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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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