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Water: Polluted Runoff

Nonpoint Source: Discharge Prohibitions

Chapter Two

Table of Contents

Discharge Prohibitions

Virtually all of the states have some enforceable statutory authority to deal generally with the subject of water pollution and activities on the land that may lead to such pollution. These authorities come in several forms. Many are parts of states' broad water pollution control laws. Provisions in public health and penal codes, typically enforced as petty criminal offenses, may prohibit specific kinds of discharges and substances that detrimentally affect public waters. Statutory nuisance and public health laws provide additional authorities where certain adverse effects can be proven. So does the common law of nuisance. And state fish and game protection laws frequently contain general provisions prohibiting pollution harmful to fish; or imposing liability for fish kills due to pollution events, not limited to point source pollution.

Although these were collected separately by source of law, these broad authorities discussed together below. The key issues in each statute are determining exactly what needs to be proven to demonstrate a "violation" of the law resulting in imposition of a sanction. Careful scrutiny of these laws is essential in assessing their utility in controlling nonpoint source pollution. For example, while various state water pollution control act 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), unlike the federal act many of these can be applied to nonpoint source pollution because they lack the limitation in 33 U.S.C. 1362(12) which defines "discharge of a pollutant" as "from any point source."

ELEMENTS OF THE GENERAL DISCHARGE PROHIBITION

Materials Discharged

The first issue in assessing the potential applicability of any discharge prohibition to any nonpoint discharge is to determine what materials are included in the prohibition. A law which prohibits the discharge of "wastes" without a permit may, for example, have some utility in regulating discharges of manure from stock raising operations or motor oil from suburban driveways, but be useless in addressing sediment discharges and be uncertain in addressing farm runoff containing pesticides. On the other hand, a similar state law prohibiting unpermitted discharges of "pollutants" may be limited by the need to show that the substance discharged either is on a list of pollutants or actually results in pollution of the receiving waters.

Complicating these definitional inquiries is the fact that states frequently do not define the same words in the same ways. For example, Fla. Stat. 403.031(12) defines "wastes" as "sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state." This definition, which is similar to definitions of "wastes" in a number of other states, clearly avoids the problem of a waste definition that excludes sediment and other non-discarded substances. But at the same time it raises problems of proof similar to those in state statutes prohibiting discharges of "pollutants" -- that an impact on the receiving waters may need to be shown in order for enforcement to occur. The broadest provisions found among the states prohibit the unpermitted discharges of "any substance" or any "organic or inorganic matter." (e.g., S.C. Code 48-1-90)

Another kind of common state statute, frequently found in public health laws, criminal laws, fish and game laws, or state environmental laws, actually lists materials that cannot be lawfully discharged - either at all, or without a permit - into the waters of the state or onto land adjacent to such waters. These lists typically include such specifics as offal, ashes, rubbish, paper, wood, sawdust, sludge, and other specific materials, only some of which are typical of nonpoint source pollution. Obviously, these provisions have only limited utility in the nonpoint source enforcement context. However, some state laws end these lists with a catch-all provision -- such as "anything else of an unsightly or unsanitary nature" (Ohio Rev. Stat. 1531.29) or "or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations" (Fla. Stat. 403.413), or "any other article which might pollute the water" (Vern. Tex. Code Ann. Water 11.090).

Although such provisions may expand the reach of some narrow "list"-type statutes, the expansion may be limited by two common legal doctrines of statutory construction. The first is noscitur a sociis, which simply means that a word is interpreted in accordance with the words around it. Thus, for example, if the list contains only materials associated with industrial processes, but no agricultural materials, the catch-all provision will be interpreted to reach only industrial-type materials. Similarly, if all the listed materials are wastes or products of human action, the doctrine may constrain the use of the law in reaching sediment discharges. The second doctrine, which is similar but not identical, is ejusdem generis, which indicates that the last word or phrase in a series should be read as a subset or subcategory of the preceding terms rather than as a term with greater breadth. Of course, the doctrine of plain meaning can be invoked in opposition to these others. The upshot is that reliance on a broad catch-all phrase at the end of a list has some risks in an enforcement context depending on the substance at issue.

Prohibited Conduct

The second major issue in interpreting the general discharge prohibitions is to determine what conduct is covered by the law. Such provisions usually come in two forms: (1) prohibition of mere discharge (or discharge without permit) without requiring the state to demonstrate any effect on the receiving waters, and (2) prohibitions of discharges that have, or can be projected to have, adverse effects on receiving waters.

Connecticut law illustrates both types. For example, Conn. Gen. Stat. 22a-430(a), 22a-423, prohibits any person from discharging or maintaining any discharge of "any water, substance or material into the waters of the state without a permit for such discharge...whether or not such substance causes pollution." At the same time, Conn. Gen. Stat. 22a-427 prohibits any person from causing "pollution" of any of the waters of the state.

The typical type (1) prohibition states that the discharge of a material, substance, or waste into the waters of the state or onto the land where it may enter the waters of the state without a permit is unlawful. These provisions are typically the cornerstone of state NPDES programs for point source discharges, but they may also have some application to nonpoint discharges where state definitional limitations do not constrain such use. Approximately half the states have such provisions in their water pollution control laws without statutory provisions limiting them only to point source discharges.

The difficulties in applying type (1) prohibitions to nonpoint sources largely arise in two ways. First, a significant number of the states with such provisions have explicit statutory or regulatory exceptions for agriculture and/or forestry (e.g. Fla. Stat. 403.927, 314 Code Mass. R. 3.05; Alabama Admin. Code 335-6-6-.03). While these exceptions remove significant nonpoint sources from the scope of these provisions, the exceptions themselves demonstrate the reach of the provisions over nonpoint source activities that are not specifically excepted. The second difficulty is more complex. Where there is a prohibition on discharge without a permit, but no permit scheme has ever been established, is the prohibition enforceable? A number of states have resolved this issue - either by establishing explicit permit authorities, or alternative authorities, or by case law - but others have not. In general, use of type (1) prohibitions where no permit program exists for nonpoint source discharges is possible, and many states assert the right to use such prohibitions in after-the-fact enforcement actions against polluters. But after-the-fact enforcement in a limited number of cases may not provide the same kinds of environmental benefits as a clear regulatory program that operates in advance of pollution events.

The vast majority of states have a type (2) prohibition that is potentially applicable to nonpoint source pollution. The typical type (2) prohibition does not address the issuance of a permit or the lack thereof. It simply prohibits discharges causing an identifiable harmful effect on the receiving waters. Such provisions typically make it "unlawful for any person to cause pollution of any of the waters of the state" (e.g. Okla. Stat. tit. 27A 2-6-105; Neb. Rev. Stat. 81-1506). Some of these provisions may spell out what is meant by "pollution," or may require that the state prove that the discharge caused a violation of a water quality standard in order to enforce the provision (e.g., Miss. Code 49-27-29(2)(a)(ii)). Some state laws explicitly prohibit not only discharges that "cause" water quality standards to be violated, but also discharges that "contribute" to such conditions (e.g., N.Y. Env. Cons. L. 17-0501; Indiana Code 13-18-4-5).

Type (1) and (2) prohibitions found in state water pollution control laws are usually enforceable by the entire panoply of regulatory tools, including administrative orders, injunctions, civil penalties, criminal fines and sentences, and, in some cases, summary abatement and cost recovery.

In addition to these two types of general prohibitions found in water pollution control laws, there are other common prohibitions. Typically found in other parts of the state codes, these are usually directed at specific environmental harms beyond the mere exceedance of water quality standards or causing pollution. These include provisions limited to conduct that causes or threatens to cause pollution of a drinking water supply, that endangers public health, that causes a nuisance, or that results in the death of fish or other aquatic life. Using these provisions for enforcement requires proof of a particular kind of adverse effect. These provisions are typically enforceable as misdemeanor offenses with modest fines, some provision for jail time or imprisonment, and are often subject to abatement by injunction. To the extent to which these are petty criminal offenses, proof of wrongful intent (or at least reckless disregard) may be required.

Location of the Discharge

The last issue that arises with general prohibition statutes is whether the material actually must enter the water in order for a violation to exist. While type (1) provisions often have such a requirement, a significant number of states, although not a majority, contain provisions that prohibit the placement of materials where they are "likely to cause pollution" (e.g., Ark. Code Ann. 8-4-217(a)(1); N.D. Cent. Code 61-28-06) or "likely to enter the waters" (e.g., R.I. Gen. Laws 46-12-5(a)). Some states approach this problem a different way. For example, Connecticut authorizes issuance of an order where any

person has created or is maintaining a condition "which reasonably can be expected to create a source of pollution to the waters of the state." Conn. Gen. Stat. 22a-432.

REVIEW OF STATE GENERAL DISCHARGE PROHIBITIONS IN WATER POLLUTION LAWS

This section summarizes the general prohibition authorities in the respective states and notes explicit limitations. It does not include state authorities that are explicitly limited to point sources - e.g. prohibitions of "discharge" where the state definition is limited to point sources. This summary is intended to illustrate the potential scope of these provisions. Obviously, issues of statutory construction, regulatory interpretations, typical practice, and state institutions will influence the actual application of the provisions. In effect, this section identifies the outer bounds of such authorities as they appear on the books.

It is important to recognize in this brief summary that states have other authorities available to them -- many discussed later in this report. Indeed, where states are employing explicit strategies under other authorities aimed directly at nonpoint sources, they may make little or no use of the authorities summarized in this section. The following summary is organized by EPA region.

As noted above, Connecticut prohibits both the discharge of any substance without a permit, and causing water pollution. Both provisions are potentially applicable to nonpoint sources. Conn. Gen. Stat. 22a-427, -430. Maine prohibits the discharge of any pollutant without a permit, but explicitly provides that this provision is not violated by any discharge that is in compliance with an approved agricultural erosion and sediment control plan, 38 Maine Rev. Stat. 413; Maine also prohibits any violations of water quality notwithstanding any permits or exemptions, but requires establishment of a mixing zone before enforcement of this provision against any source may occur. 38 Maine Rev. Stat. 451. Massachusetts prohibits discharge of a pollutant without a permit, 21 Mass. Gen. L. 42, but agricultural and silvicultural nonpoint source discharges are exempted by regulation. 314 Code Mass. R. 3.05. New Hampshire prohibits discharge of a waste without a permit, but also has a provision making it unlawful for any person to dispose of wastes in such manner that water quality standards will be violated. N.H. Rev. Stat. Ann. 485-A:12. Rhode Island prohibits the placement of any pollutant in a location where it is likely to enter the waters, and the placement of any solid waste or debris in the waters; but it only prohibits the "discharge [of] any pollutant" from a "point source" R.I. Gen. Laws 46-12-5. Vermont prohibits discharge of any substance without a permit, but expressly exempts the "proper application of fertilizer to fields and crops." 10 Vt. Stat. Ann. 1259.

New Jersey law prohibits discharge of pollutants without a permit or as otherwise authorized, N.J. Stat. Ann. 58:10-6; and also prohibits the placement of "deleterious" substances into the waters or where they can find their way into such waters, but exempts from the latter provision chemicals used in agriculture, forestry, horticulture, and livestock if done in an approved manner. N.J. Stat. Ann. 23:5-28. New York prohibits the direct or indirect discharge of any substance that "shall cause or contribute to" a condition in violation of water quality standards. N.Y. Env. Cons. L. 17-0501. Puerto Rico authorizes its state agency to forbid any discharges that do not have the appropriate permit. 12 P.R. Laws Ann. 1131(13)(A)(a), and also expressly prohibits direct or indirect discharge of any substance capable of polluting or leading to pollution in violation of water quality standards. 24 P.R. Laws Ann. 595.

Delaware requires a permit for any activity "which may cause or contribute to a discharge of a pollutant into any surface or ground water" 7 Del. Code 6003. The adopted implementing regulations appear limited to point source discharges to water and land, but the statute is not so limited and Delaware maintains that this authority also applies to nonpoint sources; indeed, Delaware's nonpoint programs rely in part upon this authority. District of Columbia law expressly authorizes the mayor to regulate and require permits for nonpoint source pollution. D.C. Code 6-926. Maryland law prohibits the discharge of a pollutant without a permit or other authorization and allows the imposition of permit requirements for activities that could cause or increase the discharge of pollutants. Md. Code Ann., Envir. 9-322, 9-323(b). Pennsylvania prohibits the discharge of any substance resulting in pollution, 3 Purdon's Stat. 691.401; Pennsylvania also has a provision prohibiting discharge without a permit, which it has used for nonpoint sources, but the provision applies only to industrial wastes, 3 Purdon's Stat. 691.301. Virginia law prohibits the discharge of wastes or any "noxious or deleterious substances" or the pollution of waters without a permit, Va. Code 62.1-44.5, as well as the placement of any substance which may contaminate or impair the lawful use or enjoyment of waters of the state except as permitted by law. Va. Code 62.1-194.1. West Virginia's general water pollution control law appears not to provide for the regulation or prohibition of nonpoint source discharges. W. Va. Code 22-11-8.

Alabama requires a permit for discharges of "pollution", Ala. Code 22-22-9(I)(3), but although the requirement is not limited to point sources, the regulations provide that a permit is not required for discharges "from non-point source agricultural and silvicultural activities." Ala. Admin. Code 335-6-6-.03(a). Florida law provides that causing pollution except as provided by law is prohibited, Fla. Stat. 403.161, and requires permits for discharges of waste that contribute to violation of water quality standards, Fla. Stat. 403.088, but further provides that agricultural activities (including all "normal and customary" farming and forestry operations), and agricultural water management systems, are authorized and do not require permits. Fla. Stat. 403.927. Georgia expressly requires anyone seeking to "erect or modify facilities or commence or alter an operation of any type which will result in the discharge of pollutants from a nonpoint source into the water of the state, which will render or is likely to render such waters harmful to the public health, safety, or welfare, or harmful or substantially less useful for domestic, municipal, industrial, agricultural, recreational or other lawful uses, or for animals, birds or aquatic life" to obtain a permit. Georgia Rev. Stat. 12-5-30(b). Kentucky prohibits the discharge of any pollutant or substance that shall cause or contribute to water pollution "in contravention of any rule, regulation, permit, or order or...the statute" Ky. Rev. Stat. 224.70-110; the law further provides that if a violation is traceable to an agricultural operation, it shall be handled under the state's enforceable agricultural water quality act rather than under the stricter water pollution control act. Ky. Rev. Stat. 224.120(10).

Mississippi prohibits pollution of the waters of the state or placement of wastes where they are likely to cause pollution, defining "pollution" as contamination not "in compliance with a valid permit," Miss. Code Ann. 49-27-29(2)(a)(I), 49-17-5(1), but the regulations provide that no permit shall be required for agriculture and silviculture nonpoint source pollution. Miss. Wastewater Reg. - Gen. Req. B.5. Mississippi has another provision, not linked to permitting definitions, prohibiting the discharge of any "wastes" which reduce water quality below adopted water quality standards. Miss. Code Ann. 49-27-29(2)(a)(ii). North Carolina prohibits the discharge of wastes and certain other discharges without a permit, N.C. Gen. Stat. 143-215.1(a); of perhaps greater immediate utility in the nonpoint context is its authority to issue "special orders" to "any person...responsible for causing or contributing to any pollution of the waters of the state within the area for which standards have been established." N.C. Gen. Stat. 143-215.2. South Carolina prohibits the direct or indirect discharge, seepage, or drainage of any substance into the waters of the state except in compliance with a permit. S.C. Code 48-1-90. Tennessee has a general prohibition against any discharge causing "pollution" except as properly authorized, Tenn. Code Ann. 69-3-114, but the law does not apply to any nonpoint source discharges from "any agricultural or forestry activity." Tenn. Code 69-3-120(g).

Illinois prohibits any person from causing, threatening, or allowing the discharge of any "contaminants" that would cause or tend to cause water pollution, or that would violate regulations or standards adopted by the Pollution Control Board. 415 Ill. Cons. Stat. 5/12(a). While this provision is not expressly limited to point sources, a second provision, 415 Ill. Cons. Stat. 5/12(f), which prohibits the unpermitted discharge of contaminants (without requiring evidence of water pollution) is expressly limited to point source discharges. Indiana law provides that a person may not "cause, permit or suffer to be...drained, allowed to seep, or otherwise disposed into any waters...any organic or inorganic matter that causes or contributes to a polluted condition of any waters" in violation of adopted water quality standards. Indiana Code 13-18-4-5. Michigan prohibits the direct or indirect discharge of any substance that may be injurious to health, safety or welfare, uses of waters, riparian lands, and fish and wildlife. Mich. Cons. L. 324.3109(1). Although this section is codified in a chapter of the code entitled "point source pollution control", Michigan law provides that chapter headings are not part of the act and are not to be used to construe the scope of the act. Mich. Cons. L. 324.103.

Minnesota has a general requirement of notice to the state of water pollution events and requires reasonable attempts by the discharger to minimize or abate pollution caused thereby. Minn. Stat. 115.061. Furthermore, by regulation, Minnesota has provided that "no sewage, industrial waste or other wastes shall be discharged from either a point or nonpoint source into the waters of the state in such quantity or in such a manner alone or in combination with other substances as to cause pollution." Minn. Rules 7050.0210(13). Ohio's water pollution law prohibits causing pollution or placing any wastes where they cause pollution except in accordance with a permit, but exempts agricultural and silvicultural runoff and earthmoving activities subject to regulation under Ohio's nonpoint source control programs administered by soil and water conservation districts and local governments. Ohio Rev. Stat. 6111.04. These programs are discussed later in this report. The Ohio law also exempts runoff of excrement from domestic and farm animals, only some of which is subject to regulation under the referenced programs. Wisconsin law authorizes the state agency to issue orders for the abatement of nonpoint source pollution if the source is "significant" and impairs water quality. Wis. Stat. 281.20. The provision has limitations on its use to control pollution caused by animal waste and pollution from an agricultural source in a priority watershed, where other planning and implementation tools are to be used first.

Arkansas makes it unlawful for any person to cause pollution or place waste in a location where it is likely to cause pollution. Ark. Code Ann. 8-4-217(a). Louisiana prohibits any "activity" which results in the discharge of any substance to the waters of the state without the "appropriate permit, variance, or license." 30 La. Rev. Stat. 2075. It also prohibits the discharge of any substance that will tend to cause water pollution in violation of any provision. 30 La. Rev. Stat. 2076(A)(1). However, the law also provides that these and other provisions of the water pollution control law "shall not apply to any unintentional nonpoint-source discharge resulting from or in connection with the

production of raw agricultural, horticultural, or aquacultural products." 30 La. Rev. Stat. 2076(A)(2).

New Mexico's water pollution law does not itself contain a prohibition applicable to nonpoint source water pollution, but rather authorizes the water quality control commission to adopt regulations "to prevent or abate water pollution in the state" and to require permits. N.M. Stat. Ann. 74-6-4. Thus, the availability of any enforceable authority depends entirely on the promulgation of specific regulatory requirements. Oklahoma law makes it unlawful for any person to cause water pollution or to place wastes in any location where they are likely to cause pollution. Ok. Stat. Ann. tit. 27A, 2-6-105. This provision is expressly interpreted to apply to nonpoint sources. Ok. Regs. 252:610-7-1. Texas prohibits the discharge of waste, including agricultural waste, into or adjacent to any waters, and prohibits any other act which causes pollution of any waters, except as authorized. Vern. Tex. Code Ann., Water Code 26.121(a). The law exempts agricultural and silvicultural discharges in compliance with a certified water quality management plan under Ag. Code 201.026.

Iowa prohibits "disposal" of a pollutant (defined as "waste") by discharge into the waters of the state except pursuant to a permit. Iowa Code Ann. 455B.186. Kansas prohibits the discharge or placement or flowage of "sewage" (defined as any substance that contains human or animal waste products or excrement or any wastes from domestic, manufacturing, or other forms of industry) into the waters of the state except pursuant to a permit. Kan. Stat. Ann. 65-164. The law also allows the attorney general to take action to secure abatement of "abatable pollution of the surface waters detrimental to the animal or aquatic life in the state." Kan. Stat. Ann. 65-171b. Missouri law prohibits causing pollution or placing any water contaminant where it is reasonably certain to cause pollution; it also prohibits the discharge of water contaminants which reduce the water quality below adopted water quality standards if not otherwise subject to effluent regulations. Mo. Rev. Stat. 644.051. Nebraska law makes it unlawful to cause water pollution or to place any wastes in a location where they are likely to cause water pollution, or to discharge wastes that reduce the water quality in the receiving waters below adopted water quality standards. Neb. Rev. Stat. 81-1506.

Colorado's water pollution control law authorizes the water quality control commission to adopt regulations relating to any "activity" that "does or could reasonably be expected to cause pollution of any state waters in violation of control regulations or...any applicable water quality standard." Colo. Rev. Stat. 25-8-205. With this authority, the state clearly may choose to regulate nonpoint sources of pollution; however, "control regulations related to agricultural practices shall be promulgated only if incentive, grant, and cooperative programs are determined by the commission to be inadequate and such regulations are necessary to meet state law or the federal act." Colo. Rev. Stat. 25-8-205(5). Montana law makes it unlawful to cause water pollution or place any wastes "where they will cause pollution of any state waters." Mont. Code Ann. 75-5-605(a). However, the law exempts materials placed in connection with activities permitted by any other state or federal agency, 75-5-605(a), and expressly exempts from state nondegradation requirements those nonpoint sources existing on April 29, 1993, all new nonpoint sources that follow "reasonable land, soil, and water conservation practices," land application of manure, and use of agricultural chemicals if done in accordance with an agricultural ground water management plan. Mont. Code. Ann. 75-5-317(2).

North Dakota law makes it unlawful to cause water pollution or place any wastes where they are likely to cause water pollution. N.D. Cent. Code 61-28-06(1)(a). South Dakota has a similar provision. S.Dak. Codified L. Ann. 34A-2-21. In addition, any discharge of wastes (defined as any polluting "substances") that results in degradation of water quality is also prohibited. S.Dak. Codified L. Ann. 34A-2-22. Utah prohibits causing pollution that constitutes a menace to public health and welfare, is harmful to fish or wildlife, or impairs beneficial uses of water, and prohibits placement of waste where there is "probable cause" to believe it will cause pollution. Utah Code Ann. 19-5-107. Wyoming makes it unlawful to "cause, threaten or allow the discharge of any pollution or waste into the waters of the state" except as authorized by permit. Wyo. Stat. Ann. 35-11-301. The prohibition has been held to apply to polluting activities for which no permit was available.

Arizona law requires the Department of Environmental Quality to adopt a permit requirement for point sources, and for certain facilities likely to pollute aquifers, and a "program to control nonpoint source discharges of any pollutant or combination of pollutants into navigable waters." Ariz. Stat. 49-203.A. Its general prohibition law makes it a criminal offense to (with criminal intent) discharge substances to waters without a required permit or other "appropriate authority," or to violate a water quality standard. Ariz. Rev. Stat. 49-263.A. California law requires a "report of waste discharge" from any person proposing to discharge "waste." The regional water quality control board must then issue waste discharge requirements (WDRs) - essentially a permit. Cal. Water Code 13260. However, these requirements may be conditionally waived by the regional board. Cal. Water Code 13269. California uses these requirement by first seeking to abate nonpoint source pollution through nonregulatory means, but reserves the power to either grant a conditional waiver (to secure operational changes in a discharger) or to require the report of waste discharge and issue a WDR.

Hawaii prohibits the discharge of any pollutant to waters of the state except as authorized by law or permit. Hawaii Rev. Stat. 342D-50. Hawaii, moreover, has explicit authority to regulate nonpoint source pollution under a provision that allows the issuance of enforceable nonpoint source rules which may include "water quality standards for specific areas, types of nonpoint source discharge, or management measures." Hawaii Rev. Stat. 342E-3(a). Nevada's general pollution prohibition authority is expressly limited to point sources. Nev. Rev. Stat. 445A.465. However Nev. Rev. Stat. 455A.565 also allows the state to prescribe controls for nonpoint sources ("diffuse sources") to prevent degradation of high quality waters, but not for "normal...farming practices". And 455.570 allows regulation of nonpoint sources existing on Jan 1, 1979 that are "significantly causing or adding to water pollution in violation of a water quality standard" and for new nonpoint sources where they impair high quality waters.

Alaska law provides that "a person may not pollute or add to the pollution of the...water of the state." Alaska Stat. 46.03.710. Idaho has very limited jurisdiction over nonpoint sources. It defines "discharge" in its water pollution control act as not including "surface water runoff from nonpoint sources." Idaho Code 39-3602. Another provision states that nonpoint sources are not required to meet water quality standards other than those necessary to support designated uses, unless a TMDL is required to be developed. Idaho Code 39-3604. In the context of TMDLs for high-priority impaired waters, the law provides that "nothing in this section shall be interpreted as requiring best management practices for agricultural operations which are not adopted on a voluntary basis." Idaho Code 39-3610. Indeed, the only direct authority is a prohibition on new or expanded nonpoint activities which "can reasonably be expected to lower the water quality of an outstanding resource water," Idaho Code 39-3618, and these sources are entirely exempt from permitting or other regulation if they implement BMPs. Idaho Code 39-3620(6).

Oregon law prohibits any person from polluting waters of the state or placing any waste where it is "likely to escape or be carried into the waters of the state, and from discharging wastes into water if such discharge reduces water quality below the adopted standards. Ore. Rev. Stat. 468B.025(1). Washington prohibits the discharge of "any organic or inorganic matter that shall cause or tend to cause" water pollution, Wash. Rev. Code 90.48.080, and permits are required for disposal of material into the waters of the state. Wash. Rev. Code 90.48.160. However, the law does not authorize the adoption of a permit system for nonpoint sources or imposition of penalties for pollution arising from forest practices conducted in compliance with the state's forest practices law. Wash. Rev. Code 90.48.420.

The general prohibition authorities summarized above are typically used by states not to carry out a detailed regulatory approach to nonpoint source water pollution, but rather as "back-up" authority to other programs intended to control such pollution, or to deal with egregious cases in the absence of other programs. In many states, because of the absence of an implementation program, they may represent an unused tool in the toolbox; in others, they are an integral part of the state's approach. In general, these tools have some importance because they potentially link nonpoint source pollution control to the states' point source control authorities. And they typically provide a wider array of order, abatement, and penalty authorities than either focused nonpoint source programs or older nuisance or misdemeanor-type prohibitions.

DISCHARGE PROHIBITIONS OF NARROWER SCOPE

In addition to the general prohibitions found in most states' water pollution control laws, virtually every state has other - usually older - provisions prohibiting certain kinds of discharges deemed detrimental to the public health or welfare, fisheries, drinking water, or other interests identified by the legislature. Typically misdemeanor provisions, these may nevertheless serve in some instances the important role of providing an enforceable response to a nonpoint source pollution event, or in some cases, threatened pollution event.

Discharge of Listed Substances

Various statutes specifically list detrimental substances whose discharge into the waters of the state is prohibited. These provisions are found most often in public health laws, criminal laws, and fish and game laws. Sometimes they take aim primarily at "litter" that may enter the waters of the state. Other laws seem more concerned with disease-bearing wastes or substances. "Offal, filth, rubbish..." heads a typical list. West Virginia has a typical provision, making it an offense "to place, deposit, dump, or throw, or cause to be placed, deposited, dumped or thrown, any litter...garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or part thereof, offal, or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond, or upon the surface of any land within one hundred yards thereof, or in such location that high water or normal drainage conditions will cause any such materials to be washed into any [such waters]." The offense is defined as a misdemeanor punishable by fine of not less than $50 nor more than $500. W.V. Code 20-7-8. This study identified similar provisions in Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Florida, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Oklahoma, Texas, Iowa, and California, although undoubtedly other states have such provisions.

Discharge of Substances Harmful to Fish

Approximately half the states' fish and game codes contain provisions that prohibit the discharge of various substances that are, or that may be, harmful to fish. These provisions do not require proof of injury to fish, but focus on the nature of the substances discharged. This is usually clear from the nature of the prohibition, but it is spelled out explicitly in some laws - for example, "it is not necessary to prove that the violation has actually caused the death of, or damage to, any particular fish" 30 Pa.C.S.A. 2504. Some of these provisions are written quite broadly, while others are narrow.

For example, Kentucky's law provides: "No person shall place or cause to be placed in any public waters any substance that might injure, interfere with, or cause the waters to be unfit for the support of wildlife [including fish]" Ky. Rev. Stat. 150.460(1) (penalty of up to $500 and/or 6 months). Arkansas law provides that "it shall be unlawful for any person to deposit, throw, drop, or discharge in any manner in any of the waters of this state any substance, liquid, or gas or anything else that will or does intoxicate or stupefy or in any manner injure any fish therein, whether done for the purpose of catching or taking fish or not." Ark. Code Ann. 15-43-317. Rhode Island law provides: "No person shall place, deposit, or explode any substance injurious to the health or life of a fish in any stream or fresh water pond" R.I. Gen. L. 20-11-10. Far more narrowly, Vermont prohibits the deposit of "lime, creosote, coculus inducus or other drug or poison destructive to fish" 10 Vt. Stat. Ann. 4606(b). Given the principles of statutory construction discussed earlier in this chapter, it may be harder to apply this provision to many forms of nonpoint source pollution.

Although many states have provisions of this type, others have drafted them in such a way as to be useless for reaching nonpoint source discharges. For example, contrast Maine's prohibition on the use of any "explosive, poisonous or stupefying substance...for the purpose of taking or destroying any kind of fish." 12 Maine Rev. Stat. Ann. 7617.

State fish and game laws can also provide regulatory authority over pollution discharges in some cases. For example, Massachusetts has an unusual provision that allows the state fisheries agency to determine that a "prohibition or regulation of the discharge of waste or material from any source" is needed for particular inland waters because of the value of the fishery therein, leading to action by the pollution control agency. 131 Mass. Gen. L. 41.

Some states, such as New York and California, use fisheries protection provisions to control nonpoint source pollution of shellfish production areas. For example Cal. Water Code 14950(d) provides that regional water quality boards "shall have primary responsibility for the protection of commercial shellfish harvesting from the effects of point and nonpoint pollution sources." Regulatory authority under the law arises once the area has been downgraded or restricted by the state's Department of Health Services, closed for more than 30 days per year for 3 previous years, or formally determined to be threatened. Cal. Water Code 14954. "Once the nature, sources, scope, and degree of the pollution affecting a commercial shellfish growing area have been determined, the regional board, with the advice of the local technical advisory committee, shall order appropriate remedial action, including the adoption of best management practices to abate the pollution affecting that area." Cal. Water Code 14956(a). However, Cal. Water Code 14956(b) provides that "if agricultural sources of pollution have been identified as contributing to the degradation of shellfish growing areas, the regional board shall invite members of the local agricultural community representing the type of agricultural discharge affecting the local shellfish growing area, the local resource conserve district, the local soil conservation service.....and affected shellfish growers to develop and implement appropriate short- and long-term remediation strategies that will lead to a reduction in the pollution affecting the commercial shellfish growing area."

Fish Kill Caused by Pollution

Many states also have provisions that prohibit fish kills or that allow enforcement responses to fish kills. Although some of these are simply broadly written prohibitions on killing fish without a valid fishing license, many others clearly proscribe nonpoint source and other discharges that result in harm to aquatic life.

Some of these provisions are similar to those described in the preceding section, but possibly may require proof of injury to fish, not simply discharge of an injurious substance. For example, Puerto Rico's law might be interpreted as falling within either category: "It is prohibited to throw or cause to be thrown or deposited into any...body of water...oils, acids, poisons, or any other substance which kills or destroys fish, crustacea, or mollusca." 12 P. R. Laws Ann. 61. Indiana's law prohibits drainage or placement of material into state waters that causes or contributes to a polluted condition such that "any fish life or any beneficial animal or vegetable life in any waters may be destroyed or propagation thereof prevented or injuriously affected." Indiana Code 13-1-3-8.

Other laws prohibit killing fish by depositing in any "public stream or body of water..any poison, poisonous substance...or other deleterious or poisonous matter" Ala. Code 9-11-93; or they provide that "No fish, other than migratory food fish of the sea in the marine and coastal district, shall be taken except by angling." N.Y. Env. Cons. L. 11-1301(1)("taking" includes killing). States with potentially applicable fish kill laws include at least Massachusetts, New York, Puerto Rico, Maryland (where the harm is from sediment), Alabama, Indiana, Minnesota, New Mexico, Wyoming, and Arizona.

In addition to state laws prohibiting fish kills, including those caused by polluting substances that may be discharged from nonpoint sources, it is also worth noting other state provisions that create explicit liability to the state where an "unlawful" pollution discharge damages fish. These include New Hampshire, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Kansas, South Dakota, California, Alaska, Oregon, Washington. Pennsylvania law provides: "The Commonwealth has sufficient interest in fish living in a free state to give it standing, through its authorized agencies, to recover damages in a civil action against any person who kills any fish or who injures any streams or stream beds by pollution or littering." 30 Pa.C.S.A. 2506(a). See N.C. Gen. Stat. 143-215.3 (similar)

Pollution of Drinking Water or Public Water Supply

About a fourth of the states have older provisions specifically aimed at preventing or criminalizing the pollution of a drinking water supply. Typical is Ok. Stat. tit. 11, 37-115: "No person...shall pollute or permit the pollution of the water supply of a municipality, or any stream, pond, spring, lake, or other water reservoir or groundwater aquifer, which is used or which is being held for use as a water supply by a municipality." Compare Minn. Stat. 144.35 "No sewage or other matter that will impair the healthfulness of water shall be deposited where it will fall or drain into any pond or stream used as a source of water supply for domestic use."

Nuisance and Public Health Provisions

All, or virtually all states have statutory provisions that provide for the abatement of nuisances, and many have additional public health provisions that may have some application to particular instances of nonpoint source pollution. The common law of nuisance also applies in every state. Nuisances are of basically two types: public nuisance and private nuisance. Public nuisance is the creation of a condition that causes injury to the public welfare, while private nuisance impairs the use and enjoyment of property. Nuisance is not a fault-based doctrine, but requires only proof of the adverse condition. Thus, even a condition that does not violate any law or regulation may still be abatable as a nuisance. Remedies for public nuisances are typically injunctions for abatement, or authority for a public entity to conduct summary abatement of the nuisance and recover its abatement costs, and/or the imposition of fines - reflecting the historic origins of public nuisance as a quasi-criminal action. Public

nuisance actions may be brought by the state or, often, by any affected entity or person, while private nuisance actions are brought by adversely affected land owners.

Nonpoint source water pollution that impairs the usefulness of waters, adversely affects human health, or impairs the rights of others may be abatable under state nuisance laws. Two types of nuisances are generally addressed by state statutes - first, and more important for most nonpoint sources, are state provisions declaring water pollution to be a nuisance. Such legislative declarations limit the need to prove particular deleterious effects in order to secure relief. Second, are state provisions that provide for the abatement of conditions dangerous to public health or otherwise noxious or offensive to the senses.

Alabama law combines both approaches in one provision: "Any and all pollution is hereby declared to be a public nuisance and, if it creates, or is about to create, a health hazard, shall be subject to immediate control of the commission by order or injunction." Ala. Code 22-22-9(I)(4). This provision both declares water pollution a nuisance making it subject to injunctive relief by the state or any person, and declares that particular kinds of water pollution (health hazards) are subject to certain kinds of administrative relief and summary abatement action. Pennsylvania law provides a typical, but especially complete, version of the "water pollution as nuisance" provision: "The discharge of...any substance into the waters of this Commonwealth, which causes or contributes to pollution...or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance" and "shall be abatable in the manner provided by law or equity for the abatement of public nuisances." 3 Purdon's Stat. 691.3, 691.601. Minnesota's provision is given additional detail in state regulations, making its applicability to nonpoint discharges explicit: "No sewage, industrial waste or other wastes shall be discharged from either point or nonpoint sources into any waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum...excessive suspended solids, material discoloration...undesirable slimes or fungus growths, aquatic habitat degradation, excessive growth of aquatic plants, or other harmful effects" Minn. Rules 7050.021.

Some laws more directly reflect the historic petty criminal nature of water pollution as a nuisance. Cal. Penal Code 374.4(a) provides: "Every person who...dumps or causes to be dumped, any waste matter into any bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of any stream or body of water, is guilty of a misdemeanor" and imposes a fine of $100-1000. A few states have even older provisions, like Kentucky Rev. Stat. 438.060, which makes it a violation for any person to place or cause to be placed "in any stream, dam, pool or pond" any substance that renders the water "unfit for use or produces a stench," punishable by fine of not less than $10 nor more than $100 and/or imprisonment for 30 days to 6 months. Ohio Rev. Stat. 3767.13(C): "No person shall...corrupt or render unwholesome or impure, a watercourse, stream, or water." This is a misdemeanor punishable by up to 60 days and/or $500.

General nuisance law is typified by Minn. Stat. 561.01: "Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance." Some states have made the connection to public health abatement explicit. For example, Kansas's Secretary of Health and Environment and county boards of health can examine all "nuisances, sources of filth and causes of sickness"..."When such source is found to exist on any private property or upon any watercourse in the state" they have the power to order the owner to remove the nuisance within 24 hours. Failure to obey an order is punishable by a fine of $10 to $100. Kan. Stat. Ann. 65-159.

Nuisance laws are generally not preempted by state regulatory laws; however, a number of states have expressly enacted savings clauses to preserve public and private nuisance actions for abatement of water pollution (e.g., Ala. Code 22-22-9(o)).

Virtually every state has enacted "right to farm" legislation exempting agricultural activities (and in a few states, silvicultural activities) from abatement as a nuisance. These laws vary in the extent of the exemption. All of them are clearly aimed at preventing private nuisance actions occasioned by recent suburban dwellers encountering the odors and noise of normal farming operations, but some are broader and apply to public as well as private nuisance actions and to a wider array of conduct. Most also provide that the exemption from nuisance liability does not apply where the agricultural activity is conducted in violation of law, or negligently, or (in some cases) where the nuisance alleged is water pollution. The following selected state laws give an idea of the scope of these ubiquitous laws.

Delaware has a typical right to farm provision: "No agricultural or forestal operation...which has been in operation for a period of more than 1 year shall be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such...operation is located. This section shall not apply when the nuisance is determined to exist as the result of the negligent or improper operation...or when such operation is being operated in violation of state or federal law or any local or county ordinance." 3 Del. Code 1401.

New Hampshire agricultural operations cannot be found a nuisance if they were in operation for one year or more and were not a nuisance when operations commenced; however this exception does not apply if operations are "injurious to public health or safety" N.H. Rev. Stat. Ann. 432.33, nor if the nuisance results from "negligent or improper operation". N.H. Rev. Stat. Ann. 432.34. But operations "shall not" be found negligent or improper" if they are obeying all laws. Thus, New Hampshire agricultural operations are exempt from nuisance actions unless they create a public health hazard, or they are violating an explicit legal requirement. Michigan law provides that a farm operation is not a nuisance if it "conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture" Mich. Cons. L. 286.473.

Idaho law goes farther by exempting not only agriculture but also agricultural processing operations and forestry activities from nuisance actions; the law also preempts local regulation of such activities, declares the right to conduct forest practices a "natural right" and has an exception only for "improper or negligent operation" - defined as operations not in compliance with law and adversely affecting public health and safety. Idaho Code 22-4501 and 38-1401.

New York exempts agricultural activities only from private nuisance actions, and subjects the exemption to various exceptions for increased activities and activities causing conditions dangerous to life or health. N.Y. Pub. Health L. 1300-c. California's right to farm nuisance exemption specifically provides that it "shall not invalidate " provisions of the state's Health and Safety Code, Fish & Game Code, Food & Ag. Code, or Porter-Cologne Water Quality Act that declare such an activity a nuisance "specifically defined or described in any of those provisions."

Some states' right to farm provisions specifically do not protect agricultural operations from nuisance claims based on water pollution. e.g., Hawaii Rev. Stat. 165-2, Ark. Code Ann. 2-4-106, Iowa Code Ann. 176B.11, N.D. Cent. Code 42-04-03.

ENFORCEMENT AND SANCTIONS

Most general discharge prohibitions under state water pollution control laws are enforceable by administrative orders, civil injunctions, civil penalties in the $10,000 to $25,000 range, criminal sanctions and other sanctions. This is why determining whether these authorities can be applied (particularly in the absence of an adopted permitting program for nonpoint sources) can be extremely important to a state effort.

Most of the discharge prohibitions based on other statutes are enforceable as petty criminal offenses and through abatement orders or injunctions.

These distinctions are important, not only because of their potential effectiveness in changing behavior, but also because they affect issues of process and issues of proof. For example, while proving that a discharge was of a "waste" or that it caused "pollution" presents one set of difficulties in a civil or administrative context, proving an offense in a criminal case (even in a magistrate's court) can present additional hurdles. Can the state show that the discharge was of a "deleterious substance" harmful to fish "beyond a reasonable doubt" and that the act occurred with the requisite intent? And is this even worthwhile if the sanction is $500? On the other hand, if an offense is criminal, even if petty, does this provide sufficient practical effect to bring about compliance and the deterrence of others? State discharge prohibitions come in many types, often presenting complex issues for prosecution or enforcement in the nonpoint source context.

 


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