ND Water Law

Accessibility


| Share

Quality of Discharged Water

Led by federal law (Clean Water Act); implemented by EPA and state agency (e.g., ND Dept. of Health)

.

This page focuses on the quality of the water.  These topics will include federal statute (Clean Water Act), state implementation, and discharge of water (such as Devils Lake).

Review pp. 571-595 of Grant's 8th Ed.

.

Clean Water Act

States are responsible for regulating water quality within their jurisdiction but were reluctant to do so in the 1960s despite expanding water pollution problems.  Finally in 1969, Congress stepped in to address environmental issues by enacting the National Environmental Policy Act (NEPA).  Soon thereafter, the Environmental Protection Agency (EPA) was created.  In the following years, Congress continued to address environmental concerns by enacting the Clean Air Act, the Clean Water Act (33 U.S.C. 1251 et seq) and several other major pieces of legislation.

.

A fundamental feature of the Clean Water Act is its definition of point source water pollution and non-point source water pollution. 

  • “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture (33 U.S.C. 1362(14) )

Federal law requires anyone who intends to discharge a pollutant into water to secure a permit as a point source of water pollution pursuant to the the National Pollution Elimination Discharge System (NPEDS). 

  • 33 U.S.C. 1311  -- the discharge of a pollutant into water is illegal, EXCEPT ...
  • 33 U.S.C. 1342  -- "... administrator may issue a permit for the discharge of any pollutant..."

.

In addition, states were given the task of studying non-point source water pollution and devising a plan to address non-point source water pollution in its jurisdiction (33 U.S.C. 1329).

.

States were also given the option to enforce the Clean Water Act or to allow the EPA to enforce the federal standards.  North Dakota chose to have the state Department of Health enforce water quality standards (and issue the NPEDS permits) in the state (see 33 U.S.C. 1342(b) and  N.D.A.C. chap. 33-16-01).

.

What does water quality have to do with drainage?  Draining water, such as, pumping water from Devils Lake in an attempt to control the level of the lake, is a discharge into water, but is it point source water pollution?  Is a NPEDS permit needed?

.

Friends of the Everglades v. South Florida Water Management District, U.S. Ct. of Appeals, 11th Cir., 2009; (p. 558, Weber's 9th Ed).

  • Is the transfer of water from a navigable body of water to another navigable body of water a "discharge of a pollutant" that requires a NPEDS permit? 
  • Agricultural runoff water collects in a series of government constructed canals.  The collected water is pumped (uphill) into a lake.  This process of pumping the water does not change the quality of the water that is being moved; it only changes the location (from the canal system into the lake).  Is a permit needed?
  • A permit is needed before discharging water that has been "degraded" as a result of activities, such as industrial or municipal uses.  Because this activity does not change the quality of the water, does that exempt the activity (the pumping) from needing a permit?  Likewise, because the pollutant was already in a navigable water and is being moved to a navigable water, does that exempt this activity (the pumping) from needing a permit?
  • Unitary waters theory would conclude that moving a pollutant from a navigable water to another navigable water is not adding pollutants to navigable water -- no permit is needed.
  • The Gorsuch and Consumers Power cases involved situations where the water would have reached the second location even if nothing more had been done -- no permit is needed.  But in this case, the canal water would not have reached the lake except due to the pumping.
  • Are two navigable waters different so that moving pollutants from one body to another body is "a discharge of pollutants" requiring a permit?
  • NPDES pertains only to point sources of water pollution; not non-point sources.  Is this dictum?
  • The statutory language is ambiguous, so the court decision will be based on whether the regulation is a permissible construction of the statutory language?
  • The unitary waters theory (as expressed in the regulation) is reasonable (even though it is not the only possible interpretation of the statute).  Deference will be given to the agency interpretation (regulation).  No permit is needed when moving pollutant from one navigable water body to another navigable water body.  Only Congress with a legislative change or the EPA with a regulatory change will alter that outcome.

.

Other courts have not adopted the unitary water theory that the 11th Cir. adopted in Friends of the Everglades.

.

Based on the decision in Friends of the Everglades, a NPEDS permit is not needed for the state of North Dakota to pump water from Devils Lake into the Sheyenne River in an effort to lower or control the water level in Devils Lake.

.

The definition of "point source" does not apply to only the source of the pollution, but also the conveyance of the discharge.

"Waters of the United States" is broader than "navigable waters"; the CWA uses the broader terminology so the CWA applies to more than just navigable waters.

.

Are drains, such as drains of agricultural fields, point sources of water pollution requiring a NPEDS permit?  As a partial answer, a NPEDS permit is not required for discharges composed entirely of return flows from irrigated agriculture (33 U.S.C. 1342(l)(1) ).  Another piece to the puzzle:  an NPEDS permit is not required for municipal or industrial stormwater discharge (33 U.S.C. 1342(p)). Is field drainage a pollutant?  See N.D.A.C. 33-16-01-01(3)(t) and N.D.C.C. chap. 61-28 .

  • How about the definition of pollution -- N.D.A.C. 33-16-02.1-04(7)
  • Also see N.D.A.C. 33-16-02.1-08(1)(a) :  (3) Free from materials attributable to ... agricultural practices producing color, odor, or other conditions to such a degree as to create a nuisance or render any undesirable taste to fish flesh or, in any way, make fish inedible. (4) Free from substances attributable to agricultural practices in concentrations or combinations which are toxic or harmful to humans, animals, plants, or resident aquatic biota.

Based on these definitions, is it reasonable to determine that a NPEDS permit is NOT needed when a landowner applies for a North Dakota drainage permit?

.

Nonpoint source water pollution

The other source of water pollution is "non-point source water pollution", and production agriculture is a major contributor to non-point source water pollution (see p. 585, Grant's 8th Ed.). 

  • "Nonpoint source pollution [NPS] ... can be a variety of contaminants (e.g., sediments, nutrients, etc.) that are delivered to surface waters by way of runoff or leached downward into  groundwater. Some common sources of NPS pollution include urban streets and parking lots, construction sites, and agricultural lands."  See North Dakota Nonpoint Source Pollution Management Program Plan.

Non-point source water pollution is not regulated with a permitting process.  Instead, the Congressional approach has been to require each state to assess its non-point source water pollution issues and develop a management plan.

.

Is agricultural drainage a source of non-point source water pollution?  Is water quality a consideration in deciding whether a drainage permit should be granted?  Review N.D.A.C. 89-02-01-09.2

  • The board, for all applications to drain, shall consider the following factors:
    • The volume of water proposed to be drained and the impact of the flow or quantity of this water upon the watercourse into which the water will be drained.
    • Adverse effects that may occur to the lands of lower proprietors. This factor is limited to the project’s hydrologic effects such as erosion, duration of floods, impact of sustained flows, and impact on the operation of downstream water control devices.
    • The engineering design and other physical aspects of the drain.
    • The project’s impact on flooding problems in the project watershed.
    • The project’s impact on ponds, sloughs, streams, or lakes having recognized fish and wildlife values.
    • The project’s impact on agricultural lands.
    • Whether easements are required.
    • Other factors unique to the project.

.

Summary

Water quality under the federal Clean Water Act does not appear to be a consideration in determining drainage practices under North Dakota law.

 

 

Disclaimer

Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

This material is protected by U.S. copyright laws.

Creative Commons License
Feel free to use and share this content, but please do so under the conditions of our Creative Commons license and our Rules for Use. Thanks.