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Nonpoint Source: Draft Proposed National Strategy for Strengthening Nonpoint Source Management

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Prepared for Presentation by EPA at the Wye River Conference Center to a Meeting of Stakeholders in the National Nonpoint Source Program on October 14, 1997

INTRODUCTION

In May 1996, the U.S. Environmental Protection Agency published, in close cooperation with the States, a national Nonpoint Source Program and Grants Guidance. That guidance expressed EPA's and the States' mutual commitment to achieve the vision that all States are implementing dynamic and effective nonpoint source programs designed to achieve and maintain beneficial uses of water. In the guidance, EPA committed to shift its role away from grants oversight and administration towards a partnership in which EPA would provide improved technical assistance and cooperation to help States implement well-designed programs.

As part of EPA's effort to help States improve nonpoint source program implementation, EPA has assisted the Association of State and Interstate Water Pollution Control Administrators to convene a two-day meeting of leading State, Federal, and private-sector groups that have significant roles to play in controlling nonpoint source pollution. The purpose of that meeting is to identify both the key activities that each organization is willing to enter into, or has entered into, to support effective State nonpoint source programs, and the priority concerns and needs that the organization has to assure long-term success in the partnership.

In its role as a partner to the States and as a source of technical assistance and funding, EPA proposes the programs and activities set forth in the following pages as the focus of EPA's contribution to assisting States in their efforts to control nonpoint source pollution. EPA believes that these actions will help pick up the pace of implementing successful nonpoint source control programs. The ideas discussed below represent a preliminary EPA draft. We intend to expand these ideas into a more complete and detailed draft and seek input from our many partners in nonpoint source control prior to finalizing this proposal.

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NONPOINT SOURCES: PICKING UP THE PACE

EPA's Draft Proposed National Strategy for Strengthening Nonpoint Source Management

OVERALL VISION

ALL STATES AND TRIBES, WITH THE ACTIVE ASSISTANCE AND PARTICIPATION OF ALL STAKEHOLDERS, ARE IMPLEMENTING DYNAMIC AND EFFECTIVE NONPOINT SOURCE PROGRAMS TO ACHIEVE AND MAINTAIN BENEFICIAL USES OF WATER BY THE YEAR 2013.

EPA'S PROPOSED NATIONAL STRATEGY

I. BROADEN CITIZEN AWARENESS. EPA will enhance Internet-accessible tools that it has created such as the Index of Watershed Indicators, Surf Your Watershed, and the Nonpoint Source Homepage. EPA will also increase its use of national media to promote citizens' awareness of the causes of nonpoint pollution problems and of solutions that they can help implement.

II. UPGRADE IMPLEMENTATION OF STATE NONPOINT SOURCE PROGRAMS.

A. Upgrade State 319 Programs: EPA will work with States to upgrade and implement their nonpoint source programs to meet nine key elements identified in national guidance as critical to effective State programs. (A national EPA-State meeting at the end October will focus on upgrading State programs.)

B. Implement CZARA Programs: EPA and the National Oceanic and Atmospheric Administration will work with the States to help them successfully implement their coastal nonpoint source pollution control programs under the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). EPA and NOAA have approved (with some conditions) more than half of the State programs and are rapidly proceeding to approve the remainder.

III. FORGE PARTNERSHIPS: EPA will work with the States to convene the Nonpoint Source Control Forum: Building Effective Partnerships. (See Attachment A on Wye River meeting that is initiating this effort.)

IV. STRENGTHEN FEDERAL PARTNERSHIPS.

A. Assist States with Federal Consistency Issues: Publish guidance to promote Federal consistency with State nonpoint source management programs. (See Attachment B.)

B. Convene a Federal Nonpoint Source Task Force: (See Attachment C.)

C. Develop Memoranda of Understanding (MOUs) with Federal Agencies:

  1. EPA-Federal MOUs: EPA will work with our Federal partners to establish EPA-Federal MOUs to promote Federal consistency with and support for State programs; promote enhanced use of Fedplan (the Federal Agency Environmental Program Planning Guidance) to help ensure that Federal agencies plan and budget for nonpoint source pollution control activities; and provide a framework for State-Federal MOUs.
  2. State-Federal MOUs: EPA will work with our Federal partners to establish model State-Federal MOUs that take the best components of existing State-Federal MOUs that may be used as templates for new or upgraded MOUs. These will be designed to improve communications and working relationships and promote consistency between State and Federal programs that are implemented within the State.

D. Section 401 Certification: Working with our State and Federal partners, EPA will consider the development of revised regulations and/or guidance on State certification under Section 401 of the Clean Water Act.

V. TARGET TO RISK:

A. Enhance the "Total Maximum Daily Load" ("TMDL") Program

  1. Implement August 8 TMDL Guidance. EPA will work closely with States and other partners to assure implementation of the new August 8, 1997, guidance to: (a) expeditiously develop TMDLs for waters affected by nonpoint sources, including especially those waters that are impaired solely or primarily by nonpoint sources, and (b) significantly and rapidly expand implementation activities to solve water quality problems caused by nonpoint source pollution as identified in the TMDL development process.
  2. Improve Identification of Water Impaired by Nonpoint Sources. EPA will work with States to improve the identification and location of waters that are impaired or threatened by nonpoint sources. EPA will complete activities to georeference waters listed under Section 303(d) and improve identification of nonpoint pollution sources causing the impairment or threat.
  3. Provide Improved Technical Tools and Training. EPA will develop and disseminate improved technical tools on NPS screening, modeling, monitoring, and management measure selection to enable the expedited development and implementation of better-quality TMDLs for nonpoint sources. Continue to improve BASINS; provide detailed methodologies and protocols for developing TMDLs for nutrients, sediment, pathogens, and variable flow issues; and provide guidance on how to achieve "reasonable assurance" that nonpoint source load reductions included in a TMDL will be achieved.
  4. Publish a National Management Measures Guidance. Based on the most current information, this guidance would identify the best available, economically achievable measures to control nonpoint source pollution. It would include information on the best practices that can be used to achieve the measures in a variety of settings and would summarize available information on the effectiveness and cost of these practices. The guidance would be developed for informational purposes to assist States in implementing more effective nonpoint source programs. It would not have any independent regulatory effect.

B. Create and Promote Enhanced Water Quality Standards.

  1. Improve Water Quality Standards.
  1. Nutrients. EPA will continue work begun to develop protocols and methodologies to assist States in developing appropriate water quality standards for nutrients. Where feasible, work with States to develop numerical criteria (specific numbers or ranges) that apply to defined geographic areas.
  2. Sediments and Pathogens. EPA will begin work to assist States in addressing the need for water quality standards that are needed to address these prevalent and significant nonpoint source pollutants that to date are not adequately covered by State water quality standards.
  1. Strengthen Antidegradation Policy. EPA will publish an advanced notice of proposed rulemaking (ANPR) that seeks public comment on how to improve implementation of the antidegradation regulation. The current regulation provides that, in allowing any degradation of water exceeding standards, the State shall assure that there shall be achieved "all cost-effective and reasonable best management practices for nonpoint source control." This discussion would propose that States would specifically identify programs and authorities that will be used to make this assurance before making any decision to increase point source loadings to a waterbody. Where a state fails to adopt adequate antidegradation regulation and implementation methods, EPA would promulgate them.

C. Enhance Protection of Drinking Water Supplies.

  1. Prioritize Source Water Assessments. EPA will develop guidance to encourage States to place top priority on early completion of source water assessments for those source waters that are identified on 303(d) lists and do not receive filtration. Information contained in source water assessments, including maps that identify areas where pollution sources are located, will be shared with TMDL program administrators (and vice versa). These areas will be georeferenced.
  2. Protect Sole Source Aquifers. EPA will promote State incorporation of sole source aquifer protection into State nonpoint source management programs to assure that they are eligible for Section 319 funding and that they can be protected through Section 319 reviews of Federal financial assistance programs that may be inconsistent with State programs to protect sole source aquifers from nonpoint source pollution.

D. Develop Air Deposition Reduction Strategies. EPA will focus on protecting impaired or sensitive waters through the implementation and enforcement of pertinent Clean Air Act authorities for nitrogen and nitrogen compounds. Implementing new national ambient air quality standards for nitrogen compounds will both reduce nitrogen inputs to waterbodies and have a beneficial effect on air quality by reducing precursors to ozone.

VI. ESTABLISH AND UTILIZE REGULATORY AUTHORITIES.

A. Promote General State Enforcement Tools.

  1. Identify and Analyze Existing State-enforceable authorities: EPA will disseminate and publicize the findings of a soon-to-be-completed Environmental Law Institute report on the extent to which States currently have authorities to assure implementation of measures needed to control nonpoint source pollution and achieve water quality standards. These findings will be followed by an analysis of the relative effectiveness of different State approaches to enforcement of nonpoint source requirements, including "bad actor" laws, enforceable water quality standards, specific performance standards, and innovative approaches.
  2. Promote Strengthened State Enforcement Authorities: EPA will promote the establishment and utilization by all States of strengthened State authorities for implementing nonpoint source controls needed to attain water quality standards where necessary implementation is not taking place.
  3. Assist States to implement CZARA Programs Backed by Enforceable Policies and Mechanisms: EPA, together with the National Oceanic and Atmospheric Administration, will work with coastal States assure that their coastal nonpoint pollution control programs under Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) include adequate enforceable policies and mechanisms to assure implementation of their management measures.

B. Strengthen Federal and State Regulatory Tools to Address Animal Waste.

  1. Strengthen Current NPDES Regulations for Animal Waste Discharges
  1. EPA will expand the scope of regulatory requirements to address land application of animal waste.
  2. EPA will expand the applicability of effluent guidelines to smaller facilities, based on a review of technical, economic, and water quality factors.
  1. Implement Existing NPDES Authorities More Effectively. EPA will use its "case-by-case" permitting authority to issue NPDES permits to smaller animal waste facilities that are "significant contributors of pollution to waters of the U.S.", focusing on watersheds where waters have been identified (e.g., in State reports under Section 303(d)) as impaired by animal waste.
  2. Strengthen the NPDES Enforcement Program for Concentrated Animal Feeding Operations. Finalize EPA's Animal Feeding Operations Strategy, including the portion that addresses the regulatory program that has been established for "concentrated animal feeding operations" ("CAFOs"). EPA's and States' permits and enforcement programs will work jointly to assure the issuance of "case-by-case permits" to significant small facilities and to follow up with appropriate inspection and enforcement activity.

C. Strengthen Current NPDES Regulations for Urban Runoff.

  1. Broaden Coverage of Construction Site Requirements by reducing the current threshold for applying NPDES permit requirements for erosion and sediment control from 5 acres to 1 acre.
  2. Address Post-Construction Impacts by promulgating stormwater regulations under the NPDES permit program that require the inclusion of site-appropriate and cost-effective structural best management practices ("BMPs" such as wet ponds or low impact development techniques that infiltrate stormwater on site) and non-structural BMPs (e.g., zoning techniques to protect open space and maintain infiltrative capacity) to address the significant long-term effects of urban development on water quality.
  3. Reduce Erosion From Unpaved Roads that are currently not covered by the NPDES stormwater regulations, using a watershed approach to identify areas where NPDES coverage is warranted.

VII. DEVELOP AND PROMOTE FINANCIAL TOOLS TARGETED AT ACHIEVING WATER QUALITY IMPROVEMENT

A. Increase Funding for the Environmental Quality Incentives Program (EQIP). Work with the U.S. Department of Agriculture to develop a proposed approach to provide enhanced funding for EQIP (currently funded annually at $200 million) to enable more rapid support for agricultural producers' actions that will protect water quality. The funding should be targeted towards both high-priority watersheds (including those listed as impaired or threatened waters under Section 303(d)) and high-priority activities that would have broad benefits (e.g., protection of riparian areas).

B. Target State Revolving Loan Funds to Address Priority Water Quality Problems. Develop guidance that strongly encourages States to use their revolving loan funds under both the Clean Water Act and Safe Drinking Water Act to address their highest priority water quality problems, including nonpoint source problems. Monitor progress under the Government Performance and Results Act by quantifying over time the number of stream segments showing water quality benefits as the result of State revolving fund investments. Furthermore, by the end of the year 2000, achieve a goal that 50% of the States are implementing integrated priority-setting systems to make clean water funding decisions.

C. Increase 319 Funding: Develop a proposal to increase funding support for State and Tribal nonpoint source programs under Section 319 of the Clean Water Act.

D. Target the 10% Set-aside from the source water state revolving loan fund under the Safe Drinking Water Act to effective programs that protect sources of drinking water from nonpoint source pollution. This set aside ($130 million in Fiscal Year 1997), made available to States in the form of grants, should be used in coordination with Section 319 grants, the State revolving loan funds, and other Federal and State funding sources.

VIII. EVALUATE AND MEASURE PROGRESS

A. Government Performance and Results Act:

  1. Monitor and assure achievement of GPRA goal that "By 2005, nonpoint source sediment and nutrient loads to rivers and streams will be reduced. Erosion from cropland, used as an indicator of success in controlling sediment delivery to surface waters, will be reduced by 20% from 1992 levels."
  2. Monitor and assure achievement of GPRA goal that, by 2006, we will reduce releases of targeted toxic pollutants that contribute to air deposition by 50-75% and reduce air deposition of nitrogen by 10-15% from 1980 levels, and improve our understanding of, and cross-media responses to, the sources, pathways, and effects of airborne sources of air pollutants deposited on waterbodies and watersheds.

B. Section 305(b) Report: Work with States to improve 305(b) reports to provide more comprehensive national coverage of all waterbodies, provide more precise locational information on the waterbodies and where impairments occur, and make the information more accessible to the public.

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Attachment A
WYE RIVER MEETING ON NONPOINT SOURCE

TITLE: NPS CONTROL FORUM: BUILDING EFFECTIVE PARTNERSHIPS

Vision: Build partnerships among various stakeholders needed to create and implement State NPS programs that can achieve and maintain beneficial uses of water

Goals:

  1. Promote enhanced development of State NPS programs to solve priority WQ problems efficiently and effectively
  2. Increase stakeholder involvement and support at the State and local level

Invitees: Representatives of the leading groups that influence NPS implementation, including States agencies (e.g., agriculture, forestry, water quality, drinking water); Federal agencies (e.g., NRCS, FS, BLM); commodity and industry groups (e.g., Nat'l Pork Producers Assn., Nat'l Cattlemens' Beef Assn., Nat'l Farm Bureau Fed., Nat'l Forest Products Assn., Nat'l Home Builders Assn.); and citizens and environmental groups (e.g., Trout Unlimited; NRDC)

Outline of Approach:

  1. EPA, USDA, and the States will deliver initial addresses and thus set a tone for the remainder of the meeting.
  2. Each participating group will be provided a brief opportunity to discuss the group's (a) concerns with regard to nonpoint source pollution control; (b) commitments they are willing to enter into (and have entered into) in support of the Vision Statement above; and (c) issues that need to be addressed to assure the group's efforts are successful.
  3. The attendees will discuss how the various commitments fit together, identify gaps, and discuss how the attendees' organizations can work together to successfully implement NPS solutions, both nationally and at the State level.
  4. The attendees will discuss how to facilitate the replication of this process within each State, so that the same groups (commodity and industry groups, states, feds, and environmentalists) come together within each State to identify gaps and make commitments to fill them.
  5. The attendees will develop a long-term process to implement agreements and track our progress over time.

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Attachment B
Section 319 Federal Consistency Guidance

I. Background

  • Section 319(b)(2)(F) authorizes each State to review Federal assistance programs and development projects for consistency with the State nonpoint source management program.
  • According to Section 319(k), Federal agencies must make efforts to accommodate the State's concerns or explain their decision not to in accordance with Executive Order (EO) 12372.
  • As part of the 1997 Nonpoint Source Program and Grants Guidance, States are currently upgrading their nonpoint source management programs to incorporate nine key elements. One key element (#7) is the identification of Federal lands and objectives which are not managed consistently with State program objectives.
  • At the request of the State nonpoint source agencies, EPA agreed to assist States with use of the Federal consistency provisions found in Section 319 of the Clean Water Act. We are drafting guidance for use of the consistency provision (discussed below) and have formed a Federal nonpoint source task force (discussed in a separate paper).
  • The ability of a State to ensure Federal consistency will depend on the clarity and specificity of the management program.

II. Current Status

  • In June 1997, EPA drafted guidance for use of the Federal consistency provisions. The guidance clarifies:
  1. the States' role in identifying programs and informing Federal agencies about their review process,
  2. Federal obligation to accommodate State concerns or explain their decision not to accommodate those concerns, and
  3. EPA's role in assisting States and Federal agencies with conflict resolution.
  • The draft guidance has been circulated to EPA Regions I-X, various EPA offices (e.g., OFA, OPPE), State nonpoint source coordinators, and select Federal agencies. Comments have been generally positive. We are preparing a Federal Register notice for public comment.

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Attachment C
Federal Nonpoint Source Task Force

Membership: DOD, NPS, FWS, TVA, FSA, BLM, DOT, BuRec, FS, COE, NRCS, NOAA, BIA, DOE, EPA (Mid-level program managers - Division Director level)

Logistics: Federal NPS Task Force will meet periodically. Meeting chair, location, agenda and will be rotated amongst the agencies. Subgroups may form on specific issues. First meeting was held on September 15, 1997.

Mission of the Federal NPS Task Force:

  • To improve nonpoint source water-quality protection nationwide.

Purpose and Functions of the NPS Task Force are to:

  • Improve communication and collaboration among Federal agencies at headquarters and field levels to make better use of existing authority, technology and resources to prevent and reduce nonpoint source pollution.
  • Make it easier for other levels of government, users of Federal land, and adjacent land owners to work with Federal agencies to improve nonpoint source conditions nationwide. Integration of private and public lands management strategies to provide consistent and comprehensive NPS coverage
  • Work together to help State/Tribal agencies effectively carry out their nonpoint source responsibilities under the Clean Water Act, CZARA, SDWA and other laws. This will include enhanced outreach to state/tribal agencies, stakeholders and the general public about federal NPS programs and their respective roles.
  • For impaired watersheds that have significant Federal lands or interests, work together to identify and share available information, establish common objectives and related program priorities and implement solutions to NPS problems and threats.
  • Demonstrate innovative management strategies and public/private partnership arrangements to improve nonpoint source water quality conditions. This may include collaboration on research and the development and implementation of monitoring and assessment methods for NPS pollution.

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