The Difficult Problem of Nonpoint Nutrient Pollution: Could the Endangered Species Act Offer Some Relief?

Nutrient pollution of rivers, streams, lakes, and estuaries is one of the preeminent water quality issues in the United States today, and poses a significant threat to the health of aquatic ecosystems. Agricultural nonpoint discharges, the runoff of nitrogen and phosphorous from animal manure and chemical fertilizers, are the primary sources of such nutrient pollution. A pervasive and long-standing problem, nonpoint pollution, nutrient and otherwise, has proven to be one of the toughest challenges in contemporary environmental regulation. This situation is significantly attributable to the political and administrative dynamics of fragmented regulatory authority. The power to control such nonpoint discharges remains largely beyond the reach of federal Clean Water Act authority, and rests with the states, who have proven to be reluctant regulators. This Article proposes a new, conceptually different approach to changing the regulatory status quo and tackling the problem of nonpoint nutrient pollution. It draws a roadmap for a strategic leveraging of the Endangered Species Act, particularly Section 9, against individual nonpoint dischargers and/or their state regulators. It starts with the widespread ecological damage from nonpoint nutrient pollution and looks for a regulatory silver lining to the harmful effects that such nutrient pollution is having on threatened and endangered species of aquatic wildlife. The core objective is to show how the strong protections ESA provides for listed wildlife can be leveraged to better protect the broader nutrientafflicted aquatic ecosystems of which listed species are but one part