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Nonpoint Source: Operational Requirements
Chapter Three
Table of Contents
Nonpoint Source Operational Requirements
- SEDIMENTATION AND EROSION LAWS
- FORESTRY ORIENTED REQUIREMENTS
- AGRICULTURE REQUIREMENTS
Nonpoint Source Operational Requirements The major enforceable mechanisms for nonpoint source pollution in the states are found in programs enacted specifically for the purpose of controlling such pollution, and in the recent extension of state stormwater permitting programs, state agricultural incentive programs, and state forestry programs into the area of enforceable controls.
SEDIMENTATION AND EROSION LAWS
Numerous states have enacted enforceable erosion and sediment control laws. Some of these are broad and cover an array of conduct across different sectors (from urban to agriculture), while others are closely linked to, or limited to, NPDES controls on urban and industrial stormwater. This section discusses a number of representative statutes to illustrate the scope of these authorities.
Some states have broad enforceable authorities applicable across the state to a variety of activities. For example, in Ohio, the law provides for control of erosion for all land disturbing activities. Somewhat different provisions apply for earthmoving associated with nonfarm activities than for agriculture and forestry, but all are subject to the control requirements. Nonfarm development activities involving disturbance of soils require an "erosion and sediment control plan" that must be approved by the state or local approving agency. Ohio Rev. Stat. 1511.02(E). Hawaii requires county ordinances to control soil erosion and sediment from "land disturbing activities"; the standards are met if the land is managed in accordance with practices acceptable to the local soil and water conservation district. Hawaii Rev. Stat. 180C-1 et seq.
Pennsylvania's program is established by regulation rather than by statute, and applies to a variety of earth-disturbing activities. This program, which is delegable to counties and local governments, requires erosion and sedimentation plans for all earthmoving activities. 25 Pa. Code Chap. 102. Permits are required for disturbances of 25 acres or more, or other size disturbances as set by regulation (note that the program is not limited to urban areas); and notice is required for all building permit activities affecting 5 or more acres. A control plan is required for agricultural plowing and tilling, but it is prepared by the landowner, rather than by a professional, and a permit is not required. 102.4(b).
Many of these laws exempt agriculture, either because other enforceable authorities apply, or because agriculture is addressed by incentive or voluntary mechanisms. For example, Maine requires activities, other than agriculture, displacing or exposing soil to implement measures "to prevent unreasonable erosion of soil or sediment beyond the project site" or into a stream, wetland, or other protected area. 38 Maine Rev. State. Ann. 420-C. Georgia's Erosion and Sediment Act requires counties and municipalities to implement comprehensive ordinances for all land disturbing activities, including enforceable BMPS. Ga. Rev. Stat. 12-7-6, -7. It exempts agricultural operations, Department of Transportation projects, and projects 1.1 acres or less from permit requirements Ga. Rev. Stat. 12-7-17. Virginia's Erosion and Sediment Control Law requires local jurisdictions or conservation districts to adopt a program requiring submittal and review of an erosion and sediment control plan, but does not apply to agriculture. Va. Code 10.1-563
Others exempt both agriculture and forestry, sometimes with conditions. For example, New Hampshire requires a permit to "significantly alter terrain" in or on the border of surface waters, but excludes"normal agricultural operations", and accepts timber operations' undertakings to implement BMPs as sufficient to satisfy the requirement. N.H. Rev. Stat. 485-A:17. North Carolina's Sediment Pollution Control Act is a state program, delegated to local governments; it requires approval of erosion control plans for covered activities. It does not apply to agriculture, nor to forestry activities conducted in accordance with BMPs. N.C. Gen. Stat. 113A-50 et seq. South Carolina has one Erosion and Sediment Reduction Act that applies only to activities on state lands S.C. Code 48-18-10; and a separate Stormwater Management and Sediment Reduction Act, 48-14-10, that applies to privately owned lands not owned by the state; the latter law exempts both agriculture and forestry. Michigan law requires permits for earth disturbing activities only within 500 feet of a lake or stream, but the law does not apply either to forestry nor to "plowing, tilling and harvesting." Mich. Codified L. 324.9115. Iowa requires a signed affidavit for earthmoving activities that soil loss limits will not be exceeded, but the law does not apply to tilling, planting, or harvesting of agricultural or forestry crops, nor to areas smaller than 25,000 square feet. Iowa Code Ann. 161A.64.
Delaware's law is fairly typical of state sediment and erosion laws: "[U]nless exempted, no person shall engage in land disturbing activities without submitting a sediment and stormwater management plan to the appropriate plan approval authority and obtaining a permit to proceed" 7 Del. Code 4003. Based on certain criteria, a person may be required to provide the plan for construction review by a state-certified reviewer. 7 Del. Code 4013. 7 Del. Code 4011(a) provides that watersheds proposed by a conservation district, county, municipality, or state agency and approved as "designated" shall have "regulatory requirements clearly specified through a watershed approach to nonpoint pollution control or flood control. The watershed approach shall result in a specific plan, developed or approved by the Department [of Natural Resources and Environmental Control]" The plan then governs all specific projects thereafter in the watershed. A regulation exempts construction projects disturbing less than 5,000 square feet. Del. Reg. SS 3.1B. Commercial forestry activities were exempted from the Delaware law by a 1994 amendment, 7 Del. Code 4002(3); and the law does not apply to agricultural land management unless the state agency determines that the land requires a new soil and water conservation plan and the operator has refused to seek one from the soil and water conservation district. 7 Del. Code 4004(a).
Some laws are more explicitly aimed at urban and construction site activities. For example, in addition to the erosion law noted above, Maine has a "site location of development law" 38 Maine Rev. Stat. Ann., directed at controlling pollution from these development sites. Minnesota requires a sediment control plan for "development activity" disturbing over acre of land. Minn. Stat. 103F.441. Other state laws particularly emphasize the involvement of local governments. E.g. Georgia Rev. Stat. 120707. Some states have laws that do little more than what is required to cover stormwater discharges from urban and industrial sources under the federal Clean Water Act, limiting their coverage to those sources.
A number of states integrate sediment and erosion control, and other forms of nonpoint source pollution controls into broad state planning requirements that are binding on local governments which must adopt and enforce them. Massachusetts, Rhode Island, Vermont, Florida, Georgia, Oregon, Washington, and California, among others, contain such mandates in their laws. For example, Cal. Govt. Code 65302, 6580, 66411 provisions on planning, zoning and subdivision contain provisions such as "The [subdivision] ordinance shall specifically provide for property grading and erosion and control, including the prevention of sedimentation or damage to offsite property." Not only is the local ordinance enforceable, but both the adoption of the underlying plan by the local government, and the adoption of the site plan approval for a particular subdivision are subject to enforceable review under the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code 21000 et seq., which contains its own requirements for avoidance of harm and mitigation of unavoidable impacts.
Other approaches used by the states are explicitly targeted to water resources of particular value or concern. Only a few examples are noted here, but almost every state has some version of these targeted authorities. For example, Maine provides for mandatory shoreline zoning, and special permits for construction adjacent to waterways and other natural resource protection areas. Maryland and Virginia have adopted Chesapeake Bay protection laws that require the enactment of local land use regulations, buffer zones, and other controls in jurisdictions tributary to the Bay. California's San Francisco Bay Conservation and Development Commission Act likewise provides for coordinated permitting requirements. South Carolina provides for special protection areas under its Stormwater Management and Sediment Reduction Act: "In addition to the other regulatory requirements in this chapter, designated watersheds shall have the regulatory requirements for land disturbing activities with the watershed clearly specified through a watershed management plan which includes nonpoint source pollution control, stormwater management, and flood control components." S.C. Code 48-14-130. New Jersey expressly requires areawide waste treatment planning in areas designated by the state, including the adoption of a regulatory program to control point and nonpoint sources of pollution, using the enforcement powers of the county boards of freeholders; in effect, the law promotes the use of enforceable mechanisms as necessary to implement Clean Water Act planning. N.J. Stat. Ann. 58:11A-4, -5. Coastal states, in particular, frequently have these authorities applicable to activities occurring in the coastal zone or in waters immediately tributary thereto.
There are many other state laws that address the issues of planning and operational requirements for earth-disturbing activities. Indeed, the great bulk of regulation is at the local level -- either pursuant to explicit state delegations of such authority under a sediment and erosion control law, or pursuant to local powers granted by a state planning and zoning code or home rule charter. This section of this report does not list all of the state laws, nor even one law for each state. Rather, its purpose has been to summarize the kinds of laws that are in operation, and their typical provisions, exceptions, and processes.
In summary, (1) a limited number of states have a broad erosion and sediment control law that reaches both urban earthmoving and rural activities, (2) far more states exempt agriculture from such laws, and a significant number exempt both agriculture and forestry, or subject the latter activities to a more limited set of requirements (such as various uses of BMPs), and (3) much of the relevant legislation or regulation applies on a watershed basis to protect particular water bodies. Indeed, watershed-oriented approaches are extremely important, as they enable states to draw upon unique authorities enacted for river basin commissions, wild and scenic rivers programs, wetland programs, bay and estuarine programs, coastal programs and the like. It is these programs that most frequently employ permitting requirements, buffer zones, and enforceable obligations linked to planning goals.
FORESTRY ORIENTED REQUIREMENTS
States have used a variety of approaches in dealing with nonpoint source pollution from forest practices. While a significant number rely on their general discharge prohibitions as a back-stop to voluntary programs or incentives, states have also enacted more focused and enforceable requirements aimed at prevention of pollution from forest practices.
Comprehensive Statewide Forest Practices Acts
The most comprehensive approaches are found in those states that regulate most forest practices on private lands. These states, mostly on the west coast and New England, have enacted comprehensive forest practices acts. These acts typically require planning for timber harvests, review of submitted plans, use of prescribed forest practice standards or BMPs, monitoring, and enforcement. California's Z'Berg-Nejedly Forest Practices Act, Pub. Res. Code 4511 et seq., divides the state into three districts with rules established by the state board of forestry - including detailed rules for protection of water resources. The required timber harvesting plan must include erosion and pollution control measures that conform to the regulatory standards. Cal. Pub. Res. Code 4581. Nevada's forest practices law provides that permits for logging must include BMPS for nonpoint sources. Nev. Rev. Stat. 528.042, Nev. Admin. Code 445.340. Massachusetts requires operators to file timber harvesting plans which must incorporate state forestry standards. 132 Mass. Gen. L. 42. Connecticut also has comprehensive state standards; and it allows forest practice regulation by municipalities if consistent with and approved by the state. Conn. Gen. Stat.23-65j, -65k. Maine's Forest Practices Act imposes requirements for clearcuts, including management plans for clearcuts in excess of 50 acres, that must provide for protection of water quality and minimization of erosion. 12 Maine Rev. Stat. 8867-8869.
Alaska's forest practices law authorizes the issuance of nonpoint source regulations by the commissioner of natural resources subject to the approval of the commissioner of environmental conservation, Alaska Stat. 41.17.055. The law requires a detailed plan of operations required, 41.17.090, including protection of riparian areas. 41.17.115(b). Idaho law provides for rules, practices, and BMPs, and requires a forest operator to post a required notice of intent and agreement to comply. Idaho Code 38-102 et seq. But some specific Idaho forest regulation relating to stream segments of concern were repealed and replaced by the general nonpoint source authority regarding impaired waters discussed in the general discharge prohibition section.
Oregon law requires forest operators to comply with BMPs, unless they can demonstrate to the state's satisfaction that alternative practices will achieve a better result, Ore. Rev. Stat. 527.724, 527.765. The law requires detailed plans for forestry operations in certain conditions, including within 100 feet of stream, notice of chemical use, and other practices. Ore. Rev. Stat. 527.670. Washington classifies forest practices
by their potential to damage public resources, and imposes enforceable notification, application, and planning requirements. Wash. Rev. Code chap. 76.09.
Enforcement mechanisms under these comprehensive laws include loss of permits, civil and criminal penalties, orders and injunctions, and professional licensing and disciplinary actions.
Other Laws Imposing Forest Standards
Broad and comprehensive forest practices laws are not the only enforceable approaches used by states to address nonpoint source pollution from forest practices.
Ohio's erosion control laws, under Ohio Rev. Stat. 1511.02(E), are carried out by soil and water conservation districts with state oversight, Ohio Rev. Stat. 1515.08. The rules must establish "technically feasible and economically reasonable standards to achieve a level of management and conservation practices in farming or silvicultural operations that will abate wind or water erosion of the soil or abate the degradation of the waters of the state by animal waste or by soil sediment including substances attached thereto" and include plans, enforcement orders and sanctions. 1511.02(E). Vermont's general land use statutes contain planning and implementation elements - specifically applicable to forestry - that must be implemented by local jurisdictions and that are enforceable by those jurisdictions.
Montana's law provides for protection of streamside management zones in the conduct of forestry operations. Mont. Code Ann. 77-5-301 et seq. Michigan law provides for best management practices and enforceable standards, but only in forested regions that have been designated "forest improvement districts." Mich. Code L. 324.50101. Alabama's statute gives broad authority to the Forest Commission "to adopt and promulgate rules and regulations pertaining to all phases of forestry within this state, which rules and regulations when adopted shall have the force and effect of law", Ala. Code 9-3-9, but the commission has not adopted enforceable standards.
Particular limitations and requirements applicable to forest practices within certain distances of shoreland, rivers, or water bodies are more common. Often these limit the distance within which cutting may occur or require the retention of a certain percentage of trees or vegetation, as in Maine, for example. Wetland requirements can also be significant; for example, New Hampshire regulations, Env-Wt 304.05, require the use of BMPs in such settings. Maryland law requires retention of buffers in Chesapeake Bay critical areas, and the preparation of plans; implementation of BMPs is also required for timber harvests in Maryland nontidal wetlands. In Virginia, forestry operations are exempt from the limits enforceable in the Chesapeake Bay Preservation Areas, but only if they fully implement required BMPs under the forestry law. In many states, forestry practices are regulated when they are within wetlands, within specific watersheds, or within a fixed distance of a water body, even though they may be unregulated in most of the state.
Some forest-oriented laws linked to a water quality objective may, even if enforceable, only have limited impacts on water quality. For example, the Mississippi Forest Harvesting Law, although it states a policy "to prevent soil erosion and consequent silting of stream channels and reservoirs; to protect watersheds and reservoirs and to insure at all time an adequate supply of water..." merely contains requirements that certain numbers of trees be left on each acre for growing stock or seed trees. Miss Code 49-19-51. Water quality is primarily addressed through voluntary silviculture BMPs.
Rather than impose a statewide enforceable standard for forest practices, or even a watershed based set of standards, a number of states have enacted authorities that enable state regulatory agencies to respond to pollution-causing events by directing forest operators to implement specific practices. These laws are often referred to in the nonpoint source context as "bad actor" laws, because they impose obligations only on those operators who have already committed - or are in the process of committing - bad acts. (This use of the term "bad actor" should not be confused with the more common use of the term in environmental law to refer to laws that require agencies to deny new permits to entities with histories of noncompliance - see, e.g., Western Organization of Resource Councils, Bad Actor Statutes: What They Are and How to Pass Them (1994)).
Only a few states have nonpoint source bad actor statutes. These bad actor statutes represent a different approach to nonpoint source pollution than the more regulatory-oriented approaches to forestry described in the preceding sections. Under the bad actor laws, the operator has no prior obligation (other than not to pollute), and the enforcement response tools are more limited than under comprehensive forest practices laws. Nonetheless, bad actor provisions provide a clear enforcement response which may, in many cases, be easier to use than the general discharge prohibitions summarized in chapter two.
Delaware's bad actor provision begins by providing for a graduated approach to silvicultural water pollution. If the Forestry Administrator determines that a person is conducting "silvicultural activity in a manner which is causing or likely to cause pollution" the Administrator "may advise the owner or operator of corrective measure needed to prevent or cease the pollution." 7 Del. Code 2979. However, if the operation "is causing or is likely to cause alteration of physical, chemical or biological properties of any state water, resulting from sediment deposition presenting an imminent and substantial danger to" the public health, safety or welfare, or the health of animals, fish or aquatic life, to a public water supply, or to other reasonable uses of the water, the Administrator has authority to issue "special orders" requiring the cessation of relevant activities and implementation of corrective measures. 7 Del. Code 2980. An order may not be issued if the operator is implementing approved BMPs and the pollution was caused by "unusual weather events which could not have been reasonably anticipated."
Virginia has a very similar forestry bad actor statute. The Virginia State Forester may issue special order, after hearing, where a silvicultural activity is causing or is about to cause pollution. No special order may be issued if BMPs were being followed and such techniques failed to prevent pollution if the pollution was caused by "unusual weather events which could not have been reasonably anticipated" Va. Code 10.1-1181.2. An emergency order, without a prior hearing, is authorized if the situation so requires.
West Virginia authorizes the director of the division of forestry to issue a written compliance order upon finding that "failure to use a particular best management practice is causing or contributing, or has the potential to cause or contribute, to soil erosion or water pollution." W.V. Code 19-1B-5. The director may issue an order for immediate suspension of work if the circumstances present a danger to life or threaten to result in uncorrectable soil erosion or water pollution.
New Hampshire's Division of Forests and Lands has the power to issue cease and desist orders to "temporarily suspend logging or other operations in forest areas when the director determines that such actions have resulted in, or are likely to result in, pollution of surface water or groundwater." N.H. Rev. Stat. Ann. 227-J:II(d), but the order simply suspends operations pending action by Department of Environmental Services, which must determine what action to take under other legal authorities.
Other Enforceable Forestry Tools
A number of states require the licensing of foresters, logging supervisors, or logging personnel. While such schemes do not directly result in the control of nonpoint source water pollution, the licensing requirements include testing, continuing education, and other means to increase familiarity with BMPs and other appropriate techniques to avoid water pollution. The states with such provisions include, among others, Connecticut, Massachusetts, New Hampshire, Rhode Island, West Virginia, Alabama, Georgia, South Carolina, and California. However, these were not comprehensively collected and identified.
Many states have tax breaks contingent on the adoption and implementation of forest management plans. In general, these plans are not defined as enforceable mechanisms within the scope of this study. Typically, the only consequence of violating a plan or ceasing to carry it out is loss of the tax break and some recapture of the taxes avoided in the preceding years (e.g., Maine, Indiana, Wisconsin, Missouri). However, Michigan's provision appears to be enforceable as it includes provisions not merely limited to loss of tax status and recapture, but criminal sanctions available under some circumstances. Mich. Cons. L. 324.51101, 324.51120.
Statewide Erosion Control Requirements
Several states have adopted enforceable requirements for control of erosion from agricultural lands. Some of these also address agricultural nutrients as part of the same planning and enforcement process. Vermont prescribes "accepted agricultural practices" which must be implemented across the state. These practices provide an enforceable baseline standard, above which BMPs may be imposed in specific places but only in accordance with limiting authority discussed below. Vt. Stat. Ann 4810.
Maryland prohibits agricultural discharge of sediment into the waters of the state except in accordance with approved soil and water conservation plans. Md. Code Ann. Envir. 4-413. New York law requires "every owner or occupier of agricultural land" - defined as 25 or more acres and certain smaller concentrated operations - to apply to the local soil and water conservation district for "a soil and water conservation plan for the land" and requires such districts to prepare such plans. N.Y. Soil & Water Cons. Dist. L. 9(7-a). These requirements are enforceable; however, the law does not make implementation of the required plan enforceable.
Ohio, as previously described, requires all of its soil and water conservation districts to adopt regulatory BMPs and enforceable plans for agriculture to control erosion and sedimentation. The Ohio law's enforceability is subject to one limit; if an order requires installation of a pollution abatement practice eligible for a cost share, it cannot be enforced against the operator unless 75% cost-share funds are actually available. Ohio Rev. Stat. 1511.02. Nebraska's law is similar in several respects. It requires all natural resource districts to adopt programs for erosion and sediment control. Neb. Rev. Stat. 2-4605. If there is a complaint about soil erosion, the district first seeks an agreed plan with the owner; if there is no agreement, then an enforceable order is issued. However, it is enforceable only if at least a 90 % cost share is available. Neb. Rev. Stat. 2-4608.
Kentucky requires the development of "statewide water quality plans to address identifiable water pollution problems from agricultur[al] operations" of 10 or more acres. The prescribed requirements must be implemented by farmers within five years. Ky. Rev. Stat. 224.71-100 to -145. Conducting an agricultural operation in violation of the plan in a manner which results in water pollution is a violation of law; failure to comply after receipt of written notice and provision of technical assistance and financial assistance "when possible" renders a person a "bad actor" subject to a civil penalty not to exceed $1000. Ky. Rev. Stat. 224.71-130. In a geographically targeted approach, Oregon's Agricultural Water Quality Management Act authorizes the state's Department of Agriculture to adopt enforceable rules to effectuate water quality management plans adopted to implement TMDLs, where needed to achieve compliance with water quality standards. Ore Rev. Stat. 568.909, .912, .930.
Some states with different substantive scopes for their statewide regulation of agriculture also rely on local soil and water conservation districts for implementation and enforcement. For example, Hawaii requires all county ordinances to control soil erosion and sediment from "land disturbing activities" but deems these standards met if land is managed in accordance with practices acceptable to the local soil and water conservation district. Hawaii Rev. Stat. 180C-1, 180C-2. Michigan, which exempts "plowing, tilling, and harvesting" from its statewide soil erosion and sediment control program, does apply the law to other agricultural practices; the soil conservation districts may implement the law under state rules. Mich. Cons. L. 324.9109.
State Law Bad Actor Requirements
Some states have enacted agricultural nonpoint source enforcement authorities designed to remedy particular problems after the fact. Some of these resemble the forestry bad actor provisions described above.
In a new law, effective in 1997, Virginia authorizes the state to investigate and if "substantial evidence exists to prove that an agricultural activity is creating or will create pollution" then the Commissioner of Agriculture and Consumer Services must notify the operator and require an "agricultural stewardship plan" to be submitted within 60 days. Upon approval by the conservation district the activity may continue, and the plan must be implemented. Enforcement occurs if the plan is not implemented. Va. Code 10.1-559.1-.7.
Wisconsin provides that the state may order abatement of nonpoint source agricultural pollution, requiring use of BMPs and corrective action; but the law limits the state's capacity to address agriculture in priority watersheds unless the source has been designated as a critical site in the relevant plan. Also, the state must allow one year for compliance, and may be overruled by the county land conservation committee. Wis. Stat. 281.20.
Texas has a more limited requirement. It authorizes the state soil and water conservation board to establish a water quality management certification program where nonpoint agricultural pollution is occurring. If there is a violation, the state board is to prescribe a corrective action plan. If corrective action is not taken, then the matter is referred to the Texas Natural Resources Conservation Commission for action using its other authorities. Vern. Tex. Code Ann. Agriculture 201.026.
A number of other states have somewhat similar authority to remedy agricultural contamination of groundwater. Some of these laws are discussed below under agricultural nutrients.
Conservation District Authorities
Most states with statewide enforceable authorities specifically integrate soil and water conservation districts into the planning, administration, and enforcement scheme, as has been evident from the statewide programs discussed above. This section discusses those states where such districts have the option, but not the obligation, to adopt enforceable land use regulations on their own.
Most states have recognized conservation districts (which go under a variety of names) under state law. In some states, these districts must be organized, and, in the aggregate cover the entire area of the state. In others, they exist only where specifically organized. Most conservation districts only have the power to develop erosion control and related measures and to encourage their adoption via education, persuasion, cost sharing, and voluntary programs.
A few states, however, allow the districts to adopt binding and enforceable land use regulations "in the interest of conserving soil and soil resources and preventing and controlling soil erosion" e.g., Tenn. Code Ann. 43-14-219; N.D. Cent. Code 4-22-27; Ark. Code Ann. 14-125-501; S.Dak. Codified L. Ann. 38-8A-11; Utah Code Ann. 17A-3-806 (17A-3-807 makes them enforceable). Although found mostly in the South and the northern plains states, conservation district authority to adopt enforceable land use regulations is also provided in Puerto Rico's law: "Land regulations adopted pursuant to this section shall have the force and effect of law in the said district and shall be binding upon all occupiers of lands within such district." 5 P.R. L. Ann. 246. In a number of states these enforceable district regulations can apply to silviculture as well as to agricultural activities.
In some states that authorize districts to make enforceable rules, such rules can only be adopted after a referendum and subsequent approval by the district board, e.g., Ala. Code 9-8-26; Georgia Rev. Stat. 2-6-35; Ky. Rev. Stat. 262.350-.390; W. Va. Code 19-21A-9; N.C. Gen. Stat. 139-9; S.C. Code 48-9-1510; Tenn. Code Ann. 43-14-219; 70 Ill. Cons. Stat. 405/23; Vern. Tex. Code Ann. Agriculture 201.121; 3 La. Rev. Stat. 1209; Mont. Code Ann. 76-15-701. Most of the states that require a referendum also require a super-majority for adoption of such regulations. The requirements range from approval by at least 2/3 of the landowners in Tennessee, North and South Carolina, and Louisiana, to 3/4 in Illinois, 4/5 in Alabama, and 9/10 in Texas and Kentucky. Alabama law makes it clear, as does the law of at least one other state, that the district's board of directors is free to decline to adopt regulations even if they have been approved by the requisite number of voters.
In a variation on the approach that allows conservation districts to elect to adopt enforceable regulations, Nevada authorizes conservation districts to petition the state conservation commission to formulate land use (erosion prevention and control) regulations for the district. Nev. Rev. Stat. 548.410.
Such "local option" regulation of agriculture occurs in a few other forms. Wisconsin law allows such regulation by a county, city, village, or town, which may enact "an ordinance...[that] may prohibit land uses and land management practices which cause excessive soil erosion, sedimentation, nonpoint source water pollution, or storm water runoff." Wis. Stat. 92.11. In Oklahoma, county commissioners may issue orders to halt soil erosion and drifting soil. Ok Stat. tit. 82, 521
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. However, some states have also adopted "accepted agricultural practice" requirements, or nutrient regulations, that are enforceable. Most states also have laws regulating fertilizers, but only to ensure their content and efficacy; only a few have provisions that address misapplication of fertilizers or nonpoint source water pollution resulting from such application.
Enforceable state laws that relate to CAFOs expand on federal requirements in at least three ways. The following examples will illustrate the approaches without analyzing the regulations of every state. Some states provide siting requirements and limitations. For example, North Carolina regulates the siting of certain hog operations. N.C. Gen. Stat. 106-800 et seq. South Dakota regulates the siting of CAFOs over shallow aquifers in a law applicable to operations commenced after July 1, 1997. S.Dak. Codified L. Ann. 34-3A-24. Wyoming enacted a new law in 1997 applying siting and bonding requirements to new confined hog operations. Iowa has both siting requirements and regulatory provisions; in addition its law expressly provides that permits must be denied if an enforcement action is pending, and for at least five years after the last violation of a habitual violator. Iowa Code Ann. 455B.161, .171-173
Other laws link the development of enforceable nutrient management plans either to the existence of CAFOs or to the threat of nutrient pollution to waters. For example, Pennsylvania requires the development of enforceable nutrient management plans for all "concentrated animal operations," and for other agricultural operations causing violations of the state's Clean Streams Law. 3 Purdon's Stat. 1706. West Virginia provides for CAFO permit requirements in accordance with the Clean Water Act, but also authorizes the commissioner of agriculture to develop mandatory BMPs for the application and use of fertilizers and manures upon having evidence of groundwater pollution that could be effectively prevented with BMPS. 61 C.S.R. 6C. Other state laws deal with animal wastes by incorporating them into enforceable programs for control of agricultural practices. Vermont requires compliance with "accepted agricultural practices" but allows the enforceable imposition of stricter BMPs on a case-by-case basis; however, BMPs may be ordered only if financial assistance is provided. 6 Vt. Stat. Ann. 4810. Ohio's broad nonpoint source program requires soil and water conservation districts to impose BMPs to "abate the degradation of the waters of the state by animal waste or by soil sediment including substances attached thereto", but the law expressly provides that these measures may only regulate animal excrement to the extent to which it is from a concentrated animal feeding operation. Ohio Rev. Stat. 1511.02. Florida regulates CAFOs similarly to federal requirements, but also has special requirements for dairy farms in the Lake Okechobee drainage basin, including a requirement to fence all dairy cattle out of watercourses, requirements for setbacks, and regulation of land application. Fla. Admin. Code 62-670.500.
Another approach regulates operations of different sizes than the federal CAFO definition. Mississippi, for example, uses the federal definition for water pollution control permitting, but smaller CAFOs must file a required "treatment design worksheet and request for site inspection;" the regulations also impose some siting limitations. Miss. Wastewater Regs. - Perm. Applic. C.2, C.3, C.4. In addition to permitting of CAFOs, Kansas provides for registration of facilities with an animal unit capacity of 300 to 999 prior to operation, and authorizes registration of even smaller facilities. The registration is used to determine the need for any significant water pollution potential or separation distance requirements. If such requirements are identified, then a permit is required. Kan. Stat. Ann. 65-171d. Some states have identified kinds of operations for particular regulation. For example, Connecticut requires permitting and enforceable "acceptable management practices" for intensive poultry operations (defined as more than 20,000 fowl). Conn. Gen. Stat. 22-323a, 22-326d-f. State authorities do, however, frequently track or only modestly expand upon the federal requirements. Oregon's law providing for CAFO permitting explicitly limits the reach of permit requirements by providing that such permits may contain "only those conditions necessary to assure that wastes are disposed of in a manner that does not cause pollution of the surface and ground waters of the state." Ore. Rev. Stat. 468B.215.
Apart from laws directed at animal wastes, states have other laws designed to deal with nonpoint source pollution from agricultural nutrients, including both wastes and fertilizers. Several states provide for enforceable requirements where such material threatens groundwater or surface water pollution. Nebraska's natural resource districts prescribe necessary requirements; if groundwater contamination occurs from a nonpoint source, then they must consider whether to adopt an "action plan" enforceable by cease-and-desist orders and sanctions. Neb. Rev. Stat. 46-656.05. Michigan's groundwater protection program also provides for protection against nitrate pollution, and allows the control of application rates, locations, and other practices. Mich. Cons. L. 324.8512. Montana's Agricultural Chemical Groundwater Protection Act authorizes the state to adopt enforceable management plans enforceable by orders, injunctions and sanctions, where agricultural chemicals are found in groundwater. Mont. Code Ann. 80-15-101 et seq. Arizona has provided for the development of agricultural general permits for "regulated agricultural activities" defined as "application of nitrogen fertilizer or a concentrated animal feeding operation." Enforceability is through the water pollution law, but the first response prescribed is the replacement of the general permit with an individual permit. Ariz. Rev. Stat. 49-247, 49-201.29.
An interesting "enforceable" program that operates collectively in a watershed is a Florida requirement designed to reduce phosphorous loadings in the Everglades region. The law provides for a scheduled phased-in increase in agricultural taxes over the course of a long period (until the year 2013), but if the collective loadings are reduced by certain targets, agricultural operators do not have to pay the scheduled increases; in addition, part of the program provides individual credits against these taxes for operators that take action themselves on identified parcels. While this program is unlike most regulatory and liability-based enforceable mechanisms discussed in this report, it nonetheless meets the definition. Sanctions in the form of higher taxes are imposed automatically on identified entities where prescribed results are not achieved. Fla. Stat. 373.4592.
Other states have chemigation laws. While many of these chiefly require installation of certain safety equipment to prevent malfunctions, others include provisions more directly linked to water pollution. Colorado, for example, requires a permit for addition of agricultural chemicals to irrigation water, and authorizes the commissioner of agriculture to suspend or revoke permits if the operation has contaminated surface or groundwater. Colo. Rev. Stat. 35-11-103, 35-11-112.
Various uses of BMPs in "enforceable mechanisms"
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. These concepts are illustrated by a representative sample of laws below.
Directly enforceable BMPs come in a variety of laws that may apply broadly across the state, to limited geographic areas, or to specific activities. Kentucky makes agricultural BMPs mandatory where prescribed by the statewide plan to control such pollution. Georgia law requires BMPs for all land disturbing activities, but excepts certain activities altogether. Arizona specifically makes BMPs enforceable in a general permit applicable to "regulated agricultural activities," defined as the application of nitrogen fertilizer and concentrated animal feeding operations. Idaho and Oregon, among other states, require implementation of BMPs under their forest practices laws. Other state laws make BMPs enforceable in particular places needing additional protection. For example, Connecticut requires agricultural operations in aquifer protection areas to implement BMPS. Maryland requires BMPs for forest operations in nontidal wetlands. West Virginia law provides that BMPs may be made enforceable for fertilizers and manures if the commissioner of agriculture identifies a significant groundwater problem. Florida requires them for the Everglades protection region.
A few states have provisions that make BMPs enforceable against bad actors - those who are responsible for actual pollution or nuisance conditions. This is true of the bad actor laws previously discussed, such as the Delaware and Virginia forestry laws. But it is not limited to these laws. Maine, for example, provides that if water pollution is being caused by a farm or farm operation not using BMPs, the commissioner of Agriculture, Food and Rural Resources shall direct the operator to implement BMPs; if they are not implemented, the Attorney General may institute an action for abatement. 17 Maine Rev. Stat. Ann. 2805. New Hampshire's law offers a weaker version, authorizing its commissioner of agriculture only to notify local health departments or the state department of environmental services "who shall take such action as their authority permits" if BMPs are not followed.
Exemption from regulation is an approach usually designed to avoid doubly regulating activities such as agriculture or forestry. In New Hampshire forestry operations following BMPs are not subject to "alteration of terrain" permitting under N.H. Rev. Stat. Ann. 485-A:17:III; similarly agricultural activities are exempt from the state's comprehensive shoreland law if conducted in conformance with BMPs. N.H. Rev. Stat. Ann. 483-B:3.III. In Virginia, forestry operations in jurisdictions subject to the Chesapeake Bay Protection Act are exempt from the requirements of that act if they follow forestry BMPs. 9 Va. Admin. Code 10-20-120. In North Carolina activities conducted in accordance with Forest Practice Guidelines Related to Water Quality are exempt from the state's Sediment Pollution Control Act. N.C. Gen. Stat. 113A-52.1.
Other state laws apply regulatory laws to nonpoint source activities, but make the implementation of BMPs a defense to an enforcement action charging a regulatory violation. Georgia's Erosion and Sedimentation Act provides that "proper design, installation, and maintenance" of urban BMPs (agriculture is not regulated under this program) is a complete defense to any action by the Environmental Protection Division. Oregon's Forest Practices law provides that forest operators operating in accordance with BMPs "shall not be considered in violation of any water quality standards." Ore. Rev. Stat. 527.770. Maine law provides that any method of operation used by a farm may not be considered a violation of any municipal ordinance if it is a BMP. 17 Maine Rev. Stat. Ann. 2805. The law also provides that an operation cannot be deemed in violation of Maine's general discharge prohibition if the operation is implementing practices in accordance with a plan approved by the appropriate soil and water conservation district. 38 Maine Rev. Stat. 413(2).
Vermont law illustrates a different approach to the regulatory defense role for BMPs. Its law provides that a farmer implementing "accepted agricultural practices" is presumed to be in compliance with water quality standards; however the presumption may be rebutted by the state in an enforcement action. 6 Vt. Stat. Ann. 4810. Kentucky also establishes a presumption; a person engaged in agricultural operations, including silviculture, in a water priority protection region where pollution has been documented "shall be presumed in compliance" where BMPs have been implemented as required by plan. Ky. Rev. Stat. 224.71-120(9).
Some states apply BMPs as a regulatory defense to particular requirements. For example, 7 Del. Code 6037(b) exempts farmers from replacing a person's damaged drinking water supply if the supply was damaged by "bacteria, viruses, nitrate, or pesticides, which have been applied" by the farmer according to the manufacturer's instructions. Fla. Stat. 576.045(4) exempts farmers using BMPs from liability for replacing water supplies damaged by nitrates. Iowa and Idaho have similar provisions that exempt farmers from liability for cleanup or for damages to groundwater. Iowa Code 455E.6 (no liability for cleanup or damages to groundwater from nitrates if application followed soil test results and fertilizer label); Idaho Code 39-127 (no liability for groundwater contamination from fertilizer if applied per generally accepted agronomic practices, or contamination from a pesticide if applied in compliance with law). Delaware and Virginia, as noted above, do not allow the state forestry agency to issue a "special order" if BMPs are in use and "unusual weather" caused the pollution event. 7 Del. Code 2980; Va. Code 10.1-1181.2. Pennsylvania law provides that management in accordance with a nutrient management plan requires mitigation or exemption from pollution penalties otherwise applicable. 3 Purdon's Stat. 1712, 1713.
As noted in the discussion of nuisance laws in chapter two, most states offer farms some protection against certain kinds of public or private nuisance suits. While these protections often do not apply to pollution caused by farms, a number of states have enacted laws that make compliance with BMPs a defense to nuisance actions. For example, Mich. Cons. L. 286.473a provides that the state's Department of Agriculture gets the first opportunity to investigate an alleged agricultural nuisance including "complaints involving the use of manure and other nutrients...and surface- or groundwater pollution." If the Department determines that BMPs are in use, then it must notify the complainants that proper practices are in effect. If they are not in use, then the department can "advise" the farm operation to resolve the problem. Variations on such laws as a supplement to the typical "right-to-farm" nuisance exemptions, exist in a number of states including Ohio, Maine, Vermont and others. Maine's law provides that "A farm or farm operation may not be considered a public or private nuisance if the farm...conforms to best management practices as determined by the Commissioner of Agriculture, Food and Rural Resources." 17 Maine Rev. Stat. 2805. Ohio makes BMPs an "affirmative defense" to a nuisance action. Ohio Rev. Stat. 1511.021.
Almost all states provide for state registration of pesticides and licensing or certification of dealers and commercial applicators (sometimes divided into classes or categories) requiring examinations and continuing education. A typical example is Georgia Rev. Stat. 2-7-99. These provisions are intended to help prevent the misuse and misapplication of pesticides. Most state laws requiring applicator licenses or certificates exempt farmers applying general use pesticides to their own property or that of neighbors noncommercially (e.g., Georgia Rev. Stat. 2-7-100; Ky. Rev. Stat 217B.180).
Many state laws also give the state agency (usually an agriculture department) power to prohibit or restrict uses of particular pesticides in places where they may do damage or harm (e.g. Ky. Rev. Stat. 217B.050; Kansas Stat. Ann. 2-2472 - "pesticide management areas" with special BMPs).
Some states have broader provisions that can address harm from pesticide handling and application. For example, several states have laws like that of Massachusetts: "No person shall distribute, handle, dispose of, discard, or store any pesticide...in such manner as...to cause damage to the environment, or to pollute or contaminate any water supply, waterway, groundwater or waterbody" 132B Mass. Gen. L. 6. Compare Minn. Stat. 18B.07, subd. 2 ("use, store, handle, distribute or dispose of..."). These provisions contrast with the more typical state limitations that do not address pesticide handling or use, but only incidental contamination resulting from other activities in the distribution chain. For example, most state laws provide that "No person shall transport, store, or dispose of..." R.I. Gen. L. 23-25-19; 7 Del. Code 1235 (same), Georgia Rev. Stat. 2-7-106 (similar).
Some states have additional provisions that are intended to deal with drift and unintentional misapplication of pesticides into waters or adjacent properties. Fla. Stat. 487.031 prohibits "apply[ing] any pesticide directly to, or in any manner caus[ing] any pesticide to drift onto, any person or area not intended to receive the pesticide." 7 Pa. Admin. Code 128.103(c) "An application of a pesticide may not be made where weather conditions are such that it can be expected that the pesticide will move off of the proposed application site." Other states have monitoring and response programs that impose enforceable obligations where contamination of groundwater is shown. For example, Michigan provides authority to regulate, require an action plan for approval, and take other actions to deal with contaminated groundwater. Mich. Cons. L. 324.8323 - 8324. Nebraska and Montana have similar provisions for nutrients and similar contaminants. On the other hand, some states have enforcement exemptions. Georgia law provides that no one engaged in "agricultural, silvicultural, farming, horticultural, or similar operation...who has applied or used or arranged for the application or use of any fertilizer, plant growth regulator, or pesticide...shall be responsible or liable under this title, without proof of negligence or lack of due care, for any damages, response costs, or injunctive relief relating to any direct or indirect discharge or release into, or actual or threatened pollution of, the land, waters, air, or other resources of the state...associated with or resulting from such application or use." Georgia Rev. Stat. 2-7-170(a).
Apart from the nutrient management laws discussed above, little state law addresses grazing activities on private lands with respect to the possible impacts of increased runoff on water quality. Puerto Rico has a law that provides that "cattle or horses shall be...watered only at the place set aside for this purpose" 12 P.R. L. Ann. 803. Arkansas has an old law which has conceivable utility for nonpoint purposes. It provides that in counties bordering on navigable streams, a local court may upon petition of a majority of voters, order livestock to be fenced in. Ark. Code Ann. 14-387-201. Cal. Health & Safety Code 116990 and 116995 prohibit livestock from polluting waters used for domestic water supplies, a law potentially broad enough to deal with impacts in certain watersheds. Nevada has a similar provision. Nev. Rev. Stat. 568.330. In 1997, Arizona enacted a law requiring the state department of environmental quality to adopt, by rule, a "surface water quality general grazing permit consisting of voluntary best management practices for grazing activities." Because it requires a permit this provision is arguably enforceable, but the insertion of the word "voluntary" may well pose impediments to any actions beyond requiring a grazier to have such a permit. The regulations are to be adopted within 180 days after receiving the recommendations of a state BMP advisory committee; the law also provides that the director of the department may waive VBMPs in an area if existing grazing activities "will not cause a violation of the adopted water quality standards for navigable waters." Ariz. Rev. Stat. 49-202.01,.02.
Irrigation return flows are excluded from the definition of point source under the federal Clean Water Act. In general, state laws are not capturing conduct not addressed by federal law in this area. Apart from state laws dealing with chemigation (the addition of nutrients or pesticides to irrigation water) there is little state legislation imposing requirements on possible nonpoint impacts of irrigation itself. Nevada law explicitly makes irrigation return flows subject to regulation as a "diffuse source" where there is a demonstrated negative impact on water quality. Nev. Admin. Code 445A.309(1). Texas, like several other western states, provides for licensing of irrigation installers and other like measures, but goes further by providing for reasonable ordinances to protect a water supply. Vern. Tex. Code Ann., Water Code 34.014, 38.006. New Mexico Stat. 74-6-4(K) bars the state from placing a permit requirement on the use of water in "irrigated agriculture, except in the case of employment of a specific practice in connection with such irrigation that documentation or actual case history has shown to be hazardous to public health or the environment."
