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Water: Polluted Runoff

Nonpoint Source: Conclusions

Chapter Five

Table of Contents

Conclusions

This study reveals that the states have a wide array of enforceable mechanisms for the control of nonpoint source water pollution. Virtually every state has a general discharge provision that is potentially applicable to nonpoint source discharges -- provided that the evidence of "pollution" or discharge of the statutorily defined substance can be obtained.

Some states have adopted complex and detailed enforceable programs dealing with certain economic activities or particular waterbodies. Some states have regulatory requirements prescribing operational requirements for agriculture or forestry or other activities, while others impose such requirements only for impaired waters. Still other states have only general discharge prohibitions. States have delegated much of the relevant enforcement authority to local units of government and conservation districts.

In addition, many of the most prescriptive laws are targeted to particular watersheds, water bodies, coastal zones, scenic rivers, or areas of special interest or concern. Thus, states have chosen to impose variable obligations across their jurisdictions based on the legislature's level of concern or identification of the importance of particular resources.

For example, Virginia's Chesapeake Bay Preservation Act requires local governments "to adopt water quality protection measures into their comprehensive plans, zoning ordinances, and subdivision ordinances." Va. Code 10.1-2100. Maryland's law has even more detailed requirements for buffer zones, land use controls and other provisions. Md. Code Ann., Nat. Res. 8-1808. New York's wild and scenic rivers law authorizes that state to make and enforce land use regulations to protect the river resources including water quality and fisheries. N.Y. Env. Cons. L. 15-15-2701.

Such targeted authorities may be broad, as well -- applying not just to designated bodies of water such as the Chesapeake Bay or legislatively-identified rivers, but also to classes of waters. For example, Maine provides for mandatory shoreline zoning that limits activities within 250 feet of the highwater line of any great pond, river, saltwater, or wetland, and within 75 feet of a stream. 38 Maine Rev. Stat. 435. Similar requirements are found in New Hampshire's Comprehensive Shoreland Protection Act, N.H. Rev. Stat. Ann. 483-B, including limitations on excavations, buffers for the application of fertilizers, woodland buffers with tree retention standards, minimum setbacks for septic systems, and other provisions. State wetlands programs can perform similar functions. About half the states have enforceable authorities tied to specific water bodies.

The states' primary responses to nonpoint source pollution -- the planning, incentive, publicly funded, and voluntary programs -- are beyond the scope of this report. Yet in order to understand the role of enforcement in any particular state, understanding the reach and scope of these authorities is often quite important. For it is these programs which, in most cases, supply the operating standards for which enforcement - in most states - serves as a back-stop. Where state enforcement authorities are solely linked to particular breakdowns (as in the case of bad actor laws), or require the state to provide financial aid in order to issue an enforceable order, or require proof that a particular discharge "caused" a violation of water quality standards in the receiving waters, enforcement authorities alone may be insufficient to assure prevention of pollution; the prevention aspect is handled through voluntary programs. But state enforcement authorities linked to operating requirements, as in forest practices laws, erosion control plan requirements, and some agricultural and nutrient management operating requirements, provide for enforceable prevention and response obligations in an integrated way. Either approach may work, but the former requires careful integration of the enforcement and voluntary programs if prevention is the goal.

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. As this study makes clear, the array of mechanisms applicable varies significantly not only state by state, but watershed by watershed, and activity by activity. Comparisons among approaches along different waterways, or enforcement studies based on the authorities available in particular places can greatly inform the federal process. Federal policymakers should also be aware of the effects of federal actions in the area of nonpoint source regulations. As described in the Appendix, a number of states have enacted laws which may produce unintended consequences if there is federal regulation in this area.

Finally, where water quality improvement is needed and voluntary programs are no longer sufficient, it is now possible to identify enforcement responses. This study reveals the types of authorities that states are already using in these situations, and the kinds of responses that either the states or the federal government could use in filling the identified gaps.


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