The plan solves – mandating uniform standards creates sufficient pressure to induce behavior change
Andreen 2016 – University of Alabama - School of Law
William L. Andreen “No Virtue Like Necessity: Dealing with Nonpoint Source Pollution and Environmental Flows in the Face of Climate Change” 34 Va. Envtl. L.J. 255 (2016).
In order to be more politically expedient, a better approach under a revised section 319 of the CWA would be to target mandatory best management practices ("BMPs") towards nonpoint source impaired waters. Political opposition to such an approach would still be powerful, but, as Professor Jonathan Cannon has written, perhaps "less vehement" than resistance to more "generally applicable requirements. 283 Moreover, by focusing more intently upon the restoration of nonpoint source impaired waters, Congress could perhaps garner support for the program from local communities. Rather than a diffuse and opaque program applied on a national scale, the BMPs would be applied to specific bodies of water. Such a localized approach could stir the passions of all of those citizens and groups that would love to see their favorite stream or lake restored to health Under a revised section 319, states would be required to establish enforceable best management practices (BMP)s for those nonpoint sources contributing to water quality impairment.These BMPs could be drawn from a menu of technology-based options set forth by EPA in order to give the states some flexibility in selecting the practices that are most appropriate for their state. However, EPA should not be confronted with a Hobson's choice in the event a state fails to submit a plan containing adequate, enforceable controls. The reduction or elimination of funding for nonpoint source programming are neither reasonable nor pragmatic responses to the problem. Instead, EPA should have the authority to disapprove an inadequate state plan and, if a satisfactory revision is not forthcoming, to promulgate a federal plan in its stead. Increased and more stable federal funding is also necessary to provide small-scale farmers and other appropriate grant recipients with the wherewithal to comply with these new requirements. Further, the new requirements would have to be implemented over a period of years in order to give the newly regulated entities the time and, where appropriate, access to the funding necessary to come into compliance. A monitoring program should also be established to help ensure that the BMPs and the related financial investments are meeting their intended goals. If not, a revised plan should be submitted and implemented-a process in keeping with an adaptive approach to such complex problems. Prying more funding out of Congress will not be an easy task, but additional funding is absolutely necessary to help defuse opposition from the nonpoint source community and enlist at least grudging support from the pragmatists in that community. The problem, moreover, is already severe--more than 40,000 waters are currently impaired primarily by nonpoint sources284-and the situation will only deteriorate as more intense rainfall events associated with climate change produce more polluted runoff and more wildfires caused by higher temperatures and dryer conditions produce more erosion. Although EPA funding of the section 319 should certainly be increased, some additional financial support could possibly come from collaboration with other government bodies. Improved targeting of the funding given to the U.S. Department of Agriculture ("USDA") for its various conservation programs could do much to reduce nonpoint source impairment. In short, Congress could make expenditures to support the implementation of these BMPs a priority,285 as well as requiring more cooperation between USDA, EPA, and the respective state agencies with respect to grant decisions, monitoring and reporting. This could be coupled with a broader USDA program to assist farmers in adapting to climate change. As Robert Adler has recounted, climate change will affect almost all agricultural producers."6 Some will face increased drought and water scarcity." 7 Others will confront losses from increased flooding and heightened levels of erosion."' Higher temperatures will adversely affect crop yields as well as the viability of livestock production at least in some regions." 9 And more heavily polluted waters from more intense precipitation can negatively impact economic productivity in many ways. Agriculture, especially irrigated agriculture, is not immune to these adverse effects.29 Perhaps a new initiative aimed at helping American agriculture adjust to climate change (for example, by utilizing more efficient forms of irrigation,291 shifting to less-water intensive crops, utilizing low-till or no-till cropping to retain moisture, and improving the efficiency of fertilizer and pesticide usage to reduce water pollution)292 could be combined with a more rigorous approach to addressing nonpoint source problems. Of course, the enactment of any such grand bargain would depend upon a successful navigation of the jealously guarded silos of committee jurisdiction that exist on Capitol Hill. 93 The new approach to section 319 should be coupled with revisions to the TMDL provisions in the CWA, requiring that load allocations developed for specific nonpoint sources be implemented and enforced under the new section 319 regulatory program. The newsection 319 regulatory program should not end the efforts of our states to mitigate nonpoint source pollution on non-impaired waters. 94 Those programs help prevent additional degradation of our nation's waters, and they promote some progress towards the CWA's goal of eliminating the discharge of pollutants to the nation's waters.295 Therefore, the scope of an amended section 319 should include a requirement that the states submit programs providing for either regulatory or voluntary programs for implementing BMPs on waters that have not been impaired by nonpoint source pollution. Ideally, these BMPs would be drawn from EPA's list of technology-based options, supplemented with education, training, technical and financial assistance, and demonstration projects. These programs should also be subject to EPA review, and if approved, eligible for continued section 319 funding. While a large share of federal funding should be aimed at the restoration of impaired waters, the states have long depended upon federal funding of their overall section 319 programs and that funding should continue, albeit in an enhanced form.