Almanac of Enforceable State Laws to Control Nonpoint Source

299 Pages·1998·0.65 MB·English

ENVIRONMENTAL LAW INSTITUTE
RESEARCH REPORT
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1998
ALMANAC OF ENFORCEABLE STATE
LAWS TO CONTROL NONPOINT SOURCE
WATER POLLUTION
Environmental Law Institute
Copyright © 1998
Acknowledgements
This project was supported in part by Environmental Protection Agency Assistance
Agreement No. X-825472-02. The views expressed herein should not be attributed to
EPA nor should any official endorsement be inferred. Thanks also to the Richard King
Mellon Foundation for its support of the Environmental Law Institute’s sustainable use
of land program. Institute staff contributing to the project included James M. McElfish,
Jr., Jay Austin, and Tobie Bernstein, with additional help from Lavea Brachman; those
contributing to the underlying research included, in addition, Susan Casey-Lefkowitz,
Ken Rosenbaum, Andrew Galbreath, Laura Kosloff, Carl Bruch, Mary Duffy Becker,
and Chris Semonsen. Thanks to Dov Weitman and Kristen Martin of EPA’s Nonpoint
Source Branch, and to the many state reviewers of this information. Interpretations of
state laws and programs, and any errors or omissions, are solely the responsibility of
the Institute’s staff.
Almanac of Enforceable State Laws to Control Nonpoint Source Water Pollution
Copyright©, Environmental Law Institute®, 1998. All rights reserved.
ELI Project # 970301, ISBN # 0911937-81-1
Table of Contents
Page No.
Introduction .................................................................1
Alabama ....................................................................5
Alaska ......................................................................9
Arizona ....................................................................13
Arkansas ...................................................................17
California ..................................................................21
Colorado ...................................................................31
Connecticut ................................................................39
Delaware...................................................................45
District of Columbia .........................................................51
Florida .....................................................................55
Georgia ....................................................................61
Hawaii .....................................................................67
Idaho ......................................................................71
Illinois .....................................................................75
Indiana ....................................................................79
Iowa .......................................................................85
Kansas .....................................................................91
Kentucky ..................................................................97
Louisiana .................................................................105
Maine ....................................................................109
Maryland .................................................................119
Massachusetts .............................................................127
Michigan ..................................................................133
Minnesota .................................................................141
Mississippi ................................................................147
Missouri ..................................................................151
Montana ..................................................................155
Nebraska ..................................................................163
Nevada ...................................................................169
New Hampshire ...........................................................173
New Jersey ................................................................183
New Mexico ...............................................................187
New York .................................................................191
North Carolina ............................................................197
North Dakota ................................................... ...........205
Ohio ......................................................................209
Oklahoma .................................................................215
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Oregon ...................................................................221
Pennsylvania ..............................................................225
Puerto Rico ................................................................229
Rhode Island ..............................................................233
South Carolina .............................................................235
South Dakota ..............................................................239
Tennessee .................................................................245
Texas .....................................................................249
Utah ......................................................................255
Vermont ..................................................................259
Virginia ...................................................................265
Washington ...............................................................271
West Virginia ..............................................................277
Wisconsin .................................................................281
Wyoming .................................................................289
ii
Introduction
Because of increasing interest in methods for controlling nonpoint sources of
water pollution, the Environmental Law Institute (ELI) has been identifying and
collecting enforceable provisions in state laws that bear on, or that could be brought to
bear on, discharges from these sources. Nonpoint source discharges, which consist
generally of polluted runoff from farms, forests, land development and other activities,
are not regulated under the federal Clean Water Act’s National Pollutant Discharge
Elimination System permitting program.1 Instead they are addressed primarily through
nonregulatory means, such as planning, incentive and cost-share mechanisms,
voluntary Best Management Practices (BMPs), and other approaches.2
Yet, increasingly, states are finding it necessary to deal with nonpoint source
discharges that cannot be prevented, controlled, or abated adequately by these means.
A broad summary of existing enforceable state laws was published by ELI in late 1997
as Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution
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(available on the Institute’s website www.eli.org ). That study identified the types of
enforcement-based state laws that apply to nonpoint source discharges, and the
opportunities and obstacles affecting their use.3 This new study builds upon the prior
study. It provides a state-by-state summary of enforcement-based laws that are
potentially applicable to nonpoint source water pollution.
Scope of Study
This study consists of 52 summary reports for the states, the District of Columbia,
and the Commonwealth of Puerto Rico. The laws identified for each state do not
%
represent the totality of that state’s efforts to control nonpoint source water pollution
such as the voluntary, technical assistance, cost-share and other provisions that
typically serve as the core of most state programs. Rather, the summary reports
identify only the enforceable provisions that can apply to nonpoint source discharges in
each state.
For purposes of this study, enforceability is defined as the ability of the state to
impose a sanction upon an unwilling person or entity. This definition excludes
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provisions that simply prescribe the withholding of a benefit such as the many forest
and agricultural tax laws that require repayment of back taxes if a management plan is
violated, or laws that allow a state agency to condition receipt of cost-share moneys
upon compliance by the recipient.
The reader should note that the state laws identified are ones that could be used
to address nonpoint source pollution. The summaries are not limited to state laws that
are currently being used in this way. State laws written at various times and for various
purposes can often be applied in new ways. Knowledge of existing enforceable laws is
becoming increasingly important as many states attempt to deal with large inventories
of waters that are impaired, in whole or in part, by nonpoint sources. States that must
prepare load allocations for nonpoint sources under Total Maximum Daily Loads
(TMDL) requirements, for example, will need such enforceable mechanisms to assure
that the load allocation targets can be met.4 Coastal states also need to demonstrate
their ability to use enforceable mechanisms in order to continue to receive coastal zone
1
and nonpoint source financial assistance from the federal government under the terms
of the Coastal Zone Act Reauthorization Amendments of 1990.5
The state reports are, in essence, inventories of provisions that could be pressed
into service to deal with nonpoint source water pollution discharges or activities that
frequently cause such pollution. Because they are available without new legislation,
these provisions present state agencies, governors, attorneys general, and citizen groups
with potential tools that can be used in improving water quality.
Organization of State Reports
The enforcement-based provisions described in each state report are grouped
under six headings for purposes of easy reference and to facilitate comparison among
states. States with lengthy summary reports do not necessarily have stronger or more
comprehensive laws than those with shorter reports. Nor do the summaries show how
the state is using its array of tools.
The first three headings appear under the general category "Discharge
Prohibitions." They are intended to identify enforceable state provisions that apply to
nonpoint source discharges without regard to the type of source or activity creating the
discharge:
Water Pollution Control Law is intended to identify provisions in the state’s
primary water pollution law or environmental code that can be used as a basis
for enforcement against some (or any) discharges from nonpoint sources. This
section includes provisions in these laws that are broad enough to cover
nonpoint sources even when, to date, they have been used only to address point
source discharges. The reader should note applicable limitations, such as laws
that cover only discharges of "waste," or laws that require the government to
prove that the discharge caused impairment of the receiving waters.
Other Discharge Limitations is intended to identify nuisance-type enforceable
provisions, laws that protect public water supplies from impairment, public
health laws, and other miscellaneous (often older) laws that apply to nonpoint
source discharges. Often these provisions are usable only where there is a
demonstrated harm, or where particular listed substances are discharged into the
state’s waters.
Fish/Fisheries Laws is intended to identify provisions in state fish and game laws
that impose discharge prohibitions or limitations, and provisions that may be
used to take enforcement action when a nonpoint discharge results in taking,
death, or injury to fish or other aquatic life.
The next three headings are grouped under the general category "Operational
Requirements." This category is intended to identify laws that impose enforceable
operating requirements -- not just discharge prohibitions -- for three particular kinds of
activities that often result in nonpoint source water pollution discharges:
Forestry Requirements is intended to identify enforceable regulatory requirements
applicable to silviculture activities, including the harvesting of timber. If forestry
2
enforcement is only under the water pollution control law, however, this section
may indicate that no specific operating requirements apply. For example,
forestry best management practices that are not themselves enforceable are not
listed here, even though the state may take enforcement action under its water
pollution law if forestry operations cause water pollution incidents.
Agriculture Requirements is intended to identify enforceable regulatory
requirements applicable to agricultural activities. It may include limits on soil
erosion, pesticide use, fertilizer use, manure spreading, and regulation of animal
operations with respect to nonpoint source discharges. This section does not
report on state point source regulation of concentrated animal feeding operations
(CAFOs) required under the federal Clean Water Act, but may identify state
programs that address a wider universe of animal feeding operations than do
federal CAFO requirements, or state programs that impose specific licensing,
setback, manure management, or other requirements particularly relevant to
nonpoint source pollution.
Development and Other Earth-Disturbing Activities is intended to identify
enforceable state requirements applicable to excavation and land-clearing
activities. In general, it does not include provisions that simply implement the
urban stormwater point source requirements of the federal Clean Water Act.
Enforceable requirements applicable to some other kinds of nonpoint sources are
not directly addressed in this compendium, such as laws addressing on-lot sewage
systems, dams and hydromodification projects, marinas, and mineral development.
Conclusions
This review of the laws in 50 states, Puerto Rico, and the District of Columbia
indicates that most states have a number of enforceable authorities that can be used to
address various nonpoint source discharges, but that legal coverage of all nonpoint
sources is often incomplete. The laws contain numerous exemptions, especially for
agriculture and forestry. Much regulation under state laws is left up to local entities.
These include conservation districts (only some of which have regulatory and
enforcement powers) and municipal governments (which may or may not address
nonpoint sources under their zoning and regulatory powers). The implications of the
many exemptions and limitations are discussed in detail in ELI’s 1997 study.
This almanac of enforceable state laws is intended to raise the level of visibility of
these enforceable mechanisms, and to serve as a resource to state and federal legislators
and policy makers seeking to control nonpoint source water pollution in the years
ahead. The array of existing enforceable state laws that can be brought to bear on
nonpoint source discharges is both impressive and discouraging. Impressive because of
the diversity and ubiquity of state legal mechanisms. Discouraging because of the
inconsistent treatment of similar problems from one state to the next, and because of the
significant gaps in coverage that still exist in many states.
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Endnotes
1. 33 U.S.C. § 1342; see definitions of "discharge of a pollutant" and "point source" at 33 U.S.C. § 1362(12),
(14).
2. 33 U.S.C. § 1329, added to the Clean Water Act in 1987, provides a federal basis for planning and
federal funding of state nonpoint source control programs using these tools.
3. See also, James M. McElfish, Jr., "State Enforcement Authorities for Polluted Runoff," 28 Envtl. L. Rep.
(Envtl. L. Inst.) 10181 (April 1998).
4. See 33 U.S.C. § 1313(d).
5. 16 U.S.C. § 1455(d)(16). All submitted state programs were conditionally approved by the
Environmental Protection Agency and the National Oceanic and Atmospheric Administration, but most
need to demonstrate their ability to use the enforceable mechanisms identified in their submittals and/or
to develop additional mechanisms. See http://www.nos.noaa.gov/ocrm/czm/6217/findings.html.
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ALABAMA
Enforceable Provisions Applicable to Nonpoint Source Water Pollution
DISCHARGE PROHIBITIONS
Water Pollution Control Law
Alabama’s water pollution control law, which requires a permit for discharge of
"pollution," provides a basis for enforcement against some nonpoint source discharges,
but regulations exclude nonpoint source discharges from agriculture and silviculture
from the permit requirement. The state also maintains that it may directly enforce
against nonpoint sources, if they cause violation of water quality standards. In
addition, the law provides two general authorities which allow the state to take
enforcement action to deal with any type of water pollution resulting from negligence,
or any water pollution that produces a health hazard.
(cid:7)
"Every person, prior to discharging any new or increased pollution into any
waters of this state, shall apply to the commission [now the Alabama Department of
Environmental Management (ADEM)] in writing for a permit and must obtain such
permit before discharging such pollution."1 But although Alabama’s permit
requirement is not limited to point sources,2 nevertheless a permit is not required for
discharges "from non-point source agricultural and silvicultural activities."3
(cid:7) Enforceable provisions may include water quality standards.4 In addition to
setting standards, the regulations only require specifically, however, that "nonpoint
source discharges shall use best management practices adequate to protect water
quality consistent with the Department’s nonpoint source control program" with
respect to antidegradation of waters meeting water quality criteria and outstanding
state and national waters.5 The referenced program, however, appears to be largely
based on cost-shares and technical assistance.6
Enforcement of these provisions follows this procedure: "Whenever the
commission [ADEM] determines that any person is violating, or is about to violate, any
of the provisions of this chapter, or any rule or regulation or order or
permit...thereunder, [ADEM] may notify such person of such determination... Within
such time as may be specified in such notice, such person shall file with the commission
[ADEM] a full report showing steps that have been taken and are being taken to control
such pollution. Thereupon, the commission [ADEM] may make such orders as in its
opinion are reasonable."7 Enforcement includes orders, injunctions, civil actions for
damages for pollution (including "any reasonable costs to prevent, minimize, or clean
up any damage," costs for restocking of fish killed, civil penalties of $100 to $25,000 per
day, and criminal penalties for willful violation or grossly negligent violations.8
(cid:7)
The law also provides that ADEM, the attorney general or any district
attorney "may commence a civil action for damages for pollution of the waters of the
state including, but not limited to, any reasonable costs to prevent, minimize or clean
up any damage resulting from the wrongful act, omission or negligence of a person."9
5