AGRICULTURAL
POLLUTION,
AND
WASTES,
FEDERAL
KEITH
161
RUSSELL
WATER
REGULATION
Agricultural Wastes, Water
Pollution, and Federal Regulation
for
Professor Frank F. Skillern
Environmental Law
Fall 1978
by
Keith Russell
O
Outline of Contents
I.
II.
III.
Statement of Purpose
Introductory Material - Development of Regulation
Feedlots and the Water Pollution Problem
IV.
Management of Agricultural Wastes
V.
Federal Regulation (The 1972 Act)
A.
Problems with the Point Source Category
1. Point Sources
2. The Permit Exclusion Problem (NRDL v EPA)
3. 1977 Amendment Changes
VI.
VII.
B.
Effluent Limitations
C.
New Source Permits
D.
EPA Enforcement
Conclusion
Footnotes
-1-
172
Statement of Purpose
With technical advancements in consolidated feeding
operations, agricultural waste disposal has become a
serious problem as a major source of water pollution.
Stringent federal regulation of agricultural waste
management became necessary to control effluent discharged
into public waters.
This paper is an attempt to survey the agricultural
water pollution problem posed by feedlots and other
agricultural sources of discharges, and give a summary
of the federal regulation developed to deal with the
problem.
4
For a long time agricultural pollution went almost
unnoticed, since most agricultural production took place
on proportionately large areas, where animals were pastured
and raised for harvest.
But production costs, an increase
in public demand, and need for better quality meat, eggs,
and dairy products wrought a tremendous change in methods
of agricultural production.
Searches for techniques to
reduce costs and increase production inevitably led to
the consolidation of feeding operations into what we have
come to know as the feedlot.
Besides cutting production
costs, feedlot methods gave increased production on less
land, freeing much land formerly used for pasturing and
other agricultural purposes.
Through feedlot operations
an operator may feed 50,000 steers on 240 acres, a
poultry producer may handle as many as 500,000 birds at
one time, and a milking operation may utilize upwards
of 2,000 cows.^
But despite the benefits of this
agricultural mass production, such feeding of animals
within confinement facilities leads to vast accumulations
of manure proportionate to the density of the animal
population in the confinement.
Some 1973 estimates
showed one billion tons of animal wastes generated by
over two million cattle, swine, sheep and poultry
feedlots.
2
Unfortunately, waste management control has
not progressed as fast as has feeding technology, and
pollution from these feeding factories is of increasing
environmental concern.
The two major environmental problems associated
with feedlot pollution are odor and water pollution.
Until the enactment of state and federal pollution laws,
a nuisance suit was the only effective available means
of pollution control.
The Federal Water Pollution
Control Act (FWPCA) of 1965 as amended in 1972, 3 and
4
the Clean Air Act of 1967
required states to enact air
and water pollution acts.
With the development of state
and federal regulation of air and water pollution, the
importance of nuisance suits diminished considerably,
especially in the area of water pollution.
This paper deals with the development of federal
regulation of agricultural water pollution, but mention
should be made of the difference in regulation of odor
and water pollution.
That odors considered offensive
are produced by concentrated feeding operations is
beyond dispute, but accurate measurement of odor intensity and odor quality is highly difficult.
Since
techniques of odor measurement preclude the accuracy
necessary to set feasible standards of compliances,
nuisance action remains as the only effective remedy
in the area of odor pollution, and is, therefore, still
-4-
172
54
of importance in control of air pollution.
Water pollu-
tion, on the other hand, lends itself to standards of
regulation and is controlled primarily by regulatory
pollution control acts.
Feedlots and Water Pollution Problems
Water pollution occurs upon the addition of any substance into a body of water which interferes with another
person's reasonable use of that water.
Environmental
awareness has prompted both federal and state regulation
of the pollution of public waters.
Feedlot wastes most often cause water pollution
when rainfall runoff comes into contact with manure.
The resulting dissolved wastes contain a high level of
oxygen demanding materials having a very low dissolved
oxygen content, and can cause dangerous oxygen depletion
of waters into which they are discharged.
This oxygen
depletion is guaged as biochemical oxygen demand (BOD),
and is measured in parts per million (ppm).
The BOD
for feedlot runoff varies between 100 and 10,000 ppm,
and runoff from piggeries has run as high as 50,000
ppm.
6
This may be compared to clean water which has a
7
BOD level of less than 3 ppm.
The danger to aquatic
life from such a great degree of oxygen depletion has
been recognized, and major fish kills have been
attributed to such depletion from manure runoff.8
-5-
180
Another problem with feedlot waste is that it contains
high levels of nitrogen, phosphorous, magnesium, potassium, and sodium; chemicals which are often toxic to
aquatic life.
These and other chemicals in the wastes
also promote eutrophocation of waters into which they
are discharged by killing organic matter such as algae
which takes oxygen from the water in its decomposition.
With its high nitrogen content, feedlot runoff has been
considered a primary source of nitrogen contamination
of rural water supplies.
High concentrations of nitrate
contamination may cause methemoglobinemia, a presence
in the blood (of young infants and adolescents) of a
compound much like oxyhemoglobin ("found in the blood
9
following poisoning by certain substances").
Another type of water pollution by feedlot wastes
is the high bacterial level discharged in these wastes
which may contaminate the water with disease organisms
and harmful bacteria which are pathogenic to man and
other animals.
Many diseases such as tetanus, Q fever,
infectious hepatitis, and typhoid may be transmitted
from lower vertebrates to man. 1 ^
The transmission of
these and other viral, fungal, and parasitic diseases
may occur not only as a result of ingestion of contaminated drinking water, but also from contamination of
water which is used for recreational purposes.
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172
Outbreaks
of disease have been attributed to such excessive bacteria count, 11 and the public health hazard of contamination
by these bacteria and disease organisms provide sufficient
reason to prevent feedlot seepage or runoff into surface
waters.
Agricultural Waste Management
The two main problems in managing agricultural
wastes are: (1) the management of feedlot drainage to
contain waste runoff and treat it in some manner before
it can be discharged into a watercourse; and (2) the
disposal of accumulated solid animal wastes.
The
pollution potential from such solid animal wastes is
highest when they are stockpiled on the ground surface
where rainfall and running water can contact and transport the material as runoff or soil infiltrate.
The water pollution problem posed by such feedlot
runoff is of an intermittant rather than a constant
nature, most often occuring in times of heavy rainfall
or rapid snowmelt when large quantities of fecal material
may wash into nearby water sources.
To date, feedlot runoff is most often controlled
and treated through the natural processes of lagooning,
where runoff is collected and retained in one or a series
of ponds, lagoons, or basins.
This process usually
contemplates reduction of the liquid through irrigation,
-71 6 3
evaporation, or seepage, as well as periodic removal of
the precipitated solids.
Retention basins may be kept
from overloading by the prompt pumping out of the liquid
effluent for disposal through irrigation techniques.
These removals from (as well as repairs to) the basins
should be on a regular basis and care should also be
taken to avoid unreasonable impairment of groundwater
caused by the high nitrogen content of cattle feedlot
12
wastes.
It is now being realized that without careful
management, broad-scale surface spreading of the animal
wastes may simply convert an overt point source of
13
pollution to a less conspicuous nonpoint source.
Since the potency of the effluent from a lagooning
process prohibits its direct discharge into receiving
waters, consideration has been given to the use of conventional waste treatment techniques of purifying
municipal and industrial wastes, but no system has been
discovered which yields
14 a satisfactory runoff effluent
at a reasonable cost.
Proposals to convert wastes
to fuel have received much publicity, but experiments
to produce commercially marketable products from
15 agricultural wastes have met with little success.
Disposal
of agricultural wastes by incineration and landfill
(using the waste as reclamation fill material) have also
proved undesirable. 16 A recent study for the EPA explored
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172
the possibility of refeeding certain wastes through various
feed supplements, and though some satisfactory results
were found, health regulation of refeeding makes uncertain
17
the future extent of such practices.
Most waste management authorities agree that the
time-honored concept of returning animal wastes to the
soil through surface spreading is still the best available
procedure for disposal.
But with expanding recreational
demands on areas once used for surface respreading, and
with increasing attention being given to nonpoint source
pollution, animal waste is fast becoming an economical
and environmental burden for those who must deal with
its treatment and disposal.
Federal Regulation
Originally, a nuisance suit based on tort liability
was the only effective means of pollution control.
Though
nuisance suits for injunctive relief or damages may still
be available, state and federal regulation is now the
most commonly used avenue for abatement of water pollution
caused by feedlots and actions by public officials or
private parties may be brought under the authority of
18
such regulation.
Until 1972, the only federal legislation dealing
with agricultural waste
19 discharges was the Rivers and
Harbours Act of 1899.
Under this act, the Army Corps
11
of Engineers was to administer a permit system.
Section
13 of this act was known as the Refuse Act of 1899 and
prohibited discharge of refuse into navigable waters
without a permit, but the permit system was not established
20
and perfected until 1971, almost 72 years later.
The Federal Water Pollution Control Act (FWPCA)
amendments of 1972 (and later amendments in the Clean
Water Act of 1977) replaced the permit system of the
Refuse Act, so an action for water pollution should
now be brought under the FWPCA, but certain situations
where non-point source pollution affects a navigable 21
water may still allow an action under the Refuse Act.
The 1972 Amendments (hereafter the 1972 Act) expanded the FWPCA for the purpose of restoring and
maintaining the integrity of the nation's waters.
The
1972 Act sets 1985 as its target deadline for total
elimination of pollutant discharges into navigable waters.
The 1972 Act did away with the permit system authorized
by the Refuse Act of 1899 and established in its place
the National Pollutant Discharge Elimination System
22
(NPDES).
Under the NPDES, discharges of pollutants
are required to obtain a permit from the EPA or a state
agency which has been properly delegated authority
to
23
issue permits under the EPA permit program.
Section
301 of the 1972 Act makes unlawful the discharge of any
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172
pollutant (from a point source) without a NPDES permit,
and sets standards by which otherwise illegal discharges
24
may be allowable.
The purpose of the NPDES permit
system is to establish and implement effluent limitations
guidelines under EPA standards, thus controlling
25 the
quality and quantity of allowable discharges.
Under the 1972 Act, the states are given responsibility for prevention, reduction, and elimination of
pollution, and are required to develop a comprehensive
planning process for reduction of pollution by water
quality management from both point and nonpoint sources.
As of January 1, 1975, annual reports to the Administrator of the EPA are required by each state, and such
reports are to Consist of: an assessment of the state's
water quality, estimated programs necessary to achieve
the purposes of the act in that state, and proposals
26
for controlling nonpoint sources of pollution.
States
may be authorized to implement the NPDES program by
proposing to the EPA an acceptable program of such implementation. To gain acceptance, the state program must:
be equal in scope and effectiveness to the EPA program;
must enforce effluent limitations as strict as the EPA
guidelines; provide for a sufficient inspection, monitoring,
and reporting system; and allow for legal enforcement
27
of the program in state courts.
Should state officials
-11-
172
decide federal controls prove insufficient to meet local
pollution regulations, §510 of the FWPCA allows the states
28
to establish their own pollution criteria."
Compliance
with the act is constantly encouraged, since the EPA
has continual review of approved state programs, and
permit applications under
state programs are subject to
29
approval by the EPA.
Enforcement of the 1972 Act is
to be the function of the respective states, however
a state implemented plan which proves inadequate in
inspections, monitoring and entry may result in the
EPA asserting authority and control over such functions.
When the state plan is not given NPDES permit approval,
the EPA has full authority, and even under an approved
state plan the EPA retains "backup authority" over the
,
30
plan.
The 1972 Act provides for power to initiate civil
actions for injunctive relief and to collect civil
31
penalties of up to $10,000 per day.
Criminal penalties
for willful or negligent violation of permit conditions
or discharge without a permit can be as high
32 as $50,000
per day with up to two years imprisonment.
Citizen
33
suits are allowed under the 1972 Act,
and the EPA has
emergency powers to seek injunctions when pollution is
causing an imminent or substantial 34
danger to the health
or livelihood of affected persons.
-12-
172
That the 1972 Act applies to agricultural operations
is clear from the inclusion of "agricultural wastes"
35
in the definition of the basic term "pollutant",
but
all agricultural wastes are not subject to the same types
of regulation.
Since the heart of the act is the
establishment and implementation of effluent limitations
through NPDES permits, the act is directed toward identifiable point sources of pollution.
Though nonpoint
sources are not completely ignored, they receive minor
attention compared to the extensive provisions governing
the control of point sources of pollution.
Since
issuance of NPDES permits is dependant on the concept
of the point source, it is necessary to differentiate
between point sources and nonpoint sources of pollution.
Point Sources
The 1972 Act defines point source to mean:
"any discernable confined and discrete conveyance including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated feeding operation, or vessel or other
floating craft from which pollutants may
be discharged."
In general, a point source is a source where pollutant
is capable of identification and control at ascertainable
environmental entry points.
Besides the waste from con-
centrated feeding operations, any other agricultural
-13-
pollutant reaching a watercourse through specifically
discoverable routes would appear to be regulatable as
37
a point source.
A nonpoint source, on the other hand,
would be exemplified by an open area (often vast acreage),
from which it would be difficult if not impossible to
ascertain and control a single source of discharge.
The point/nonpoint source distinction is the determinative
factor under the 1972 Act, since point sources are subject to the NPDES permit requirements while nonpoint
. 38
sources are not.
Under §502 (14) of the 1972 Act, feedlots are
39
specifically included as point sources. *
All point
sources are subject to the effluent requirements of
§§301 and 302, the requirements for performance of
§306, and the toxic and pretreatment standards of
§307.
§304 contains the guidelines and standards for
feedlot point source effluent limitations and provides
for control through §402 NPDES permits. 40
The Permit Exclusion Controversy
When NPDES guidelines for application and grant
of permits appeared in the Federal Register on
December 5, 1972, they seemingly required every farmer
in the country to apply for a NPDES permit and were
widely criticized by various agricultural interest
-14-
172
groups,
As a result, the revised final permit regulations
published on July 5, 1973, excluded large segments of
the agricultural point source category from the require41
ment of permit application.
These regulations required
permit applications only for feedlots which had exceeded
a set population for any 42
thirty day period within the
proceeding twelve months.
Permits were also required
of point sources excluded from the permit requirement
43
if they were considered to be significant polluters.
Various environmental groups attacked the Administrator's exclusion of feedlot point sources below a
numerical cutoff level.
The result was a lawsuit filed
by the National Resources
44 Defense Council (NRDC) against
the EPA in August, 1973.
NRDC sought declaratory
judgement that the Administrator lacked discretion to
exclude certain point source categories of dischargers
specified in the 1972 Act from NPDES permit requirements,
and alternatively that if such discretion was authorized,
the actions of the Administrator were an arbitrary and
45
capricious abuse of discretion.
The Administrator
sought to justify the exclusions on the basis of adminstrative efficiency, since the problems in processing
vast numbers of discharge application forms would detract
attention from the more serious pollution problems of
the larger feedlot operations.
-15-
It was also pointed out
that only the permit requirement was relaxed, that all
other point source requirements could be enforced against
a discharger, and even feedlots below the cutoff level
could be required to apply for a permit if they were
considered significatant polluters, and feedlot operators
46
might elect to apply for a NPDES permit.
The district court held that exclusion of certain
categories from 47
the NPDES permit system was not authorized
by the 1972 Act.
On June 10, 1975, Judge Flannery
for the District Court of the District of Columbia
invalidated the July 5, 1973, EPA permit program, ordering
the EPA to publish proposed regulations governing the
point source category by November
48 10, 1975, and final
regulations by March 10, 1976.
Proposed Permit Regulations:
Though the EPA appealed, it was still required to
comply with the order and deadlines, and the proposed
regulations attempted to clarify the scope of the NPDES
permit system by redefining "concentrated animal feeding
operation."
Any facility falling within this new
definition was to be considered a point source and subject to NPDES permit requirement.
Three criteria made up the newly defined "concentrated animal feeding operation": (1) The number of
animals confined in the operation; (2) location of the
operation relative to water bodies; and (3) presence of
man-made drainage ditches or other man-made devices for
direct discharge of waste into receiving waters.
49
Application of any one of these three criteria to a
feedlot subjected that feedlot to the permit require50
ments.
A permit was not required for feeding opera-
tions, even those exceeding the specified number of
animals, if the only time a discharge of pollutants
into navigable waters occurred was in a twenty-fiveyear, twenty-four-hour rainfall event (that is, the
heaviest twenty-four-hour rainfall
likely to occur in
51
a twenty-five-year period).
The proposed regulations also provided that a feedlot operator might be required to obtain a permit on
a specific case-by-case determination that the facility
was a "concentrated animal feeding operation"
52 though
none of the three criteria applied to him.
The proposed
regulations did not necessarily require applications
for permits from every operator of a concentrated animal feeding operation point source.
For a permit to
be required, actual discharge into navigable waters must
have occurred, so if there was no discharge from a
point source, or if the only discharge was in a twentyfive-year, twenty-four-hour rainfall event, there was
no need for a permit. 53 The proposed regulations also
-17-
172
established new population quotas for permit application.
54
The EPA's solicitation of comments on the proposed regulations received wide response from environmental
organizations, governmental agencies, and other interested
55
groups,
and these comments were responsible for many
changes which appeared in the final regulations.
Final Permit Regulations:
The final regulations of the feedlot point
source
56
category were published on March 10, 1976,
similar to the proposed regulations.
and are
An important aspect
of the final regulations is the requirement of a permit
only when there is discharge of a pollutant from the
point source into navigable water.
The final regulations
required no permit for any concentrated feeding operation which discharges pollutants only in the event of
the heaviest twenty-four-hour rainfall likely to occur
in a twenty-five-year period.
Should a discharge occur
more often, a permit is required
only if the discharge
reaches navigable waters. 57 The final regulations also
contained a lower level cut off number than the proposed
58
regulations.
Permits are required for feeding opera-
tions with less than 1000 animal units only if they have
discharges of pollutants: (1) through a man-made conveyance
or (2) directly into navigable water passing through
the confined area.
No permit is requried for operations
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180
with less than 300 animal units unless (the above two
factors exist and), there has been an onsite inspection
followed by written notification that a permit is
59
required.
The final regulations included a case-by-
case designation to give the Director or Regional
Administrator discretion to designate an animal feeding
operation as concentrated
60 regardless of size and, therefore,
as requiring a permit.
This discretion should be used
to designate a concentrated animal feeding operation
only after onsite inspection and determination that the
operation should and could be regulated under the permit
program, and before an application will be required, the
operator or owner of the feedlot must be notified in
writing of the application requirement. 61 This discretion
59
was to be used only in exceptional cases.
The final regulations also moved up the deadline
for permit applications from March 10, 1977, to September
63
1, 1976.
This change was in answer to comments received
by the EPA that the time available between the March 10,
1977, date and the implementation deadline in the FWPCA
of July 1, 1977, was not sufficient time to enable owners
and operators to construct pollution control devices.
The earlier deadline also allowed more time for procedural
compliance as to notice and opportunity to be heard.
-19-
172
The EPA's appeal of the District Court's summary
judgement for NRDC was finally affirmed on November 16,
64
1977.
Speaking for the U.S. Court of Appeals for the
District of Columbia, Justice Leventhal said that a permit
under the NPDES is the only means by which a discharger
may escape the total prohibition of discharges
from
65
point sources as defined in FWPCA g301(a).
The opinion
further stated that effluent limitations need not be
uniform, and though technological or administrative
infeasibility of such limitations may warrant adjustments in the permit program, the Administrator may not 66
exclude relevant point sources from the NPDES program.
The court said that various administrative devices such
as general or area permits could be used by the EPA to
encourage administrative efficiency, but that desire for
such efficiency was not a valid reason to exclude relevant
67
point sources.
Though the EPA was obviously intended
to have leeway in interpreting the FWPCA, the extent of
the discretion available in such interpretation is uncertain, but the FRDC Case did make clear that the EPA
may not exclude a point source under the NPDES from the
permit requirement.
1977 Amendment to NPDES
Though the 1977 amendments (known as the Clean Water
Act of 1977) replaced the 1972 Act, the basic character
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172
54
of the 1972 Act is reflected in the 1977 Amendments.
The regulation of agricultural pollution under the 1977
Amendments is almost the same as under the 1972 Act
with some slight changes.
The first change made by the 1977 Act is in regard
to issuance of NPDES permits under state approved
programs. il342(d) of the 1977 Act authorizes the
Administrator to issue a permit where a state-issued
permit is inadequate under the FWPCA and more specifically
69
under the NPDES.
This amendment was passed to take
care of the problem which might arise when the Administrator objects to the issuance of a permit to 70
point source
consistent with the provisions of the act.
Previously,
neither the EPA nor state could issue a valid permit in
7">
such circumstances. "
The amendment was intended to give
equal treatment not only where the EPA administers the
permit system, but also where an approved state is administering such system.
Committee reports indicate that the
intent of the "expanded veto authority" was to provide
a more vigorous overview of state programs to ensure
uniformity and discourage the possibility of "pollution
havens" being created in states with approved permit
72
programs.
The other notable change made by the 1977 amendments
concerned irrigation return flows. §1342(1) was added
in the 1977 Act to exempt irrigation return flows from
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180
the permit requirements and to assure that areawide
waste treatment management programs dealing with nonpoint sources provide for consideration of irrigated
73
agriculture.
Permit requirements had been previously
construed to apply to discharges of return flows from
irrigated agriculture since such flows had been defined
by the EPA and conveyances carrying surface irrigation
return as a result of the controlled application ^of
water by any person to land used primarily for crops.
These sources were found to be no different than any
other agricultural runoff, which may or may not have a
discrete point of entry into a watercourse.
To prevent
a possible ambiguity, the definition of point source
under §1362(14) was also amended so as not to include
return flows from irrigated agriculture. 75
Effluent Limitations
The EPA's proposed "Effluent Limitations Guidelines
for Existing Sources and Standards of Performance and
Pretreatment Standards for New Sources" applicable to
76
feedlots was published on September 7, 1973.
The
final effluent guidelines and standards for feedlot
77
point source categories were published February 14, 1974.
The guidelines broadly defined "feedlot" to include
"concentrated confined animal or poultry growing operation,
wherein the animals or poultry are fed at the place of
-22-
confinement and crops or forage growth or production is
78
not sustained in the area of confinement."
The regula-
tions apply to both runoff escaping the feedlot area
through precipitation (process waste water) and runoff
occurring through accidental or purposeful discharge of
water used to operate the feedlot (process generated
waste water). 79
Feedlots are separated into subpart A, dealing with
all animals except ducks, and subpart B, dealing with
80
ducks.
Category A feedlots are subject to a "no dis-
charge" standard while duck feedlots may discharge limited
amounts of organic wastes until 1977, when
they will also
81
be subject to the "no discharge" rule.
Both the effluent limitations and the standards of
performance provide an exception for discharges from overflow of a control facility caused by a catastrophic
rainfall.
The difference between the guidelines for "best
practical control technology currently available", the
1977 goal, and "best available technology economically
achievable", the 1985 goal, is that the former requires
control facilities to be designed to contain all process
waste water plus the runoff from the heaviest rainfall
likely to occur in the region within a twenty-four-hour
period once every ten years, while the latter requires
facilities adequate to contain process waste water plus
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172
the heaviest twenty-four-hour rainfall likely in a
82
twenty-five-year period. 1 ^
New source standards are
identical to the 1985 goal facilities requirement for
...
83
existing sources.
The effluent guidelines and performance standards
leave the choice of pollution control method up to the
feedlot operator.
The most commonly used method is the
lagooning process using land retention basins proportionate
84
in size to the feedlot and waste load to be confined.
The 1977 Amendments also provide for modification of
effluent standards (to pollutants which qualify)
85 and for
selective conditional extension of deadlines.
After the effective date for standards of performance
under the 1977 Act, it is unlawful for an owner or
operator of any new source to operate such source in
violation of a standard of performance applicable to that
86
operator.
But a point source which meets applicable
standards of performance upon time of its construction
(after October 18, 1972) is protected from subjection
to a more stringent
87 standard for ten years after the
completion date.
EPA Enforcement:
Few suits have actually been brought against feedlot
owners for violations of the 1972 Act, but several
administrative orders have been issued.
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172
EPA officials
have indicated success in forcing compliance with the 1972
88
Act by use of the administrative order.
A relatively new tool of enforcement may soon be in
common use for controlling feedlot pollution.
This new
device is an equipment system which, when triggered by
a discharge such as rainfall, runoff begins to sample
89
and monitor the discharge at set time intervals.
The
device also activates a warning system which dials the
telephone numbers of EPA officials.
The device may be
placed on state or county right of ways, or on the
operator's property under §134 of the 1972 Act and 1977
Amendments.^
In parting, mention should, be made of the conspicuous
absence of stringent regulation of nonpoint sources.
Though the 1972 Act and 1977 Amendments exert fairly
stringent regulation over point sources, nonpoint source
regulation has been minimal, perhaps because the EPA's
responsibilities as to nonpoint sources are almost nonexistant.
The only federal action required by the 1972
Act as to nonpoint sources is the development of
information on (1) means for identifying and evaluating
the nature and extent of such nonpoint sources, and
(2) processes and procedures for control of nonpoint
91
sources.
Regulation of nonpoint sources past these
investigatory duties is left to state programs.
27
But for
agricultural and silvicultural nonpoint pollution sources
to be effectively controlled, respective states would
have to enact soil conservation measures which would
92
accomplish such control.
And though encouragement
programs of soil conservation by the government have
proved unsuccessful, no state has yet dared to impose
compulsory soil control measures on owners of agricultural
land, and until such mandates are instituted, 93effective
control of nonpoint sources appears doubtful.
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172
Conclusion
Accelerating environmental degradation of rivers,
lakes and streams has made necessary the regulation of
agricultural waste discharges.
The Federal Water Pollution
Control Act Amendments of 1972 (the 1972 Act) were
passed by Congress to eliminate pollutant discharges
into navigable waters by 1985.
The 1972 Act and the
1977 Amendments (Clean Water Act) seek to achieve discharge elimination through enforcement of strict
timetables and technology-based effluent limitations.
Feedlot pollution of water can be serious, but the
problem should not be blown out of proportion.
Many
(perhaps even most) feedlots are managed in a husbandlike manner.
Serious pollutors should be regulated and
controlled, but the regulation should not be so binding
as to be economically and technologically unrealistic.
Thus far the 1972 Act and 1977 Amendments seem to consider this problem, but only continual realization and
appreciation of the technical difficulties balanced
against valid environmental consideration will give
satisfactory results.
Federal regulations for the most
part proved effective in regulating point sources of
pollution; however, they fail to provide such efficient
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172
regulation of nonpoint sources.
It can only be hoped
that the future may provide some similarly effective
regulations for control of the great amount of pollution
which occurs through land runoffs and other nonpoint
sources.
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172
Footnotes
1.
Graber, Agricultural Animals and the Environment 5
(1974).
2.
EPA, Methods for Identif ying _and Evaluating the Nature
and Extent of Non-Point Sources of Pollutants 35
(1973) (HereTnajFter cited as Methods).
3.
33 U.S.C. § 1313 (Supp. V, 1975).
4.
5.
42 U.S.C. I 1857c-5(a)(1)(1970).
Texas Agricultural Extension Service, Agricultural
Engineering Newsletter, May 29, 1975, at 5.
6.
2 F. Grad, Treatise on Environmental Law § 7.01, at
7-13 (1974)'.
7.
Id.
8.
Blackwell, How Now Brown Cow: Regulation of Feedlot
Pollution in Wisconsin, 3 Environmental Affal-ts 769,771
(1974).
9.
Id. at 770.
10.
Shuyler, Framer, Kreis, and Hula, Environment Protecting
Concepts of Beef Feedlot Wastes_Management VII1-13 to
16 (1973).
11.
Blackwell, at 770.
12.
EPA, Analysis of State Laws and Regulations Imparting
Animal Waste Management 146 (1978) (Hereinafter cited
as Analysis).
13.
Methods, at 36.
14.
Federal Water Pollution Control Admin., U.S. Dep't of
Int., The Cost of Clean Water and its Economic Impact
210-11 (1969).
15.
Willrich, Disposal of Animal Wastes, American Association
for the Advancement of Science, Agriculture, and the
Quality of Our Environment 415-16 (N."Brady ed. 1967)
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172
16,
Id. at 417.
17,
Analysis, at 189.
18.
33 U.S.C.A. 1 1365 (1974).
19
Blackwell, at 773.
20
Id.
21
Id. at 774.
22
Federal Water Pollution Control Act
23
Id.
24
Id. I 301(a), and § 402(a)(1).
25
Id.
26
Id
1 305(b).
27
Id
§ 402 (b).
28
Id
1 510.
29
Id
30
Id
31
Id
309(b).
32
Id
309(c) .
33.
Skillern, Private Environmental Litigation: Some
Problems and Pitfalls, 9 St. Mary's L.J. at 698 (1978)
34.
Federal Water Pollution Control Act I 504.
35.
33 U.S.C.A. § 1362(6).
36.
1c1. § 1362(14).
37.
Id.
38.
Federal Water Pollution Control Act § 402.
39.
Id. at 502(14).
40.
Id. § 402.
402.
402(c).
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1Q9
41.
38 Fed. Reg. 18000 (1973); 40 C.F.R. pts. 124-125
(1975).
42.
Id.
43.
40 C.F.R, I 412.15 (1975).
44.
396 F. Supp. 1393 (D.D.C, 1975).
45.
Id. at 1395, 1398.
46.
38 Fed. Reg. 18001-02 (1973).
47.
Natural Resources Defense Council, Inc. v Train, C.A.
No. 1629-73 (D.D.C., June 10, 1975) (Order).
48.
I_d. (Final Judgement).
49.
40 Fed Reg. 54183 (1975).
50.
Id.
51.
Id.
52.
Id.
53.
Id.
54.
Id. at 54185-86.
55.
41 Fed. Reg. 11458-59 (1976).
56.
Id. at 11458.
57.
Id. at 11459.
58.
Id. at 11458.
59.
Id. at 11459.
60.
Id.
61.
Id.
62.
Id.
63.
Id. ($10 application fee required with application
and form).
64.
National Resources Defense Council, Inc. v Costle,
568 F.2d 1369 (1977).
-31-
172
65.
Id.
66.
Id.
67.
Id-
68.
AKA Clean Water Act of 1977 (1977).
69.
Federal Water Pollution Control Act Amendments of
1977 § 1342(d) (1977).
70.
U.S. Code Cong, and Ad. News, 95th Congress, 1st Sess.
4398 (1977) (PL 95-217).
71.
Id.
72.
Id.
73.
Federal Water Pollution Control Act Amendments of 1977
§ 1342(1) (1977).
74.
U.S. Code Cong, and Ad. News, 95th Congress, 1st Sess.
4360 (1977) (PL 95-217).
75.
Federal Water Pollution Control Act Amendments of 1977
I 1362(14) (1977).
76.
38 Fed. Reg. 24466 (1973).
77.
39 Fed. Reg. 5704 (1974).
78.
40 C.F.R. §i 412.11, 412.21 (1975).
79.
Id. at §§ 412.12-.13, 412.22.
80.
Id. at §§ 412.22-23.
81.
Id.
82.
Id- si 412.15, 412.25.
83.
Id.
84.
Analysis, at 189.
85.
Federal Water Pollution Control Act Amendments of 1977
if 1311(h)&(i) (1977).
86.
Id. at I 1316(e).
87.
Id. at § 1316(d).
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172
88.
Recker, Animal Feeding Factories and the Environment:
A Summary of Feedlot Pollution, Federal Controls, and
Oklahoma Law, 30 SW. L.J. 584 (1976).
89.
Id.
90.
Id.
91.
Hines, Farmers, Feedlots and Federalism: The Impact
of the1972 Federal Water Pollution"and Control Act
Amendments on Agriculture, 19 S.D. L.Rev. at 564 (1974).
92.
Id.
93.
Id.
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