Publications: Clean Water Act
Waters of the United States: Timeline of Definitions
Brigit Rollins, National Agricultural Law Center
The term “waters of the United States” is a central component of the Clean Water Act (“CWA”), the federal statute that regulates water pollution in the United States. Knowing which waters are “waters of the United States” (“WOTUS”) and which are not is critical because only waters that fall into the definition of WOTUS are subject to the CWA. However, the definition of WOTUS has shifted many times since it was initially defined in 1973. This has resulted in a patchwork of regulations that can sometimes make it difficult to determine whether a waterbody is a WOTUS. The following is a timeline tracking the various changes to the definition of WOTUS. Identifying when and where each definition of WOTUS is applicable can help bring clarity to a shifting regulatory landscape. Download this article. Posted 4/21/20, updated 9/26/23.
Agricultural Nutrients and Water Quality: Recent Litigation in the United States
Ellen Essman, Senior Research Associate, Ohio State University Agricultural & Resource Law Program
Kevin Hivick, Jr., Research Fellow, National Agricultural Law Center
Agricultural nutrients are an increasing concern due to their impacts on water quality. Some of these concerns, such as manure generated at confined animal feeding operations, are not new; in fact, they have persisted for years. What is ever evolving, however, are the mechanisms for addressing nutrient pollution impacts on water quality. Since the advent of the Clean Water Act (CWA), states have attempted to “get it right” and address agricultural nutrient pollution through the National Pollutant Discharge Elimination Permit (NPDES) system. But legal challenges have plagued state NPDES permit programs from their beginnings, and litigation has become a common tool for reducing water quality impacts from manure and other agricultural nutrients. States have developed their own water quality laws and policies, and there have been legal challenges to those as well. These legal challenges arise from environmental interests and impacted neighbors and communities and can be pre-emptive or reactionary. This article contains a compilation and analysis of cases that illustrate the current state of litigation efforts to address water quality impacts from agricultural nutrients. View this publication. Posted 7/15/20
Mandatory Legal Approaches to Agricultural Nutrient Management: State Compilation
Ellen Essman, Senior Research Associate, Ohio State University Agricultural & Resource Law Program
Micah Brown, Research Fellow, National Agricultural Law Center
Nutrients such as nitrogen and phosphorous are vital to agricultural crop production in the United States but have also detrimentally impacted water quality. Attention to solving nutrient pollution problems has intensified in recent years. However, while the Clean Water Act gives the federal government a role in directing solutions for point source effects on water in the U.S., the states maintain primary legal authority over nonpoint sources of nutrient pollution such as farmland and runoff from farmland. Through our research, we found that many of the states have responded by encouraging farm operators to engage in voluntary practices that can reduce runoff and loss of agricultural nutrients from farmland to waters and waterways. But states are also relying on mandatory approaches that require specific actions or inactions regarding agricultural nutrients. This publication is a state compilation presenting the mandatory laws and regulations addressing the use of agricultural nutrients at the ground level—on the farm. The compilation includes state government laws and regulations that relate to minimizing water impacts from the use of nutrients, including both commercial fertilizers and animal manure, on agricultural lands. View this compilation. Posted 5/14/19; last updated 7/16/20.
State Legal Approaches to Reducing Water Quality Impacts from the Use of Agricultural Nutrients on Farmland
Peggy Hall, Director, Ohio State University Agricultural & Resource Law Program
Ellen Essman, Senior Research Associate, Ohio State University Agricultural & Resource Law Program
Nutrients such as nitrogen and phosphorous are vital to agricultural crop production in the United States but have also detrimentally impacted water quality. Attention to solving nutrient pollution problems has intensified in recent years. However, while the Clean Water Act gives the federal government a role in directing solutions for point source effects on water in the U.S., the states maintain primary legal authority over nonpoint sources of nutrient pollution such as farmland and runoff from farmland. Through our research, we found that many of the states have responded by encouraging farm operators to engage in voluntary practices that can reduce runoff and loss of agricultural nutrients from farmland to waters and waterways. But states are also relying on mandatory approaches that require specific actions or inactions regarding agricultural nutrients. This publication is a national report, which reviews and highlights mandatory approaches states are taking to address agricultural nutrient impacts and also provides examples of voluntary approaches we identified in our research. Download this publication. Posted 5/14/19
Issue Brief: Conduit Theory Under the Clean Water Act
Cash Barker, Research Fellow; National Agricultural Law Center
Rusty Rumley, Senior Staff Attorney; National Agricultural Law Center
This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a theory of using ground water as a conduit to channel pollutants from a point source to a Waters of the United States under the Clean Water Act. These theory expands the scope of the Clean Water Act within the United States as ground water in the past has been regulated under different regulatory schemes.. This article looks at the most recent case out of the Sixth Circuit and how it differs from the interpretation of the Fourth and Ninth Circuits. Download this article. Posted 1/8/19
Water Quality Credit Trading: A Primer of Background Material
David R. Jackson Graduate Assistant National Agricultural Law Center
Over the past ten to twenty years, an increased interest in water quality trading has emerged as a way to address water pollution in key U.S. watersheds. Water quality credit trading establishes a market for pollution reduction efforts, and assigns a dollar value for each effort. Polluters with a lower cost of pollution reduction may choose to sell reduction credits to polluters with high costs of pollution reduction. This new type of market-based solution for pollution could have major implications for the agricultural sector as it would enable farmers to identify and get paid for their efforts to reduce pollutants they are generating. This brief article is a reference resource designed to provide a basic background on water quality trading and is not an exhaustive treatment of the subject. The article provides historical background, basic information about water trading components, and links to key water quality credit trading websites for further information. Download this article. Posted November 18, 2010.
The Clean Water Act: Current Status and Potential Changes – PowerPoint Presentation
Rusty W. Rumley Staff Attorney National Agricultural Law Center
This presentation was given on September 3 and September 10, 2010 to participants of the “Earth, Wind, and Water for the General Practitioner” CLE series put on by the Oklahoma Bar Association. It discusses the current jurisdictional limits of the Clean Water Act and the potential changes that may occur if the Clean Water Restoration Act is passed into law. Download this presentation. Posted November 11, 2010.
The Clean Water Authority Restoration Act: A Primer of Background Material
L. Paul Goeringer Research Associate and
Rusty W. Rumley Staff Attorney National Agricultural Law Center
The Senate Committee on the Environment and Public Works approved the Clean Water Restoration Act (S. 787) (CRWA), proposed legislation will amend the Clean Water Act’s (CWA) jurisdiction. The proposal would replace the term “navigable waters” with “waters of the United States.” Under the CWRA, the CWA would now cover not only interstate waters but, for the first time, intrastate waters. This proposal could have major implications for the agricultural sector since it would augment the current jurisdictional scope of the CWA. This article is a reference resource designed to provide a basic background on the current legislative proposal and is not an exhaustive treatment of the subject. The article provides language for the previous bills introduced, the current language, statements made by supporters of the legislation, relevant articles written on the subject, and references to blogs and blog postings. Download this article. Posted: August 26, 2009