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Water: Polluted Runoff

Nonpoint Source: Appendix

State "No More Stringent" Laws

An issue of potential relevance, particularly for the future adoption of enforceable regulations for nonpoint source control, is that of legislative limitations on regulatory actions by state agencies. About 1/3 of the states have statutory provisions that limit or condition the ability of their regulatory agencies to adopt regulations that are more stringent than any federal environmental regulations.

In general, these state laws do not impede the state agencies from regulating areas or practices that are not federally regulated at all. Where they pose some concern is where a federal regulation addresses an area only in part, or establishes a discharge limit of some kind. These provisions may, for example, make it more difficult for some state agencies to extend stormwater regulation beyond the requirements of the federal program to reach smaller or rural sources. Or they may make it difficult for a state to adopt or maintain comprehensive nonpoint source regulations if the federal government enacts legislation or promulgates regulations in the area establishing only rudimentary requirements.

The most problematic are state laws that prohibit adoption of any state rules that are more stringent than federal requirements that cover "an essentially similar subject or issue." S.Dak. Cod. Laws. Ann. 1-40-4.1. This kind of provision might impair a state's ability to expand upon CAFO or municipal stormwater regulations, or to regulate at all in an area where the federal program exists but is entirely voluntary. One of the most restrictive laws in this context is that of Idaho, where it is the "intent of the legislature" that the rules adopted by the state environmental agency in the water pollution control area "...not impose requirements beyond those of the federal clean water act." Idaho Code 39-3601.

Montana does not prohibit such rules outright, but prohibits rules "more stringent than the comparable federal regulations or guidelines that address the same circumstances" unless there is a finding after public hearing and detailed study that such rules are necessary. Mont. Code Ann. 75-5-203, -309, 80-15-110.

Most of the state law provisions on greater stringency do not prohibit such provisions, but rather require a more detailed and complex set of justifications and more procedural review if the state intends to adopt more stringent regulations than the federal requirements. For example, Maine requires the state DEP to identify rules that are more stringent and to justify them, and provides for a longer review period. 38 Maine Rev. Stat. Ann. 341-D. Florida has a similar provision, and further requires approval by the governor and cabinet after review of a cost benefit analysis. Fla. Stat. 403.061(7)(31), 403.804(2). Pennsylvania has a similar requirement under Executive Order 1996-1, requiring a "compelling and articulable" Pennsylvania interest in the deviation or an independent state legislative justification. Maryland has similar provisions in an Executive Order, as does Wisconsin under a Natural Resources Board Policy. Board Pol. 1.52(3). Utah has enacted a similar legislative requirement. Utah Code Ann. 19-5-195. Ohio requires more disclosure and review for such regulatory proposals, including more disclosure for proposed legislation that may be more stringent than federal requirements. Ohio Rev. Stat. 121.39.

Mississippi Code 49-17-34(2) provides that: "All rules, regulations and standards relating to..water quality...or water discharge standards promulgated by the commission after April 16, 1993 shall be consistent with and shall not exceed the requirements of federal statutes and federal regulations, standards, criteria and guidance...that have been duly promulgated pursuant to the federal Administrative Procedures Act, including but not limited to...the identity and scope of water pollutants included as water quality or discharge standards and the numerical and narrative limitations of such standards." However, the commission is allowed to promulgate regulations in the absence of federal standards "when the commission determines that such regulations are necessary to protect human health, welfare or the environment." Miss. Code 49-17-34(3).

A separate provision, Miss. Code 69-23-109, requires the Commissioner of Agriculture and Commerce to report to the legislature any regulation of pesticide applicators that is "more restrictive than applicable federal regulations" but does not prohibit or impose special procedural requirements on such regulations.

Other state law limitations appear to be limited to effluent limits in NPDES permits and so less applicable to most nonpoint regulations. Kentucky Rev. Stat. 224.16-050 provides that the Department of Natural Resources and Environmental Protection may not impose under any permit "any effluent limitation, monitoring requirement, or other condition which is more stringent than...would have been applicable under federal regulation if the permit were issued by the federal government." North Carolina law provides that "Except as required by federal law or regulations, the [Environmental Management] Commission may not adopt effluent standards or limitations applicable to animal or poultry feeding operations." N.C. Gen. Stat. 143-215. Iowa law provides that no state effluent standard may be more stringent than a federal effluent standard; but the law also declares explicitly that the state may establish such standards for

sources or classes of sources for which the federal EPA has not done so. Iowa Code Ann. 455B.173.

Finally, Oregon law bars the state Environmental Quality Commission and DEQ from "promulgat[ing] or enforc[ing] any effluent limitation upon nonpoint source discharges of pollutants resulting from forest operations on forestlands" unless mandated under the federal Clean Water Act. Ore. Rev. Stat. 468B.110(2).

In sum, federal decisionmakers need to be aware of these self-imposed state limitations when they make decisions about legislating or rulemaking in the area of nonpoint source water pollution controls.

 


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