Washington Fails Controlling Polluted Nonpoint Runoff

Polluted runoff, or nonpoint source pollution, is every source of pollution that is not a point source with a permit. In Washington, the primary sources of nonpoint pollution are logging, farming, grazing, mining, and water withdrawals. A state’s interest in controlling nonpoint sources is key to the successful reduction of polluted runoff because Congress did not establish a regulatory system in the Clean Water Act for these sources. Instead, Congress has passed various inducements and punishments—carrots and sticks—to encourage states to control nonpoint sources.

One such “carrot” was passed in 1987 in the form of Section 319 of the Clean Water Act. Section 319 required states to have plans to control nonpoint sources that identified the so-called best management practices (BMPs), through what programs they would be implemented, and a schedule for implementing them. In return, states were given money to run these programs and to pass funds on to citizens for restoration projects. The “stick” was passed in 1990: the Coastal Zone Act Reauthorization Amendments (CZARA). CZARA required that states have coastal nonpoint source control programs in place—and approved by two federal agencies—by 1996 or face funding cuts in federal grants. Washington was among many states that did not have an approvable program by 1996, or to date. The U.S. Environmental Protection Agency (EPA) and National Oceanic and Atmospheric Administration (NOAA), which co-administer CZARA, decided to give Washington a “conditional approval,” keeping the money flowing on condition that the state would develop a full program.

Bringing Carrots and Sticks to Washington

In 2016, NWEA sued EPA and NOAA for failing to make a final decision and to withhold funds from Washington under CZARA and for approving Washington’s Section 319 plan and continuing to fund the state despite there being no evidence the state is meeting federal requirements. The backdrop to this lawsuit is not only NWEA’s 2009 case against the federal agencies over Oregon’s lack of nonpoint source controls but also a process called Treaty Rights at Risk in which, since 2011, the treaty tribes that depend upon Puget Sound have pressed for federal help in controlling nonpoint source pollution. In April, 2013, EPA and NOAA cited the tribes’ need for salmon protection as a basis for not approving Washington’s program under CZARA.