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Water: Polluted Runoff

Nonpoint Source: Executive Summary

This study examined the laws of the fifty states, Puerto Rico, and the District of Columbia to identify and analyze enforceable mechanisms for the control of nonpoint source water pollution. An enforceable mechanism consists of a standard applicable to an identified entity or entities; a sanction such as a civil, criminal, or administrative penalty, loss of a license, and performance of required remedial action, but not mere loss of an incentive; and a process, either explicit or implied, for applying the standard and imposing the sanction.

The study found many enforceable mechanisms in state law, and also found that there is great variability in such authorities. In the absence of any federal legislative or regulatory norm, the states have exhibited great diversity in their legislation.

Standards are often supplied by a mixture of agriculture laws, forestry laws, fish and game laws, nuisance prohibitions, general water pollution discharge prohibitions, land use planning and regulation laws, and criminal laws. Also, many state authorities are watershed-based, or targeted solely upon critical areas, buffers, or particular impaired waters. In addition, state laws also often delegate standard setting, implementation, or enforcement duties to units of local government or conservation districts.

Because of this great variation in approach, it is not possible to quantify nonpoint authorities or to classify them in mutually exclusive categories. Moreover, because these laws operate together, it is necessary to understand each state's entire program in order to assess its potential for using an enforceable mechanism to deal with particular conduct in a particular place. For example, a state may address in its forestry law conduct that is addressed in another state by a soil and water conservation district law. Or a state may address agricultural activities in riparian buffer zones or critical areas in ways that it does not address similar activities that are located at greater distances from identified waters, while another state imposes similar requirements across all agricultural lands.

Some general observations emerge from the study.

First, nearly all of the states have some general statutory authority to deal with nonpoint source discharges that can be shown to result in water pollution. These "general discharge prohibition" authorities come in different forms, but most are parts of states' water pollution control laws. Careful scrutiny of these laws is essential in assessing their utility in controlling nonpoint source pollution. For example, in about half the states, water pollution control provisions superficially resemble the federal Clean Water Act's prohibition of the discharge of a pollutant without a permit, 33 U.S.C. 1311(a), but unlike the federal act can be applied to nonpoint source pollution because they lack the limitation in 33 U.S.C. 1362(12) that defines "discharge of a pollutant" as "from any point source."

General discharge prohibition laws come in two major types. One type prohibits the discharge of any substance (or pollutant, or waste) without a permit. This is broad authority and can serve either as the basis for adopting a permitting program by regulation or for enforcement against discharges in appropriate case-by-case settings. Some states with this type of authority have adopted explicit statutory or regulatory exemptions for agriculture or forestry activities. The definition of "waste" or "pollutant", if these terms are used rather than "any substance" in such provisions may present difficulties in controlling nonpoint discharges of sediments or properly applied agricultural chemicals in some states.

Even more states have provisions that simply prohibit the causing of "pollution," or causing or contributing to the exceedance of water quality standards. In these states, however, the difficulty of proving a direct link between a particular discharge and the condition of a waterbody can be substantial, or at least expensive absent ongoing and extensive monitoring. Nevertheless, these provisions allow states to impose sanctions and obtain compliance in relatively clear-cut cases. Provisions in state public health and penal codes and fish and game laws, typically enforced as petty criminal offenses, also may prohibit specific kinds of discharges that detrimentally affect public waters, cause nuisances, impair public health, or kill fish. Again, these require proof of a detrimental effect directly traceable to the operation in question before enforcement action may be taken.

The general discharge prohibitions primarily operate as back-up enforcement authorities, used when voluntary and incentive measures fail, or when no other authority exists in a given area. However, in some states they serve as the basis for the imposition of direct regulatory requirements upon nonpoint source dischargers. More states apply enforceable mechanisms to require operating standards and practices through targeted laws, such as erosion control laws, forest practices laws, and agricultural conservation laws.

Enforceable erosion and sediment control laws provide one significant area of control. Some of these programs are statewide in application, many are delegable to local governments or conservation districts. However, most of these programs exempt agriculture or at least normal agricultural activities; some exempt both agriculture and forestry. Thus, where these laws exist, and where they have coverage beyond simple NPDES stormwater permitting, they are usually directed at disturbance of earth for development or land conversion activities.

Forest practices laws play a role in establishing enforceable nonpoint source pollution controls in about a dozen states - primarily on the west coast and in New England - which have forestry laws with enforceable statewide standards. These states require the preparation and approval of harvest plans incorporating state standards or prescribed best management practices (BMPs). Other states regulate forest practices through erosion and sediment control laws. Even more common are forestry-related requirements establishing riparian buffer zones, limiting percentage of vegetation that may be removed near a waterway, special rules for timber operations in wetlands, and similar targeted requirements. While these approaches all rely on prescriptive enforceable requirements, another approach has been adopted by a handful of states. These do not require the enforceable implementation of particular standards statewide, but have instead adopted a "bad actor" authority that allows them to issue orders to halt particular logging operations that are actively discharging pollution.

Another approach with some relevance to forest sources of nonpoint source pollution is the increasing number of states that now require licensing of loggers and/or professional foresters. While licensing does not itself limit nonpoint source pollution, it can serve as a means to have timber operations designed and supervised properly, and assures familiarity of operators with BMPs.

Agriculture is the most problematic area for enforceable mechanisms. Many laws of general applicability, as noted above, have exceptions for agriculture. Where state laws exist, they often defer to incentives, cost-sharing, and voluntary programs. Nevertheless, about a fifth of the states have some statewide sediment requirements applicable to agriculture, often administered by local governments or soil and water conservation districts. Even more states (about a fourth) authorize individual soil and water conservation districts, as a matter of local option, to adopt enforceable "land use regulations" for the control of erosion and sedimentation. But most of these require approval by landowner referendum, with approval requiring a super-majority (ranging from 66 to 90 percent) in order for such regulations to become effective.

Enforceable regulation of agricultural nutrients presents a mixed picture. Enforceable authorities most commonly include concentrated animal feeding operation (CAFO) regulations similar to the federal requirements, but with variations on the number of animals, or with the addition of siting requirements. Some states have adopted "accepted agricultural practice" requirements, or nutrient regulations, that are enforceable. Most states have laws regulating fertilizers, but only to ensure content and efficacy; only a few have provisions that address misapplication of fertilizers or water pollution resulting from such application. Finally, a number of states have enforceable provisions allowing districts or agencies to order abatement of agricultural pollution. Several of these laws provide that abatement cannot be ordered unless state or federal cost-share money is provided to help pay for the required action.

In the context of both forestry and agriculture, states have in many different ways contrived mechanisms to make BMPs either enforceable or at least something more than voluntary by linking them to other enforcement mechanisms. There are at least five such approaches. Some laws, such as state comprehensive forest practices laws, make BMPs directly enforceable in connection with required plans and permits. Another approach makes BMPs enforceable, but only after the fact when a "bad actor" is causing pollution. A third approach makes BMPs the basis for an exemption from a regulatory program. For example, a law may provide that compliance with BMPs will allow a forestry operation not to need a permit under a critical areas program, or a farm not to comply with an erosion and sediment control law. Another approach makes compliance with BMPs a defense to a regulatory violation; such provisions include those that prohibit a state from taking action under a water pollution control statute against a farm that is implementing BMPs, whether or not the operation is causing pollution. Finally, a substantial number of states make compliance with agricultural BMPs a defense to nuisance actions.

Pesticide discharges are regulated indirectly by most states. Most states provide for state registration of pesticides, and for licensing of dealers and various classes of applicators (with typical exemptions for farmers applying pesticides to their own or neighbors' property). States typically have the ability to prohibit or restrict uses in areas where there is evidence of damage or harm. Some states have broad prohibitions of causing harm anywhere, but in most states these provisions do not cover "use" or application of pesticides, but only transport, storage, and disposal. Several states have prescribed responses if contamination is shown by state monitoring of waters or groundwaters.

Several other sources of nonpoint source pollution are subject to enforceable mechanisms. Onsite sewage disposal systems (septic tanks) are usually locally regulated by building codes and health officials. However, a significant number of states have adopted requirements at the state level and delegated administration to local governments. Only a small number of the state laws explicitly require the owner to maintain the proper functioning of the system. There are often special requirements in coastal areas for the construction and maintenance of such systems. Hydromodification, including drainage and stream alteration activities, is subject to a great deal of state regulation, some of which addresses nonpoint source impacts of the activity. Less explicit state law speaks to highways and certain other state agency activities, but some mechanisms exist there as well.

With respect to most of the issues described above, the most sophisticated state enforceable requirements appear to be arising on a targeted watershed basis. There are typically more explicit operating requirements and clearer enforcement authorities in the context of watershed protection areas, estuaries and coastal waters, wild and scenic rivers, and targeted impaired waters. This presents both a greater level of complexity for understanding state enforceable mechanisms and an opportunity for further work, research, and analysis. Federal decisionmakers can assist in the development of state enforceable authorities by undertaking studies of the effectiveness of these authorities in particular watersheds and with respect to particular impaired waters.

This report demonstrates the great diversity of state legislation imposing enforceable mechanisms. It identifies the kinds of responses that state and federal decisionmakers can draw upon in filling gaps and dealing with remaining water quality problems in the nonpoint source context.

 


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