Environmental Law 3

Supply Control: Defined

The policy of limiting the amount of acreage that could be planted to a certain commodity AND/OR the amount of a commodity that could be sold by a producer Failure to comply resulted in legal penalties The goal was to maintain a price level for the controlled commodity by establishing balance in supply vs. demand Used in varying ways from 1933 through 1996 (along with price support programs) Modern conservation programs began in the 1980s as supply control phased out

Sodbuster/Swampbuster Application Process

To maintain eligibility, participants must certify that they have not produced crops on converted wetlands after December 23, 1985, and did not convert a wetland after November 28, 1990, to make agricultural production possible. If Swampbuster is violated, USDA farm program benefits may be lost. If participants produce a crop on a converted wetland, they may lose benefits for that year. If participants convert a wetland after November 28, 1990, they risk loss of benefits for the year the conversion took place, and for the years that follow until the wetland's functions and values are restored.

Types of Standards

Water Quality Standards (WQS) can be either Narrative A broader, more general standard indicating water quality. Example: "No nutrients at levels that cause a harmful imbalance of aquatic populations" Numeric A more specific standard that requires the adoption of specific numeric standards, Example: "The ambient water quality criterion for cadmium is 10 µg/L (micrograms per liter)" Examples of standards: Criteria for minerals, bacteria, clarity, temperature, oil and grease, acidity or alkalinity, dissolved oxygen, nutrients, and toxic substances

Water Quality Standards

Water quality standards (WQS) consistent with the CWA are established Three main components to WQS: Designated uses Uses that society, through state and federal governments, determines should be attained in the water body. Examples: aquatic life, fisheries, drinking water, recreation, industry, or agriculture. Water quality criteria Levels of individual pollutants or water quality characteristics, or descriptions of conditions of a water body that, if met, will generally protect the designated use of the water. Anti-degradation provisions A policy designed to prevent deterioration of existing levels of good water quality

EQIP Eligibility

Who: Agricultural producers, owners of non-industrial private forestland, tribes Limited resource farmers/ranchers, beginning farmers/ranchers, socially disadvantaged producers and tribes may be eligible for increased practice payment rate to support implementation of conservation practices and conservation plans and may receive advance payment of up to 50% of the cost to purchase materials and services needed to implement EQIP conservation practices. Why: To improve soil, water, plant, animal, air and related resources What: "Eligible land" includes cropland, rangeland, pastureland, nonindustrial private forestland and other farm or ranch lands.

CRP Eligibility

Who: Must have owned or operated the land for at least 12 months prior to submitting the offer Cannot purchase/rent land for sole purpose of participating in CRP Must be U.S. citizen or resident alien May not exceed certain income thresholds in order to be eligible for payments. What: Must be recognized as "cropland" (including field margins) which is physically and legally capable of being planted in a normal manner to an agricultural commodity. Must be suitable for certain conservation practices; such as riparian buffers, wildlife habitat buffers, wetland buffers, filter strips, wetland restoration, grass waterways, shelterbelts, living snow fences, contour grass strips, salt tolerant vegetation, and shallow water areas for wildlife

Program Examples:

Working Lands Programs Environmental Quality Incentives Program Land Retirement Conservation Reserve Program Compliance Sodbuster & Swampbuster Programs Permanent Easements Conservation easements

Courtroom Requirements ("Standing" for Lakes/Ecosystems)

"Standing" for Lakes/Ecosystems Lakes/Ecosystems etc are not "persons" Since they are property, they don't have legally enforceable rights Without legally enforceable rights, there cannot be an injury Therefore, lakes, ecosystems etc do not have standing, and cannot bring suit in court

CAFO designations

* Meets size requirements and EITHER has a manmade ditch or pipe that carries manure or wastewater to surface water; OR the animals come into contact with surface water that passes through the area where they're confined. ** Not a CAFO by regulatory definition; may be designated as a CAFO by the permitting authority as a significant contributor of pollutants. (Table on Phone)

AFO/CAFO

-Animal Feeding Operations (AFOs) Animals are confined for at least 45 days in a 12-month period No grass or other vegetation in the confinement area during the normal growing season Concentrated Animal Feeding Operations (CAFOs) Animals are confined for at least 45 days in a 12-month period No grass or other vegetation in the confinement area during the normal growing season Meet certain EPA criteria (size requirements) There are about 257,000 AFOs in the United States, about 15,500 of which are CAFOs.

What is "discharge of dredged material"

"Any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States." "any addition, including redeposit other than incidental fallback, of dredged material, including excavated material . . . incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation."

404 Permits (Example 3)

"Deep ripping" is plowing that breaks up relatively shallow impermeable layers. Usually impacts soil deeper than 16 inches Typical plowing usually impacts soil between the surface and 12 inches underground Is this an excluded activity? Or is a permit required? Exempt when: undertaken as part of an established ongoing agricultural silvicultural or ranching operation AND to break up compacted soil layers AND where the hydrology of the site will not be altered such that it would result in conversion of waters of the U.S. to upland Not exempt when Conducted in association with efforts to establish for the first time (or when a previously established operation was abandoned) an agricultural silvicultural or ranching operation. NOTE: If deep ripping also has the effect of altering or removing the wetland hydrology of the site, it would require a permit If deep-ripping has the effect of converting wetlands to non-waters, it would require a permit.

WQS in Arkansas

"Ecoregion based" Areas of the state with waterbodies that share similar geography, biological characteristics and land uses Region-specific standards are developed from data from least-disturbed streams within each ecoregion. Reviewed every three years Primarily narrative standards

DMWW

"Iowa's streams and rivers, including the Raccoon River, contribute significantly to hypoxia in the Gulf of Mexico" "Eutrophication and the development of hypoxic conditions in the Gulf of Mexico's dead zone are also directly attributable to nutrient transport from agriculture into the tributaries of the Mississippi, including the Raccoon River and Des Moines River."

Nov. 2018 Memorandum of Agreement

.037 mg/L remains as the total phosphorus criterion For NPDES permit applications for point-source facilities with a design flow of greater than 1 million gallons per day: Current permits are grandfathered in with existing phosphorus limits of up to 1 mg/L on an averaging period Applications to renew/amend/modify existing permits will be limited to not more than .5 mg/L on an averaging period New applications will be limited to not more than .2 mg/L on an averaging period States agree to work together to develop and initiate a workgroup designed to ascertain progress toward meeting the phosphorus criterion

1992: USSC ruling

1992: U.S. Supreme Court rules Arkansas may dump treated sewage into the Illinois River watershed, but that it must meet Oklahoma water quality standards. "The regulations relied upon by the EPA were a perfectly reasonable exercise of the Agency's statutory discretion." "The application of state water quality standards in the interstate context is wholly consistent with the Act's broad purpose 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.' ... The Agency's regulations conditioning NPDES permits are a well-tailored means of achieving this goal"

1993- 2003: A Decade of Development

1993: Oklahoma begins gathering data on phosphorous and other pollutants in the Illinois River. 1996: State of Oklahoma issues report detailing high levels of contaminants in Lake Tenkiller. 2002: The Oklahoma Water Resources Board adopted a total phosphorus criterion of .037 mg/L to protect Scenic Rivers. Numeric standard 2003: Arkansas and Oklahoma agree to work together to reduce pollution in the Illinois River watershed. Settlement agreement in: City of Tulsa v. Tyson Food Inc., et. al., 258 F. Supp. 2d 1263 (N.D. Okla 2003). CERCLA claims Agreement parameters

Types of Permits: Individual Permit

A permit specifically tailored to an individual facility. Limited to 5 years, facility must reapply prior to expiration

Types of Permits: General Permit

A permit that covers multiple facilities within a specific category. A large number of facilities that have certain elements in common may be covered under a general permit without expending the time and money necessary to issue an individual permit to each of these facilities. Ensures consistency of permit conditions for similar facilities. Examples of facilities that may use general permits : Storm water point sources; Facilities that involve the same or substantially similar types of operations; Facilities that discharge the same types of wastes or engage in the same types of sludge use or disposal practices; Facilities that require the same effluent limits, operating conditions, or standards for sewage sludge use or disposal; and Facilities that require the same or similar monitoring. Only issued to dischargers within a specific geographical area

§404 Responsibilities (Army Corps of Engineers)

Administers day-to-day program, including individual and general permit decisions; Conducts or verifies jurisdictional determinations; Develops policy and guidance; and Enforces Section 404 provisions.

The Ag Exemptions

Agricultural Stormwater Discharge Return Flows from Irrigated Agriculture What are the definitions?

Alt v. EPA, et al,

Alt had poultry barns (a CAFO) and the question was whether the dust and feathers that were carried out of the barns due to the ventilation fans and then washed into navigable waters was exempted as an agricultural stormwater discharge? Was the pollutant discharged under a nutrient management plan? What do you think the court ruled? Do you agree?

CRP Application Process (General Sign-up)

Announced periodically; no fixed schedule Competitive process Offers are ranked against each other on a national level FSA assigns each offer an Environmental Benefits Index (EBI) that considers Benefits to wildlife habitat Benefits to water and air quality Benefits to farm itself from reduced erosion Benefits that last beyond contract period Cost (of rental payments and cost-share) EBI is used to rank offers against each other and enrollment choices are made from that ranking.

Point Source Definition 2

Any "discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture." What legal effect does the bold language have?

2016- 2018: Study Results and Implementation

April 16, 2018: The EPA approves working models for the Illinois River watershed based on the Oklahoma-Arkansas Scenic Rivers Joint Phosphorus Study. State agencies begin meeting to discuss how to implement the models. Models are summary of baseline conditions and documentation which can be used to develop Total Maximum Daily Loads or Watershed-based Plans Nov. 14, 2018: Oklahoma and Arkansas enter into a memorandum of agreement for implementation of the joint study recommendations

Nonpoint Pollution List

CWA requires that states Establish water quality standards Establish priority rankings for waters that don't meet the standards Develop Total Maximum Daily Load (TMDL) limits for the waters.

Nonpoint Pollution List 2

CWA requires that states Establish water quality standards Establish priority rankings for waters that don't meet the standards Develop Total Maximum Daily Load (TMDL) limits for the waters.

Nonpoint Pollution List 3

CWA requires that states Establish water quality standards Establish priority rankings for waters that don't meet the standards Develop Total Maximum Daily Load (TMDL) limits for the waters.

Water Body Characterization

Category 1 - Meets tested standards for clean waters: Category 2 - Waters of concern: some evidence of a water quality problem, but not enough to require production of a water quality improvement (WQI) project Category 3 - Insufficient data: water where there is insufficient data to meet minimum requirements Category 4 - Polluted waters that do not require a TMDL: waters that have pollution problems that are being solved in other ways: Category 5 - Polluted waters that require a TMDL or other WQI project Also called the "303(d) list"

Des Moines Water Works v. Sac County et al.

Cause of Action: CWA, SDWA, tort Argument: The drainage ditches (maintained by the drainage districts) are point sources. As a result, they must be permitted before they can discharge. Implications: 2 major exemptions for agriculture are stormwater discharges and return flows from irrigation. Novel approach in suing the drainage districts This case ended up being dismissed on a technicality, but the issue remains to be litigated. Brought again in 2019 with different parties and this time they sued the State under the Public Trust Doctrine.

Des Moines Water Works v. Sac County et al.

Causes of Action: CWA Argument: The drainage ditches (maintained by the drainage districts) are point sources. As a result, they must be permitted before they can discharge. Implications: 2 major exemptions for agriculture are stormwater discharges and return flows from irrigated agriculture If this case continues, those protections might be lessened/removed (or solidified) Novel approach in targeting the drainage districts through counties This case will probably be around for a long time

Waterkeeper Alliance et al. vs. EPA, 399 F.3d 486 (2nd Cir. 2005)

Challenge to the 2003 CWA CAFO rules The court noted that: the CWA's treatment of agricultural stormwater was ambiguous: "[T]he Act expressly defines the term 'point source' to include 'concentrated animal feeding operations'; the Act expressly defines 'point source' to exclude agricultural stormwater'; and the Act makes absolutely no attempt to reconcile the two.

Current Status of LEBOR

Challenge: Drewes Farms Partnership filed a lawsuit against the city of Toledo Argument: LEBOR is "unconstitutional and unlawful" and threatened the farm's ability to properly fertilize its fields because it could not guarantee that runoff from fertilization would not enter the Lake Erie watershed. 2/27/20: Ruling in case: Violated due process protections- specifically clarity. If a law is vague and unclear, it can "trap the innocent by not providing fair warning and invite arbitrary enforcement by prosecutors, judges, and juries." Questionable language: Right of Lake Erie and its watershed to "exist, flourish, and naturally evolve" Toledoans' right to a "clean and healthy environment" Ruling: Void for vagueness: How can a judge or jury determine the line between "clean and unclean and healthy and unhealthy."? While language sounds powerful, it has no practical meaning, contains merely "aspirational statements" rather than rules of law, and violates constitutional due process.

CWA Consequences

Civil Primary enforcement tool EPA may issue a compliance order or bring a civil suit against persons who violate the terms of a NPDES permit. <$25,000/day Criminal For negligent or knowing violations: $50,000 per day, and/or <3 years For "knowing endangerment" (violations that knowingly place another person in imminent danger of death or serious bodily injury): <$250,000, and/or <15 years in prison Administrative Civil penalties for certain well-documented violations of the law.

CWA Consequences

Civil Primary enforcement tool EPA may issue a compliance order or bring a civil suit against persons who violate the terms of a NPDES permit. <$25,000/day Criminal For negligent or knowing violations: $50,000 per day, and/or <3 years For "knowing endangerment" (violations that knowingly place another person in imminent danger of death or serious bodily injury): <$250,000, and/or <15 years in prison Administrative Civil penalties for certain well-documented violations of the law.

CWA Enforcement

Civil actions are primarily brought by states, because states issue the majority of permits for dischargers EPA retains oversight and the right to bring an action where a state has failed to take timely or appropriate action or where a state or local agency requests EPA involvement Criminal actions are brought by the federal government

Conservation Easement Specifics

Completely voluntary! The "easement holder" is the government or organization with whom the landowner signed the contract (such as Ducks Unlimited). The holder is responsible for enforcing the easement Filed at the courthouse, just like a deed "Runs with the land" When land is sold, the new owner has the same requirements Typically does not allow public use of the land- still privately owned and maintained

CERCLA

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Commonly known as "Superfund" Purpose: Established prohibitions and requirements concerning closed and abandoned hazardous waste sites; Provided for liability of persons responsible for releases of hazardous waste at these sites; and Established a trust fund to provide for cleanup when no responsible party could be identified. In City of Tulsa, District Court ruled that phosphorous contained in the poultry litter in the form of phosphate is a hazardous substance under CERCLA. Ruling vacated as result of settlement

Land Retirement: CRP Basics

Conservation Reserve Program (CRP) Participants agree to remove environmentally sensitive land from agricultural production and plant species that will improve environmental health and quality. Participants receive rental payments, cost-share payments and other financial incentives for specific activities Contracts are 10-15 years in length Administered by the Farm Service Agency As of January 2020, 22 million acres were enrolled.

Elements of a Permit

Cover Page Name and location of the permittee, a statement authorizing the discharge, and the specific locations for which a discharge is authorized. Effluent Limits The primary mechanism for controlling discharges of pollutants to receiving waters. Limit is determined based on applicable technology-based and water quality-based standards. Monitoring and Reporting Requirements Used to characterize waste streams and receiving waters, evaluate wastewater treatment efficiency, and determine compliance with permit conditions. Special Conditions Conditions developed to supplement effluent limit guidelines. Examples include: best management practices (BMPs), additional monitoring activities, ambient stream surveys, and toxicity reduction evaluations (TREs). Standard Conditions Conditions that apply to all NPDES permits and include the legal, administrative, and procedural requirements of the permit.

Citizen suits

Decisions that an action do/do not fall within the parameters of 404 are still subject to citizen suits

Clean Water Act (DMWW)

Des Moines Water Works lawsuit - Does what happens in Des Moines Stay in Des Moines? Consequences for agriculture far beyond 3 Iowa counties Practical question: Who pays to defend the counties? What all could be treated as a point source?

§404 Responsibilities (EPA)

Develops and interprets policy, guidance and environmental criteria used in evaluating permit applications; Determines scope of geographic jurisdiction and applicability of exemptions; Reviews and comments on individual permit applications; Enforces Section 404 provisions.

2003 Agreement

EPA approved phosphorus criteria of .037 mg/L. "Statement of Joint Principles and Actions" agreement signed by Oklahoma and Arkansas. In part: "Oklahoma periodically reevaluates all of its water quality standards. In particular, Oklahoma will reevaluate Oklahoma's .037 mg/l criterion for total phosphorus in Oklahoma's Scenic Rivers by 2012, based on the best scientific information available at that time, and with the full, timely inclusion of officials from the State of Arkansas representing both point and nonpoint source dischargers." Consequences: Phosphorus limits for municipal discharges Poultry litter application controls Monitoring plan

Determining Compliance

EPA conducts inspections of facilities subject to the regulations to determine compliance. EPA inspections involve: Reviewing discharge monitoring reports Interviewing facility personnel knowledgeable of the facility Inspecting the processes that generate and treat wastewater Sampling wastewater discharges to navigable waterways and other points in the generation or treatment process Reviewing how samples are collected and analyzed by the laboratory

1988: EPA Permits Lead to First Lawsuit

Environmental Protection Agency permits Fayetteville, Arkansas, to dump treated wastewater into a tributary of the Illinois River; Oklahoma sues. OK argues: discharges into the creek violated water quality standards established under OK law "no degradation [of water quality] shall be allowed' in the upper Illinois River, including the portion of the river immediately downstream from the state line" AR argues: No authority for OK to order AR compliance with OK laws. AR won the first case and initial appeal. 2010: OK won the next appeal (10th Cir) Grounds of 10th Cir ruling: "where a proposed source would discharge effluents that would contribute to conditions currently constituting a violation of applicable water quality standards, such [a] proposed source may not be permitted" AR appealed it to USSC

Working Lands Program: EQIP Basics

Environmental Quality Incentives Program (EQIP) Participants receive financial and technical assistance to plan and implement conservation practices that address natural resource concerns Typically requires cost-sharing Contracts up to 10 years in length Payments are made after conservation practices are implemented. Typically, participants are responsible for up-front payments and are reimbursed Administered by the Natural Resources Conservation Service, or NRCS

Agriculture and §404

Excluded activities (no permit required) Established (ongoing) farming, ranching, and forestry activities Plowing, seeding, cultivating & harvesting food, fiber and forest products Minor drainage Upland soil and water conservation practices. Maintenance (but not construction) of drainage ditches Construction and maintenance of irrigation ditches Construction and maintenance of farm or stock ponds Construction and maintenance of farm and forest roads, in accordance with best management practices Maintenance of structures, such as dams, dikes, and levees

A Different Kind of Environmental Law

Farm Bill v. Permanent Law The majority of conservation programs are authorized (and reauthorized) in the Farm Bill, rather than being part of "permanent law" that does not need reauthorization. NRCS & FSA v. EPA The majority of conservation programs are led by the Natural Resources Conservation Service (NRCS) and the Farm Service Agency (FSA), and not by EPA. Voluntary v. Mandatory Conservation programs are voluntary programs, so people decide whether they want to participate. Not so with the majority of other environmental laws! Carrot v. Stick Conservation programs don't come with consequences attached for non- compliance like the majority of environmental laws. Instead, they supply a monetary "reward" in exchange for certain actions.

Conservation Program (Example 3)

Farmer Joe has "fence rows" of mature trees and brush on the outskirts of his fields. Now that he's purchased more property, he's considering tearing out the fence rows so that he's able to work the field (including the fence row land) more easily. Might a conservation program be appropriate for him? Which one? Does he have to take part in the program, or can he decide that he'd rather just tear them out? Would your answer change if he also had crop insurance on the acreage?

Conservation Program (Example 1)

Farmer Joe owns several fields adjacent to the Bison River. He is very concerned about runoff to the river, and would like to develop filter strips on the edges of those fields. What conservation program will be most appropriate for this project? Where should he apply? What will be the application process?

Conservation Program (Example 2)

Farmer Joe plants 100 acres of corn, but in order to obtain a loan, his lender requires that he purchase crop insurance. Are there any conservation program effects on this decision? What will he be required to do/not do?

Pacific Coast Fed. of Fishermen's Ass'n. v. Glaser

Farmers in the San Joaquin Valley use tile drainage systems to direct irrigation return flows mixed with infiltrated ground water into streams and rivers. Plaintiffs argued that the permit exemption did not apply because the drainage system discharge did not consist "entirely" of irrigation return flows and included subsurface flows and groundwater inflow. What do you think?

Lake Erie Bill of Rights

Feb 2019: Toledo residents voted on the "Lake Erie Bill of Rights". Passed with 61% of vote https://bit.ly/2WGUWpa Rights that are inherent, fundamental and unalienable, self-executing and enforceable against both public and private actors: Rights of Lake Erie Ecosystem, which include the rights of Lake Erie and its watershed to exist, flourish, and naturally evolve. Rights to a clean and healthy environment for the people of Toledo, which includes the right to a clean and healthy Lake Erie and Lake Erie ecosystem. Rights of local community self-government, which include a right to a system of government that embodies self-government and protects and secures the human, civil and collective rights of the people of Toledo.

Lake Erie- Back to CWA

Feb 2020: Ohio EPA said it "will develop a Total Maximum Daily Load (TMDL) for the Western Basin [of Lake Erie] over the next two to three years." Placing a "high priority" on western Lake Erie's open water from the Michigan/Ohio state line to the Marblehead Lighthouse

2005- 2010: A Case Progresses

Feb. 18, 2010: Final arguments in Edmondson's case. OK claims: Growers were employees, not independent contractors Defendants disposed of hazardous substances in the Illinois River Watershed Phosphorous etc Each defendant is a potentially responsible party Joint and several responsibility

Is landclearing a dredge/fill operation?

General rule: Mechanized land clearing will result in re-deposition of soil and require a permit under § 404. Examples: Permit: bush rakes, disc harrows, bulldozer plows and similar equipment typically scrape the ground and involve discharges; Maybe permit: tree pushers rip roots out of the ground and may involve discharges Probably not permit: tree shears or tree pinchers may be operated in such a manner that they will not cause a discharge of dredged material, provided vegetation is cut above the ground while leaving the soils and roots intact

Conservation Programs

Generally speaking, conservation programs are meant to help private landowners Reduce soil erosion Enhance water supplies Improve water quality Increase wildlife habitat Reduce damages caused by natural disasters Conserve undeveloped land

Des Moines Water Works

High levels of nitrates in river water that the city of Des Moines pulls from the river and purifies for drinking water within the city Higher water "processing" costs According to DMWW, those higher levels of nitrates are traced back to three counties upstream Specifically, from drainage districts that collect runoff from tiled farmland

Waterkeeper Alliance et al. vs. EPA, 399 F.3d 486 (2nd Cir. 2005)

Holding: The application of manure material to "land areas" under the control of the CAFO is a regulated point source discharge unless the stormwater exception applies The agricultural stormwater exemption would be triggered when the manure or litter has been applied to land in accordance with site-specific nutrient management guidelines Often called the nutrient management plan What is the difference between this case and CARE v. Southview farms?

WQS: Consequences

If the WQS are met, anti-degradation standards are instituted. Helps maintain the water in good condition Determined by water testing If the WQS are not met, then strategies are developed to address the problem.

CWA Citizen Suits (4/14 Why Source Matters)

Individuals may bring citizen suits against persons who violate a prescribed effluent standard or limitation What does this mean? Individuals also may bring citizen suits against the Administrator of EPA or equivalent state official (where program responsibility has been delegated to the state) for failure to carry out a nondiscretionary duty under the act.

CWA Citizen Suits

Individuals may bring citizen suits against persons who violate a prescribed effluent standard or limitation What does this mean? Individuals also may bring citizen suits against the Administrator of EPA or equivalent state official (where program responsibility has been delegated to the state) for failure to carry out a nondiscretionary duty under the act.

Point Source Examples

Industrial facilities Ex: manufacturing, mining, oil and gas extraction, and service industries Municipal governments and other government facilities Ex: military bases Some agricultural facilities, such as animal feedlots. Called "Confined Animal Feeding Operations," or CAFOS

What's Included in a TMDL?

Information A description of the watershed and the water quality data on the impairment Sources Overview of the potential sources of the pollutant Loads The amount of the pollutant of concern that a waterbody can receive and still meet water quality standards or targets that apply to the watershed Reductions A list of the pollutant load reductions necessary to meet the water quality standards or targets that apply to the watershed Implementation A tool to guide watershed planning and restoration activities

CAFOs: CWA Applicability

Large CAFOs are automatically subject to EPA regulation; Medium CAFOs are subject to EPA regulation only if they also meet one of two 'method of discharge' criteria to be defined as a CAFO: Has a manmade ditch or pipe that carries manure or wastewater to surface water; OR The animals come into contact with surface water that passes through the area where they're confined. Small CAFOs, as a default, are not subject to EPA regulations, and can only be regulated on a case-by-case basis. If it discharges pollutants into waterways of the United States through a man-made conveyance such as a road, ditch or pipe.

Concerned Area Residents for the Environment v. Southview Farm (W.D.N.Y. 1993)

Large dairy operation that was spreading large amounts of manure on fields. Rain washed manure into navigable waters and the plaintiff brought suit. Is there a violation of the CWA? Would an exemption apply?

Types of §404 Permits (General)

Limited to activities that will result in minimal adverse effects to the environment Issued on a nationwide, regional or state basis for particular categories of activities About 45 days for processing Example: minor road activities, utility line backfill, and bedding

Easements: Conservation Easement Basics

Many state governments and private organizations have created voluntary programs where a landowner can agree to have a conservation easement placed on their land An "easement" is a restriction on use of a piece of land Utility easement, highway easement etc. A conservation easement prohibits development of the land, maintaining the ecologically important features In exchange, the landowner will receive specific benefits. Depending on who is offering the easement.

Why Source Matters Example 3

Mark is a rice farmer in the Mississippi delta and is worried that by cutting the levees to drain the fields he is discharging pollutants into a tributary of the MS river. Is anyone allowed to discharge pollutants into this tributary? Does Mark qualify under one of the ag exemptions?

EQIP Application Process

NRCS works with the producer to develop a plan of operations that: Identifies natural resource concerns on agricultural lands Identifies appropriate conservation practice or activities to address the concerns The plan of operations must be submitted to NRCS along with the program application Applications are accepted on a continuous basis NRCS establishes application "cut-off" or submission deadline dates for evaluation and ranking of eligible applications. NRCS allocates specific amounts of EQIP funding to meet legislative requirements and address certain state and federal resource priorities Depends on annual appropriations

Basic § 404 Rule

No discharge of dredged or fill material is permitted if: A practicable alternative exists that is less damaging to the aquatic environment or The nation's waters would be significantly degraded EPA guidelines for permit: Avoiding wetland impacts where practicable, Minimizing potential impacts to wetlands, and Providing compensation for any remaining unavoidable impacts through activities to restore or create wetlands.

Agriculture and §404 (2)

Non-excluded activities (permit required) If an activity represents a new use of the water, and would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands Activities that bring a wetland into farm production where it has not previously been used for farming "New use" example: Need permit only when starting/expanding farming operations, not when building new pond/maintaining current pond to support existing operation

Nonpoint pollution

Nonpoint sources ARE NOT REQUIRED to have a NPDES permit. However, there are other Clean Water Act requirements that affect nonpoint pollution. Primarily carried out by states, often with state statutes that have stricter requirements! Section 303(d) of the CWA requires that states Establish water quality standards Establish priority rankings for waters that don't meet the standards Develop Total Maximum Daily Load (TMDL) limits for the waters.

Permitting Process: General Permits

Notify the appropriate USACE District office to determine if a nationwide permit can be used to authorize a specific activity. In some USACE Districts, nationwide permits have been suspended or revoked, and Section 404 standard permits, letters of permission, regional general permits, or programmatic general permits are used instead.

2015-2016: Data & Modeling

Oct. 1, 2015: U.S. Environmental Protection Agency makes available for comment a proposed Illinois River Watershed Modeling Program. Dec. 19, 2016: The Joint Principals agreement yields the Oklahoma-Arkansas Scenic Rivers Joint Phosphorus Study, which is adopted by the Scenic River Joint Study.

Penalties

Offenses: Discharges dredged or fill material into wetlands without a permit Discharges dredged or fill material into wetlands in violation of a permit's terms Possible penalties Cease and desist order Civil, criminal, or administrative penalties. Unauthorized discharges may be the subject of an after-the-fact permit Specific penalties Negligent violations: between $2,500 and $25,000 per day of violation, and/or up to one year Knowing violations: between 5,000 and $50,000 per day of violation and/or up to three years Knowing endangerment: up to $250,000 ($1 million for corporations) and/or up to fifteen years A responsible corporate officer is a "person" subject to these penalties. Id. at § 1319(c)(6). Period of violation = the day material is discharged into wetlands and every day after when unauthorized material remains in the wetlands.

2013: Scenic Rivers Joint Study Committee

Oklahoma and Arkansas announce a joint three-year study of water quality in the Illinois River watershed as a continuance of the 2003 agreement as a "Second Statement of Joint Principals and Actions." The Scenic Rivers Joint Study Committee, with three members each from Arkansas and Oklahoma, is established.

1970: Scenic Rivers Act

Oklahoma designates the Illinois River a scenic waterway (among others) as part of the 1970 Oklahoma Scenic Rivers Act. "The Oklahoma Legislature finds that some of the free-flowing streams and rivers of Oklahoma possess such unique natural scenic beauty, water conservation, fish, wildlife and outdoor recreational values of present and future benefit to the people of the state that it is the policy of the Legislature to preserve these areas for the benefit of the people of Oklahoma. For this purpose there are hereby designated certain "scenic river areas" to be preserved as a part of Oklahoma's diminishing resource of free-flowing rivers and streams." Allowed for additional protections of designated waterways AKA- setting up numeric, not narrative standards

TMDLs and Nonpoint Source Pollution 2

On the federal level, it is not clear what authority (other than setting TMDLs) that EPA has for mandatory nonpoint source enforcement. Can have voluntary compliance! However, most states have separate state authority under which nonpoint sources are regulated. Arkansas has authority to do so under several statutes

History of Conservation Programs: The Agricultural Adjustment Act of 1933

Part of President Roosevelt's New Deal First major legislative attempt to regulate the agriculture economy Designed to raise farmer income and prices of certain commodities primarily through: • price supports for specified commodities, and • supply control The law never mentions conservation and it wasn't even the purpose!

Permitting Process: Individual Permits

Permit application is received Corps issues a public notice (usually in Federal Register) within 15 days of receiving the application. Describing the proposed activity, its location, and potential environmental impacts and inviting comments within a specified time period, typically 15 to 30 days. District Engineer (Corps) determines that the proposed activity is not contrary to the public interest. EPA may overrule the decision Permit is issued Valid for 5 years

What is "discharge of fill material"?

Placement of fill that is necessary for the construction of any structure in a water of the United States; the building of any structure or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills;" causeway or road fills; levees; mine tailings; and many shore protection devices such as riprap, breakwaters, and seawalls. Includes: Temporary stockpiling of soil from the construction of a drainage ditch or similar excavation may be a regulated discharge. Placement of structures is not regulated, while placement of fill material is

Effluent Limitations

Point sources may not discharge pollutants to surface waters without a permit from the National Pollutant Discharge Elimination System (NPDES) Also called a "402" permit Process: Permits are managed by EPA in partnership with state environmental agencies. EPA has authorized 46 states to issue permits directly to the discharging facilities In remaining states, permits issued by EPA regional office Idaho, Massachusetts, New Hampshire, New Mexico, and the District of Columbia Arkansas: permits are managed by the Department of Environmental Quality, Water Division

NPDES Permitting

Point sources may not discharge pollutants to surface waters without a permit from the National Pollutant Discharge Elimination System (NPDES) Essentially a license allowing a facility to discharge a specified amount of a pollutant into water under certain conditions. Permit limits: Technology-based limits Water quality-based limits Will be discussed next class period- also important for non-point source pollution

TMDL Process

Prepared by the states Process that includes notice and comment rule-making public comment periods! Submitted to EPA for approval EPA is responsible for approving TMDLs and completing any TMDLs that are disapproved. In some cases, EPA may develop a TMDL if requested by one or more states.

Sodbuster Prohibitions & Consequences

Prohibition: Persons planting an agricultural commodity on land with a pre1985 cropping history and where soil erosion from any source (wind, water, or gully) exceeds the definition for substantial reduction. "Highly Erodible Land" Persons who convert land that was previously covered in native vegetation and where soil erosion from any source (wind, water, or gully) exceeds the definition for no substantial increase Resolution: Produce the commodity crop using an approved conservation system that provides for the specified level of erosion control

Rivers and Harbors Act of 1899

Prohibits the unauthorized obstruction or alteration of any navigable water of the United States unless you receive a permit from the Corps of Engineers Obstruction or alteration includes: construction of any structure in or over any navigable water of the United States, excavation of dredge, or deposition of, fill material, the accomplishment of any other work affecting the course, location, condition, or capacity of such waters

§404 Permits (2)

Purpose of the rule: Protect wetlands, which are often filled in for things like development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects.

Permitting Process

Receive application from permittee. Review application for completeness and accuracy; request additional information as necessary. Develop technology-based effluent limits using application data and other sources. Develop water quality-based effluent limits using application data and other sources. Compare water quality-based effluent limits with technology-based effluent limits and choose the more stringent of the two as the effluent limits for the permit. Develop monitoring requirements for each pollutant. Develop special conditions (special and standard). Consider variances and other applicable regulations. Prepare the fact sheet, summarizing the principal facts and the significant factual legal, methodological and policy questions considered in preparing the draft permit including public notice of the draft permit, and other supporting documentation. Complete the review and issuance process. Issue the final permit. Ensure permit requirements are implemented.

Types of §404 Permits (Individual)

Required for potentially significant impacts Typically require more analysis than general permits Much more time to prepare the application and to process the permit. 2-6 months for processing

§404 Permits

Rule: Any discharge of dredged or fill materials into "waters of the United States," including wetlands, is forbidden unless authorized by a permit issued by the USACE pursuant to section 404. Called a "§404 permit" Applies to both public and private lands

Cases: Des Moines Waterworks

Rule: Point sources may not discharge pollutants to surface waters without a permit. Point Source Definition: Any "discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture."

Rule & Definitions

Rule: Point sources may not discharge pollutants to surface waters without a permit. Point Source Definition: Any "discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture."

Pollution: CWA (NonPoint)

Runoff Not a "discernible, confined and discrete conveyance... from which pollutants are or may be discharged" Rule: No permit required Must meet other CWA requirements set by states (§303(d)) Water quality standards Priority rankings for impaired waterbodies TMDL

Examples of Nonpoint Pollution

Sediment from construction sites, agricultural fields, stream banks, and highly disturbed areas. Major concern: turbidity (cloudiness) Nutrients from urban runoff, landfills, livestock operations and crop lands. Major concerns: phosphorus and nitrogen

2004-2005: Leading to a Lawsuit

September 2004: Poultry companies submit plan to reduce chicken litter application in Oklahoma river watersheds. Oklahoma Attorney General Drew Edmondson calls the plan "lacking." June 2005: Edmondson files a federal lawsuit against 14 poultry companies, accusing them of polluting the Illinois River watershed with chicken litter and seeking damages. Bases to claims: Nuisance Trespass Other violations of state environmental regulations CERCLA

Swampbuster Prohibitions & Consequences

Situation 1 Prohibition: Persons planting an agricultural commodity on wetlands that were converted between December 23, 1985 and November 28, 1990 Consequence: Ineligible for program benefits in any year an agricultural commodity is planted Situation 2 Prohibition: Persons who convert a wetland making production of an agricultural commodity possible after November 28, 1990 Consequence: Ineligible for program benefits until the functions of the wetland that was converted is mitigated "Mitigation" or "compensation" for their actions Enhance existing wetlands Restore former wetlands Create new wetlands to offset functions and values that are lost from conversions or alterations.

Where We Are v. Where We'll Be

So far, we've discussed "point source" and "nonpoint" source pollution. Today's topic will be the permitting system that regulates the disposal of dredge and fill material into the "waters of the United States."

Total Maximum Daily Load (TMDL)

States must identify water bodies that do not meet water quality standards States must then establish a TMDL for those water bodies to bring them into compliance with water quality standards. TMDLs are calculations that determine the maximum amount of pollutant allowed to be released into a water body without impairing its designated use TMDLs divide the maximum pollutant amount among the various point sources and non-point sources in the watershed.

Today

Still no ruling in 2005 "Edmondson" case Implementing the Nov. 2018 agreement: Rulemaking in process by the Oklahoma Water Resources Board, implementing the joint study recommendations. Shall be "scientifically defensible and ensure full protection of beneficial uses and the Scenic River and Outstanding Resource Water status of the Illinois River" Creating the working group to ascertain progress towards plan Arkansas is the second-largest producer of broiler chickens in the United States; Benton and Washington counties are the largest producers in the state. Northwest Arkansas is one of the fastest growing metropolitan areas in the United States. The Fayetteville-Springdale-Rogers Metropolitan Statistical Area (MSA) grew over 13 times faster than the state of Arkansas from 1990 to 2000. The percent of urban land use in the UIRW has more than doubled over the last two decades, where 13% of the watershed area is now classified as either low- or high- density urban development.

Fishermen Against the Destruction of the Environment v. Closter Farms (11th Cir. 2002)

Sugar cane farm in Florida has drainage to take excess water and dump it into irrigation canals which is pumped into Lake Okeechobee. Does this meet an ag exemption? If so, then which one(s)? Does "pumping" the water change anything?

TMDLs and Nonpoint Source Pollution

TMDLs include the TOTAL amount of pollution, which by definition includes nonpoint sources, so if nonpoint sources are impairing a body of water, the TMDL would have to address a way to reduce those nonpoint sources. TMDLs are required even if a body of water fails to meet quality standards entirely due to nonpoint sources. Pronsolinoz v. Nastri, 291 F.3d 1123 (9th Cir. 2002)

Technology-Based Limits

Technology-based standards for point source discharges. Developed by EPA Each one is specific to a category of dischargers Based on the performance of pollution control technologies without regard to the conditions of a particular receiving water body Uses "best available technology" to set the standard Congress wanted to create a level playing field by establishing a basic national discharge standard for all facilities within a category Once it is created, the standard becomes the minimum regulatory requirement in a permit.

Enforcement of the LEBOR

The city of Toledo or any resident may enforce LEBOR through an action in the Lucas County Court of Common Pleas and shall be entitled to recover costs of the litigation. Governments and corporations shall be strictly liable for harms and violations of rights. The Lake Erie Ecosystem may enforce its rights through an action prosecuted by the City or a resident in the name of the Ecosystem. Damages shall be the cost of restoring the Ecosystem to its status previous to the acts that caused the injury, to be paid to the City.

What About Everything Else?

The definition specifically excludes: Agricultural storm water discharges However, EPA may treat land applications of excessive amounts of manure as a point source Return flows from irrigated agriculture. Also excludes something that is not a "discernible, confined and discrete conveyance... from which pollutants are or may be discharged" The pollution that is excluded from the definition (and as a result from the permitting process) is called "nonpoint source pollution"

What About Everything Else? (PointSource?)

The definition specifically excludes: Agricultural storm water discharges Return flows from irrigated agriculture. Also excludes something that is not a "discernible, confined and discrete conveyance... from which pollutants are or may be discharged" All pollution excluded from the definition is called "nonpoint source pollution" Nonpoint source pollution doesn't have to be permitted.

CWA: Outline Point

The goal of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . ." CWA seeks to accomplish this goal through establishment of Effluent limitations and Water quality standards

CWA: Outline NonPoint

The goal of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . ." Basic goal is that all waters of the United States be "fishable and swimmable" CWA seeks to accomplish this goal through establishment of Effluent limitations and Water quality standards

CWA: Recap

The goal of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . ." CWA seeks to accomplish this goal through establishment of Effluent limitations and Water quality standards CWA regulates "point sources" only

IRW Land Uses 2016

Agriculture (41%) • Livestock/Pasture Forest (46%) • Habitat and food • Recreation Urban (10%) • Homes • Businesses • Roads • Parks Other (3%) -Open Water -Wetlands -Crops

Point Source Definition

Any "discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture."

Water Quality Challenges in IRW 3

Arkansas v. Oklahoma • Total Phosphorous -AR = Concentration shouldn't cause an objectional algal density that could impair a stream --NPDES for WWTP = 1 mg/L -OK = Illinois River = Scenic River = 0.037 mg/L • CWA Reporting: Integrated Report every 2 years -303(b) - Health of a State's streams -303(d) - List of streams that do no meet WQS

Clean Water Act §404

Authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the waters of the United States at specified disposal sites.

Water Quality Challenges in IRW

Clean Water Act (1972): Federal regulations that dictates to the states a structure to help reduce pollution in our national waters from point source and nonpoint source. -Arkansas Dept of Environmental Quality (ADEQ) -Oklahoma Dept of Environmental Quality (DEQ) o Oklahoma Water Resource Board (OWRB) -NPDES (National Pollution Discharge Elimination System): A permit to reduce point source pollution. -Watershed Management Plan and TMDL: To help reduce nonpoint source pollution.

Compliance: Sodbuster/Swampbuster Basics

Compliance: Sodbuster/Swampbuster Basics Highly Erodible Land Conservation (Sodbuster) Discourages the plowing up of erosion-prone grasslands for use as cropland Wetland Conservation Compliance (Swampbuster) Discourages the conversion of wetlands to cropland use. The penalty for noncompliance is the elimination of the producer's ability to obtain certain governmental incentives Farm program payments (in years past) Conservation payments Crop insurance (going forward- required in 2014 Farm Bill) Operating loans Disaster payments

CRP Application Process (Continuous Sign-up)

Continuous Sign-up Occurs on a continuous basis Focused on environmentally sensitive land and offers are not ranked against each other. Ex: land prone to erosion, pasture or ag land that borders river or stream banks, or field margins. Also takes into consideration the type of conservation practice the owner wishes to install.

PointSource Example 3

Farmer Joe has a 200 cow feedlot, and spreads the manure from the feedlot on his fields. Is he a "point source" for CWA purposes? Farmer Joe is storing manure from his 100K broilers in piles behind the barn, before spreading it on his fields later in the spring. Is he a "point source" for CWA purposes?

404 Permits (Example 2)

Farmer Joe has been raising rice many years, but would like to move to an alternative form of irrigation for one particular field. He comes to you for advice as to whether he needs a §404 permit. Is his activity exempted, or does he need a permit? The test is whether the activity represents a new use of the water, and would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands. Should this change your decision?

Nonpoint Source Example 1

Farmer Joe is planning on spreading manure from his chicken houses on his fields, for use as fertilizer. What kind of pollutant "source" is he? Does the CWA apply to him?

PointSource Example 2

Farmer Joe is spreading manure on his fields. Is he a "point source" for CWA purposes? Farmer Joe is storing manure from his 1000 cow dairy in a lagoon, before spreading it on his fields. Is he a "point source" CWA purposes?

Courtroom Requirements (General Requirements)

General Requirements Before any case may be heard, the plaintiff must demonstrate "standing." Standing requirements: 1. An injury 2. Traceable to the defendant 3. That can be "redressed," or fixed, by a favorable ruling against the defendant

Water Quality Challenges in IRW 4

Impairments: Upper Illinois River Watershed (Ark) o Sulfate, Pathogens, Chloride, Nitrate Lower Illinois River Watershed (OK) o Macroinvertebrate Biota, E. Coli, Enterococcus, Total Phosphorous, Sedimentation, Dissolved Oxygen, Turbidity, Chlorophyll-a

Why Source Matters Example 2

Joe has a hog farm large enough to be classified as a CAFO. He wants to spread manure on Tuesday, but the weatherman says that they will get 5 inches of rain later in the week Can Joe spread the manure with the rain forcasted? What if Joe spreads the manure and THEN finds out that the rain is coming...does that change anything?

Why Source Matters Example 1

Joe has a hog farm large enough to be classified as a CAFO. One day during a mild spring rain one of the lagoons burst and effluent goes into a navigable water. Should he be concerned with the CWA? If so, would one of the ag exemptions apply?

PointSource Example 4

Joe's Diamond Sluicing, Inc., would like to build a facility in Midtown, AR. Should he be concerned with CWA implications? He decides to apply for a NPDES permit, which is granted. What information will be included in the final permit?

404 Permits (Example 4)

Joe's Excavation has received a contract for the maintenance of roadside ditches in Jefferson County. Is this a "water of the United States"? If so, will he need a §404 permit?

PointSource Example 5

Joe's Oil & Gas Extraction applies for a NPDES permit, which is granted. Is Joe allowed to discharge pollutants into the Bison River? What happens if Joe discharges more than his allowed amount of pollutants?

404 Permits (Example 1)

Joe's Property Development, Inc., would like to fill in a wetland on property he owns, in order to build a subdivision. Does he need a §404 permit? What kind of permit is he likely to require? What steps will he need to take in order to obtain the permit?

PointSource Example 1

Joe's-Mart is planning to build a new store and parking lot facility on undeveloped land in Midtown, AR. Should he be concerned with the CWA? If so, what kind of permit is he likely to receive?

Oklahoma v. Arkansas A Litigation History

Major issues: • ● Pointsource pollution • ● Nonpoint source pollution Result: • ● 3 major lawsuits ● One ongoing ● One USSC decision • ● Agreements between states

Lake Erie Bill of Rights Toledo, Ohio

Notes NOT a CWA issue Big picture concept: Expanding idea of standing/enforceable rights beyond humans

Pollution: CWA (Point)

Point Source Pollution that comes directly from a known point source. Rule: May not discharge pollutants to surface waters without a National Pollutant Discharge Elimination System (NPDES) permit Also called a "402" permit

Landowner Effect: Conservation Easements (Potential Benefits )

Potential Benefits State income tax credits Federal income tax deduction Lower state/local property tax burden Estate tax reduction Cash payments Public good

Landowner Effect: Conservation Easements (Potential Drawbacks)

Potential Drawbacks Decreased value of land Inability to develop the property any way the landowner wants Sometimes, the benefit of the easement is removed by development of surrounding property

Program Examples 2

Program Examples: Working Lands Programs Environmental Quality Incentives Program Land Retirement Conservation Reserve Program Compliance Sodbuster & Swampbuster Programs Permanent Easements Conservation easements

4/9 Nonpoint Source CWA

Slide 2

4/14 Why source matters: CWA Clean Water Act - The Ag Exemptions

Slide 3

4/16 Case Study (Oklahoma v. Arkansas A Litigation History)

Slide 4

4/21 IRWP (Illinois River Watershed Partnership)

Slide 5

4/23 CWA- 404 permits

Slide 6

4/28 Conservation Programs

Slide 7

4/7 PointSource CWA

Slides 1

Nonpoint Source Example 3

The Bison River is a category 5 waterbody. What does this mean? What are the consequences for this designation? What will happen next?

Clean Water Act: Background

The Clean Water Act (CWA) is the primary federal law in the United States addressing water pollution. Addresses surface water Not ground water Evolution of the law 1948: Federal Water Pollution Control Act of 1948 **1972: Federal Water Pollution Control Amendments of 1972 **1977: Clean Water Act of 1977 1987: Water Quality Act of 1987

Nonpoint Source Example 4

The State of Arkansas is setting TMDLs for the Bison River What does this mean? What will they consider when making those decisions? What will happen next? Who will the TMDLs apply to?

Nonpoint Source Example 2

The State of Arkansas is setting water quality standards for the state. What information will be considered in the process? Does the public get to contribute to the process? What different "types" of standards can they set?

Types of Standards:

Water Quality Standards (WQS) include • Designated uses that should be attained • Water quality criteria: Levels of individual pollutants or water quality characteristics, or descriptions of conditions of a water body that, if met, will generally protect the designated use of the water. • Anti-degradation provisions: A policy designed to prevent deterioration of existing levels of good water quality Can be: Narrative A broader, more general standard indicating water quality. Example: "No nutrients at levels that cause a harmful imbalance of aquatic populations" Numeric A more specific standard that requires the adoption of specific numeric standards, Example: "The ambient water quality criterion for cadmium is 10 µg/L (micrograms per liter)" Examples of standards: Criteria for minerals, bacteria, clarity, temperature, oil and grease, acidity or alkalinity, dissolved oxygen, nutrients, and toxic substances

Water Quality Challenges in IRW 2

Water Quality Standards: determined at the state level, but are approved by the EPA Numeric v. Narrative Minimum = 6 mg/L D.O. Limit = "...waters shall have no distinctly visible solids, scum or foam of a persistent nature..." Arkansas: APCEC Reg 2 = Water Quality Standards for Surface Waters in Arkansas Oklahoma: OK Admin Code Title 785, Chapter 45 = Oklahoma Water Quality Standards

Agriculture

• Characteristics -Compacted soils -Some impervious surfaces -Fertilizers -Animal waste • Types of pollution • Nutrients ---• Algal blooms • Pathogens • Sediment

Urban

• Characteristics • Impervious surfaces (Parking lots, roofs, roads, side walks, compacted soil, etc.) -Storm drains (direct to the creek) -Highest rate of runoff -Flooding • Types of pollution • Nutrients ----• Algal blooms • Pathogens • Sediment

Water Quality

• Determining the ability of a water body to support its designated use by analyzing the biological, chemical, and physical components • Designated uses (CWA): Drinking water source Aquatic Habitat Recreation • Primary • Secondary -Irrigation -Etc.

Stormwater Runoff

• Water that does not soak through the ground but instead runoffs off the land into a creek, stream, lake, etc. Picks up pollution along the way Destabilizes stream banks

What Can You Do?

● Pick up litter ● Regular maintenance on vehicles ● Do not over apply fertilizer to lawns ● Do not improperly apply pesticides ● Wash vehicles either in a grassy area or at a carwash ● Pickup pet waste

Green Infrastructure in Urban settings

● Rain gardens, bioswales, rain barrels, permeable pavers, etc. -Keeps stormwater onsite or slows flow -Mitigates flooding issues and runoff ● Creates habitat

Agriculture: Nutrient Management Plans

● UIRW is considered a "Nutrient Surplus Area" o Must obtain a nutrient management plan if you are applying poultry litter, sewage sludge, or commercial fertilizers o Legally binding document o Directs landowner how much nutrients/fertilizer they can apply o Helps protect soil health and the integrity of local streams