Legal Case Will Influence How Lawmakers Address Water Pollution
Over the past 30 years, Oklahoma and Arkansas have engaged in three legal cases over the quality of water that flows from northwest Arkansas into northeast Oklahoma. A legal scholar says the most recent conflict highlights an issue of national significance and will likely influence methods in which legislators and policymakers address water pollution.
“The legal cases between Oklahoma and Arkansas evolved from a conflict over point-source pollution involving municipal wastewater discharge to a conflict over nonpoint-source pollution in the form of nutrient runoff from poultry litter,” said Harrison Pittman, assistant research professor and director of the National Agricultural Law Center.
The Clean Water Act has led to improvements in water quality since Congress passed the legislation in 1972. Since that time, the focus has been to address water pollution from so-called “point sources,” which the law defines as “discernable, confined and discrete conveyances, including … any pipe, ditch, channel, tunnel, conduit, well … from which pollutants may be discharged.”
However, nonpoint-source pollution in the form of storm-water runoff from parking lots, fertilizers from lawns and golf courses, and nutrients from farms has emerged as the new challenge in addressing water quality.
Animal agricultural production, considered to be a source of nonpoint-source pollution, has changed during the past several decades. Since 1972, the number of hog, cattle, poultry and dairy farms has decreased dramatically, but the size of each farm has grown.
“A consequence of these structural changes is that extraordinary amounts of animal waste are produced in geographically limited areas,” Pittman said. “This waste must be disposed of or utilized somehow, and a traditional and common method is for producers to apply it to the land as fertilizer.”
The Clean Water Act addresses point-source and nonpoint-source pollution differently. Because nonpoint-source programs through the Clean Water Act are regarded as voluntary, that law is not the best means for addressing it.
“With respect to agriculture specifically,” Pittman said, “policymakers may begin to consider new policy approaches to addressing nonpoint-source pollution. Perhaps there’s a better way to address these problems without litigation or overly burdensome government regulation.”
Pittman suggests expansion of the Conservation Security Program, a voluntary, science and technology-driven federal program that provides financial and technical support to farmers and producers who initiate specific conservation practices in their agricultural operations. In addition to its environmental and financial benefits, the program could be viewed as a transition from traditional federal subsidization programs to the adoption of market-oriented policies that would comply with U.S. commitments to the World Trade Organization.
The paper was published in the Journal of Food Law and Policy.