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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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