Pursuant to Federal regulations, North Dakota has developed and is currently executing its Nonpoint Source Pollution Management Program Plan, designed to address certain issues of nonpoint source pollution through watershed restoration.
Nonpoint source pollution is defined as, “any source of water pollution that does not meet the legal definition of "point source" in section 502(14) of the Clean Water Act.”[i] Point source pollution is defined as water pollution resulting from “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,” but it does not include agricultural storm water discharges or irrigation return flow.[ii] An example of nonpoint source pollution found in North Dakota would be runoff from a barnyard. Congress has reserved the regulation of point source pollution to the Environmental Protection Agency, but the regulation of nonpoint source pollution has been left to the states.
Each state is required to submit a management program to EPA, “for controlling pollution added from nonpoint sources to the navigable waters within the State and improving the quality of such waters.”[iii] North Dakota's “Nonpoint Source Pollution Management Program Plan,” finalized in April 2010, has the long-term goal of “initiating 20 watershed restoration projects by 2015,” with many of those projects likely to be completed around 2021-2024.[iv] Rather than cutting off nonpoint source pollution entirely, these programs focus on rehabilitating the waters, lands, and habitats that have been impacted by decades of nonpoint source pollution, and North Dakota has created some rather lofty goals for restoring the state’s watersheds.
In approximately one year, North Dakota had two successful watershed restoration projects under its belt, the Bowman-Haley Watershed Restoration and the Cannonball River Watershed Restoration, both located in the Southwestern part of the state.[v] The Bowman-Haley project, “Created 40 wetlands, enhanced 10 miles of instream/riparian habitat, restored water quality to [the] watershed, installed 25 permanent waterfowl nest structures, developed a 420-acre CRP grazing demonstration cite . . . [and effectuated] 20 to 30-year Wildlife Extension Agreements.”[vi] Meanwhile, the Cannonball River project, “restored 15 wetlands, created 179 wetlands, enhanced 45 miles of instream/riparian habitat, installed 26 permanent waterfowl nesting structures, [and effectuated] 20 to 30-year Wildlife Extension Agreements.” Id. There is no doubt that such results fall squarely within North Dakota's Management Plan purpose to “protect or restore the chemical, physical, and biological integrity of the waters of the state by promoting locally sponsored, incentive based, voluntary programs where those waters are threatened or impaired due to nonpoint sources of pollution.”[vii]
While these programs appear to have been successful, it seems unlikely that the programs will see similar successes in other parts of the state, where land and commodities prices are at a premium. Not only does maintaining farmland, let alone development in the Western part of the state, mean less land available for watershed restoration, it means that nonpoint source pollution will continue. The most difficult part in regulating nonpoint source pollution is that mostindividualscausing the pollution are not violating the law. For example, farmers who spray their crops with pesticides are not violating a law by doing so, but those pesticides may eventually pollute certain waters through runoff. Environmental concerns are numerous, and rightly so, but a law-abiding landowner's legal right to the “free use and enjoyment of his land” cannot be ignored. North Dakota's use of incentive-based programs is just one way that states are attempting to lure farmers and livestock owners into the clean water discussion. The agriculture community may eventually come around and be more open to a compromise such as grazing/wetland rotation[viii], but North Dakota has much work left to do in order to realize its conservation goals.
With an abundance of energy production in North Dakota, in seems highly unlikely that the goals of watershed restoration would be forsaken for the development of hydroelectric systems within the state.
[i]“What is nonpoint source pollution?” (April 30, 2011) http://water.epa.gov/polwaste/nps/whatis.cfm.
[iv]N.D. Dep't. of Health: ND Nonpoint Source Pollution Management Program Plan: 2010-2015, p. 2 (Apr. 2010).
[v]U.S. Fish and Wildlife Service: Habitat Restoration Projects, (May 2, 2011) http://www.fws.gov/mountain-prairie/pfw/nd/nd5.htm.
[vii]ND NPS Management Plan, p. 2.
[viii]see U.S. Fish and Wildlife Service: Farm Conservation Plans – a “Mini-Joint Venture”, (May 2, 2011) http://www.fws.gov/mountain-prairie/pfw/nd/nd52.htm.
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