There are no pollution discharge permits required for crop farmers. There are no limits on the amount of fertilizer that they can apply. The exclusion of agriculture and other nonpoint source polluters from much of the Clean Water Act’s regulatory reach was seen as a serious oversight even when the 1972 law was passed. But lawmakers were wary of tackling a problem that was both complex and politically touchy.
“There was just a general reticence for Congress and other legislators to really get involved with land use—regulating how people use their land,” said Ken Kilbert, associate dean for academic affairs at the University of Toledo College of Law.
But the growing algae problems coupled with the high cost of Clean Water Act investments have created a sense of frustration among public utility officials, who see their communities paying the price for pollution that is now largely created upstream.
“We’re doing everything we can right now,” Dave Welch, Toledo’s director of public utilities, told Circle of Blue. “We’re spending $US 521 million to correct most of this, and yet we have agriculture practices upstream of us, and all of that washing into the system.”
The federal government left decisions about nonpoint source pollution up to the states, which have also been reluctant to regulate agricultural practices like fertilizer application and tilling. Instead, both levels of government have relied on subsidies and incentive programs to encourage farmers to implement best management practices (BMPs). Kilbert described these voluntary programs as relying heavily on a “carrot” without the regulatory “stick” to enforce the measures.
To complicate matters, most states use narrative water quality standards that rely on subjective descriptions of the water as the basis for permits and regulatory action, as opposed to numeric water quality standards that set definable limits for pollutants like phosphorus. For example, a narrative rule governing water quality in Ohio might say that a stream cannot contain phosphorus levels that create nuisance algae blooms. A numeric rule would say that a stream cannot contain phosphorus levels above 1 milligram per liter.
The numeric standards can be difficult to set initially, but they can also allow for more enforcement action, according to Kilbert. He added that opportunities to address the phosphorus pollution problem are available both within the current framework of the CWA and beyond it.
“I think setting numeric water quality standards for phosphorus would be a big step in the right direction, under the existing tools,” he said. “If I had to then go one step farther, and say ok, I’d like to bolster the existing tools with some new tools, I think really that’s a matter of states taking action to more focus on the issues of agricultural runoff and phosphorus.”