Polluted Runoff No Permit Needed
Nonpoint Sources and Polluted Runoff
While pollution coming from pipes requires permits under the Clean Water Act, all other sources—called “nonpoint sources”—do not require a permit. Whether they are regulated at all is up to each individual state. Nonpoint sources include the runoff from farms, logging, mining, grazing, and air pollution that lands on the ground. When polluted runoff is eventually channeled into pipes or other similar mechanisms, it requires a permit. For this reason, pesticide spraying, stormwater runoff from city roads and freeways, and dairy operations all now require a permit, due to environmental group litigation and actions by Congress.
The distinction between pipes and no pipes is not relevant to the harm caused by different pollution sources. Polluted runoff is a huge threat to water quality. Because Congress became increasingly concerned about its decision to leave nonpoint source control to the states when it passed the Clean Water Act in 1972, when it amended the Act in 1987, it added provisions to require states to create and carry out nonpoint source plans. These plans were required to include identification of the so-called “best management practices,” or BMPs, as well as how states would get these BMPs used, and when they would be used. If states refused to follow these provisions, EPA was empowered to withhold grant funding that states use to support restoration actions and their nonpoint source programs.
By 1990, Congressional concern about polluted runoff had become more acute, particularly for sensitive coastal waters, leading to passage of a law requiring coastal states to control nonpoint source pollution in coastal watersheds. Called the Coastal Zone Act Reauthorization Amendments (CZARA), the law required that coastal states use minimum nonpoint source control measures established by the Environmental Protection Agency (EPA) for a variety of pollution sources. It also required states to take whatever further action was required to meet water quality standards if those initial controls proved inadequate. CZARA required that states have these programs in place to meet the urgent need for protecting sensitive coastal waters by 1996 or face mandatory funding cuts by EPA and its partner, the National Oceanic and Atmospheric Administration (NOAA). Neither agency wanted to follow the law so they devised a work-around, “conditionally approving” all states regardless of how terrible their programs were. These conditional approvals simply perpetuated themselves, year after year.
Oregon’s Polluted Runoff Control Failures
Like many states in the west, Oregon has a regulatory program for logging that sets requirements for leaving trees along streams, restricts the use of heavy equipment, designs roads and culverts to prevent pollution and allow fish passage, limits pesticides’ entry into streams, and attempts to protect people and the environment from landslides precipitated by logging. In theory. Compared to federal requirements and those in Washington and California, Oregon’s logging requirements are shameful. EPA and NOAA had been pleading with Oregon to fix its wholly inadequate regulations for many years but Oregon simply and repeatedly refused. Ultimately, in 2009, NWEA took EPA and NOAA to court under the CZARA requirements, resulting in the federal agencies’ disapproval of Oregon’s coastal nonpoint source pollution control program in January 2015, the first in the nation. The disapproval was based on Oregon’s logging practices but the agencies also recognized that NWEA had a point when it contended that Oregon has no mechanism for controlling polluted runoff from agriculture.
While CZARA focuses only on coastal watersheds, the Clean Water Act is set up to encourage states to keep polluted runoff out of streams and rivers across the entire state. EPA approved Oregon’s most recent Nonpoint Source Pollution Plan in 2015 despite the fact that Oregon’s plan does not comply with Section 319 of the Act.
Washington’s Polluted Runoff Control Failures
Washington’s logging practices are much better than Oregon’s but just like Oregon, it has no program to control polluted runoff from agriculture and many other sources. This is of particular concern due to the amount of farming done in the coastal watersheds that surround Puget Sound. Despite vast evidence of farming’s effects on pollution levels and shellfish, destruction of salmon streams, and Puget Sound health, Washington is immobilized when it comes to the politically contentious matter of making farmers stop polluting public waters. Nonetheless, EPA and NOAA have consistently failed to disapprove Washington’s failure to meet the requirements of CZARA and EPA has repeatedly approved Washington’s Nonpoint Pollution Plan and its annual efforts. The Treaty Tribes of Puget Sound raised these concerns about the federal government’s failure to address this problem and to take the actions required by law in a process of engagement called Treaty Rights at Risk. Year later, many meetings have been had, documents have been drafted, but no actions have been taken by the federal government or the Washington Department of Ecology to reduce pollution from farms and protect the resources upon which the tribes depend.
The federal agencies’ refusal to follow the law has only encouraged Ecology to continue to ignore its obligations to prevent polluted runoff. For this reason, NWEA filed a lawsuit under CZARA, Section 319 of the Clean Water Act, and the Endangered Species Act in December 2016. As with its Oregon CZARA case, NWEA seeks a federal agency disapproval of Washington’s nonpoint source plans and programs unless they are significantly improved.