Abstract

The primary policy instrument for promoting and regulating surface water quality in the United States is the Clean Water Act. Under a system of cooperative federalism, the implementation of this policy involves state and federal agencies. This article will review current controversies over the Clean Water Act, including the definition of the “waters of the USA,” and the use of narrative ambient water quality standards. The case studies of North Dakota and Minnesota are enlightening because they have distinct economies with different water management priorities. Minnesota demonstrates that local demands for water quality can lead to extra effort and innovation. North Dakota continues to be more concerned with water quantity issues and flood mitigation. Despite states’ efforts to manage water quality to suit their own needs, interstate water quality concerns, especially excess nutrients, remain a concern.

Introduction

One of the key challenges in water resource management is maintaining the quality of surface water bodies. In the United States, efforts to reverse the decades-long degradation of rivers and lakes from biological and industrial pollution produced dramatic improvements in the late twentieth century (Environmental Protection Agency [EPA], 2002). However, evidence of increased hypoxic zones in coastal areas and the Great Lakes has demonstrated that water quality still needs improvement (Committee on Environment and Natural Resources, 2010; Laurent and Fennel, 2019).

The primary policy instrument for promoting and regulating surface water quality in the United States is the federal Clean Water Act (CWA). The CWA specifies state and federal roles in surface water quality management and the regulation of point-source discharges. Under a system of cooperative federalism, the implementation of the CWA involves both state and federal agencies, especially the Environmental Protection Agency (EPA). Some of this collaboration has proceeded without controversy, especially when Federal dollars have supported state and local efforts (EPA, 2021; Kerr, 2014). However, controversy about the extent of federal jurisdiction under the CWA has persisted, especially with the highly disputed definition of what are the “waters of the USA” (Adkison, 2015; Adler, 2019; Hawkins, 2015; Ryan, 2016).

There are several important economic justifications for the federal role in maintaining water quality. One is the transportability of water pollution across states. An upstream state may have little incentive to maintain water quality if its polluted water is flushed downstream. Also, a national system of water quality maintenance will prohibit one state from gaining a comparative advantage in reduced production costs through lax pollution regulation. Although states can establish their own ambient water quality standards, these need review and approval by the EPA (Malloy, 2011). Another advantage of a national system of pollution monitoring and regulation is that the technologies and expertise in public sector monitoring and enforcement and private sector compliance have a national market. This is particularly pertinent when technology-based discharge standards foster the development of pollution control technologies.

The initial implementation of the CWA resulted in great success in permitting, regulating, and treating discharges from point sources, which are generally easy to identify. Reducing emissions from nonpoint sources, which do not have a specific origin, has been much less successful. Much of this nonpoint-source pollution comes from agriculture, which has been the leading cause of impaired rivers and lakes in the United States. Nonpoint sources contribute nutrients, sediment, and oxygen-depleting substances (Glicksman and Batzel, 2010; Secchi and McDonald, 2019). Nutrient pollution results from high concentrations of phosphorous and nitrogen and results from fertilizer application (Adler, 2012; Shortle et al., 2001).

The EPA is tasked to ensure that states maintain minimal water quality standards. The CWA does allow states to pursue a strategy of relatively stringent environmental controls, in order to attract wealthy residents or tourists. But EPA supervision encourages uniform state laws. This uniformity may discourage innovative state policy making that may lead to improved results (Malloy, 2011). Also, federal government supervision of state programs may be more applicable in an environment where technical expertise is concentrated in federal agencies. This was the case for much of the early history of the US Army Corps of Engineers (USACE). However, state agencies have expanded their capabilities and state governments may feel independent of federal oversight (Hearne and Prato, 2016; Niebling et al., 2014). Despite a uniform structure of water quality regulation. states often have heterogenous implementation, including designating the same interstate waterway for separate purposes. Furthermore, states have discretion in how stringently they monitor and enforce ambient water quality standards and point-source discharge standards (Helland, 1998; National Research Council [NRC], 2008).

This article will review current controversies over the Clean Water Act and how collaborative federalism in water quality policy is implemented in two neighboring upper-basin states. The case studies of North Dakota and Minnesota are enlightening because these states have distinct economies, distinct demands for water quality, and different water management priorities. The next section provides a review of ongoing controversies in the implementation of the CWA. This is followed by case studies of water quality management and implementation of the CWA in Minnesota and North Dakota. A subsequent discussion section links the case studies to interstate water quality issues. The conclusion provides policy insights.

Background

The 1972 Clean Water Act (CWA) was an amendment to the Federal Water Pollution Control Act of 1948. The existing water quality policy was deemed to be too reliant on state implementation and ultimately ineffective (Downing et al., 2003). The 1972 legislation, with the objective “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters” (Federal Water Pollution Control Act of 1972), greatly increased the federal role in water quality oversight. The CWA stipulated federal supervision of state water quality programs and provided a mandate for the newly created EPA, which was to oversee a system of locally designated surface water quality standards, ensure the regulation of point-source discharges into surface waters, and subsidize the construction of municipal wastewater treatment plants. Also, under the CWA, the EPA and the USACE established a system to permit discharges of “dredge and fill” material into surface waters.

The CWA maintained the states’ traditional authority “to allocate quantities of water within its jurisdiction” (Federal Water Pollution Control Act, 33 U.S.C. § 1251–1376 (1972)). It also asserts that it is the states’ responsibility to reduce water pollution and provided a structure for state and federal collaboration in water quality regulation. Land use regulation was maintained as a state responsibility. Under cooperative federalism, the CWA established a structure for state implementation of federal policy, with federal supervision and financial support. The CWA requires point sources to be permitted, but states can implement the permitting, under EPA supervision. The CWA requires states to designate the uses of surface water bodies and to set water quality standards for these waters. The EPA has oversight authority over these ambient water quality standards (Glicksman and Batzel, 2010; Kerr, 2014; Malloy, 2011).

The CWA passed through Congress with overwhelming bipartisan support (Simon, 2019). However, Congress did a poor job of defining the law’s scope. Despite Representative John Dingell’s explanation that Congress’ intent was to regulate “all ‘the waters of the United States’ in a geographic sense … not… ‘navigable waters’ in the technical sense” (Squillace, 2012, 34), the law did not provide a definition of the “Waters of the US” (WOTUS). Instead, the EPA, the USACE, and the courts were left to wrangle over the extent of federal jurisdiction for the next 50 years.

Much of the controversy over WOTUS has focused on Section 404 of the CWA, which specifies that the USACE and the EPA permit dredge-and-fill discharges. These activities are generally associated with development of wetlands, channel stabilization, and port construction and maintenance. Section 404 is one of the Federal government’s primary tools for protecting wetlands (Votteler and Muir, 1996). Since the 1970s, several key court cases and EPA and USACE rulings have attempted to refine the definition of WOTUS. The role of the agencies in defining WOTUS was indirectly supported by the US Supreme Court (SCOTUS) in the 1984 Chevron USA v. Natural Resources Defense Council ruling. But the agencies’ definitions of WOTUS, and the corresponding determinations of the scope of their regulatory power, have been called regulatory overreach (Adler 2019). Indeed, in the 1970s and 1980s, the agencies’ definitions of WOTUS included intrastate wetlands and shallow pools of water potentially used for out-of-state recreators and waters used for irrigation (Downing et al., 2003). In 1985 in United States v. Riverside Bayview Homes the SCOTUS decided that wetlands adjacent to navigable waters were WOTUS (Ryan, 2016; Worth, 2016). In the 2001 Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers decision the SCOTUS decided that isolated surface waters that are habitats for migratory birds did not meet the required “significant nexus” connectivity to be WOTUS (Adkinson, 2015; Adler, 2019; Newman, 2017; Squillace, 2012).

The “significant nexus” test reemerged in the split 2006 SCOTUS opinion in Rapanos v. United States. In this case, a wetland abutted a ditch that eventually flowed into navigable waters at least 18 km away. This high-profile case featured 40 amicus curiae briefs, including one from 33 states. This brief stated that wetlands adjacent to non-navigable tributaries were WOTUS and that their inclusion in WOTUS was necessary for proper maintenance of water quality by state and federal agencies (Cox et al. 2006) . Four justices sided with the government’s argument that the connectivity was sufficient for regulatory purposes. Four justices concurred with Justice Scalia’s opinion that favored the plaintiffs and would limit regulatory authority to wetlands with continuous connection to navigable waters. This opinion stressed that the CWA empowered the EPA and states to regulate water, but not land. Justice Kennedy sided with the plaintiffs, thus forming a majority with Justice Scalia’s signatories, but suggested that CWA regulation was valid for impermanent connections to navigable water if a “significant nexus” existed (Adkison, 2015; Bickett, 2007; Thomas, 2018).

After the Rapanos ruling, the EPA and the USACE released a 2007 memorandum to be used in implementing the CWA in accordance with SCOTUS decision (EPA and USACE, 2007). This definition complied with Riverside Bayview Homes and the SWANCC rulings. It also complied with Justice Kennedy’s deciding opinion in Rapanos. Later in 2015, after an extensive scientific review of the types of waters that could meet the “significant nexus” test, the EPA and USACE released a very similar definition of WOTUS (EPA, 2015; EPA and USACE, 2015; Rains et al., 2016). Both agency rules featured (1) a set of waters included in WOTUS, including navigable waters, permanent and impermanent tributaries of navigable waters, and adjacent wetlands; (2) a set of nonjurisdictional waters, including most ditches; and (3) a set of impermanent waters and wetlands to be reviewed on a case-by-case basis to determine a “significant nexus” to WOTUS.

Although the 2015 rule was very consistent with the 2007 memorandum, it was severely criticized as a “power grab” (Hopkinson, 2015). Soon after the 2016 election, the Trump Administration initiated the process of repealing the 2015 rule and establishing a new definition of WOTUS that conformed to Riverside Bayview Homes, SWANCC, and the Scalia opinion in Rapanos (Adler, 2019). The 2020 County of Maui v. Hawaii Wildlife Fund SCOTUS opinion, which ruled that groundwater with direct linkage to navigable waters is WOTUS, demonstrates that the dispute over WOTUS is expected to continue (Liptak, 2020).

Another issue of recent controversy is the development of numerical nutrient ambient water quality standards. The issue of EPA oversight of state surface water quality standards emerged after a 1998 EPA National Nutrient Strategy was released (EPA, 1998). The document stated that excess nutrients in surface waters were a leading cause of the growth of large hypoxic zones in the Gulf and Mid-Atlantic coasts. The strategy proposed to address this poor water quality was to have states rewrite their narrative water quality standards and adopt numerical standards specifically addressing nutrients. Under the CWA, the EPA has supervisory authority over the establishment of state ambient surface water quality standards and was tasked to support state programs with research and technical support. However, as the ambitious goals established under the CWA remained elusive and hypoxic zones became more problematic, the effectiveness of state narrative water quality standards was in doubt. These narrative standards are not easily quantifiable and feature vague phrases mandating that waters be “fishable and swimmable,” (EPA 2021, Section 13), free of “nuisance levels of odor,” and “free from substances in amounts toxic to humans or aquatic life” (EPA, 2021, Section 16). The EPA strategy proposed that states adopt numerical standards by 2003. This would allow the establishment of baselines and the measurement of improvements in water quality. But despite this requirement, no state adopted numerical criteria until 2012, and as of 2020 only 30 states have developed any numerical nutrient criteria (EPA 2020b; Kern, 2014; Malloy, 2011).

The growth of algal blooms in Florida and its poor surface water quality led environmental groups to sue the EPA because it failed to require numerical standards. While the suit, Florida Wildlife Federation v. Jackson, was pending, the EPA determined that Florida’s narrative criteria were inadequate and proceeded to develop its own numerical criteria for Florida. This EPA effort was challenged in the courts by Florida and over 30 parties. Later in 2011, the EPA agreed to allow Florida to use its own numerical water quality criteria and subsequently released a memo signaling that it would refrain from forcing numerical criteria upon the states (Kern, 2014).

In a similar action, in 2008, environmental groups petitioned the EPA to impose numerical criteria upon Mississippi basin states to alleviate hypoxia in the Gulf of Mexico. In 2012, this coalition of environmental groups sued the EPA for inaction. The EPA, supported by 13 basin states, argued that the CWA did not force it to override state criteria. The suit failed and the relatively active Obama administration EPA maintained its fealty to cooperative federalism and refused to use its supervisory role to supplant states’ narrative water quality criteria (Kern, 2014; Konisky and Woods, 2016).

Case study of the Clean Water Act in Minnesota and North Dakota

Minnesota and North Dakota are adjoining states in the middle of the North American continent. They share a similar temperature and flat topography. Most of Minnesota is humid, with an average annual precipitation of 68.58 cm. Humidity declines from east to west, and annual average precipitation for eastern and western North Dakota is 53.34 and 40.64 cm, respectively (Current Results, 2021). Both states can be considered to be upstream states. Water in Minnesota drains into the Gulf of Mexico, the Great Lakes, and Hudson Bay. In North Dakota water drains into Hudson Bay and the Gulf of Mexico.

Both Minnesota and North Dakota are part of the “prairie pothole region” where retreating glaciers left poorly drained prairie grasslands with many shallow pools of water (see Figure 1). This wetland ecosystem is important for migratory waterfowl as well as temporary storage of snowmelt (EPA, 2020a; van der Valk and Pederson, 2003). Due to flat terrain and spring snowmelt, both Minnesota and North Dakota are susceptible to spring flooding. The Red River of the North, which forms the border between the two states, features a flat terrain, a northerly flow, and problematic spring floods (Hearne, 2007).

Figure 1 Map of Minnesota and North Dakota with Prairie Pothole Region.

Figure 1 Map of Minnesota and North Dakota with Prairie Pothole Region.

Close modal

Although the physical geography of these states is mostly similar, the population and economies are quite different. Minnesota has a 2019 population of 5,639,632, of which 73.3% live in urban areas. The large metropolitan area of Minneapolis and St. Paul has a population of 3,640,041 (Iowa Community Indicators Program, 2020; US Census Bureau, 2020a; US Census Bureau, 2020b). Minnesota’s 2019 per capita GDP was $60,066, with 2.3% coming from farm production and 1.2% coming from mining (Statista, 2020a). Minnesota has over 103,000 km2 of farmland and 2,280,000 head of cattle. Principal crops are corn and soybeans (National Agricultural Statistics Service, 2019a). North Dakota’s 2019 population of 762,092 is 60% urban (US Census, 2020b). Much of North Dakota’s urban population lives in small cities that provide services to the surrounding rural areas. Its 2019, per capita GDP was $70,991, with 7.5% coming from farm production and 15.7% coming from mining (Statista, 2020b). This large contribution from mining comes from the rapid expansion of the Bakken shale oil deposits after 2010. North Dakota has 159,000 km2 in farm operations and 1,900,000 head of cattle. Principal crops are corn, soybeans, and wheat (National Agricultural Statistics Service, 2019b). The differences in urban population and economic activity are key, given that urban and suburban residents are more likely to perceive the physical environment as to be enjoyed in recreation and preservation, while rural residents, especially those engaged in agriculture and mining, may perceive that their livelihoods are threatened by environmental regulation (Helland, 1998).

Of great importance to water use is the culture of waterborne recreation in Minnesota. The state’s lakes are popular vacation destinations. Fishing is very popular. Of the 10 states with the most fishing licenses sold, Minnesota has the most licenses per capita (U.S. Fish and Wildlife Service, 2020). Minnesota is in the top seven states for boating and fishing value added, and approximately 2.7% of state GDP comes from outdoor recreation (Bureau of Economic Analysis, 2019). The preponderance of lakes in Minnesota has a strong impact on the demand for water quality, given that those who live in lake ecosystems tend to pollute themselves, and cannot rely on rivers to flush pollution downstream (Dales, 1968). The implementation of water quality policy in Minnesota is influenced by a broad-based interest in maintenance of the natural landscape (Johansson and Sleeper, 2011). Despite a culture attached to waterborne recreation, much of Minnesota’s waters has not met water quality standards and has been considered impaired. Northeastern Minnesota, which includes the north shore of Lake Superior, the Boundary Waters Canoe Area, and the Rainy Lake basin, has high water quality. But as one moves toward the southwest, agriculture and population becomes more concentrated and water quality decreases. In 2014, only 62% of Minnesota’s lakes had good water quality and only 60% of Minnesota’s rivers and streams had healthy fish communities (Linc Stine, 2019). Frequent impairment causes include nutrients, turbidity, fecal coliform, and mercury in fish tissue (Minnesota Pollution Control Agency, 2020).

Minnesota’s water law has broad definition of public waters, which are controlled by the state. All waters with a drainage area greater than two square miles and all waters that serve a beneficial public purpose, including recreation and habitat, are considered to be public waters (Hearne, 2007; Karkkainen, 2011).

Minnesota has two state agencies that oversee water policy. The Department of Natural Resources (DNR) gathers hydrological data; permits the use of water and public projects that involve public waters; manages state parks; maintains public access to state waters; issues licenses for hunting and fishing; manages fisheries; and administers programs for lake, floodplain, and wetland conservation. The Minnesota Pollution Control Agency (MPCA) is in charge of water quality. The MPCA permits discharges and implements the state’s ambient surface water quality program. The MPCA has maintained a certain political autonomy by answering to a citizen board, appointed by governors on a rotational basis. It identifies impaired waters and when needed establishes total maximum daily loads (TMDLs) as restoration measures (Johansson and Sleeper, 2011). TMDLs not only limit emissions by restricting permits for point source discharges, but also provide plans to correct impairments, which may include efforts to reduce nonpoint-source emissions. In a sign of successful collaboration across stakeholder groups, the MPCA has utilized the services of the Minnesota Environmental Initiative, a nonprofit partnership-building organization to convene stakeholders in the public comment stage of the TMDL process (Paddock, 2010).

Due to frequent fish consumption advisories and impairments, the state completed a statewide TMDL for mercury in 2007. Noteworthy is that almost all mercury comes from atmospheric deposition, and 90% comes from out-of-state sources, unimpacted by the TMDL. The plan is to reduce in-state mercury emissions from a wide variety of sources. This is the nation’s the first statewide TMDL, and other statewide TMDLs have followed (Kentucky Energy and Environment Cabinet, 2019; Minnesota Pollution Control Agency, 2007; Paddock 2010).

Minnesota has been innovative with several water quality initiatives. In 2012, the state created the Minnesota Agriculture Water Quality Certification Program to foster the adoption of farm-level best management practices (BMPs), and it is noted for the use of science in its assessment of BMPs (Secchi and McDonald, 2019). A Memorandum of Understanding between the state and the EPA guaranteed that farms that adopted and maintained these BMPs would be protected from further regulation (Satterlee et al., 2013). In a move to restrict nutrient pollution in water bodies, Minnesota was the first state to ban phosphorus in lawn fertilizer in 2002. Ten other states followed suit before many national companies removed phosphorus from their lawn fertilizer products (Lee and McCann, 2018). Another innovation concentrates funding on water quality restoration on one of the state’s ten sub-basins on a rotational basis (Johansson and Sleeper, 2011).

Minnesota was an early adopter of numerical water quality standards. It was one of the first three states to have numeric standards for phosphorus on lakes and reservoirs, and in 2015 it added numerical standards for phosphorus in rivers and streams. It also has numerical standards for chlorophyll a for lakes and reservoirs. Although the state’s efforts were supported by the EPA through the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force, the development of these numeric standards was a product of state-level initiative and expertise. The MPCA stresses that much of its effort to control nutrients is to protect its own aquatic environment (EPA, 2020b; Minnesota Pollution Control Agency, 2013; Secchi and McDonald, 2019).

Another innovative program that demonstrates popular support for water quality maintenance is the Clean Water, Land and Legacy Amendment. This November 2008 ballot initiative supports parks, habitat, and arts through a sales tax increase. The fund provides an estimated $100 million in additional annual water quality funding for 25 years. The fact that the populace voted to increase taxes to protect the environment during the 2008 economic crisis demonstrates noteworthy commitment to the state’s natural environment (Johansson and Sleeper, 2011).

One issue of importance in Minnesota waters, which has been beyond the focus of the CWA, is aquatic invasive species management. Due to the abundance of boaters and its proximity to interstate and international water bodies, Minnesota is particularly susceptible to invasive aquatic species, particularly the zebra mussel and Eurasian milfoil. While Federal programs are generally weak and focused on the important issues of bilge water transfer, the DNR effort has been active and innovative (Homans and Newman, 2011). The program supports education and enforcement of a prohibition of transfer of invasive species. Roadside inspections of watercraft support public awareness and can lead to citations.

Although much of Minnesota’s native wetlands has been drained, Minnesota has made considerable efforts in the last decades to protect its wetlands. It has been one of the few states that have wetland protection that supersedes the CWA protection (Votteler and Muir, 1996). Minnesota’s Wetland Conservation Act (WCA) of 1991 includes a “no net loss” provision intended to maintain the state’s wetland resources. Under the WCA all the state’s wetlands, including those exempt from federal jurisdiction, are regulated. Provisions allow replacement acreage and even a “wetland bank” that can be used for wetland conversion (Leitch and Randall, 2011; Minnesota Board of Water and Soil Resources, 2004; Minnesota Board of Water and Soil Resources and Minnesota Department of Natural Resources, 2019).

Despite Minnesota’s efforts to maintain water quality for its own waterborne recreation activity, it does contribute substantially to the nutrient load and poor water quality in downstream waters. Two principal outlets of Minnesota water are the Mississippi River and the Red River of the North, which flows into Lake Winnipeg and Hudson Bay. Both rivers have water quality impairments and are known to transport substantial nutrients. Minnesota’s contribution of nitrogen to the Mississippi Gulf is the sixth largest of the states in the watershed (McCullough et al., 2012; Minnesota Pollution Control Agency, 2020; NRC, 2008).

North Dakota is a sparsely populated state with important agricultural, mining, and petroleum sectors. The rapid expansion of the petroleum industry in the last decade has led to stress on western North Dakota’s water resources, including the need to develop new water supply and sanitation systems, fracking wastewater disposal problems, and frequent spills and soil contamination. Among the state policies that support the development of the petroleum industry are lax enforcement of CWA and Clean Air Act provisions. Specifically, only 2% of violations were met with formal sanctions, the lowest of the 43 states in the database. This compares with 24% of violations meeting with formal sanctions in Minnesota (Hearne and Fernando, 2016; Hearne, Shakya, and Yin, 2015; Ingersoll, 2016; Lauer et al., 2016). Although 2.3% of state GDP comes from outdoor recreation, it is in the bottom seven of all states in boating and fishing value added. The state’s recent water resources management efforts have focused on projects that move quantities of water to reduce flooding or provide better water supply (Brandson and Hearne, 2013; Hearne and Fernando, 2016; Hearne and Prato, 2016; Moes, 2020).

North Dakota’s definition of “waters of the state” is broad but does exclude certain unconnected surface waters that the state engineer considers to be noncontributing to a drainage area. The principal water allocation and engineering agency in North Dakota is the State Water Commission (NDSWC). The NDSWC compiles hydrological data, grants permits for water use, allocates water rights under the law, and develops and implements the State Water Plan. It also supports local water managers with technical assistance and cost sharing for approved projects. The State Water Plan is produced every two years and outlines priorities for water projects. It also serves as a request for funding from the state’s Resources Trust Fund, which is supported by 20% of the state’s oil extraction tax (Hearne, 2007; Hearne and Fernando, 2016; North Dakota Legislative Branch, 2020; Office of the State Treasurer, 2019; State Water Commission, 2019b).

Implementation of the ambient surface water quality program in North Dakota is the duty of the North Dakota Department of Environmental Quality (DEQ). Until 2019, when the DEQ became an independent agency, this function was performed by North Dakota’s Department of Health. The DEQ permits discharges, monitors surface water quality, and investigates spills, often associated with oil drilling and production. As of 2019, the DEQ is leading a multiyear effort to revise water quality standards. However, despite an initiative to develop numerical nutrient criteria that dates to 2007, with reported numerical values in 2014, North Dakota does not have numerical nutrient criteria as of 2020 (Deutschman, 2007; Ell, 2014; EPA 2020b). Currently, North Dakota classifies its rivers, streams, lakes, impoundments, and groundwater according to designated uses and has narrative water quality standards and numeric standards for chemicals, metals, dissolved oxygen, and E. coli. A narrative standard requires all waters of the state to be free from nutrients in concentrations that will lead to oxygen-depleting excessive growth of aquatic vegetation or algae. Wetlands, including isolated ponds, are considered waters of the state and protected by water quality standards (DEQ, 2019; North Dakota Legislative Branch, 2019). Also, in accordance with EPA policy on Section 319 funding, North Dakota has maintained a management plan for nonpoint source water pollution (North Dakota Department of Health, n.d.).

North Dakota has numerous ongoing and completed water transport and diversion projects. Some of these projects date back to the attempts to utilize Missouri River water after the completion of the Pick–Sloan Missouri Basin Program in the 1960s. Lake Sakakawea is the nation’s third largest reservoir by volume and lies entirely within North Dakota. Much of Lake Oahe, the nation’s fourth largest reservoir, lies within North Dakota. During the early years of the Pick–Sloan project, it was determined that planned irrigation areas in North Dakota were not suitable for surface irrigation. Efforts to divert irrigation water to alternative sites east of the reservoir were thwarted by opposition to an interbasin transfer of water. A corresponding diversion to use Missouri River water as a source of drinking water for the Fargo and Grand Forks urban areas remains a priority for the state but has been similarly delayed. In another attempt to utilize Missouri River water, with federal funding from the 2000 Dakota Water Resources Act, the Northwest Area Water Supply (NAWS) project has been delayed by numerous court cases because it involves an interbasin transfer of water to urban area in the Souris basin (Garrison Diversion, 2020; Hearne and Fernando, 2016; State Water Commission, 2019c).

Another set of North Dakota water transfers have been designed to alleviate flooding. From 1993 until 2011, the water level of Devils Lake rose more than 9.45 m. This lake, in a generally dry and flat basin, is characterized by high salinity. The surface area of the lake expanded substantially, flooding farms, roads, and communities. To alleviate this inundation, the USACE was authorized to perform a feasibility study and environmental impact analysis (EIA) on a project to pump and transfer water to the Red River basin. The project was delayed due to Canadian opposition to an interbasin water transfer. North Dakota acted unilaterally to build an outlet, which was completed in 2005. Later, in 2012, a second outlet was constructed. Another important flood diversion project, to protect the cities of Fargo, ND, and Morehead, MN, is currently in the initial phases of construction. This project has not faced challenges from Canada because it does not entail an interbasin transfer (Brandson and Hearne, 2013; State Water Commission 2019a; State Water Commission 2019b).

Any water transfer project that transfers water out of the Missouri River basin is opposed by Missouri, which seeks to protect downstream flows. Any interbasin transfer that transfers Missouri River water to the Souris or Red River basin has been opposed by Canada, because of concerns over the transfer of potentially harmful biota to the Hudson Bay basin. One example of the delays entailed is the NAWS project to pipe potable water to rural communities, which began in 2002. Delays in the EIA process lasted until 2019. Project completion is expected in 2023 (Schram, 2020; State Water Commission, 2019c). Meanwhile, North Dakota has learned that the best strategy for completing projects quickly is to avoid federal funding, federal permits, and other federal entanglements, which would lead to EIAs and potential lawsuits. Two state-developed Devils Lake outlets were completed rapidly without federal involvement. While the NAWS project has been mired in lawsuits, the neighboring Western Area Water Supply has unobtrusively piped treated water into rural communities in the Souris River basin (Hearne and Fernando, 2016). Because of the perceived need to construct water transfer projects to meet state priorities, North Dakota is very concerned about the rulings on the extent of WOTUS and the need to apply for dredge and fill permits from the USACE. It is one of sixteen states not to sign the amici curiae brief supporting the federal government in the Rapanos suit (Cox et al., 2006; Springer, 2015).

Due to early efforts to drain and clear land for agriculture, North Dakota has lost nearly 50% of its wetland area. The state does not have a “no net loss” policy, but has had a wetland bank, which was primarily used by the North Dakota Department of Transportation to mitigate impacts of highway improvement projects (Association of State Wetland Managers, 2015; North Dakota Interagency Review Team, 2015). North Dakota does have an active program to limit aquatic invasive species, which includes regulation on cleaning watercraft and transporting bait (Howell, 2018; North Dakota Game and Fish, 2019).

The two major outlets for North Dakota water are the Missouri River, which flows into the Mississippi, and the Red River of the North. The Red River is known to be a major contributor to the nutrients that cause algae blooms in Lake Winnipeg (McCullough et al., 2012). The Missouri River flows into South Dakota at Lake Oahe. North Dakota lists no water quality impairments for Lake Oahe, and South Dakota lists an impairment for mercury in fish tissue (South Dakota Department of Environment and Natural Resources, 2020). Neither North Dakota nor South Dakota has established nutrient criteria, so nutrients are not reported.

Discussion of Interstate Water Quality

The CWA utilizes cooperative federalism to manage water quality for both local and national needs. Although many of the impacts of poor water quality are felt locally, especially in lake ecosystems, water pollution is often mobile and flows downstream. There are incentives for upstream constituencies to be lax with regulation. Thus, there is a role for federal oversight. The CWA does provide the EPA with substantial oversight authority. However, the EPA has been reluctant to utilize its authority to impose federal control over state water quality programs (Kerr, 2014; NRC, 2008).

The ongoing effort to develop numerical nutrient criteria demonstrates the ineffectiveness of the EPA in using its authority to oversee state water quality programs. Nutrient criteria for rivers and streams are critical for improving downstream water quality. It should be noted that states opposed the imposition of numerical nutrient criteria because of the cost of developing these criteria. However, North Dakota did develop these criteria as early as 2014, but has not incorporated these nutrient criteria in its ambient water quality program. Since the EPA signaled its unwillingness to force states to adopt numeric nutrient criteria in 2013, only Minnesota and Utah have made progress with nitrogen and phosphorus criteria (Deutschman, 2007; Ell, 2014; EPA, 2020b; Kerr, 2014).

Alternative strategies for improving interstate water quality, including interstate cooperation, might prove useful (NRC, 2008). The 12-state Mississippi River/Gulf of Mexico Watershed Nutrient Task Force is an example of potential interstate cooperation fostered by the EPA. Most of the effort is contributed by state agencies, but federal funding has supported efforts from state and federal agencies and university research (EPA, 2017). Unfortunately, funding for this regional program was severely cut during the Trump Administration (Tabuchi, 2017).

Despite the lack of federal leadership, both Minnesota and North Dakota have established active programs to protect state waters from invasive aquatic species. This is of course a problem that reaches across jurisdictions, with potential benefits for regional or national integrated efforts. The important vectors for the transportation of the region’s key invasive aquatic species correspond to fishing. This implies that the appropriate government agencies for invasive aquatic species control are the not the pollution control agencies, but the resource management agencies. These states might not be able to reverse the spread of invasive species, but they may be capable of providing an appropriate governmental response.

Conclusions and observations

The early CWA success in reducing point-source pollution, with the aid of substantial federal subsides of municipal wastewater treatment plants, has not been replicated with nonpoint-source pollution. Much of the nonpoint-source pollution, especially the high levels of nutrients, comes from agricultural production. Reducing this nonpoint-source pollution has been problematic, since it entails the regulation of land that is outside the purview of the CWA. Instead, the most important efforts to reduce nutrients have been subsidizing practices to reduce runoff and retiring land (NRC, 2008; Secchi and McDonald, 2019).

The case studies of Minnesota and North Dakota demonstrate that local needs and demands, even for an upstream state, can lead to significant effort to improve water quality. However, different populations can have different demands for water quality. Minnesota, which has substantial urban wealth and an important waterborne recreation culture, demonstrates that local demands for high surface water quality, especially in lakes, can lead to extra effort and some innovations. Minnesota was an early adapter of numeric nutrient criteria, a ban on phosphorus in fertilizer, and a “no net loss of wetlands” policy. A successful ballot initiative has brought additional funding to support water quality efforts.

North Dakota’s concern for the definition of the WOTUS may have little to do with water quality and more to do with its desire to avoid federal oversight over possible dredge and fill permits. Some of the state’s highest-priority water projects have suffered lengthy delays and cancellations due to cumbersome EIA processes and opposition over interbasin transfers of water. Any expansion of federal jurisdiction over North Dakota’s waters would be expected to cause increased points of outside interference in the state’s water allocation and flood mitigation. Thus, opposition to definitions that expand the WOTUS need not be considered opposition to reduced water pollution.

Despite the assertion that upstream states, such as Minnesota and North Dakota, are making efforts to improve water quality to meet their own needs, downstream water quality is not improving. Upstream states should be trusted to develop water quality policies to meet their own needs and respond to incentives brought be regional and federal programs to improve water quality that flows to downstream jurisdictions. Of particular concern are offshore hypoxic zones. Despite considerable efforts from state and federal departments of agriculture and environmental protection, nutrients continue to accumulate and water quality in certain downstream and offshore areas continues to decline. Certainly, the effectiveness of CWA programs should be reviewed. If offshore hypoxic zones are a problem that necessitates increased national effort, then this will require political pressure from the directly impacted coastal regions. This pressure is not apparent in the current partisan political climate. Although cooperative federalism may allow upstream states such as North Dakota and Minnesota to manage water quality to meet state needs, the presence of downstream hypoxic zones may imply that the CWA is not meeting national needs.

Acknowledgment

This material is based upon work supported, the National Institute of Food and Agriculture, US Department of Agriculture, under Project No. ND01315. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author and do not necessarily reflect the view of the U.S. Department of Agriculture.

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