation of $13 million to control polluted runoff and toxic contaminants. Thus, the President's budget allocated close to one-fifth of the additional water pollution regulation monies directly to nonpoint source pollution control, signaling that the Executive Branch, like Congress, considers nonpoint source pollution to have become a national concern.
 
However, a key problem with nonpoint source management remains enforcement. People commenting on the proposed CWAP recommended that the federal government continue emphasizing polluted runoff prevention goals, in part because there are "significant gaps in the Clean Water Act's authority for addressing polluted runoff." The federal agencies that compiled the CWAP also recognized that enforcement is an important issue in nonpoint source regulation. "An important component of an effective state program to control polluted runoff is enforceable authority that can be used to ensure that pollution controls are actually implemented if voluntary efforts fail." One of the CWAP's specific goals is for federal agencies to work "with states and tribes to promote the establishment of state and tribal enforceable authorities to ensure the implementation of polluted runoff controls by the year 2000." Indeed, EPA and NOAA are committed to promoting "by the year 2000 the establishment of enforceable state and tribal authorities needed to ensure the implementation of nonpoint source controls to achieve water quality standards," and EPA "will publish guidance describing existing and potential models of enforceable authority related to polluted runoff and will assist states and tribes in this effort." Moreover, in May 1996, EPA and the states negotiated a nine-element upgrade of section 319 nonpoint source management programs, but by 1998 only one state had completed the upgrade for all nine elements. In the CWAP, EPA announced that, "beginning in FY 2000, EPA will award any section 319 monies exceeding the $100 million authorized level only to those states and tribes that have incorporated all nine key elements into an approved section 319 Nonpoint Source Management Program."

Nevertheless, federal agencies are limited to the existing federal authority for nonpoint source regulation, and the CWAP thus enthusiastically embraces federal incentives, grants, and information and technology as means to increase polluted runoff control rather than increasing federally-enforceable requirements. In addition, President Clinton has joined the Supreme Court and Congress in paying increased attention to state and local concerns. In May 1998, he issued an Executive Order on Federalism(39) "to guarantee the division of governmental responsibilities, embodied in the Constitution, between the Federal Government and the States that was intended by the Framers . . . ." The Executive Order requires federal agencies to strictly adhere to constitutional principles of federalism and to minimize federal oversight of state and local discretion. It also distinguishes "matters of national or multi-state scope (which may justify Federal action) and matters merely common to the States (which may not justify Federal action because individual States, acting individually or together, may effectively deal with them)." In accord with this Presidential decree, many of the CWAP's projects for controlling polluted runoff promote local innovation to control nonpoint source pollution. However, the CWAP also reaches beyond governments to individuals, relying "on a substantial increase in the technical and financial assistance to private landowners as the primary means of accelerating progress toward reducing polluted runoff from agricultural, range, and forest lands."

Conclusion: Proposed Amendments to the Clean Water Act

So, where does all this discussion leave the future of nonpoint source regulation? First, there is wide consensus in Congress, in the Executive Branch, and among citizens that nonpoint source pollution is one of the few remaining national water pollution problems and that this problem requires further effort to solve. The largely voluntary controls envisioned through sections 208 and even 319 are not working, and the arguably more effective regulatory scheme in the CZMA is limited to the narrow band of the "coastal zone." Moreover, nonpoint source pollution affects interstate waters and the navigable waters in ways that justify increased federal attention and regulation, and the advantages of national-level water quality regulation are several. In point source regulation, for example, the EPA and USDA have noted that "[n]ational minimum standards that limit pollution from sewage treatment plants and factories have resulted in most of the nation's progress in reducing water pollution." That system of national standards removed the threat that businesses would move to communities without tough environmental regulation and ensured "that every community does its fair share to clean up waters."

On the other hand, the very real federalism concerns in nonpoint source regulation from the state perspecitve make too much more federal control politically inviable, even though such control is in fact constitutionally permissible. In this context, it is also worth remembering that Congress originally left nonpoint source regulation to the states because of the complexity of the task. In subsequent amendments, moreover, Congress emphasized the important role that 50 states - as opposed to one or two federal agencies - can play in creatively managing nonpoint source pollution. In 1977, for example, Congress referred to the Section 208 program as "the 1972 act's laboratory for new institutional control mechanisms for vexing nonpoint source problems." In 1987, Congress instructed the EPA to give funding priority, inter alia, "to effective mechanisms which will control particularly difficult nonpoint source problems" and "to implement innovative methods or practices." President Clinton adopted this theme in his Federalism Executive Order, which notes that "[t]he search for enlightened public policy is often furthered when individual States and local governments are free to experiment with a variety of approaches to public issues. Uniform, national approaches to public policy problems can inhibit the creation of effective solutions to those problems." Much nonpoint source pollution remains complex, varied, and often site-specific. Therefore, local experimentation and local expertise have continuing valuable roles to play in finding innovative ways to deal with this problem.

Since 1977, however, Congress, the Executive Branch, and concerned citizens have recognized that effective enforcement is a major problem in nonpoint source pollution control. While voluntary measures are good as far as they go, the Clean Water Act's nonpoint source provisions currently lack any enforcement requirements. States need not enforce their nonpoint source control programs to receive federal funding; there are no minimum federal requirements; and citizens cannot use the Act's citizen suit provision to reach individual nonpoint source polluters or enforcement-reluctant governments - even when a source's failure to use prescribed BMPs is causing violations of the state's water quality standards.

Congress should amend the Clean Water Act to bring it into line with the CZMA and to statutorily incorporate nonpoint source control into the TMDL and antidegradation requirements. These amendments would require states, in order to continue receiving federal funding, to include enforceable provisions in their state nonpoint source management plans that require nonpoint sources to do their fair share in meeting state water quality standards. The state-decided water quality standards would thus become the federal minimum standards for assessing nonpoint source control. However, 28 years of state experimentation has educated the EPA in basic nonpoint source control measures, allowing the EPA to issue guidance on "presumptively acceptable" BMP requirements that are rational and cost-effective, especially for those kinds of nonpoint sources that are not unique or even particularly unusual, such as farming and logging operations situated near waterways. The combination of a water quality standards basis and federal guidance would give states maximum flexibility, increase the effectiveness of nonpoint source regulation, and do little more than congressionally codify requirements that the EPA has already imposed or threatens to impose.

In addition, the 2000 Presidential campaign has already emphasized that fiscal responsibility is an important concern of the federal government. Each year, the federal government spends at least $100 million on grants to states through the section 319 nonpoint source program alone, and that amount could certainly stand to be increased. Couched in terms of effective use of federal money, therefore, federal minimum standards and an enforceable measures requirement could seem like less of an intrusion on state authority - the federalism worry - than careful management of the public fisc, a change in focus that might allow the amendments to garner a congressional majority.

However, I also propose that Congress follow the CWAP's lead and reach out to individual citizens by explicitly extending the Clean Water Act's citizen suit provision to cover actions against nonpoint sources that either cause violations of the state water quality standards or fail to comply with state BMP requirements.(40) As the EPA and USDA noted in the CWAP, "people will participate most readily and actively in protecting the quality of waters in areas where they and their families live and work." Throughout the Clean Water Act's history, individuals and groups have used the citizen suit provision to keep both the governments and the individual point source polluters on track toward cleaning up the nation's waters. When federal government enforcement of the Clean Water Act's point source requirements tapered off during the Reagan administration, for example, environmental groups brought citizen suits to fill the gaps. Citizen suits have also ensured that the EPA did not over-enthusiastically exempt point sources from regulation, that the EPA issued effluent limitations, and that the EPA issued standards for toxic pollutants.

Despite some successes, the states and nonpoint sources have demonstrated reluctance to take the full measures required to solve the nonpoint source pollution problem. It is time for the beneficiaries of federalism - the citizens - to have a direct voice in nonpoint source regulation. In Friends of the Earth. Inc. v. Laidlaw Environmental Services, Inc.,(41) the Supreme Court recently gave individuals personally injured - if only psychologically - by water pollution greater access to redress in the point source context. Victims of nonpoint source pollution deserve no less.(42) Moreover, the possibility of direct, in-the-courtroom accountability to political constituents and neighbors could finally jolt states, local governments, and land owners and operators into bringing this last major national water pollution problem under control.

1.  33 U.S.C. §§ 1251-1387 (1994).

2.  United States v. Lopez, 514 U.S. 549, 556 (1995) [hereinafter Lopez]. See also New York v. United States, 505 U.S. 144, 158 (1992) ("As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power.").

3.  514 U.S. 549 (1995).

4.  130 F.3d 1041 (D.C. Cir. 1997).

5.  Id. at 1060-61.

6.  --- U.S. ---, ---S. Ct. ---, 2000 WL 238223 (March 6, 2000).

7.  Id. at *7.

8.  33 C.F.R. § 328.3(a)(3), (7) (1999) (Army Corps of Engineers); 40 C.F.R. § 230.3(s)(3), (7) (1999) (EPA).

9. Hoffman Homes, Inc. v. Administrator, U.S. E.P.A., 999 F.2d 256, 262 (7th Cir. 1993).

10.  474 U.S. 121, 132-34 (1985).

11.  Id. at 132-33.

12.  Cargill, Inc. v. United States, 516 U.S. 955, 959 (1995).

13.  133 F.3d 251 (4th Cir. 1997).

14.  Id. at 256 (citing Lopez, 514 U.S. 549, 558-59 (1995); Printz v. United States, --- U.S. ---, 117 S. Ct. 2365 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); New York v. United States, 505 U.S. 144 (1992)).

15.  191 F.3d 845, 850 (7th Cir. 1999).

16.  Id. at 850.

17.  United States v. Pearson, --- F.3d ---, 2000 WL 201169, at *22 (10th Cir. 2000) (holding that statutes that "regulate activities that in the aggregate have a substantial effect on interstate commerce" are valid); United States v. McGuire, 178 F.3d 203, 208 (3rd Cir. 1999) ("Congress can regulate an intrastate activity 'when the cumulative of a collection of such events might ultimately have substantial effect on interstate commerce.'")(quoting the federal government's brief); United States v. Franklin, 157 F.3d 90, 96 (2d Cir. 1998) ("Congress is authorized to regulate individual instances of purely intrastate activity where the cumulative effect of such activity would substantially affect interstate commerce."); United States v. Dascenzo, 152 F.3d 1300, 1301 (11th Cir. 1998) (upholding federal regulation because rental properties in the aggregate substantially affect interstate commerce); United States v. Latouf, 132 F.3d 320, 327 (6th Cir. 1997) (noting that in Commerce Clause challenges the court looks to effects in the aggregate); National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997) (noting that in Commerce Clause challenges the court must judge by the aggregate effects); United States v. Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997) ("In determining whether the effect on interstate commerce is substantial, courts must look to the cumulative effect of all similar instances of the regulated activity, carried on in different places by different persons."); United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996) (upholding federal regulation because rental properties in the aggregate substantially affect interstate commerce); United States v. Dinwiddle, 76 F.3d 913, 920 (8th Cir. 1996) (under the Commerce Clause, "Congress may regulate a class of purely intrastate activity if, in the aggregate, the activity has a substantial effect on interstate commerce"). The First Circuit has apparently not considered this issue since Lopez.

18.  Josie Glausiusz, Dead Zones, 21 Discover 22, 22 (March 2000).

19.  Robert Costanza, et al, The Value of the World's Ecosystem Services and Natural Capital, 387 Nature 253, 258-59 (May 15, 1997).

20.  Id. at 256.

21.  Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (Oct. 18, 1972).

22.  33 U.S.C. § 1288 (1994).

23.  33 U.S.C. § 1323 (1994).

24.  Pub. L. 95-217, 91 Stat. 1567 (Dec. 27, 1977).

25.  33 U.S.C. § 1329 (1994).

26.  Natural Resource Defense Council v. U.S. Envt'l Protection Agency, 915 F.2d 1314, 1318 (9th Cir. 1990). Accord, Shanty Town Assocs. L.P. v. Envt'l Protection Agency, 843 F.2d 782, 791 (4th Cir. 1988) (noting that the Clean Water Act "provides no direct mechanism by which EPA can force the states to adopt adequate nonpoint source pollution control programs. Instead, Congress anticipated that EPA would use the threat and promise of federal financial assistance to accomplish the task.").

27.  30 U.S.C. §§ 1201-1328 (1994).

28.  Id. § 1259.

29.  16 U.S.C. §§ 3811-3814 (1994).

30.  16 U.S.C. §§ 1451-1465 (1994).

31.  56 Fed. Reg. 27,618, 27,619 (June 14, 1991).

32.  480 U.S. 572 (1987).

33.  452 U.S. 264 (1981).

34.  Id. at 289-90.

35.  505 U.S. 144 (1992).

36.  Id. at 156.

37.  Pub. L. 104-127, 110 Stat. 984 (April 4, 1996).

38.  Pub. L. 104-150, 110 Stat. 1380 (June 3, 1996).

39.  Exec. Order No. 13083, 63 Fed. Reg. 27,651 (May 14, 1998).

40. Alternatively, Congress could require states to include a citizen suit provision as a matter of state law, but that seems to me far more intrusive than just amending the Clean Water Act.

41.  --- U.S. ---, 120 S.Ct. 693 (1999).

42.  In Laidlaw, Justice Kennedy in concurrence and Justices Scalia and Thomas in dissent all questioned the use of private rights to correct public wrongs. Id. at 713, 719-20. Should this Article II constitutional objection to citizen suits ever take flight, a truly private cause of action, akin to private nuisance, could accomplish many of the same goals.
 
 
 


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