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Water: Polluted Runoff

Nonpoint Source:Introduction

Chapter One

Table of Contents

Introduction

After 25 years of federal and state efforts under the federal Clean Water Act, nonpoint source pollution remains a significant problem. The Act's enforceable provisions are directed at discharges from point sources - regulating the discharge of pollutants to surface waters from pipes, outlets, and other discrete conveyances. In contrast to this enforcement approach, nonpoint source water pollution - polluted runoff - is addressed primarily through non-regulatory means under the Act.

Yet water pollution from nonpoint sources remains a substantial contributor to the impairment of waters across the nation. Various approaches have been used to control such pollution, including assistance to states from federal planning and grant programs under the Clean Water Act (e.g., 33 U.S.C. §§ 1288, 1329). Common strategies at the state level include watershed and land use planning, development of voluntary best management practices (BMPs), technical assistance programs, cost-sharing for implementation of prevention and control measures, and - the focus of this study - some enforceable mechanisms, including regulation and liability provisions.

State adoption of enforceable mechanisms has occurred largely in the absence of any direct federal requirement or mandate. But the federal Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) provided impetus to most coastal states to identify enforceable mechanisms applicable to activities causing or contributing to nonpoint source pollution in the coastal zone. 16 U.S.C. §§ 1455(d)(16), 1455b. The implementation of urban and industrial stormwater permitting by the states under the 1987 Water Quality Act has also resulted in some states taking a more comprehensive approach to sedimentation and polluted runoff beyond simply meeting the federal requirements. Acting independently, some states have adopted innovative programs or employed older pollution control authorities to control nonpoint source pollution. There is much activity, ferment, and interest in this area.

The Environmental Law Institute has examined what enforceable mechanisms the states have available to them, the scope of the existing mechanisms used by the states, and the general limitations and impediments that accompany some of these mechanisms, in order to inform the nation's policy decisions on the remaining nonpoint problem. This report summarizes the Institute's findings.

STATE LAW: DIVERSE AND CHANGING

It is important to recognize at the outset that both the existence and scope of legally enforceable measures vary widely among the states. Absent explicit federal requirements in the area, such variation is not only to be expected, but somewhat desirable as it provides an opportunity to assess alternative approaches.

Some states have attempted to achieve broad coverage over polluting activities in their enforceable nonpoint source control mechanisms, while many others have taken aim at specific problems. Still other states have little in the way of an articulated enforceable scheme, although even these generally have some statutory enforcement authorities that could be used to address particularly damaging discharges from nonpoint sources. It is fair to say that no state is entirely without any enforceable authority relevant to nonpoint source discharges. While some states have few such authorities, others have adopted a bewildering array of enforceable tools applicable to specific watersheds, specific activities, and specific effects on the environment. These are frequently paired with equally bewildering arrays of exemptions and exclusions.

Understanding what enforceable mechanisms exist is important -- both in order to structure federal and state programs that can improve and maintain the nation's water quality, and to operate fairly in addressing the respective responsibilities of point and nonpoint source dischargers for water quality improvement.

The task of understanding state enforceable controls is quite difficult because no two states have adopted anything like the same set of laws. And even when the laws appear quite similar, they often have varying definitions, enforcement mechanisms, and procedures. In more than one instance, even laws that use identical words can have quite different scopes because of minor changes in the wording of the relevant definitions. These variations, along with the widely varying complements of laws enacted by each state, make state-to-state comparisons of particular laws difficult. One state may address nonpoint source silvicultural discharges through its broad sediment control statute, while another may reach the same conduct through a forest practices law, a combination of watershed-specific laws, or a water pollution control statute that covers some forms of nonpoint discharges as well as point source discharges.

This extreme variability also has another lesson for the policymaker: state programs can only be understood whole. The mere compilation of a list of authorities does not reveal their interconnection, whether and how they can be used in practice given institutional and procedural constraints, or how programs delegated to counties, localities, or watershed districts can be evaluated in relation to apparently similar state programs that are not so decentralized. As a result, even this study - looking at numerous authorities across all of the states - necessarily gives an incomplete picture of the individual capacity of any one state.

Any research effort examining the states is also faced with rapidly changing information. There is more than the typical amount of flux in the many state laws that affect nonpoint source discharges. This is true for at least three reasons:

First, state legislatures typically respond to new and urgent problems. As new pollution problems are identified as important, or are elevated in importance as older problems are being solved, legislative responses become more likely. This is clearly the case with respect to such nonpoint source issues as animal waste (particularly with respect to siting issues), silvicultural practices affecting rivers and watersheds, biological effects such as Pfiesteria piscicida, impacts of suburban development, the cost of providing additional levels of treatment at publicly owned treatment works, and new interest in the recovery of river corridors. States are often the first line responders to the emergence of new problems or the ascendancy of older ones.

Second, state action is beginning to be affected by the CZARA-driven upgrades to nonpoint source programs in the coastal states. The "conditional approvals" given by the Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA) to many of these programs will require states to seek new "enforceable mechanisms" or to demonstrate the utility of such existing mechanisms over the course of the next several years if their programs are to remain compliant and eligible for continued nonpoint source grant funding under the Clean Water Act and coastal zone funding under the Coastal Zone Management Act. A prior wave of modest enforceable nonpoint control mechanisms was launched by the stormwater permitting programs under the 1987 Water Quality Act. While many states simply implemented the requirements of the program, others took the initiative to add additional land use and sediment controls in implementing legislation.

Third, state action is beginning to be affected by the impact of judicial and EPA requirements for states to establish and implement Total Maximum Daily Loads (TMDLs) for their impaired waters. This task will require both better understanding of pollution sources in affected waterbodies, and development of effective state responses in requiring pollution prevention and controls. 33 U.S.C. § 1313(d).

Indeed, greater investment in the assessment of impaired waters in state biennial reports under 33 U.S.C. 1315(b) is also playing a role in the evolution of state nonpoint source authorities. These state assessments and improved technical tools and capacity, including the use of biological indices, are beginning to reveal the locations and scale of pollution problems only guessed at in prior decades. The identification of particular impaired waters can lead to political pressures at the state level to adopt control and abatement measures.

In sum, this area is one in which state laws are changing. At the same time, however, many of the laws that create enforceable duties for nonpoint source dischargers are quite old. As described below, some are the legislative codifications of centuries-old common law nuisance principles. Others are broad provisions in state clean water laws enacted in the 1960s and 70s that apply to nonpoint sources, but that may not have been implemented to their fullest extent by regulations or enforcement programs. Still others are state laws, such as planning and zoning laws, that have relevance to pollution-causing activities, but that were not originally drafted with pollution prevention effects in mind. This mixture of new laws and new implementation opportunities for older laws constitutes the complement of enforceable mechanisms available in most states.

This study is a snapshot of state laws at one time, taken with the knowledge and expectation that changes are continuing. The picture that emerges is intended to inform the broader discussion and to help lead to the development of effective approaches as states continue to make laws in this area.

RESEARCH APPROACH

Scope

This study examined the laws of the fifty states, Puerto Rico, and the District of Columbia. It did not examine tribal laws, nor the laws of individual cities or municipalities. However, to the extent to which duties and enforceable mechanisms were created by state law and delegated to political subdivisions, these state laws were examined.

It is necessary to define the scope of the study with respect to "nonpoint" source pollution because of the increasing overlap of this category with sources regulated under the point source (NPDES) provisions of the Clean Water Act. These areas of overlap have arisen, in part, as a result of decisions by Congress to expand the regulatory reach of the Clean Water Act incrementally -- primarily by bringing more categories into the point source permitting program.

The municipal and industrial stormwater program is the most significant of these potential overlaps. Section 402(p) of the Clean Water Act, 33 U.S.C. 1342(p), enacted in 1987, established a two-phase program. Under the first phase, NPDES permits (individual, general, or multi-sector or "group" permits) are required for stormwater discharges from municipal separate storm sewers serving populations greater than 100,000, and stormwater discharges from certain industrial activities including, initially, construction sites of five acres or larger. Permits may also be required case-by-case if a stormwater discharge is determined to violate a water quality standard or is a significant contributor of pollutants to the waters of the United States. The second phase will cover stormwater discharges from smaller metropolitan areas, smaller construction sites, light industry, and other activities. Obviously, not all earth-disturbing activities resulting in runoff are captured by the stormwater permitting program, and many such activities are regulated, if at all, by the states under other authorities. Because state authorities often cover both activities subject to stormwater permitting and other activities, this study attempted to include the general state authorities that appeared to cover these other activities, even if many also clearly fall within the § 402(p) universe.

A similar problem was presented by enforceable mechanisms dealing with agricultural sources of animal wastes. Large concentrated animal feeding operations (CAFOs) are regulated as point sources under the Clean Water Act, 33 U.S.C. 1362(14). Many states, accordingly, regulate these operations through amendments to their water pollution control regulations corresponding to 40 CFR 122.23 and 40 CFR Part 122, App. B. Such point source regulation is not within the scope of this study. This study focuses on state nonpoint source authorities affecting animal wastes that appear to have a different reach from the federal CAFO regulations.

Finally, section 401 of the Clean Water Act, 33 U.S.C. 1241, presents a related issue. That section requires states to certify whether an activity to be authorized under a federal license or permit will comply with adopted state water quality standards. If the state denies such certification, the federal license or permit may not be issued. Because all states are required to apply this authority, a state-by-state analysis was not undertaken. However, it should be noted that this authority is used by some states to address some forms of nonpoint source pollution, although the provision's applicability to nonpoint source discharges remains in some dispute, see Oregon Natural Desert Association v. Thomas, 940 F. Supp. 1534 (D. Ore. 1996) appeal pending (401 applies to nonpoint discharges).

In summary, this study examines state laws that cut across areas that are also subject to federal regulations or requirements, but focuses on state laws that do more than simply implement the federal requirements in order to highlight state actions that differ from mere conformance to federal requirements.

Enforceable Mechanism

"Enforceable mechanism" is defined narrowly for purposes of this study. The definition is designed to identify only those authorities that can impose an obligation upon an uncooperative discharger as completely as upon one that is cooperative. In consequence, the term is not identical to the term "enforceable policies and mechanisms" as defined in CZARA and interpreted in the guidance documents issued by EPA and NOAA for that program. In particular, the loss or recoupment of incentives for nonpoint source dischargers participating in voluntary programs is not deemed an "enforceable mechanism" for purposes of this study.

For purposes of this study 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. For example, the standard may be a provision that "no person" shall "discharge a pollutant so as to cause or contribute to a violation of water quality standards," while the sanction and process may include administrative or civil actions leading to penalties, cessation of the discharge, abatement, cost recovery, criminal fines and jail terms, or other remedies.

An enforceable mechanism is not limited to "regulatory" or permit-based regimes similar to the NPDES program. Indeed, mere liability for a clearly defined action is sufficient. Thus, the availability of injunctive relief and damages, or provisions for summary abatement and cost recovery, or the power to issue binding cease-and-desist orders qualify as enforceable mechanisms.

Study Methodology

The researchers developed a template identifying categories of state laws that affect activities that generate nonpoint source pollution. This template was developed to guide research that necessarily ranged across numerous titles of any state's legislation - from the criminal code to the public health code, from the environmental code to the agricultural code. The template's categories were based on prior state studies conducted by the Environmental Law Institute, on a review of the required CZARA management measures and a preliminary sampling of program submissions by coastal states under that law, and on the researchers' professional judgment.

The template was then used to guide a broad review of the state legislative codes for all fifty states, Puerto Rico and the District of Columbia. State laws were reviewed in their published and codified form, supplemented by some computer-assisted research. CZARA program submissions were also reviewed for those states participating in the CZARA process as a cross-check on the primary research.

In order to identify the principal state authorities, and to keep the study within manageable scope, the research was conducted upon state statutes. State regulations were consulted only where needed to clarify the jurisdiction conferred by state laws. Thus, for example, where a forest practices statute clearly created enforceable obligations, state regulations under that statute were not reviewed. Conversely, where a state statute was ambiguous on the enforceability of a program, the regulations were consulted, but only to the extent needed to understand the reach of the statute. Once a statute was identified as enforceable or potentially enforceable, no attempt was made to list all of its substantive requirements. Thus, for example, the study indicates the existence in various states of enforceable land use standards for erosion and sediment control, but it does not identify the specific buffer zone requirements, erosion rates, or control structures required by such programs.

For similar reasons, and because this was a study of state enforceable mechanisms, the study does not identify and discuss local ordinances and rules. Instead, the study identifies those state laws that create the enforceable authority in local governments, or that authorize delegation of the relevant enforceable statewide control programs to local governments.

Finally, because this study is intended to identify relevant legal authorities, it looks at the maximum possible uses of existing law for nonpoint source pollution control, rather than at state implementation practices. The study is aimed at answering the question: What kinds of existing tools do the states have available to them in the event that they need to control nonpoint source water pollution by enforceable means? Thus if a state has an applicable law that has remained unenforced - for policy reasons, lack of staff, absence of controlling judicial construction, failure to adopt regulations, or other reasons - the law is nevertheless included in this study.

GOALS OF THIS REPORT

This report provides an overview of the current legal landscape. It identifies the kinds of state laws that exist, the opportunities they present, and their limitations. The report is primarily intended to provide objective baseline information for policy makers and others wrestling with the need to control nonpoint sources of water pollution that have not, thus far, been amenable to other forms of control.

The report serves three major functions. First, it is intended to help guide federal legislation, regulation, and policymaking that may hereafter affect nonpoint source discharges. Such federal decisions may come in the context of Clean Water Act reauthorization, federal budgeting priorities, and components of other federal legislation including transportation, flood control, water projects, and agriculture. Administrative decisions informed by this report may include those regarding stormwater, state water quality standards, TMDL development, and other implementation issues. The report is intended to enable federal policymakers to draw upon state trends and experiments in selecting federal approaches, to identify general weaknesses or gaps in existing state approaches, and to identify useful state laws and programs that should not be inadvertently undermined by federal decisions to adopt new federal policies, requirements, and guidelines.

Second, the report is intended to identify potentially useful state approaches that can be borrowed by other states and used in drafting legislation. This function is intended to make the most of the states' functions as "laboratories" for innovation and experiment, enabling states to borrow from similar states with less risk and greater likelihood of legislative acceptance. Thus, the report is intended to assist states in improving their programs. At the same time, by establishing a baseline or "snapshot" of current state practice, the report can serve as the basis for future work analyzing trends and assessing effectiveness of various approaches. With baseline information, state mechanisms can be tracked for effectiveness in the future by others, and compared, leading to a better understanding of what works and why.

Third, the report identifies - indeed, in some cases, exhumes - state laws on the books that could be used creatively by individual state agencies and law enforcers (such as public health officers, district or states' attorneys, agency staff, and state attorneys general) to deal with specific nonpoint source problems. Some of the older fish and game authorities, public health and nuisance provisions, and other laws may provide ways to address - albeit imperfectly - some nonpoint problems without requiring agencies to go back to the legislature for new authority. While these laws cannot substitute for integrated nonpoint programs including enforceable mechanisms where necessary, they can be components of such programs and can bridge gaps in existing authorities.

The report finds that there are numerous legal authorities on the books that can be used to establish and enforce nonpoint source control requirements. It also finds that these authorities appear in different kinds of state laws, with many exemptions and limitations, and that - as a consequence - the availability of an enforceable authority to address any particular nonpoint source discharge may depend upon complex issues of interpretation, evidence, and process.

 


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