Nonpoint Source: Other Issues
Chapter Four
Table of Contents
Other Issues
Other
Issues
This chapter briefly addresses enforceable mechanisms with respect to a
number of nonpoint source activities not covered in the preceding chapters. These
categories of activities are important to water quality, but are summarized rather than
discussed in detail.
ONSITE SEWAGE DISPOSAL
SYSTEMS
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.
While most states require licensing for pump-out operators, a significant
number of states require licensing of installers and repairers of such systems, e.g.,
N.H. Rev. Stat. Ann. 485-A:36; 7 Del. Code 6023; Fla. Stat. 361.0064; Ky. Rev.
Stat. 211.357, .360 (exempting farmstead owners, 211.350); Miss. Code 41-67-1 to -31; S.C.
Code 44-1-140(11), R. 61-56.1, Vern. Tex. Code Ann. Health & Safety
366.012; Colo. Rev. Stat. 25-10-108 (local boards may require); S.Dak. Codified L.
Ann. 34A-2-108; Cal. Health & Safety Code 117400. This list is not comprehensive
and does not include requirements imposed by states under regulations rather than
required by statute.
Numerous states have regulations for the siting and installation of onsite
systems including, in many cases, permit requirements (e.g. Connecticut, Maine,
Florida, Oregon, and many others). In many instances this authority is delegated to
local governments. Other states directly authorize local governments or boards of
health to impose permit requirements (e.g., New Jersey, Georgia, etc.). Still other
link such regulation to the issuance of building permits. Some have cross-compliance
provisions; for example, South Carolina prohibits a public utility from providing
electrical service until proof of compliance with onsite sewage disposal requirements
has been provided.
Apart from siting requirements - which may simply involve soil testing, but
which in other states may include buffer zones and other requirements - a number of
states have explicit provisions requiring land owners to maintain the functioning of
their systems and to abate any pollution caused thereby. For example, New
Hampshire law provides that "Any person who has installed or otherwise acquired a
subsurface sewage or waste disposal system installed in accordance with [this law] is
required to operate and maintain said system in such a manner as to prevent a
nuisance or potential health hazard due to failure of the system." N.H. Rev. Stat.
Ann. 485-A:37. Missouri law provides that "no person shall operate an on-site sewage
disposal system in a manner that may result in contamination of surface water or
groundwater," Mo. Rev. Stat. 701.029(1), but the law exempts single family systems
on parcels over three acres if the effluent does not leave the property. Mo. Rev. Stat.
701.31.
Rhode Island's rules require that systems "shall be maintained in good repair by
the owner." R.I. Rule SD 2.11. Tennessee combines the siting and maintenance
requirements succinctly in its legislation, which provides that subsurface sewage
disposal systems shall be located, constructed and maintained so that wastes
discharged to or from them do not pollute or contaminate surface or groundwater.
Tenn. Code 68-221-401. There are often special requirement for maintenance and
repair of systems adjacent to particular waterways, such as Washington's provisions
for repair of failing systems adjacent to marine waters, Wash. Rev. Code 90.48.264.
Nevertheless, because so much regulation of these systems is entirely local, it is
difficult to determine, by assessing state laws, what operating requirements are
applicable to most onsite systems in use across the country.
HYDROMODIFICATION
ACTIVITIES
The study identified numerous authorities related to earthmoving,
construction, and maintenance activities in or adjacent to waterbodies. Most states
require permits, either independent of or linked to Clean Water Act § 404 permits,
for certain activities to alter waterways, or to maintain prior drainage ditches, dams,
or diversions. In some cases these permits provide a means of assuring that these
activities are conducted in ways less likely to cause nonpoint source pollution. This
section briefly summarizes these requirements; however, full exploration of the
implications of these authorities for nonpoint source water pollution would require a
much more extensive analysis.
Such permit programs fall into basically five general categories: stream
alteration permits, regulation of agricultural drainage activities, dam safety and
operation, state wetland permitting, and floodplain regulation. In general, stream
alteration laws require state permits for activities directly affecting the flow of, or
calling for work in, the waters of the state. They often overlap with § 404 permitting,
and those states that lack specific stream alteration permit authorities can still use §
401 water quality certifications under the Clean Water Act to affect impacts on water
quality.
Agricultural drainage laws are most common in the midwest and plains states.
Typically they contain no environmental provisions, but are subject to some
environmental review under other programs, including stream alteration programs
and § 404. A few contain provisions that directly limit activities that would result in
increased levels of pollution, or that require review by state wildlife and fisheries
agencies. (e.g. Utah Code Ann. 73-5-9). All states have laws addressing the
construction and operation of dams, usually above a certain threshold size. While
these laws are primarily directed at ensuring safety for the public, a number contain
provisions that allow the state to order releases of water or retention of water for the
benefit of water quality and aquatic organisms.
Wetland permitting has been referred to above. Many states have laws that
provide detailed requirements for work conducted in tidal or nontidal wetlands.
Many of these have adopted regulations specifying the use of forestry and agricultural
BMPs, permit requirements, prohibitions of certain activities and other enforceable
requirements. These programs overlap to some extent with § 404 permitting, but
often cover activities in or near wetlands that are either not regulated under the
federal act or that would be permitted by a general permit under that act (based on
the size or nature of the activity).
Floodplain regulation is primarily local and designed to qualify for
participation in federal flood insurance programs, often subject to state approval (e.g.
N.Y. Env. Cons. L. 36-0101 to -0113, Cal. Water Code 8400-8412, Ohio Rev. Stat.
1521.18). Some states provide for state-level regulation of activities in floodplains
(e.g. 131 Mass. Gen. L. 40A). Some of these floodplain laws and programs provide
authority to limit or control nonpoint source pollution. For example, Indiana's Flood
Control Act makes it unlawful to make any deposit or excavation in a floodway
without a state permit from the Department of Natural Resources, and such a permit
may be granted only if the activity will not result in "unreasonable detrimental effects
upon fish, wildlife, or botanical resources." Ind. Code 14-28-1-22. Some laws also
have direct prohibitions on depositing contaminants within the floodways. (e.g.
Indiana Code 14-28-1-27).
In sum, laws addressing hydromodification and activities in floodplains and
floodways can play a role in enforceable controls for nonpoint source pollution.
HIGHWAYS AND GOVERNMENTAL
ACTIVITIES
Highways can be a significant source of nonpoint pollution, both during their
construction and during their operation and maintenance. State laws contain little
on nonpoint requirements for highways, except to the extent to which construction
activities are made subject to statewide erosion and sediment control laws.
Although there is little in most state statutes, there are often enforceable
controls established by contract requirements incorporating state manuals and
specifications. Moreover, the federal Intermodal Surface Transportation Efficiency
Act requires compliance with erosion control guidelines in highway construction
funded with federal dollars. Although most of the requirements are not found in
laws, some states do have provisions in law that indicate the kinds of requirements
that can apply. For example, West Virginia has rules specifically requiring
preparation of a pollution control plan and conformance to the "West Virginia
Department of Highways Erosion and Sediment Control Manual." 157 W.Va. CSR
3-8.21 South Carolina is unusual in that its legislation addresses the topic explicitly.
S.C. Code 63-380(1) requires that state Department of Transportation land
disturbing activities be performed "in a manner that erosion is controlled and
sediment is retained on the site concerned to the maximum extent feasible and
stormwater is managed in a manner such that neither any significant on-site nor off-site damage
and/or problem is caused or increases." S.C. Code 63-380(6) further
specifies that maintenance have as "top priority...to take the necessary steps to insure
the continuance of proper erosion and sediment control and stormwater management
measures as may be needed to prevent on-site and off-site damages or contamination
of watercourses or impoundments."
The other area of common interest in nonpoint discharges from highways is
the discharge of road salt and related chemicals into the waters of the state. While
many states have requirements for salt storage areas, Minnesota law further provides
that in order to "reduce the pollution of waters" road authorities "shall utilize such salt
and other chemicals only at such places as upon hills, at intersections, or upon high
speed or arterial roadways where vehicle traction is particularly critical" and only if in
the opinion of the road authorities, other means of snow removal or ice reduction
such as plowing "cannot be accomplished in a reasonable amount of time." Minn.
Stat. 160.215. While enforceability of this requirement is not clearly provided for, it
is unique in setting an operational standard at all in law.
Enforcement of nonpoint source requirements against state agencies under
state laws is not always clearly provided for. State environmental agencies may have
enforcement powers where discharge limits or explicit provisions of erosion and
sediment laws have been violated, but difficulties may be presented by the state
"enforcing" against itself. And violations of construction manuals may be impossible
to remedy absent a legislative handle, except for enforcement by state DOTs against
their own contractors for breach of contract requirements. New York has enacted an
interesting provision to attempt to deal with issues of this kind through disclosure
and reporting. Its law provides that each state agency "shall annually audit the
environmental problems created by its operations or the operation of contractors it
has hired and over whom it has exercised or is required to exercise direct oversight."
The agencies are required to report to the Department of Environmental
Conservation each year on results, violations, and environmental threats posed by
these activities. N.Y. Env. Cons. L. 3-0311.
State environmental policy acts in about a dozen states provide opportunities
for prospective review of state actions that may produce nonpoint source pollution.
Some of these laws, including those of California, Washington, and Massachusetts
expressly require implementation of identified mitigation measures and minimization
of adverse environmental impacts.
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