Dead Zones & Drinking Water: Updates on Waters of the U.S.,

That key question for agriculture remains unanswered: whether nutrient losses from farm fields collected and channeled through a manmade system of drainage are excluded as agricultural stormwater runoff or whether they are discharges of pollutants, subject to regulation and permitting under the CWA.  The Ninth Circuit decision from Hawai’i Wildlife Fundprovides for concern if the Supreme Court affirms the reasoning of the courts of appeal in the Hawai’i and South Carolina cases, decisively bringing indirect discharges under the purview of the CWA.  In light of this potential line of legal precedent, the application of fertilizer would appear to be a point source discharge, as would the discharge from the end of tile lines and drainage ditches.  Rainwater and runoff from a farm field may remain a nonpoint source, but the clarity of the exemption provided to agricultural stormwater discharges in the CWA may be muddied for the pressing issues concerning fertilizer applications and nutrient losses from drainage systems.