FAYETTEVILLE, Ark. – 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 University of Arkansas legal scholar says the most recent conflict, despite its regional nature, highlights an issue of national significance and will likely influence methods in which legislators and policymakers address water pollution in the United States in coming years.

“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 at the University of Arkansas. “In light of three decades or more of significant structural changes in the animal agricultural production system, this shift from point source to nonpoint source mirrors the evolution of how water quality has been addressed since the enactment of Clean Water Act.”

As the principal law for addressing pollution of the nation’s streams and lakes, the Clean Water Act has led to significant improvements in water quality since Congress passed the landmark legislation in 1972. Since that time, the primary 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, as Pittman mentioned, pollution of rivers and lakes today is vastly different than in 1972. Today, nonpoint-source pollution in the form of storm-water runoff containing oil and grease from parking lots, synthetic chemicals and fertilizers from lawns and golf courses, and nutrients such as nitrogen and phosphorous from farms has emerged as the new and more difficult challenge in addressing water quality throughout the United States. The Environmental Protection Agency has estimated that nonpoint-source pollution is the main reason that approximately 40 percent of surveyed lakes, rivers and estuaries are not clean enough to meet basic uses such as fishing or swimming.

Agriculture is widely considered to be a significant source of nonpoint-source pollution. One reason for this is that animal agricultural production, along with the rest of the nation’s economy, has gone through profound changes during the past several decades. Since 1972 – the year the Clean Water Act was enacted – the number of hog, cattle, poultry and dairy farms has decreased dramatically. For example, in 1972, there were approximately 750,000 hog farms in the United States. By 2001, there were only 80,000. Since the early 1900s, the poultry industry has transformed from a virtually house-by-house enterprise that fed immediate family and local markets to specialized hatchery and broiler operations that annually produce 72 billion eggs and 900 million birds for meat. While the number of operations has decreased significantly, the number of animals produced within these operations – both hog and poultry – has dramatically increased.  

“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.”

Application of a large amount of waste, which contains nutrients nitrogen and phosphorous, in concentrated areas can lead to over-application, wherein the soil cannot process all nutrients. Precipitation then carries the excess waste into streams and lakes, where the nutrients can stimulate aquatic plant life, which can lead to depleted oxygen levels and inferior water quality, a process known as eutrophication.

The Clean Water Act addresses point-source and nonpoint-source pollution differently, which, Pittman said, may explain why plaintiffs have turned to litigation involving new legal theories, such as the use of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the “Superfund” law, to address concerns over nonpoint-source pollution such as nutrient runoff from animal waste. Because nonpoint-source programs through the Clean Water Act are regarded as voluntary, that law may not be the best primary means for addressing nonpoint-source pollution in the form of nutrient runoff from poultry litter and other animal wastes.

“With respect to agriculture specifically,” Pittman said, “policymakers may begin to consider new policy approaches to addressing nonpoint-source pollution, particularly if they conclude that addressing the issue through region-based litigation may not be the most effective tool to address a national issue. The thought might be that perhaps there’s a better way to address these problems without litigation or overly burdensome government regulation.”

As an alternative, 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. 

“Linking this approach with some type of comprehensive watershed management system may be a new paradigm in which policymakers can address nonpoint-source pollution from agriculture,” Pittman said.

Pittman’s paper was published in the Journal of Food Law and Policy.