Nonpoint Source: Appendix
State "No More Stringent" Laws
An issue of potential relevance, particularly for the future adoption of
enforceable regulations for nonpoint source control, is that of legislative limitations
on regulatory actions by state agencies. About 1/3 of the states have statutory
provisions that limit or condition the ability of their regulatory agencies to adopt
regulations that are more stringent than any federal environmental regulations.
In general, these state laws do not impede the state agencies from regulating
areas or practices that are not federally regulated at all. Where they pose some
concern is where a federal regulation addresses an area only in part, or establishes a
discharge limit of some kind. These provisions may, for example, make it more
difficult for some state agencies to extend stormwater regulation beyond the
requirements of the federal program to reach smaller or rural sources. Or they may
make it difficult for a state to adopt or maintain comprehensive nonpoint source
regulations if the federal government enacts legislation or promulgates regulations in
the area establishing only rudimentary requirements.
The most problematic are state laws that prohibit adoption of any state rules
that are more stringent than federal requirements that cover "an essentially similar
subject or issue." S.Dak. Cod. Laws. Ann. 1-40-4.1. This kind of provision might
impair a state's ability to expand upon CAFO or municipal stormwater regulations, or
to regulate at all in an area where the federal program exists but is entirely voluntary.
One of the most restrictive laws in this context is that of Idaho, where it is the "intent
of the legislature" that the rules adopted by the state environmental agency in the
water pollution control area "...not impose requirements beyond those of the federal
clean water act." Idaho Code 39-3601.
Montana does not prohibit such rules outright, but prohibits rules "more
stringent than the comparable federal regulations or guidelines that address the same
circumstances" unless there is a finding after public hearing and detailed study that
such rules are necessary. Mont. Code Ann. 75-5-203, -309, 80-15-110.
Most of the state law provisions on greater stringency do not prohibit such
provisions, but rather require a more detailed and complex set of justifications and
more procedural review if the state intends to adopt more stringent regulations than
the federal requirements. For example, Maine requires the state DEP to identify rules
that are more stringent and to justify them, and provides for a longer review period.
38 Maine Rev. Stat. Ann. 341-D. Florida has a similar provision, and further
requires approval by the governor and cabinet after review of a cost benefit analysis.
Fla. Stat. 403.061(7)(31), 403.804(2). Pennsylvania has a similar requirement under
Executive Order 1996-1, requiring a "compelling and articulable" Pennsylvania
interest in the deviation or an independent state legislative justification. Maryland
has similar provisions in an Executive Order, as does Wisconsin under a Natural
Resources Board Policy. Board Pol. 1.52(3). Utah has enacted a similar legislative
requirement. Utah Code Ann. 19-5-195. Ohio requires more disclosure and review
for such regulatory proposals, including more disclosure for proposed legislation that
may be more stringent than federal requirements. Ohio Rev. Stat. 121.39.
Mississippi Code 49-17-34(2) provides that: "All rules, regulations and
standards relating to..water quality...or water discharge standards promulgated by the
commission after April 16, 1993 shall be consistent with and shall not exceed the
requirements of federal statutes and federal regulations, standards, criteria and
guidance...that have been duly promulgated pursuant to the federal Administrative
Procedures Act, including but not limited to...the identity and scope of water
pollutants included as water quality or discharge standards and the numerical and
narrative limitations of such standards." However, the commission is allowed to
promulgate regulations in the absence of federal standards "when the commission
determines that such regulations are necessary to protect human health, welfare or
the environment." Miss. Code 49-17-34(3).
A separate provision, Miss. Code 69-23-109, requires the Commissioner of
Agriculture and Commerce to report to the legislature any regulation of pesticide
applicators that is "more restrictive than applicable federal regulations" but does not
prohibit or impose special procedural requirements on such regulations.
Other state law limitations appear to be limited to effluent limits in NPDES
permits and so less applicable to most nonpoint regulations. Kentucky Rev. Stat.
224.16-050 provides that the Department of Natural Resources and Environmental
Protection may not impose under any permit "any effluent limitation, monitoring
requirement, or other condition which is more stringent than...would have been
applicable under federal regulation if the permit were issued by the federal
government." North Carolina law provides that "Except as required by federal law or
regulations, the [Environmental Management] Commission may not adopt effluent
standards or limitations applicable to animal or poultry feeding operations." N.C.
Gen. Stat. 143-215. Iowa law provides that no state effluent standard may be more
stringent than a federal effluent standard; but the law also declares explicitly that the
state may establish such standards for
sources or classes of sources for which the federal EPA has not done so. Iowa Code
Ann. 455B.173.
Finally, Oregon law bars the state Environmental Quality Commission and
DEQ from "promulgat[ing] or enforc[ing] any effluent limitation upon nonpoint
source discharges of pollutants resulting from forest operations on forestlands" unless
mandated under the federal Clean Water Act. Ore. Rev. Stat. 468B.110(2).
In sum, federal decisionmakers need to be aware of these self-imposed state
limitations when they make decisions about legislating or rulemaking in the area of
nonpoint source water pollution controls.
|
