On January 8, 2020, the U.S. Senate Environment and Public Works Committee heard testimony from representatives of Wyoming and Maryland in an effort to evaluate the effectiveness of programs under the Clean Water Act (“CWA”) designed to reduce nonpoint source (“NPS”) pollution.

NPS pollution, unlike point source pollution that can typically be traced to an industrial or sewage treatment facility, is created by land runoff that results from rainfall or snowmelt. As the water moves over and through the ground, it picks up sediment and other pollutants that are eventually deposited into nearby waterways. According to the Environmental Protection Agency, NPS “pollutants have harmful effects on drinking water supplies, recreation, fisheries, and wildlife.”

While the CWA places strict regulations on discharges from point sources, regulating NPS pollution is more difficult. As a result, 1987 amendments to the CWA created the Section 319 Nonpoint Source Management Program (“Section 319”). This program seeks to reduce NPS pollution by providing states, territories, and tribes with grant money for education, training, technical assistance, or restoration projects related to NPS pollution.

The issue of nonpoint source pollution has received great focus lately in the closely related issue of groundwater given the case of County of Maui, HI v. Hawaii Wildlife Fund, _   U.S. ___, Case No. 18-260 (Argued Nov. 6, 2019; Decision Below 886 F.3d 737).  In the CWA, Congress differentiated between point source and nonpoint source pollution in controlling pollution of navigable waters. The CWA regulates point source pollution through permits, while nonpoint source pollution is controlled through federal oversight of state management programs and other non-CWA programs. The Supreme Court and several courts of appeals have read the CWA’s line dividing point source and nonpoint source pollution to turn on whether pollutants are delivered to navigable waters by a point source.  In County of Maui however, parting with those cases, the Ninth Circuit concluded that point source pollution also includes pollutants that reach navigable waters by nonpoint sources so long as the pollutants can be “traced” in more than “de minimis” amounts to a point source. This holding if affirmed potentially expands CWA permitting to millions of sources previously regulated as nonpoint source pollution. The question presented in the case is whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

During the hearing to evaluate the effectiveness of Section 319 programs, senators heard from Maryland’s Secretary of the Environment, Ben Grumbles. Grumbles discussed remediation efforts, including the installation of an oxidizing pond and limestone leach bed, used by Maryland’s Department of the Environment to reduce NPS pollution in Aaron Run, a stream affected by runoff from abandoned coal mines. Senators also heard from the Nonpoint Source Program Coordinator at the Wyoming Department of Environmental Quality, Jennifer Zygmunt. Zygmunt discussed the best management practices (“BMPs”) used to reduce NPS pollution in Chugwater Creek, a water source listed as an impaired water under the CWA. The BMPs included the installation of a riparian fence and modifications to cattle grazing patterns in the area.

Despite the successes in Maryland and Wyoming, NPS pollution remains a potential source of pollution. It remains to be seen whether changes will be made to Section 319 or whether other measures will be taken to help reduce NPS pollution.

The text of the Section 319 Nonpoint Source Management Program can be found here. Additional information related to the efforts to reduce NPS pollution in Chugwater Creek can be viewed here and information related to the remediation efforts at Aaron Run can be viewed here.

Any questions regarding the foregoing may be directed to William Droze or Mandi Moroz.