28 ELR 10181 | Environmental Law Reporter | copyright © 1998 | All rights reserved

State Enforcement Authorities for Polluted Runoff

Editors' Summary: Because the FWPCA's enforcement provisions focus on discharges from point sources, nonpoint source water pollution remains a significant problem. State and federal efforts to address nonpoint source pollution primarily include nonregulatory programs of planning, financial incentives, technical assistance, and voluntary measures. Yet, an array of enforceable mechanisms to control polluted runoff has emerged. Some have been on the books for years, while others have appeared more recently in response to particular problems. This Article recognizes that enforcement mechanisms vary significantly not only state by state, but also watershed by watershed, and activity by activity, and it identifies the wide array of enforceable state laws that are applicable to the control of nonpoint sources of water pollution.

This Article summarizes general discharge prohibitions and notes explicit limitations. It also looks at provisions found in states' fish and game laws, nuisance laws, sedimentation and erosion laws, forestry practices laws, and agricultural laws that can be applied to control nonpoint sources of water pollution. In addition, this Article examines the integration of best management practices into enforceable authorities as well as some geographically targeted enforcement authorities. This Article's comparison of different state approaches used to control nonpoint source pollution could assist state and federal decisionmakers in developing additional enforceable laws where water quality improvement is needed and voluntary programs are no longer sufficient.

James M. McElfish is a Senior Attorney at the Environmental Law Institute. This Article is based on research supported by U.S. Environmental Protection Agency (EPA) Assistance Agreement No. X-825472-01; no endorsement by EPA should be inferred. Thanks to Jay Austin, Mary Duffy Becker, Tobie Bernstein, Carl Bruch, Susan Casey-Lefkowitz, Andrew Galbreath, Laura Kosloff, Ken Rosenbaum, and Chris Semonsen for research. Portions of this Article are drawn from Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution (Environmental Law Institute 1997).

[28 ELR 10181]

After 25 years of federal and state efforts under the Federal Water Pollution Control Act (FWPCA), nonpoint source pollution remains a significant problem. The Act's enforcement provisions are directed at controlling discharges from point sources — regulating the discharge of pollutants to surface waters from pipes, outlets, and other discrete conveyances.¹ In contrast, nonpoint source water pollution — polluted runoff — is addressed primarily through nonregulatory means under the FWPCA and other federal and state programs.²

Because nonpoint sources are substantial contributors to the impairment of waters, various approaches to control polluted runoff have been tried by state governments. Common strategies at the state level include watershed and land use planning, development of voluntary best management practices (BMPs), technical assistance programs, and cost-sharing for implementation of prevention and control measures. These have been supplemented in some states by the development of enforceable mechanisms in state law. These mechanisms typically serve a backup role where voluntary and incentive programs do not achieve their water quality objective, but some are also prescriptive and preventive in nature.

State adoption of enforceable mechanisms to control nonpoint source water pollution has occurred largely in the absence of any direct federal requirement for such mechanisms. Notwithstanding this, the federal Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) provided impetus to most coastal states to identify enforceable mechanisms applicable to activities causing or contributing to nonpoint source pollution in their coastal zones.³ The [28 ELR 10182] CZARA required states and territories with approved coastal zone management programs to adopt enforceable mechanisms to implement management measures, as identified by the U.S. Environmental Protection Agency (EPA), to control nonpoint source pollution in their coastal zones in order to retain eligibility for grant funding under both the Coastal Zone Management Act (CZMA) and § 319 of the FWPCA. Twenty-four states and five territories submitted enforceable mechanisms for review by EPA and the National Oceanic and Atmospheric Administration (NOAA).⁴

The implementation of urban and industrial stormwater permitting under the 1987 Water Quality Act Amendments to the FWPCA⁵ also encouraged some state legislatures to take a more comprehensive approach to polluted runoff beyond simply meeting the federal requirements. Some states independently adopted innovative programs to control some types of nonpoint source pollution. Other states have on their books older pollution control, nuisance, and public health provisions that can also be used for this purpose.

This Article examines the laws of the 50 states, Puerto Rico, and the District of Columbia to identify enforceable laws applicable to the control of nonpoint sources of water pollution. It reviews general water pollution discharge prohibitions, fish and game laws, nuisance prohibitions, sedimentation and erosion laws, forestry laws, and agricultural laws. And it examines the integration of BMPs into enforceable authorities as well as some geographically targeted enforcement authorities. Through examples of these state authorities, the Article demonstrates both the great diversity of state law available to control polluted runoff and the patchwork character of such laws in the absence of a federal baseline.

Diverse and Changing State Law

Both the existence and scope of legally enforceable measures vary widely among the states. Some states have attempted to achieve broad coverage over polluting activities, while others have taken aim at specific problems. Still other states have little in the way of an articulated enforceable scheme. It is fair to say that no state is entirely without any enforceable authority relevant to nonpoint source discharges.

While some states have few such authorities, others have adopted a bewildering array of enforceable tools applicable to specific watersheds, specific activities, and specific effects on the environment. These are frequently paired with equally bewildering arrays of exemptions and exclusions. Because no two states have adopted the same set of laws, assessing the scope of state enforceable mechanisms is quite difficult. Even when state laws appear similar, they often have different definitions, enforcement mechanisms, and procedures.

In addition to their diversity, state laws in this area are rapidly changing. There are at least three reasons for these changes. First, state legislatures typically are the first responders to new and urgent problems. As new pollution problems are identified as important, or are elevated in importance as older problems are being solved, legislative responses become more likely. This is clearly the case with respect to nonpoint source issues such as animal waste (particularly with respect to siting issues), silvicultural practices affecting rivers and watersheds, biological effects such as Pfiesteria piscicida, the cost of providing additional levels of nutrient removal at publicly owned treatment works, and the recovery and economic redevelopment of river corridors.

Second, state action is beginning to be affected by the CZARA-driven upgrades to nonpoint source programs in the coastal states. The conditional approvals given by EPA and NOAA to many of these programs will require states to seek new "enforceable mechanisms" or to demonstrate the utility of such existing mechanisms over the course of the next several years if their programs are to remain compliant and eligible for continued nonpoint source grant funding under the FWPCA and coastal zone funding under the CZMA. A prior wave of modest enforceable nonpoint control mechanisms was launched by the stormwater permitting programs under the 1987 Water Quality Act. While many states simply implemented the requirements of the federal program, others took the initiative to add additional land use and sediment controls in their implementing legislation.

Third, state action is beginning to be affected by the impact of the judicial enforcement of requirements for states to establish and implement total maximum daily loads (TMDLs) for their impaired waters.⁶ This is backed by renewed EPA interest in this area.⁷ The task of implementation will require both a better understanding of nonpoint pollution sources in affected water bodies, and the development of effective state responses in requiring pollution prevention and controls.

Indeed, greater state investments of resources in the assessment of impaired waters for the state biennial reports required under the FWPCA⁸ are also playing a role in the evolution of state nonpoint source enforcement authorities. Improved technical tools and capacity, including the use of biological indices, are beginning to reveal the locations and scale of pollution problems only guessed at in prior decades. The identification and disclosure of particular impaired waters can lead to political pressures at the state level to adopt control and abatement measures.

In sum, this area is one in which state laws are changing. At the same time, however, many of the laws relevant to nonpoint source dischargers are quite old. Some are the legislative codifications of centuries-old common-law nuisance principles. Others are broad provisions in state clean water laws enacted in the 1960s and 1970s that can be applied [28 ELR 10183] to nonpoint sources. Still others are laws that were not originally drafted with pollution prevention effects in mind, but that control pollution-causing activities. This mixture of new laws and new implementation opportunities for older laws is the complement of enforceable nonpoint source control mechanisms available in most states.

There is some overlap in the coverage of nonpoint sources and point sources under some of these state laws. Some of this overlap arises from decisions by Congress to expand the regulatory reach of the FWPCA incrementally by bringing more categories into the point source permitting program. The municipal and industrial stormwater program is the most significant of these potential overlaps. Section 402(p) of the FWPCA, enacted in 1987, established a twophase program for national pollutant discharge elimination system (NPDES) permitting of stormwater discharges.⁹ Because state authorities often cover an array of activities, this Article includes some state authorities that cover stormwater permitting if they also cover activities outside the NPDES universe. A similar overlap exists with respect to pollution from animal wastes. Large concentrated animal feeding operations (CAFOs) are regulated as point sources under the FWPCA.¹⁰ Many states regulate these operations through amendments to their water pollution control regulations. This Article notes state enforcement authorities affecting animal wastes that appear to have a different reach from the federal point source CAFO regulations.

This Article does not discuss individual state procedures under FWPCA § 401, which requires states to certify whether an activity to be authorized under a federal license or permit will comply with adopted state water quality standards. If the state denies such certification, the federal license or permit may not be issued.¹¹ It should be noted, however, that FWPCA § 401 is used by some states to address some forms of nonpoint source pollution, although the provision's applicability to nonpoint source discharges remains in some dispute.¹²

Discharge Prohibitions Applicable to Nonpoint Sources

Nearly all of the states have some enforceable statutory authority to deal with nonpoint source water pollution. These authorities come in several forms. Many are parts of states' broad water pollution control laws. Provisions in public health and penal codes, typically enforced as petty criminal offenses, may also prohibit specific kinds of discharges and substances that detrimentally affect public waters. Statutory nuisance and public health laws provide additional authorities where certain adverse effects can be proven. Further, state fish and game protection laws often contain general provisions prohibiting pollution harmful to fish or imposing liability for fish kills due to pollution events.

Careful scrutiny of these laws is essential in assessing their utility in controlling nonpoint source pollution. For example, while various state water pollution control act provisions superficially resemble the FWPCA's prohibition of the discharge of a pollutant without a permit,¹³ many of these, unlike the federal Act, can be applied to nonpoint source pollution because they lack the FWPCA's limitation that defines "discharge of a pollutant" as "from any point source."¹⁴

Elements of the Prohibition

Materials Discharged. The first issue in assessing the potential applicability of any discharge prohibition to any non-point discharge is to determine what materials are included in the prohibition. A law that prohibits the discharge of "wastes" without a permit, for example, may have some utility in regulating discharges of manure from stock raising operations or motor oil from suburban driveways, but may be useless in addressing sediment discharges and uncertain in addressing farm runoff containing pesticides. On the other hand, a similar state law prohibiting unpermitted discharges of "pollutants" may be limited by the need to show that the substance discharged either is on a list of pollutants or actually results in pollution of the receiving waters.

Complicating these definitional inquiries is the fact that states frequently do not define the same words in the same ways. For example, Florida defines "wastes" as "sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state."¹⁵ This definition, which is similar to definitions of "wastes" in a number of other states, clearly avoids the problem of a waste definition that excludes sediment and other nondiscarded substances. But at the same time, it raises problems of proof — that an impact on the receiving waters may need to be shown in order for enforcement to occur — similar to those in state statutes prohibiting discharges of "pollutants." The broadest provisions found among the states prohibit the unpermitted discharges of "any substance" or any "organic or inorganic matter."¹⁶

Another kind of common state statute, frequently found in public health laws, criminal laws, fish and game laws, or state environmental laws, actually lists materials that cannot be lawfully discharged — either at all, or without a permit — into the waters of the state or onto land adjacent to such waters. These lists typically include such specifics as offal, ashes, rubbish, paper, wood, sawdust, sludge, and other specific materials, only some of which are typical of nonpoint source pollution. Obviously, these provisions [28 ELR 10184] have only limited utility in the nonpoint source enforcement context. However, some state laws end these lists with a catchall provision such as "anything else of an unsightly or unsanitary nature,"¹⁷ "or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations,"¹⁸ or "any other article which might pollute the water."¹⁹

Although such provisions may expand the reach of some narrow "list"-type statutes, the expansion may be limited by two common legal doctrines of statutory construction. The first is noscitur a sociis, which simply means that a word is interpreted in accordance with the words around it. Thus, for example, if the list contains only materials associated with industrial processes, but no agricultural materials, the catchall provision will be interpreted to reach only industrial-type materials. Similarly, if all the listed materials are wastes or products of human action, the doctrine may constrain the use of the law in reaching sediment discharges. The second doctrine, which is similar but not identical, is ejusdem generis, which indicates that the last word or phrase in a series should be read as a subset or subcategory of the preceding terms rather than as a term with greater breadth. Of course, the doctrine of plain meaning can be invoked in opposition to both of these legal doctrines. The upshot is that reliance on a broad catchall phrase at the end of a list has some risks in an enforcement context depending on the substance at issue.

Prohibited Conduct. The second major issue in interpreting a general discharge prohibition is to determine what conduct is covered by the law. These prohibitions usually come in two forms: (1) prohibitions of mere discharges (or discharge without a permit) that do not require the state to demonstrate any effect on the receiving waters; and (2) prohibitions of discharges that have, or can be projected to have, adverse effects on receiving waters.

Connecticut law illustrates both types. For example, Connecticut prohibits any person from discharging or maintaining any discharge of "any water, substance or material into the waters of the state without a permit for such discharge … whether or not such substance causes pollution."²⁰ At the same time, Connecticut prohibits any person from causing "pollution" of any of the waters of the state.²¹

The typical type (1) prohibition states that the discharge of a material, substance, or waste into the waters of the state or onto the land where it may enter the waters of the state without a permit is unlawful. These provisions are typically the cornerstone of state NPDES programs for point source discharges, but they may also have some application to non-point discharges where state definitional limitations do not constrain such use. In fact, approximately half of the states have a type (1) prohibition that has some application to non-point source discharges in their water pollution control laws.

Difficulties in applying type (1) prohibitions to nonpoint sources largely arise in two ways. First, a significant number of the states with such provisions have explicit statutory or regulatory exceptions for agriculture and/or forestry.²² While these exceptions remove significant nonpoint sources from the scope of these provisions, the existence of the exceptions demonstrates the reach of the provisions over the nonpoint source activities that are not specifically excepted. The second difficulty is more complex. Where there is a prohibition on discharge without a permit, but no permit scheme has ever been established, is the prohibition enforceable? Many states assert the right to use such prohibitions in after-the-fact enforcement actions against polluters.²³ But after-the-fact enforcement in a limited number of cases may not provide the same kinds of environmental benefits as a clear regulatory program that operates in advance of pollution events.

The vast majority of states have a type (2) prohibition that is potentially applicable to nonpoint source pollution. These laws simply prohibit discharges that cause an identifiable harmful effect on the receiving waters. Such provisions typically make it "unlawful for any person to cause pollution of any of the waters of the state."²⁴ Some of the laws define what is meant by "pollution," or require that the state prove that the discharge caused a violation of a water quality standard.²⁵ Some laws explicitly prohibit not only discharges that "cause" water quality standards to be violated, but also discharges that "contribute" to such conditions.²⁶

Type (1) and (2) prohibitions found in state water pollution control laws are usually enforceable by the entire panoply of regulatory tools, including administrative orders, injunctions, civil penalties, criminal fines and sentences, and, in some cases, summary abatement and cost recovery. A few states have neither type of prohibition in their water pollution control statutes. Some of these have no authority over nonpoint sources under their water pollution control laws,²⁷ while others operate under an authorizing law that does not itself impose a prohibition but that directs the state regulatory agencies to adopt appropriate regulations for the control of water pollution.²⁸ This latter approach does not operate as an enforceable general prohibition on nonpoint source pollution unless the state agency affirmatively adopts regulations aimed at such sources.

Location of the Discharge. The last issue that arises with general prohibition statutes is whether the material actually must enter the water in order for a violation to exist. While most state discharge laws have such a requirement, a significant number of states, although not a majority, contain provisions that prohibit the placement of materials where they [28 ELR 10185] are "likely to cause pollution"²⁹ or "likely to enter the waters."³⁰ Some states approach this problem a different way. For example, Connecticut authorizes the issuance of an order where any person has created or is maintaining a condition "which reasonably can be expected to create a source of pollution to the waters of the state."³¹

General Discharge Prohibitions by State

This section, organized by EPA Regions, summarizes the general prohibition authorities in each state and notes explicit limitations. It does not include state authorities that are explicitly limited to point sources. Nor does it address actual state implementation practices. In effect, this section identifies the outer bounds of such broad authorities as they appear on the statute books. It is important to recognize in this brief summary that many states have other authorities available to them. Indeed, where states are employing explicit strategies under other authorities aimed directly at nonpoint sources, they may make little or no use of the authorities summarized in this section.

Region 1. Connecticut prohibits both the discharge of any substance without a permit and the causing of water pollution. Both provisions are potentially applicable to nonpoint sources.³² Maine prohibits the discharge of any pollutant without a permit, but explicitly provides that this provision is not violated by any discharge that is in compliance with an approved agricultural erosion and sediment control plan.³³ Maine also prohibits any violations of water quality not-withstanding any permits or exemptions, but requires establishment of a mixing zone before enforcement of this provision against any source may occur.³⁴ Massachusetts prohibits the discharge of a pollutant without a permit,³⁵ but agricultural and silvicultural nonpoint source discharges are exempted by regulation.³⁶ New Hampshire prohibits the discharge of a waste without a permit, but also has a provision that makes it unlawful for any person to dispose of wastes in such manner that water quality standards will be violated.³⁷ Rhode Island prohibits the placement of any pollutant in a location where it is likely to enter the waters, and the placement of any solid waste or debris in the waters; but it only prohibits the "discharge [of] any pollutant" from a "point source."³⁸ Vermont prohibits the discharge of any substance without a permit, but expressly exempts the "proper application of fertilizer to fields and crops."³⁹

Region 2. New Jersey law prohibits the discharge of pollutants without a permit or as otherwise authorized.⁴⁰ It also prohibits the placement of "deleterious" substances into the waters or where they can find their way into such waters, but exempts chemicals used in agriculture, forestry, horticulture, and livestock if done in an approved manner.⁴¹ New York prohibits the direct or indirect discharge of any substance that "shall cause or contribute to" a condition in violation of water quality standards.⁴² Puerto Rico authorizes its state agency to forbid any discharges that do not have the appropriate permit.⁴³ Furthermore, Puerto Rico expressly prohibits direct or indirect discharge of any substance capable of polluting or leading to pollution in violation of water quality standards.⁴⁴

Region 3. Delaware requires a permit for any activity "which may cause or contribute to a discharge of a pollutant into any surface or groundwater."⁴⁵ The adopted implementing regulations appear limited to point source discharges to water and land,⁴⁶ but the statute is not so limited. Delaware maintains that this authority also applies to non-point sources, and its nonpoint programs rely in part upon this authority.⁴⁷ District of Columbia law expressly authorizes the mayor to regulate and require permits for nonpoint source pollution.⁴⁸ Maryland law prohibits the discharge of a pollutant without a permit or other authorization, and allows the imposition of permit requirements for activities that could cause or increase the discharge of pollutants.⁴⁹ Pennsylvania prohibits the discharge of any substance resulting in pollution.⁵⁰ Pennsylvania also has a provision prohibiting discharges without a permit that it has used for nonpoint sources, but the provision applies only to industrial wastes.⁵¹ Virginia law prohibits the discharge of wastes or any "noxious or deleterious substances" or the pollution of waters without a permit.⁵² Virginia also prohibits the placement of any substance that may contaminate or impair the lawful use or enjoyment of waters of the state, except as permitted by law.⁵³ West Virginia's general water pollution control law appears not to provide for the regulation or prohibition of nonpoint source discharges.⁵⁴

Region 4. Alabama law requires a permit for discharges of "pollution."⁵⁵ Although the statutory requirement is not limited to point sources, the regulations provide that a permit is not required for discharges "from non-point source agricultural and silvicultural activities."⁵⁶ Florida law provides that causing pollution, except as provided by law, is prohibited.⁵⁷ [28 ELR 10186] In addition, Florida requires permits for discharges of waste that contribute to the violation of water quality standards,⁵⁸ but agricultural activities (including all "normal and customary" farming and forestry operations) and agricultural water management systems are authorized and do not require permits.⁵⁹ Georgia expressly requires a permit for anyone seeking to

erect or modify facilities or commence or alter an operation of any type which will result in the discharge of pollutants from a nonpoint source into the water of the state, which will render or is likely to render such waters harmful to the public health, safety, or welfare, or harmful or substantially less useful for domestic, municipal, industrial, agricultural, recreational or other lawful uses, or for animals, birds or aquatic life.⁶⁰

Kentucky prohibits the discharge of any pollutant or substance that shall cause or contribute to water pollution "in contravention of any rule, regulation, permit, or order or … the statute."⁶¹ The law further provides that if a violation is traceable to an agricultural operation, it shall be handled under the state's enforceable agricultural water quality act rather than under the stricter water pollution control act.⁶²

Mississippi prohibits the pollution of the waters of the state or placement of wastes where they are likely to cause pollution, and defines "pollution" as contamination not "in compliance with a valid permit."⁶³ But Mississippi's regulations provide that no permit shall be required for agriculture and silviculture nonpoint source pollution.⁶⁴ Mississippi has another provision, not linked to permitting definitions, that prohibits the discharge of any "wastes" that reduce water quality below adopted water quality standards.⁶⁵ North Carolina prohibits the discharge of wastes and certain other discharges without a permit.⁶⁶ Of perhaps greater immediate utility in the nonpoint context is its authority to issue "special orders" to "any person … responsible for causing or contributing to any pollution of the waters of the state within the area for which standards have been established."⁶⁷ South Carolina prohibits the direct or indirect discharge, seepage, or drainage of any substance into the waters of the state except in compliance with a permit.⁶⁸ Tennessee has a general prohibition against any discharge causing "pollution" except as properly authorized,⁶⁹ but the law does not apply to any nonpoint source discharges from "any agricultural or forestry activity."⁷⁰

Region 5. Illinois prohibits any person from causing, threatening, or allowing the discharge of any "contaminants" that would cause or tend to cause water pollution, or that would violate regulations or standards adopted by the Pollution Control Board.⁷¹ While this provision is not expressly limited to point sources, a second provision, which prohibits the unpermitted discharge of contaminants (without requiring evidence of water pollution) is expressly limited to point source discharges.⁷² Indiana law provides that a person may not "cause, permit or suffer to be … drained, allowed to seep, or otherwise disposed into any waters … any organic or inorganic matter that causes or contributes to a polluted condition of any waters" in violation of adopted water quality standards.⁷³ Michigan prohibits the direct or indirect discharge of any substance that may be injurious to health, safety or welfare, uses of waters, riparian lands, and fish and wildlife.⁷⁴ Although this section is codified in a chapter of the code entitled "point source pollution control," Michigan law provides that chapter headings are not part of the act and are not to be used to construe the scope of the act.⁷⁵

Minnesota has a general requirement of notice to the state of water pollution events and requires reasonable attempts by the discharger to minimize or abate pollution caused thereby.⁷⁶ Furthermore, by regulation, Minnesota has provided that "no sewage, industrial waste or other wastes shall be discharged from either a point or nonpoint source into the waters of the state in such quantity or in such a manner alone or in combination with other substances as to cause pollution."⁷⁷ Ohio's water pollution law prohibits any person from causing pollution or placing any wastes where they cause pollution except in accordance with a permit.⁷⁸ Ohio's law, however, exempts agricultural and silvicultural runoff and earthmoving activities subject to regulation under Ohio's explicit nonpoint source control programs administered by the state's soil and water conservation districts and local governments.⁷⁹ Ohio also exempts runoff of excrement from domestic and farm animals, only some of which is subject to regulation under the cross-referenced programs. Wisconsin law authorizes the state agency to issue orders for the abatement of nonpoint source pollution if the source is "significant" and impairs water quality.⁸⁰ The provision has limitations on its use to control pollution caused by animal waste and pollution from an agricultural source in a priority watershed where other planning and implementation tools are to be used first.

Region 6. Arkansas makes it unlawful for any person to cause pollution or place waste in a location where it is likely [28 ELR 10187] to cause pollution.⁸¹ Louisiana prohibits any "activity" which results in the discharge of any substance to the waters of the state without the "appropriate permit, variance, or license."⁸² It also prohibits the discharge of any substance that will tend to cause water pollution in violation of any provision.⁸³ The law, however, also provides that these and other provisions of the water pollution control law "shall not apply to any unintentional nonpoint-source discharge resulting from or in connection with the production of raw agricultural, horticultural, or aquacultural products."⁸⁴

New Mexico's water pollution law does not contain a prohibition applicable to nonpoint source water pollution, but it does authorize the Water Quality Control Commission to adopt regulations "to prevent or abate water pollution in the state" and to require permits.⁸⁵ Thus, the availability of any enforceable authority depends entirely on the promulgation of specific regulatory requirements. Oklahoma law makes it unlawful for any person to cause water pollution or to place wastes in any location where they are likely to cause pollution.⁸⁶ This provision is expressly interpreted by Oklahoma regulations to apply to nonpoint sources.⁸⁷ Texas prohibits the discharge of waste, including agricultural waste, into or adjacent to any waters. It also prohibits any other act which causes pollution of any waters, except as authorized.⁸⁸ The law, however, exempts agricultural and silvicultural discharges that are in compliance with a certified water quality management plan.⁸⁹

Region 7. Iowa prohibits the "disposal" of a pollutant (defined as "waste") by discharge into the waters of the state except pursuant to a permit.⁹⁰ Kansas prohibits the discharge or placement or flowage of "sewage" (defined as any substance that contains human or animal waste products or excrement or any wastes from domestic, manufacturing, or other forms of industry) into the waters of the state except pursuant to a permit.⁹¹ The law also allows the attorney general to take action to secure abatement of "abatable pollution of the surface waters detrimental to the animal or aquatic life in the state."⁹² Missouri law prohibits the causing of pollution or the placing of any water contaminant where it is reasonably certain to cause pollution.⁹³ It also prohibits the discharge of water contaminants which reduce the water quality below adopted water quality standards if not otherwise subject to effluent regulations.⁹⁴ Nebraska law makes it unlawful to cause water pollution, to place any wastes in a location where they are likely to cause water pollution, or to discharge wastes that reduce the water quality in the receiving waters below adopted water quality standards.⁹⁵

Region 8. Colorado's water pollution control law authorizes the Water Quality Control Commission to adopt regulations relating to any "activity" that "does or could reasonably be expected to cause pollution of any state waters in violation of control regulations or … any applicable water quality standard."⁹⁶ With this authority, the state clearly may choose to regulate nonpoint sources of pollution, but "control regulations related to agricultural practices shall be promulgated only if incentive, grant, and cooperative programs are determined by the commission to be inadequate and such regulations are necessary to meet state law or the federal act."⁹⁷ Montana law makes it unlawful to cause water pollution or place any wastes "where they will cause pollution of any state waters."⁹⁸ The law, however, exempts materials connected with activities permitted by any other state or federal agency.⁹⁹ Further, Montana expressly exempts from state nondegradation requirements those nonpoint sources existing on April 29, 1993, all new nonpoint sources that follow "reasonable land, soil, and water conservation practices," the land application of manure, and the use of agricultural chemicals if done in accordance with an agricultural groundwater management plan.¹⁰⁰

North Dakota law makes it unlawful to cause water pollution or place any wastes where they are likely to cause water pollution.¹⁰¹ South Dakota has a similar provision.¹⁰² In addition, any discharge of wastes (defined as any polluting "substances") that results in degradation of water quality is also prohibited.¹⁰³ Utah prohibits causing pollution that constitutes a menace to public health and welfare, is harmful to fish or wildlife, or impairs beneficial uses of water.¹⁰⁴ Utah also prohibits the placement of waste where there is "probable cause" to believe it will cause pollution.¹⁰⁵ Wyoming makes it unlawful to "cause, threaten or allow the discharge of any pollution or waste into the waters of the state" except as authorized by permit.¹⁰⁶ The prohibition has been held to apply to polluting activities for which no permit was available.¹⁰⁷

Region 9. Arizona law requires the Department of Environmental Quality to adopt a permit requirement for point sources and for certain facilities likely to pollute aquifers, and a "program to control nonpoint source discharges of any pollutant or combination of pollutants into navigable waters."¹⁰⁸ [28 ELR 10188] Its general prohibition law makes it a criminal offense to discharge (with criminal intent) substances to waters without a required permit or other "appropriate authority," or to violate a water quality standard.¹⁰⁹ California law requires any person proposing to discharge "waste" to file a "report of waste discharge."¹¹⁰ The regional water quality control board must then issue waste discharge requirements (WDRs), which serve essentially as a permit.¹¹¹ However, these requirements may be conditionally waived by the regional board.¹¹² California uses these provisions by first seeking to abate nonpoint source pollution through nonregulatory means, but holding in reserve the regional board's power to grant either a conditional waiver (to secure operational changes in a nonpoint sourcedischarger) or to require the report of waste discharge and a WDR.

Hawaii prohibits the discharge of any pollutant to waters of the state except as authorized by law or permit.¹¹³ Moreover, Hawaii has explicit authority to regulate nonpoint source pollution under a provision that allows the issuance of enforceable nonpoint source rules, which may include "water quality standards for specific areas, types of nonpoint source discharge, or management measures."¹¹⁴ Nevada's general pollution prohibition authority is expressly limited to point sources.¹¹⁵ Another provision of Nevada law allows the state to prescribe controls for nonpoint sources ("diffuse sources") to prevent degradation of high quality waters, but not to prescribe controls for "normal … farming practices."¹¹⁶ Further, the Nevada statute allows the state to regulate nonpoint sources existing on January 1, 1979, that are "significantly causing or adding to water pollution in violation of a water quality standard," as well as new nonpoint sources where they impair high quality waters.¹¹⁷

Region 10. Alaska law provides that "a person may not pollute or add to the pollution of the … water of the state."¹¹⁸ Idaho, on the other hand, has very limited jurisdiction over nonpoint sources. It defines "discharge" as not including "surface water runoff from nonpoint sources."¹¹⁹ Another provision states that nonpoint sources are not required to meet water quality standards other than those necessary to support designated uses, unless a TMDL is required to be developed.¹²⁰ In the context of the TMDLs for high-priority impaired waters, the law provides that "nothing in this section shall be interpreted as requiring [BMPs] for agricultural operations which are not adopted on a voluntary basis."¹²¹ Indeed, Idaho's only direct authority is a prohibition on new or expanded nonpoint activities which "can reasonably be expected to lower the water quality of an outstanding resource water."¹²² Yet, even these sources are entirely exempt from permitting or other regulation if they implement BMPs.

Oregon law prohibits any person from polluting waters of the state or placing any waste where it is "likely to escape or be carried into the waters of the state," and from discharging wastes into water if such discharge reduces water quality below the adopted standards.¹²³ Washington prohibits the discharge of "any organic or inorganic matter that shall cause or tend to cause" water pollution,¹²⁴ and permits are required for the disposal of material into the waters of the state.¹²⁵ The law, however, does not authorize the adoption of a permit system or imposition of penalties for nonpoint source pollution arising from forest practices conducted in compliance with the state's forest practices law.¹²⁶

Discharge Prohibitions of Narrower Scope

In addition to the general prohibitions found in most states' water pollution control laws, virtually every state has other — usually older — provisions prohibiting certain kinds of discharges deemed detrimental to public health or welfare, fisheries, drinking water, or other interests identified by the legislature. Typically misdemeanor provisions, these may nevertheless serve, in some instances, the important role of providing an enforceable response to a nonpoint source pollution event, or in some cases, a threatened pollution event. To the extent to which these are petty criminal offenses, proof of wrongful intent (or at least reckless disregard) may be required.

Discharge of Listed Substances. Various statutes specifically list detrimental substances whose discharge into the waters of the state is prohibited. These provisions are found most often in public health laws, criminal laws, and fish and game laws. Sometimes they take aim primarily at "litter" that may enter the waters of the state. Other laws seem more concerned with disease-bearing wastes or substances. West Virginia has a typical provision that makes it an offense

to place, deposit, dump, or throw, or cause to be placed, deposited, dumped or thrown, any litter … garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or part thereof, offal, or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond, or upon the surface of any land within one hundred yards thereof, or in such location that high water or normal drainage conditions will cause any such materials to be washed into any [such waters].¹²⁷

The offense is defined as a misdemeanor punishable by a fine of not less than $ 50 nor more than $ 500.¹²⁸

Discharge of Substances Harmful to Fish. Approximately half of the states' fish and game codes contain provisions [28 ELR 10189] that prohibit the discharge of various substances that are, or that may be, harmful to fish. Focusing on the nature of the substances discharged, these provisions do not require proof of injury to fish. This is usually clear from the nature of the prohibition, but it is spelled out explicitly in some laws. For example, Pennsylvania's law provides that "it is not necessary to prove that the violation has actually caused the death of, or damage to, any particular fish."¹²⁹

Some of these provisions are written quite broadly, while others are written more narrowly. For example, Kentucky's law broadly provides, "No person shall place or cause to be placed in any public waters any substance that might injure, interfere with, or cause the waters to be unfit for the support of wildlife [including fish]."¹³⁰ Arkansas law provides,

It shall be unlawful for any person to deposit, throw, drop, or discharge in any manner in any of the waters of this state any substance, liquid, or gas or anything else that will or does intoxicate or stupefy or in any manner injure any fish therein, whether done for the purpose of catching or taking fish or not.¹³¹

And Rhode Island law provides, "No person shall place, deposit, or explode any substance injurious to the health or life of a fish in any stream or fresh water pond."¹³²

Far more narrowly, Vermont prohibits the deposit of "lime, creosote, coculus inducus or other drug or poison destructive to fish."¹³³ Given the principles of statutory construction discussed earlier in this Article, it may be harder to apply Vermont's provision to many forms of nonpoint source pollution. Other states have drafted their laws with an intent element that makes such laws useless for reaching nonpoint source discharges. For example, consider Maine's prohibition on the use of any "explosive, poisonous or stupefying substance … for the purpose of taking or destroying any kind of fish."¹³⁴

State fish and game laws can also provide agencies with targeted authority to regulate pollution discharges in some cases. For example, Massachusetts allows its state fisheries agency to determine that a "prohibition or regulation of the discharge of waste or material from any source" is needed for particular inland waters because of the value of the fishery therein; the determination then leads to action by the pollution control agency.¹³⁵ Similarly, but somewhat more narrowly, California uses fisheries protection provisions to control nonpoint source pollution of shellfish production areas. California's water code provides that regional water quality control boards "shall have primary responsibility for the protection of commercial shellfish harvesting from the effects of point and nonpoint pollution sources."¹³⁶ Regulatory authority under California law arises once the area has been downgraded or restricted by the state's Department of Health Services, closed for more than 30 days per year for 3 previous years, or formally determined to be threatened.¹³⁷ The law further provides,

Once the nature, sources, scope, and degree of the pollution affecting a commercial shellfish growing area have been determined, the regional board, with the advice of the local technical advisory committee, shall order appropriate remedial action, including the adoption of best management practices to abate the pollution affecting that area.¹³⁸

The law, however, also provides,

If agricultural sources of pollution have been identified as contributing to the degradation of shellfish growing areas, the regional board shall invite members of the local agricultural community representing the type of agricultural discharge affecting the local shellfish growing area, the local resource conserve district, the local soil conservation service … and affected shellfish growers to develop and implement appropriate short-and long-term remediation strategies that will lead to a reduction in the pollution affecting the commercial shellfish growing area.¹³⁹

Fish Kill Caused by Pollution. Many states also have provisions that prohibit fish kills or that allow enforcement responses to fish kills. States with potentially applicable fish kill laws include at least Alabama, Arizona, Indiana, Maryland (if the harm is from sediment), Massachusetts, Minnesota, New Mexico, New York, Puerto Rico, and Wyoming. Although some of these laws are simply broadly written prohibitions on killing fish without a valid fishing license, many others clearly proscribe nonpoint source and other discharges that result in harm to aquatic life.

Some of these provisions are similar to those described in the preceding section, but they may require proof of injury to fish in addition to proof of the discharge of an injurious substance. For example, Puerto Rico's law, which might be interpreted as requiring both types of proof, provides, "It is prohibited to throw or cause to be thrown or deposited into any … body of water … oils, acids, poisons, or any other substance which kills or destroys fish, crustacea, or mollusca."¹⁴⁰

Other laws focus on the manner in which a fish kill results. For instance, Alabama prohibits killing fish by depositing in any "public stream or body of water … any poison, poisonous substance … or other deleterious or poisonous matter."¹⁴¹ Alternatively, New York law provides that "no fish, other than migratory food fish of the sea in the marine and coastal district, shall be taken except by angling."¹⁴²

In addition to state laws prohibiting fish kills, including those caused by polluting substances that may be discharged from nonpoint sources, it is also worth noting other state provisions that create explicit liability to the state where an "unlawful" pollution discharge damages fish. For example, Pennsylvania law provides, "The Commonwealth has sufficient interest in fish living in a free state to give it standing, through its authorized agencies, to recover damages [28 ELR 10190] in a civil action against any person who kills any fish or who injures any streams or stream beds bypollution or littering."¹⁴³ Other states with these types of provisions include Alabama, Alaska, California, Florida, Georgia, Kansas, Kentucky, Mississippi, New Hampshire, North Carolina, Oregon, South Carolina, South Dakota, and Washington.

Pollution of Drinking Water or Public Water Supply. About a fourth of the states have older provisions specifically aimed at preventing or criminalizing the pollution of a drinking water supply. Typical is Oklahoma's provision that "no person … shall pollute or permit the pollution of the water supply of a municipality, or any stream, pond, spring, lake, or other water reservoir or groundwater aquifer, which is used or which is being held for use as a water supply by a municipality."¹⁴⁴ Another example is Minnesota's law, which provides, "No sewage or other matter that will impair the healthfulness of water shall be deposited where it will fall or drain into any pond or stream used as a source of water supply for domestic use."¹⁴⁵

Nuisance and Public Health Provisions. All, or virtually all states have statutory provisions that provide for the abatement of nuisances, and many have additional public health provisions that may have some application to particular instances of nonpoint source pollution. In addition, the common law of nuisance also applies in every state. Nuisance laws are generally not preempted by state regulatory laws. A number of states have, moreover, expressly enacted savings clauses to preserve nuisance actions for abatement of water pollution.¹⁴⁶

Nuisance is not a fault-based doctrine, but requires only proof of the adverse condition. Thus, even a condition that does not violate any law or regulation may still be abatable as a nuisance. The law recognizes two types of nuisances: public nuisance and private nuisance. Public nuisance is the creation of a condition that causes injury to the public welfare, while private nuisance impairs the use and enjoyment of private property. Public-nuisance actions may be brought by the state or, often, by any affected entity or person, while private nuisance actions are brought by adversely affected land owners.¹⁴⁷ Remedies for public nuisances are typically injunctions for abatement, or authority for a public entity to conduct summary abatement of the nuisance and recover its abatement costs, and/or the imposition of fines (reflecting the historic origins of public nuisance as a quasi-criminal action).

Nonpoint source water pollution that impairs the usefulness of waters, adversely affects human health, or impairs the rights of others may be abatable under state nuisance laws. Two types of public-nuisance statutes are relevant to nonpoint source pollution. First, and more important, are statutory provisions that declare water pollution to be a nuisance. Such legislative declarations limit the need to prove particular deleterious effects in order to secure relief. Second, are more general statutory provisions that provide for the abatement of conditions that are dangerous to public health or otherwise noxious or offensive to the senses.

Alabama law combines both approaches in one provision, which reads, "Any and all pollution is hereby declared to be a public nuisance and, if it creates, or is about to create, a health hazard, shall be subject to immediate control of the commission by order or injunction."¹⁴⁸ This provision both declares that water pollution is a nuisance, making it subject to injunctive relief by the state or any person, and declares that particular kinds of water pollution (health hazards) are subject to certain kinds of administrative relief and summary abatement action.

Pennsylvania law provides an especially complete version of the "water pollution as nuisance" provision, "The discharge of … any substance into the waters of this Commonwealth, which causes or contributes to pollution … or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance," and "shall be abatable in the manner provided by law or equity for the abatement of public nuisances."¹⁴⁹ Minnesota's regulations make explicit the applicability of its water pollution as nuisance provision to nonpoint discharges by declaring,

No sewage, industrial waste or other wastes shall be discharged from either point or nonpoint sources into any waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum … excessive suspended solids, material discoloration … undesirable slimes or fungus growths, aquatic habitat degradation, excessive growth of aquatic plants, or other harmful effects.¹⁵⁰

Some laws more directly reflect the historic petty criminal nature of water pollution as a nuisance. For instance, the California penal code provides,

Every person who … dumps or causes to be dumped, any waste matter into any bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of any stream or body of water, is guilty of a misdemeanor.¹⁵¹

Such actions are subject to a fine of $ 100 to $ 1,000.¹⁵² A few states have even older provisions, like the Kentucky law that imposes a fine of not less than $ 10 nor more than $ 100 and/or imprisonment for 30 days to 6 months on any person who places or causes to be placed "in any stream, dam, pool or pond" any substance that renders the water "unfit for use or produces a stench."¹⁵³

The second type of nuisance provision, aimed at the abatement of harmful conditions, is typified by Minnesota law, which provides, "Anything which is injurious to health, [28 ELR 10191] or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance."¹⁵⁴ Some states make the connection to public health enforcement explicit. For example, Kansas' Secretary of Health and Environment and county boards of health can examine all "nuisances, sources of filth and causes of sickness."¹⁵⁵ When the source of such a nuisance is found "on any private property or upon any watercourse in the state" they have the power to order the owner to remove it within 24 hours; however, failure to obey an order is punishable by a fine of only $ 10 to $ 100.¹⁵⁶

Agricultural activities often enjoy statutory exemptions from state nuisance provisions. In fact, virtually every state has enacted "right to farm" legislation that exempts agricultural activities (and in a few states, silvicultural activities) from abatement as a nuisance. These laws vary in the extent of the exemption offered. All of them are clearly aimed at preventing private-nuisance actions occasioned by recent suburban dwellers encountering the odors and noise of normal farming operations. Some, however, are broader and apply to public- as well as private-nuisance actions and exempt a wider array of conduct. Most also provide that the exemption from nuisance liability does not apply where the agricultural activity is conducted in violation of law, or negligently. Furthermore, some states' right to farm provisions specifically do not protect agricultural operations from nuisance claims based on water pollution.¹⁵⁷

Typical of right to farm provisions, Delaware's law provides,

No agricultural or forestal operation … which has been in operation for a period of more than 1 year shall be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such … operation is located. This section shall not apply when the nuisance is determined to exist as the result of the negligent or improper operation … or when such operation is being operated in violation of state or federal law or any local or county ordinance.¹⁵⁸

In New Hampshire, agricultural operations cannot be held a nuisance if they were in operation for one year or more and were not a nuisance when operations commenced.¹⁵⁹ Yet, this exception does not apply if operations are "injurious to public health or safety," or if the nuisance results from "negligent or improper operation."¹⁶⁰ And Michigan law provides that a farm operation is not a nuisance if it "conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture."¹⁶¹

Idaho law goes farther by exempting not only agriculture but also agricultural processing operations and forestry activities from nuisance actions.¹⁶² The law also preempts local regulation of such activities, declares the right to conduct forest practices a "natural right," and has an exception only for "improper or negligent operation," which is defined as operating out of compliance with law and adversely affecting public health and safety.¹⁶³

New York's agricultural exemption is narrower than the other state laws mentioned above in that it exempts agricultural activities only from private-nuisance actions. Furthermore, the nuisance exemption is inapplicable to certain increased activities at agricultural operations and activities causing conditions dangerous to life or health.¹⁶⁴

Statutory nuisance provisions and the doctrine of common-law nuisance may offer some assistance in controlling or abating particular nonpoint source discharges. As illustrated above, their scope varies widely from state to state. Moreover, the usefulness of statutory nuisance provisions is often limited by agricultural exemptions, insignificant fines, and requirements to prove specific kinds of harm in order to obtain relief.

Enforcement of State Discharge Prohibitions

Most general discharge prohibitions created under state water pollution control laws are enforceable by administrative orders, civil injunctions, civil penalties in the $ 10,000 to $ 25,000 range, criminal sanctions, and other sanctions. Therefore, determining whether these authorities can be applied can be extremely important to state efforts to control nonpoint source pollution, particularly in the absence of a full-scale regulatory or permitting program for nonpoint sources. In contrast, most discharge prohibitions based on other statutes, such as fish and game laws, nuisance laws, and public health laws, are enforceable as petty criminal offenses or through abatement orders and injunctions.

These enforcement distinctions are important, not only because of their potential differences in effectiveness in changing behavior, but also because they will affect issues of process and proof. For example, while proving that a discharge was of a "waste" or that it caused "pollution" presents one set of difficulties in a civil or administrative context, proving an offense in a criminal case can present additional hurdles. Can the state show, for example, that the discharge was of a "deleterious substance" harmful to fish "beyond a reasonable doubt" and that the act occurred with the requisite intent? And is this even worthwhile if the sanction is $ 500? At the same time if an offense is defined as criminal, even if petty, might this provide sufficient practical effect to bring about compliance and deterrence of others?

[28 ELR 10192]

Sedimentation and Erosion Laws

Numerous states have enacted enforceable erosion and sediment control laws. A limited number of them have broad erosion and sediment control laws that reach both urban earthmoving and rural activities. Far more 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). Much of the relevant legislation or regulation applies on a watershed basis to protect particular water bodies.

Delaware's law, fairly typical of those states with sediment and erosion laws, provides, "Unless 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."¹⁶⁵ Based on certain criteria, a person may be required to provide the plan for construction for review by a state-certified reviewer.¹⁶⁶ 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]."¹⁶⁷ The plan then governs all specific projects thereafter in the watershed. A regulation exempts construction projects disturbing less than 5,000 square feet.¹⁶⁸ Commercial forestry activities were exempted from the Delaware law by an amendment enacted in 1994.¹⁶⁹ In addition, 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.¹⁷⁰

Unlike Delaware, a small number of states have broad enforceable erosion and control laws 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 to earthmoving associated with nonfarm activities than to earthmoving associated with 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.¹⁷¹ Hawaii law, also broad in application and scope, requires county ordinances to control soil erosion and sediment from "land disturbing activities."¹⁷² The standards of the law are met if the land is managed in accordance with practices acceptable to the local soil and water conservation district.

Pennsylvania's sediment and erosion control program is established by regulation rather than by statute, and applies to a variety of earth disturbing activities. Pennsylvania's program, which is delegable to counties and local governments, requires erosion and sedimentation plans for all earthmoving activities.¹⁷³ 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 five or more acres.¹⁷⁴ 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.¹⁷⁵

Many state sediment and erosion control laws exempt agriculture. For example, Maine requires activities, other than agriculture, that displace or expose 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.¹⁷⁶ Georgia's Erosion and Sediment Act requires counties and municipalities to implement comprehensive ordinances for all land disturbing activities, including enforceable BMPs.¹⁷⁷ Georgia law, however, exempts agricultural operations, state Department of Transportation projects, and projects that are 1.1 acres or less from permit requirements.¹⁷⁸ And 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 the law does not apply to agriculture.¹⁷⁹ States that exempt agriculture from their sedimentation and erosion control laws often do so either because other enforceable authorities apply, or, more commonly, because agricultural pollution is intended to be addressed by incentives or voluntary mechanisms.

Other state erosion and control laws 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.¹⁸⁰ North Carolina's Sediment Pollution Control Act is a state program, delegated to local governments, which requires approval of erosion control plans for covered activities. It does not apply to agriculture, nor to forestry activities conducted in accordance with BMPs.¹⁸¹ South Carolina has an Erosion and Sediment Reduction Act that applies only to activities on state lands,¹⁸² and a separate Stormwater Management and Sediment Reduction Act that applies to privately owned lands;¹⁸³ 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 to forestry or to "plowing, tilling and harvesting."¹⁸⁴ Iowa requires a signed [28 ELR 10193] affidavit stating that soil loss limits will not be exceeded for earthmoving activities, but the law does not apply to tilling, planting, or harvesting of agricultural or forestry crops, or to areas smaller than 25,000 square feet.¹⁸⁵

Some erosion and sedimentation laws are more explicitly aimed at urban and construction site activities. For example, in addition to Delaware's erosion law noted above, Maine has a "site location of development law" directed at controlling pollution from these development sites.¹⁸⁶ Similarly, Minnesota requires a sediment control plan for "development activity" disturbing over one acre of land.¹⁸⁷ And some states have laws that do little more than what is required to cover stormwater discharges from urban and industrial sources under the FWPCA, limiting their coverage to those sources.

In addition, 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. 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. For example, a California law specifying the requirements of local subdivision ordinances provides that "the ordinance shall specifically provide for property grading and erosion and control, including the prevention of sedimentation or damage to offsite property."¹⁸⁸ 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,¹⁸⁹ which contains its own requirements for avoidance of harm and mitigation of unavoidable impacts.

Other approaches used by the states to control sedimentation and erosion 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. Coastal states, in particular, frequently have authorities targeted to activities occurring in their coastal zones or in waters immediately tributary thereto. For example, Maine provides for mandatory shoreline zoning, and requires special permits for construction adjacent to waterways and other natural resource protection areas.¹⁹⁰ 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.¹⁹¹ Likewise, California's San Francisco Bay Conservation and Development Commission Act provides for coordinated permitting requirements.¹⁹² South Carolina provides for special protection areas under its Stormwater Management and Sediment Reduction Act, which states, "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."¹⁹³ And 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 FWPCA planning.¹⁹⁴

As illustrated above, the scope and application of state sediment and erosion control laws vary widely. Some of these laws 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. Furthermore, watershedoriented approaches, such as those described above, are extremely important, as they enable states to draw on 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 backstop to voluntary programs or incentives, states have also enacted more focused and enforceable requirements aimed at the 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 in 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. Enforcement mechanisms under these comprehensive forestry laws include loss of permits, civil and criminal penalties, orders and injunctions, and professional licensing and disciplinary actions.

On the West Coast, 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.¹⁹⁵ [28 ELR 10194] The law requires a detailed plan of operations, which must include a plan for protecting riparian areas.¹⁹⁶ California's Z'Berg-Nejedly Forest Practices Act,¹⁹⁷ the nation's most detailed forest practices law, divides the state into three districts with rules — including detailed rules for protection of water resources — established by the state Board of Forestry. Operators must submit timber harvesting plans, which must include erosion and pollution control measures that conform to the regulatory standards.¹⁹⁸ Idaho's law provides for rules and BMPs, and requires a forest operator to post a required notice of intent and agreement to comply.¹⁹⁹ Nevada's forest practices law provides that logging permits must include BMPs for nonpoint sources.²⁰⁰ 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.²⁰¹ The law also requires detailed plans for forestry operations in certain conditions, including provisions dealing with practices within 100 feet of a stream, notice of chemical use, and other practices.²⁰² And Washington's law classifies forest practices by their potential to damage public resources, and imposes enforceable notification, application, and planning requirements.²⁰³

As for New England, Connecticut's forest practices law contains comprehensive state forestry standards, and it allows forest practice regulation by municipalities if consistent with and approved by the state.²⁰⁴ Maine's Forest Practices Act imposes requirements for clearcuts, including the filing of management plans for clearcuts in excess of 50 acres that provide for the protection of water quality and the minimization of erosion.²⁰⁵ Massachusetts requires operators to file timber harvesting plans that must incorporate state forestry standards.²⁰⁶ And New Hampshire links the requirement to file a notice of intent to cut with provisions protecting great ponds, perennial streams, and wetlands.²⁰⁷

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. Some state laws authorize the promulgation of forestry standards. For example, 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," but the Forest Commission has not adopted enforceable standards.²⁰⁸ And in Ohio, erosion control laws applicable to forestry are carried out by soil and water conservation districts with state oversight.²⁰⁹ 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,²¹⁰

and include plans, enforcement orders, and sanctions.

State laws with particular limitations and requirements applicable to forest practices within certain distances of wetlands, shoreland, rivers, water bodies, or other designated areas 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. Maryland law requires retention of buffers in Chesapeake Bay critical areas, and the preparation of plans.²¹¹ Implementation of BMPs is also required for timber harvests in Maryland nontidal wetlands.²¹² Michigan law provides for BMPs and enforceable standards, but only in forested regions that have been designated "forest improvement districts."²¹³ Montana's law provides for the protection of streamside management zones in the conduct of forestry operations.²¹⁴ Wetland requirements can also be significant. For example, New Hampshire's regulations require the use of BMPs in such settings.²¹⁵ In Virginia, forestry operations are exempt from certain buffer zone limits enforceable in Chesapeake Bay Preservation Areas, but only if they fully implement BMPs under the state's forestry law.²¹⁶ Thus, in many states, forestry practices are regulated only, or more strictly, when they are within wetlands, within specific watersheds, or within a fixed distance of a water body.

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, despite its 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.²¹⁷ Water quality is primarily addressed through Mississippi's voluntary silviculture BMPs.

Forestry Bad Actor Laws

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 [28 ELR 10195] 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.²¹⁸

Only a few states have nonpoint source bad actor statutes. These bad actor statutes represent a different approach to nonpoint source pollution from the more regulatoryoriented 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 that in many cases may be easier to use than the general discharge prohibitions summarized earlier in this Article.

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."²¹⁹ 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" that require the cessation of relevant activities and implementation of corrective measures.²²⁰ 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."²²¹

Virginia has a very similar forestry bad actor statute. The Virginia State Forester may issue a special order, after a 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."²²² 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 [BMP] is causing or contributing, or has the potential to cause or contribute, to soil erosion or water pollution."²²³ 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."²²⁴ The order, however, simply suspends operations pending action by the 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 that increase familiarity with BMPs and with appropriate techniques to avoid water pollution. States with such provisions include, among others, Alabama, California, Connecticut, Georgia, Massachusetts, New Hampshire, Rhode Island, South Carolina, and West Virginia.

Another tool, which is utilized by many states, are tax breaks that are contingent on the adoption and implementation of forest management plans. 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.²²⁵ Michigan's provision, however, appears to be enforceable, because, in addition to loss of tax status and recapture provisions, criminal sanctions are available under some circumstances.²²⁶

Agricultural Requirements

Statewide Erosion Control Requirements

Several states have adopted enforceable requirements to control erosion from agricultural lands. Some states also address agricultural nutrients as part of the same planning and enforcement process. Vermont, for instance, prescribes "accepted agricultural practices" that must be implemented across the state.²²⁷ These practices provide an enforceable baseline standard, above which BMPs may be imposed in specific places, but only in accordance with the limiting authority discussed below.²²⁸ Maryland prohibits agricultural discharge of sediment into the waters of the state except in accordance with approved soil and water conservation plans.²²⁹ 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 [28 ELR 10196] to prepare these plans.²³⁰ Although New York's requirement to prepare a plan is enforceable, there is no corre-sponding enforceable obligation to implement the required plan.

The enforceability of some statewide programs controlling agricultural erosion depends on the availability of costshare funds. Ohio requires all of its soil and water conservation districts to adopt regulatory BMPs and enforceable plans for agriculture to control erosion and sedimentation.²³¹ The enforceability of Ohio law 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 percent cost-share funds are actually available.²³² Nebraska's law is similar in several respects. It requires all natural resource districts to adopt programs for erosion and sediment control.²³³ 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 percent cost share is available.²³⁴

Some state laws address the issue of polluted runoff from agricultural practices by requiring the development of enforceable water quality plans. Kentucky, for example, requires the development of "statewide water quality plans to address identifiable water pollution problems from agricultural operations"²³⁵ of 10 or more acres.²³⁶ The prescribed requirements must be implemented by farmers within five years.²³⁷ Conducting an agricultural operation in violation of the plan in a manner that 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 $ 1000.²³⁸

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.²³⁹

Some states rely on local soil and water conservation districts for implementation and enforcement of general state programs. 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.²⁴⁰ And Michigan, which exempts "plowing, tilling, and harvesting" from its statewide soil erosion and sediment control law, does apply the law to sediment from other agricultural management practices; the soil conservation districts may implement the law under state rules.²⁴¹

Agricultural Bad Actor Provisions

Some states have enacted enforcement authorities designed to remedy particular agricultural nonpoint source 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 suspected bad actors. 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.²⁴² Upon approval by the local conservation district, the activity may continue, and the plan must be implemented. Enforcement occurs if the plan is not implemented.

Wisconsin provides that the state may order abatement of nonpoint source agricultural pollution, requiring use of BMPs and corrective action. The law, however, 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.²⁴³

Texas has a more limited bad actor 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 acorrective 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.²⁴⁴

A number of other states have somewhat similar authority to remedy agricultural contamination of groundwater, some of which are discussed below.

Agricultural Nutrients

Enforceable regulation of agricultural nutrients presents a mixed picture. Enforceable authorities most commonly include concentrated animal feeding operation (CAFO) regulations similar to the federal point source 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 states have provisions that address the misapplication of fertilizers or nonpoint source water pollution resulting from such application.

Enforceable state laws that relate to CAFOs may expand on federal requirements in at least three ways. The first way states expand on federal CAFO requirements is by imposing siting requirements and limitations. For example, North Carolina regulates the siting of certain hog operations.²⁴⁵ [28 ELR 10197] South Dakota regulates the siting of CAFOs over shallow aquifers in a law applicable to operations commenced after July 1, 1997.²⁴⁶ 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.²⁴⁷

The second way states expand on federal CAFO requirements is by linking 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.²⁴⁸ West Virginia provides for CAFO permit requirements in accordance with the FWPCA, 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.²⁴⁹ Other state laws deal with animal wastes by incorporating their management into enforceable programs aimed at controlling agricultural practices. Vermont requires compliance with "accepted agricultural practices," but allows the enforceable imposition of stricter BMPs on a case-by-case basis and only if financial assistance is provided.²⁵⁰ 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 restricts the application of animal excrement controls to concentrated animal feeding operations.²⁵¹ Florida regulates CAFOs similarly to federal requirements, but Florida also imposes special requirements for dairy farms in the Lake Okechobee drainage basin. These include a requirement to fence all dairy cattle out of watercourses, requirements for setbacks, and the regulation of land application of manure.²⁵²

The third approach states use to expand on federal CAFO requirements involves regulating CAFOs that are smaller 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."²⁵³ The regulations also impose some siting limitations.²⁵⁴ In addition to the permitting of CAFOs, Kansas requires the registration of facilities with an animal unit capacity of 300 to 999 prior to operation, and authorizes the registration of even smaller facilities.²⁵⁵ The registration is used to determine any significant water pollution potential and the need for separation distance or other requirements. If such a potential for pollution is identified, then a permit is required.²⁵⁶ Some states have also identified specific kinds of agricultural 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.²⁵⁷

State authorities most frequently track or only modestly expand upon the federal requirements. For instance, Oregon's law explicitly limits the reach of CAFO 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."²⁵⁸

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 Nebraska's natural resource districts must consider whether to adopt an "action plan" enforceable by cease-and-desist orders and sanctions.²⁵⁹ Michigan's groundwater protection program provides for protection against nitrate pollution, and allows the regulation of application rates, locations, and other practices.²⁶⁰ 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.²⁶¹ Arizona has provided for the development of agricultural general permits for "regulated agricultural activities," defined as "application of nitrogen fertilizer or a [CAFO]." Enforcement is through Arizona's water pollution law, but the first response prescribed is the replacement of the general permit with an individual permit.²⁶²

Florida has an interesting program that operates collectively to reduce phosphorous loadings in the Everglades watershed. 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.²⁶³ In addition, part of the program provides individual credits against these taxes for operators that take action themselves on identified parcels.²⁶⁴ Sanctions in the form of higher taxes are imposed automatically on identified entities where prescribed results are not achieved.²⁶⁵ While this program is unlike most regulatory and liability-based enforceable mechanisms discussed in this Article, it nonetheless meets the definition of an enforceable state mechanism.

[28 ELR 10198]

Other states have chemigation laws, which address the addition of nutrients or pesticides to irrigation water. While many of these require the installation of certain safety equipment to prevent malfunctions, others include provisions more directly linked to water pollution. Colorado, for example, requires a permit for the 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.²⁶⁶

Conservation District Authorities

As evident from the statewide authorities discussed above, most states with statewide enforceable authorities for the control of polluted runoff specifically integrate soil and water conservation districts into the planning, administration, and enforcement scheme. 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 they collectively cover the entire land area of the state. In others, they exist only where specifically organized. In most states, conservation districts only have the authority 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."²⁶⁷ Although found mostly in the South and in the northern plains states, conservation district authority to adopt enforceable land use regulations is also found in Puerto Rico's law, which provides, "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."²⁶⁸ 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.²⁶⁹ Most of the states that require a referendum also require a supermajority vote for adoption of such regulations. The requirements range from approval by at least 2/3 of the landowners in Louisiana, North Carolina, South Carolina, and Tennessee, to 3/4 in Illinois, 4/5 in Alabama, and 9/10 in Kentucky and Texas. 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.²⁷⁰

"Local option" regulation of agriculture occurs in a few other forms. Wisconsin law, for example, 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."²⁷¹ And in Oklahoma, county commissioners may issue orders to halt soil erosion and drifting soil.²⁷²

Pesticides

Almost all states provide for state registration of pesticides and require licensing or certification, including examinations and continuing education, for dealers and commercial applicators (sometimes divided into classes or categories).²⁷³ These provisions are intended to help prevent the misuse and misapplication of pesticides. Most state laws requiring applicator licenses or certificates exempt farmers that noncommercially apply general use pesticides to their own property or that of neighbors.²⁷⁴

Many state laws also give the appropriate state agency (usually an agriculture department) the power to prohibit or restrict uses of particular pesticides in places where they may cause damage or harm.²⁷⁵ Some states have broader provisions that address harm from pesticide handling and application. For example, several states have laws like that of Massachusetts, which provides, "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."²⁷⁶ 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 any pesticide in such manner …."²⁷⁷

Some states have additional provisions that are intended to deal with drift and unintentional misapplication of pesticides into waters or adjacent properties. Florida prohibits "applying any pesticide directly to, or in any manner [28 ELR 10199] causing any pesticide to drift onto, any person or area not intended to receive the pesticide."²⁷⁸ Other states have monitoring and response programs that impose enforceable obligations where contamination of groundwater is shown. For example, Michigan provides authority to regulate, to require submittal of an action plan for state approval, and to take other actions to deal with pesticide-contaminated groundwater.²⁷⁹ 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.²⁸⁰

Grazing and Irrigation

Apart from the nutrient management laws discussed above, few state laws address 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."²⁸¹ 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.²⁸² California, in a law potentially broad enough to deal with impacts in certain watersheds, prohibits livestock from polluting waters used for domestic water supplies.²⁸³ In 1997, Arizona enacted a law that requires the state Department of Environmental Quality to adopt, by rule, a "surface water quality general grazing permit consisting of voluntary [BMPs] for grazing activities."²⁸⁴ 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 permit. The regulations are to be adopted within 180 days after the Department receives the recommendations of a state BMP advisory committee. The law also provides that the director of the Department may waive voluntary BMPs in an area if existing grazing activities "will not cause a violation of the adopted water quality standards for navigable waters."²⁸⁵

Irrigation return flows are excluded from the definition of point source under the FWPCA. In general, state laws are not capturing conduct not addressed by federal law in this area. Apart from state laws dealing with chemigation, there is little state legislation that imposes 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.²⁸⁶ New Mexico law 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."²⁸⁷

Integration of BMPs Into Enforceable Authorities

In the context of both forestry and agriculture, states have contrived many ways to make BMPs enforceable, or at least something more than voluntary, by linking them to 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 operating plans and permits. A second approach makes BMPs enforceable, but only after the fact, such as when a "bad actor" is causing ongoing 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 to forego obtaining a permit under a critical areas program, or will exempt a farm from complying with the provisions of an erosion and sediment control law. A fourth approach makes compliance with BMPs a defense to a regulatory violation. For example, the law may prohibit a state from taking enforcement action under a water pollution control law against a farm that is implementing BMPs, whether or not the farm is actually causing pollution. Finally, a substantial number of states make compliance with agricultural BMPs a defense to nuisance actions. These five approaches are illustrated 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.²⁸⁸ Georgia law requires BMPs for all land disturbing activities, but excepts certain activities altogether.²⁸⁹ Arizona specifically makes BMPs enforceable in a general permit applicable to "regulated agricultural activities," which are defined as the application of nitrogen fertilizer and CAFOs.²⁹⁰ Idaho and Oregon, among other states, require implementation of BMPs under their forest practices laws.²⁹¹ 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.²⁹² Maryland requires [28 ELR 10200] BMPs for forest operations in nontidal wetlands.²⁹³ West Virginia law provides that BMPs may be made enforceable for fertilizers and manures if the Commissioner of Agriculture identifies a significant groundwater problem.²⁹⁴

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.²⁹⁵ 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.²⁹⁶ New Hampshire's law offers a weaker version, authorizing its Commissioner of Agriculture, Markets, and Food 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.²⁹⁷

Exemption from regulation is an approach usually designed to avoid doubly regulating activities such as agriculture or forestry. In New Hampshire, for example, forestry operations following BMPs are not subject to "alteration of terrain" permitting.²⁹⁸ Similarly, agricultural activities are exempt from New Hampshire's comprehensive shoreland law if conducted in conformance with BMPs.²⁹⁹ 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.³⁰⁰ 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.³⁰¹

Other states 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 for turbidity violations brought by the state's Environmental Protection Division.³⁰² Oregon's Forestry Practices Act provides that forest operators operating in accordance with BMPs "shall not be considered in violation of any water quality standards."³⁰³ 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.³⁰⁴ The law also provides that an operation cannot be deemed in violation of Maine's general water pollution discharge prohibition if the operation is implementing practices in accordance with a plan approved by the appropriate soil and water conservation district.³⁰⁵

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.³⁰⁶ This presumption, however, may be rebutted by the state in an enforcement action.³⁰⁷ Kentucky also establishes a presumption under which 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.³⁰⁸

Some states apply BMPs as a regulatory defense to particular requirements. For example, Delaware 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.³⁰⁹ Florida exempts farmers using BMPs from liability for replacing water supplies damaged by nitrates.³¹⁰ Idaho and Iowa have similar provisions that exempt farmers from liability for cleanup or for damages to groundwater.³¹¹ 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.³¹² And Pennsylvania law provides that management in accordance with a nutrient management plan requires mitigation or exemption from pollution penalties otherwise applicable.³¹³

As noted in the discussion of nuisance laws above,³¹⁴ 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, Michigan law 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."³¹⁵ 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.³¹⁶ Variations on such laws as a supplement to the [28 ELR 10201] typical "right-to-farm" nuisance exemptions, exist in a number of states including Maine, Ohio, 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 [BMPs] as determined by the Commissioner of Agriculture, Food and Rural Resources."³¹⁷ Ohio makes BMPs an "affirmative defense" to a nuisance action.³¹⁸

Geographically Targeted Enforcement Authorities

While a number of the authorities identified above provide for enforcement where particular water bodies are impaired, a significant body of law exists to protect identified state and interstate waters from nonpoint source water pollution. 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."³¹⁹ Maryland's law has even more detailed requirements for buffer zones, land use controls, and other provisions.³²⁰ New York's wild and scenic rivers law authorizes that state to make and enforce land use regulations to protect its river resources, including water quality and fisheries.³²¹

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.³²² Similar requirements are found in New Hampshire's Comprehensive Shoreland Protection Act, including limitations on excavation, buffers for the application of fertilizers, woodland buffers with tree retention standards, minimum setbacks for septic systems, and other provisions.³²³ State wetlands programs can perform similar functions. About half the states have enforceable authorities tied to specific water bodies.

Conclusion

The states' primary responses to nonpoint source pollution, particularly in the absence of federal enforcement requirements, have been programs of planning, financial incentives, technical assistance, and voluntary action. Yet gradually, an array of enforceable mechanisms has begun to emerge. Some of these mechanisms have been on the statute books for years, while others have appeared more recently in response to particular problems. In order to understand the role of enforceable mechanisms in any particular state, it is important to understand the relationship between these mechanisms and the more common incentive and voluntary programs. For it is these programs that, in most cases, supply the operating standards for which enforcement serves as a backstop.

Enforcement authorities alone may be insufficient to assure prevention of pollution in the following situations: where state enforcement authorities are usable only where there are clear and particular breakdowns (as in the case of bad actor laws); where they require the state to provide financial aid in order to issue an enforceable order; or where they require proof that a particular discharge "caused" a violation of water quality standards in the receiving waters. State enforcement authorities that are linked to operating requirements, as in forest practices laws, erosion control plan requirements, and some agricultural and nutrient management operating requirements, may provide for enforceable prevention and response obligations in an integrated way. Either enforcement-based approach may work, but the former requires careful integration of the enforcement and voluntary programs if prevention of nonpoint source pollution is the goal.

Federal decisionmakers can assist in the development of enforceable authorities by undertaking studies of the effectiveness of these state authorities in particular watersheds that are impaired or threatened by nonpoint sources. The array of available enforcement mechanisms varies significantly not only state by state, but watershed by watershed, and activity by activity. Comparisons among approaches along different waterways could greatly inform the federal process. Where water quality improvement is needed and voluntary programs are no longer sufficient, it is now possible to identify enforcement responses that many 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.

1. 33 U.S.C. §§ 1311, 1319, 1342, 1344, ELR STAT. FWPCA §§ 301, 309, 402, 404. The term "point source" is defined as

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. The term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

Id. § 1362(14), ELR STAT. FWPCA § 502(14).

2. Id. §§ 1288, 1329, ELR STAT. FWPCA §§ 208, 319 (FWPCA planning and grants for nonpoint source pollution); 16 U.S.C. §§ 3837, 3831 (Farm Bill Programs, Environmental Quality Incentives Program, Wetlands Reserve Program, Conservation Reserve Program). See U.S. EPA, SECTION 319 SUCCESS STORIES (EPA 841-R-97-001) (Oct. 1997) for a current summary of illustrative state and tribal projects under these planning and incentive programs.

3. 16 U.S.C. §§ 1455(d)(16), ELR STAT. CZMA § 306(d). See generally Clare F. Saperstein, State Solutions to Nonpoint Source Pollution: Implementation and Enforcement of the 1990 Coastal Zone Amendments Reauthorization Act Section 6217, 75 B.U. L. REV. 889 (1995).

4. Of the nation's coastal states, only Georgia, Illinois, Indiana, Ohio, and Texas did not submit enforceable mechanisms for review and approval as they did not have approved coastal zone management plans at the time for submittal and hence were not threatened with loss of funding.

5. 33 U.S.C. § 1342(p), ELR STAT. FWPCA § 402(p).

6. See Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329 (July 1997); Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (Aug. 1997).

7. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d); see Memorandum from Robert Perciasepe, EPA Assistant Administrator for Water, to Regional Administrators on New Policies for Establishing and Implementing Total Maximum Daily Loads (Aug. 8, 1997); see also Memorandum from Robert H. Wayland III, Director of EPA's Office of Wetlands, Oceans, and Watersheds, to Water Division Directors (EPA Regions) on National Clarifying Guidance for 1998 State and Territory Section 303(d) Listing Decisions (Aug. 27, 1997).

8. 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b).

9. Id. § 1342(p), ELR STAT. FWPCA § 402(p). Under the first phase, NPDES permits (individual, general, or multisector or "group" permits) are required for stormwater discharges from municipal separate storm sewers serving populations greater than 100,000, and stormwater discharges from certain industrial activities including, initially, construction sites of five acres or larger. Permits may also be required on a case-by-case basis if a stormwater discharge is determined to violate a water quality standard or is a significant contributor of pollutants to the waters of the United States. The second phase will cover stormwater discharges from smaller metropolitan areas, smaller construction sites, light industry, and other activities. Obviously, not all earth disturbing activities resulting in runoff are captured by the stormwater permitting program, and many such activities are regulated, if at all, by the states under other authorities. See generally Brian Weeks, Trends in Regulation of Stormwater and Nonpoint Source Pollution, 25 ELR 10300 (June 1995).

10. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14); 40 C.F.R. § 122.23 (1997); id. pt. 122, app. B.

11. 33 U.S.C. § 1341, ELR STAT. FWPCA § 401.

12. See Oregon Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534 (D. Or. 1996) appeal pending (§ 401 applies to nonpoint discharges).

13. 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301.

14. Id. § 1362(12), ELR STAT. FWPCA § 502(12).

15. FLA. STAT. ANN. § 403.031(12) (West 1993).

16. E.g., S.C. CODE ANN. § 48-1-90 (Law. Co-op. 1987).

17. OHIO REV. CODE ANN. § 1531.29 (Anderson 1997).

18. FLA. STAT. ANN. § 403.413 (West 1993 & Supp. 1998).

19. TEX. WATER CODE ANN. § 11.090 (West 1988 & Supp. 1998).

20. CONN. GEN. STAT. ANN. §§ 22a-430(a), -432 (West 1995 & Supp. 1997).

21. CONN. GEN. STAT. § 22a-427 (1993).

22. E.g., FLA. STAT. ANN. § 403.927 (West 1993 & Supp. 1998); MASS. REGS. CODE tit. 314, § 3.05 (1997); ALA. ADMIN. CODE r. 335-6-6-.03 (Supp. 1995).

23. An Environmental Law Institute review of state CZARA program submittals showed that a significant number of states maintain that they can use these authorities. See also state-by-state discussion, infra at text accompanying notes 32-126.

24. E.g., OKLA. STAT. ANN. tit. 27A, § 2-6-105 (West 1997); NEB. REV. STAT. § 81-1506 (1994).

25. E.g., MISS. CODE ANN. § 49-17-29(2)(a)(ii) (1990 & Supp. 1997).

26. E.g., N.Y. ENVTL. CONSERV. LAW § 17-0501 (McKinney 1997); IND. CODE ANN. § 13-18-4-5 (Michie 1996).

27. E.g., W. VA. CODE § 22-11-8 (1994).

28. E.g., COLO. REV. STAT. ANN. § 25-8-205 (West 1990 & Supp. 1997).

29. E.g., ARK. CODE ANN. § 8-4-217(a)(1) (Michie 1993 & Supp. 1997); N.D. CENT. CODE § 61-28-06 (1995).

30. E.g., R.I. GEN. LAWS § 46-12-5(a) (1996).

31. CONN. GEN. STAT. ANN. § 22a-432 (West 1995).

32. Id. §§ 22a-427, -430 (West 1995 & Supp. 1997).

33. ME. REV. STAT. ANN. tit. 38, § 413 (West 1989 & Supp. 1997).

34. Id. § 451.

35. MASS. GEN. LAWS ANN. ch. 21, § 42 (West 1994).

36. MASS. REGS. CODE tit. 314, § 3.05 (1997).

37. N.H. REV. STAT. ANN. § 485-A:12 (1992 and Supp. 1997).

38. R.I. GEN. LAWS § 46-12-5 (1996).

39. VT. STAT. ANN. tit. 10, § 1259 (1984 & Supp. 1997).

40. N.J. STAT. ANN. § 58:10A-6 (West 1992 & Supp. 1997).

41. Id. § 23:5-28 (West 1997).

42. N.Y. ENVTL. CONSERV. LAW § 17-0501 (McKinney 1997).

43. P.R. LAWS ANN. tit. 12, § 1131(13)(A)(i) (1997).

44. Id. at tit. 24, § 595 (1979).

45. DEL. CODE ANN. tit. 7, § 6003 (1991 & Supp. 1996).

46. 70 500 DEL. CODE REGS. 005 §§ 3-4 (1996).

47. Delaware CZARA Submittal (1995).

48. D.C. CODE ANN. § 6-926 (1995).

49. MD. CODE ANN., ENVIR, §§ 9-322, -323(b) (1996).

50. PA. STAT. ANN. tit. 35, § 691.401 (West 1993).

51. Id. § 691.301.

52. VA. CODE ANN. § 62.1-44.5 (Michie 1992 & Supp. 1997).

53. Id. § 62.1-194.1 (Michie 1992).

54. W. VA. CODE § 22-11-8 (1994).

55. ALA. CODE § 22-22-9(I)(3) (1990).

56. ALA. ADMIN. CODE r. 335-6-6-.03(a) (Supp. 1995).

57. FLA. STAT. ANN. § 403.161 (West 1993).

58. Id. § 403.088 (West 1993 & Supp. 1998).

59. Id. § 403.927.

60. GA. CODE ANN. § 12-5-30(b) (1996) (emphasis added). The regulations limit this provision. They require only "written approval" and use of BMPs "under the circumstances described" in the statutory section, but not a permit unless the Director of the Environmental Protection Division "has issued one to the same person for a point source discharge." GA. COMP. R. & REGS. r. 391-3-6-.06(3) (1996).

61. KY. REV. STAT. ANN. § 224.70-110 (Michie 1995).

62. Id. § 224.71-120(10).

63. MISS. CODE ANN. §§ 49-17-29(2)(a)(i), -17-5(1) (1990 & Supp. 1997).

64. Miss. Wastewater Regs., chap. 1, tit. II, sec. B.5.

65. MISS. CODE ANN. § 49-17-29(2)(a)(ii) (1990 & Supp. 1997).

66. N.C. GEN. STAT. § 143-215.1(a) (1996 & Supp. 1997).

67. Id. § 143-215.2 (1996).

68. S.C. CODE ANN. § 48-1-90 (Law. Co-op. 1987).

69. TENN. CODE ANN. § 69-3-114 (1995).

70. Id. § 69-3-120(g).

71. 415 ILL. COMP. STAT. § 5/12(a) (West 1996).

72. Id. § 5/12(f).

73. IND. CODE ANN. § 13-18-4-5 (Michie 1996).

74. MICH. COMP. LAWS ANN. § 324.3109(1) (West Supp. 1997).

75. Id. § 324.103.

76. MINN. STAT. § 115.061 (1996).

77. MINN. R. 7050.0210(13) (1995).

78. OHIO REV. CODE ANN. § 6111.04 (Anderson 1993).

79. Id.

80. WIS. STAT. ANN. § 1233 (West Supp. 1997).

81. ARK. CODE ANN. § 8-4-217(a) (Michie 1993 & Supp. 1997).

82. LA. REV. STAT. ANN. § 30:2075 (West 1989 & Supp. 1997).

83. Id. § 30:2076(A)(1) (West 1989).

84. Id. § 30:2076(A)(2).

85. N.M. STAT. ANN. § 74-6-4 (Michie 1993).

86. OKLA. STAT. ANN. tit. 27A, § 2-6-105 (West 1997).

87. OKLA. ADMIN. CODE § 252:610-7-1 (1996).

88. TEX. WATER CODE ANN. § 26.121(a) (West 1988 & Supp. 1998).

89. TEXAS AGRIC. CODE ANN. § 201.026 (West Supp. 1998).

90. IOWA CODE ANN. § 455B.186 (West 1997).

91. KAN. STAT. ANN. § 65-164 (1992).

92. Id. § 65-171b.

93. MO. REV. STAT. § 644.051 (1994).

94. Id.

95. NEB. REV. STAT. § 81-1506 (1994).

96. COLO. REV. STAT. ANN. § 25-8-205 (West 1990 & Supp. 1997).

97. Id. § 25-8-205(5).

98. MONT. CODE ANN. § 75-5-605(a) (1997).

99. Id.

100. Id. § 75-5-317(2).

101. N.D. CENT. CODE § 61-28-06(1)(a) (1995).

102. S.D. CODIFIED LAWS § 34A-2-21 (Michie 1992).

103. Id. § 34A-2-22.

104. UTAH CODE ANN. § 19-5-107 (1995).

105. Id.

106. WYO. STAT. ANN. § 35-11-301 (Michie 1997).

107. See People v. Platte Pipe Line Co., 649 P.2d 208, 211 (Wyo. 1982) (holding that general prohibition against discharge applies to all polluting activities, not only those for which a permit could have been obtained).

108. ARIZ. REV. STAT. ANN. § 49-203.A (West 1997).

109. Id. § 49-263.A.

110. Id.

111. CAL. WATER CODE § 13260 (West 1992 & Supp. 1998).

112. Id. § 13269.

113. HAW. REV. STAT. § 342D-50 (1993 & Supp. 1996).

114. Id. § 342E-3(a) (1993).

115. NEV. REV. STAT. ANN. § 445A. 465 (Michie 1996 & Supp. 1997).

116. NEV. REV. STAT. § 445A.565 (1995).

117. Id. § 445.570 (1995).

118. ALASKA STAT. § 46.03.710 (Michie 1996).

119. IDAHO CODE § 39-3602 (1993 & Supp. 1997).

120. Id. § 39-3604.

121. Id. § 39-3610.

122. Id. §§ 39-3618. -3620(6).

123. OR. REV. STAT. § 468B.025(1) (1995).

124. WASH. REV. CODE § 90.48.080 (1996).

125. Id. § 90.48.160.

126. Id. § 90.48.420.

127. W. VA. CODE § 20-7-8 (1996).

128. Id.

129. 30 PA. CONS. STAT. § 2504 (1989).

130. KY. REV. STAT. ANN. § 150.460(1) (Michie 1996) (penalty of up to $ 500 and/or six months).

131. ARK. CODE ANN. § 15-43-317 (Michie 1994).

132. R.I. GEN. LAWS § 20-11-10 (1989).

133. VT. STAT. ANN. tit. 10, § 4606(b) (1997).

134. ME. REV. STAT. ANN. tit. 12, § 7617 (West 1994).

135. MASS. GEN. LAWS ANN. ch. 131, § 41 (West 1991).

136. CAL. WATER CODE § 14950(d) (West Supp. 1998).

137. Id. § 14954.

138. Id. § 14956(a).

139. Id. § 14956(b) (emphasis added).

140. P.R. LAWS ANN. tit. 12, § 61 (1997).

141. ALA. CODE § 9-11-93 (1987).

142. N.Y. ENVTL. CONSERV. LAW § 11-1301(1) (McKinney 1997) ("taking" includes killing).

143. 30 PA. CONS. STAT. § 2506(a) (1989). See also N.C. GEN. STAT. § 143-215.3 (1996 & Supp. 1997) (similar).

144. OKLA. STAT. ANN. tit. 11, § 37-115 (West 1994).

145. MINN. STAT. § 144.35 (1996).

146. E.g., ALA. CODE § 22-22-9(o) (1990).

147. See generally James M. McElfish Jr., State Law and Programs, in LAW OF ENVIRONMENTAL PROTECTION § 6.01[2][c] (Sheldon Novick et al. eds., 1987).

148. ALA. CODE § 22-22-9(I)(4) (1990).

149. PA. STAT. ANN. tit. 35, §§ 691.3, 691.601 (West 1993).

150. MINN. R. 7050.021 (1995).

151. CAL. PENAL CODE § 374.4(a) (West 1988).

152. Id.

153. KY. REV. STAT. ANN. § 438.060 (Michie 1985). Compare OHIO REV. CODE ANN. § 3767.13(C) (Anderson 1997) ("No person shall … corrupt or render unwholesome or impure, a watercourse, stream, or water." Misdemeanor punishable by up to 60 daysand/or $ 500).

154. MINN. STAT. § 561.01 (1996).

155. KAN. STAT. ANN. § 65-159 (1992).

156. Id.

157. E.g., HAW. REV. STAT. § 165-2 (1993); ARK. CODE ANN. § 2-4-106 (Michie 1996); IOWA CODE ANN. § 176B.11 (West 1990); N.D. CENT. CODE § 42-04-03 (1983). California's right to farm nuisance exemption specifically provides that it "shall not invalidate" provisions of the state's Health and Safety Code, Fish and Game Code, Food and Agricultural Code, or Porter-Cologne Water Quality Act that declare such an activity a nuisance. CAL. CIV. CODE § 3482.5 (West 1997).

158. DEL. CODE ANN. tit. 3, § 1401 (1993).

159. N.H. REV. STAT. ANN. §§ 432:33 (1991).

160. Id. §§ 432:33, :34. But operations "shall not be found negligent or improper" if they are obeying all laws. Id. Thus, New Hampshire agricultural operations are exempt from nuisance actions unless they create a public health hazard, or they are violating an explicit legal requirement.

161. MICH. COMP. LAWS ANN. § 286.473 (West 1996).

162. IDAHO CODE §§ 22-4501 (1995).

163. Id. § 38-1401 (1994).

164. N.Y. PUB. HEALTH LAW § 1300-c (McKinney 1990).

165. DEL. CODE ANN. tit. 7, § 4003 (1991).

166. Id. § 4013.

167. Id. § 4011(a).

168. 70 400 DEL. CODE REGS. 002 § 3.1.B (1996).

169. Id.

170. DEL. CODE ANN. tit. 7, § 4004(a) (1991).

171. OHIO REV. CODE ANN. § 1511.02(E) (Anderson 1997).

172. HAW. REV. STAT. § 180C-1 et seq. (1993).

173. 25 PA. CODE ch. 102 (1997).

174. Id.

175. Id. § 102.4(b) (1996).

176. ME. REV. STAT. ANN. tit. 38, § 420-C (West Supp. 1997).

177. GA. CODE ANN. §§ 12-7-6, 12-7-7 (1996).

178. Id. § 12-7-17.

179. VA. CODE ANN. § 10.1-563 (Michie 1993).

180. N.H. REV. STAT. ANN. § 485-A:17 (1992 & Supp. 1997).

181. N.C. GEN. STAT. § 113A-50 et seq. (1997).

182. S.C. CODE ANN. § 48-18-10 (Law. Co-op. 1987 & Supp. 1997).

183. Id. § 48-14-10 (Law. Co-op. Supp. 1997).

184. MICH. COMP. LAWS ANN. § 324.9115 (West Supp. 1997).

185. IOWA CODE ANN. § 161 A.64 (West Supp. 1997).

186. ME. REV. STAT. ANN. tit. 38, § 481 et seq. (West 1989 & Supp. 1997).

187. MINN. STAT. § 103F.441 (1996).

188. CAL. GOV'T CODE § 66411 (West 1997).

189. CAL. PUB. RES. CODE § 21000 et seq. (West 1996).

190. ME. REV. STAT. ANN. tit. 38, § 435 et seq. (West 1989 & Supp. 1997), § 480-A et seq. (West 1989).

191. VA. CODE ANN. § 10.1-2100 et seq. (Michie 1993); MD. CODE ANN., NAT. RES. II § 8-1801 et seq. (1990 & Supp. 1997).

192. CAL. GOV'T CODE §§ 66600, 66632 (West 1997).

193. S.C. CODE ANN. § 48-14-130 (Law. Co-op. Supp. 1997).

194. N.J. STAT. ANN. §§ 58:11A-4, -5 (West 1992).

195. ALASKA STAT. § 41.17.055 (Michie 1996).

196. Id. §§ 41.17.090, .115(b).

197. CAL. PUB. RES. CODE § 4511 et seq. (West 1984).

198. Id. § 4581.

199. IDAHO CODE § 38-102 et seq. (1994).

200. NEV. REV. STAT. § 528.042 (1995); NEV. ADMIN. CODE ch. 445A, § 340 (1997).

201. OR. REV. STAT. §§ 527.724, .765 (1995).

202. Id. § 527.670.

203. WASH. REV. CODE ch. 76.09 (1996 & Supp. 1997).

204. CONN. GEN. STAT. §§ 23-65j, 23-65k (1993).

205. ME. REV. STAT. ANN. tit. 12, §§ 8867-8869 (West 1994 & Supp. 1997).

206. MASS. GEN. LAWS ANN. ch. 132, § 42 (West 1991).

207. N.H. REV. STAT. ANN. § 227-J:1 to 10 (Supp. 1997).

208. ALA. CODE § 9-3-9 (1987). See ALA. ADMIN. CODE r. 390-X-1-.02 (Supp. 1990).

209. OHIO REV. CODE ANN. §§ 1511.02(E), 1515.08 (Anderson 1997).

210. Id. § 1511.02(E).

211. MD. CODE ANN., NAT. RES. II § 8-1808 (1990 & Supp. 1997).

212. Id. § 5-905 (1996).

213. MICH. COMP. LAWS ANN. § 324.50101 (West Supp. 1997).

214. MONT. CODE ANN. § 77-5-301 et seq. (1997).

215. N.H. CODE ADMIN. R. ANN. Env-Wt 304.05 (1997).

216. 9 VA. ADMIN. CODE § 10-20-120(10) (1996).

217. MISS. CODE ANN. § 49-19-51 (1990).

218. 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 1 (1994).

219. DEL. CODE ANN. tit. 7, § 2979 (Supp. 1996).

220. Id. § 2980.

221. Id.

222. VA. CODE ANN. § 10.1-1181.2 (Michie 1993).

223. W. VA. CODE § 19-1B-5 (1997).

224. N.H. REV. STAT. ANN. § 227-J:2(II)(d) (Supp. 1997).

225. E.g., IND. CODE ANN. §§ 6-1.1-6-1 to -27 (Michie 1998).

226. MICH. COMP. LAWS ANN. §§ 324.51101, 324.51120 (West Supp. 1997).

227. VT. STAT. ANN. tit. 6, § 4810 (Supp. 1997).

228. Id. See infra text accompanying note 250.

229. MD. CODE ANN., ENVIR. § 4-413 (1996).

230. N.Y. SOIL & WATER CONSERV. DIST. LAW § 9(7-a) (McKinney 1997).

231. See supra text accompanying notes 209-10.

232. OHIO REV. CODE ANN. § 1511.02 (Anderson 1997).

233. NEB. REV. STAT. § 2-4605 (1991).

234. Id. § 2-4608 (1991 & Supp. 1996).

235. KY. REV. STAT. § 224.71-120 (Michie 1995 & Supp. 1996).

236. Id. § 224.71-100.

237. Id. §§ 224.71-100 to -145.

238. Id. § 224.71-130 (Michie 1995).

239. OR. REV. STAT. §§ 568.909, .912, .930 (1995).

240. HAW. REV. STAT. §§ 180C-1, -2 (1993).

241. MICH. COMP. LAWS ANN. § 324.9109 (West Supp. 1997).

242. VA. CODE ANN. §§ 10.1-559.1 to .7 (Michie Supp. 1997).

243. WIS. STAT. ANN. § 1233 (West Supp. 1997).

244. TEX. AGRIC. CODE ANN. § 201.026 (West Supp. 1998).

245. N.C. GEN. STAT. § 106-800 et seq. (1995 & Supp. 1997).

246. S.D. CODIFIED LAWS § 34A-3A-24 (Michie Supp. 1997).

247. IOWA CODE ANN. §§ 455B.161, .171 to .173 (West 1997 & Supp. 1997).

248. PA. STAT. ANN. tit. 3, § 1706 (West 1995).

249. W. VA. CODE ST. R. tit. 61, § 6C (1993).

250. VT. STAT. ANN. tit. 6, § 4810 (Supp. 1997).

251. OHIO REV. CODE ANN. § 1511.02 (Anderson 1997).

252. FLA. ADMIN. CODE ANN. r. 62-670.500 (1997).

253. Miss, Wastewater Regs., chap. 1, tit. IV, sec. C.4.

254. Id. at tit. I, sec. C.2.c.

255. KAN. STAT. ANN. § 65-171d (1992 & Supp. 1996).

256. Id.

257. CONN. GEN. STAT. §§ 22-323a, -326d to -326f (1993).

258. OR. REV. STAT. § 468B.215 (1995).

259. NEB. REV. STAT. § 46-656.05 (Supp. 1996).

260. MICH. COMP. LAWS ANN. § 324.8512 (West Supp. 1997).

261. MONT. CODE ANN. § 80-15-101 et seq. (1997).

262. ARIZ. REV. STAT. ANN. §§ 49-247, -201.29 (West 1997).

263. FLA. STAT. ANN. § 373.4592 (West 1997 & Supp. 1998).

264. Id.

265. Id.

266. COLO. REV. STAT. ANN. §§ 35-11-103, -112 (West 1990).

267. E.g., ARK. CODE ANN. § 14-125-501 (Michie 1987); N.D. CENT. CODE § 4-22-27 (1987); S.D. CODIFIED LAWS § 38-8A-11 (Michie 1996); TENN. CODE ANN. § 43-14-219 (1993); UTAH CODE ANN. §§ 17A-3-806, -807 (1991).

268. P.R. LAWS ANN. tit. 5, § 246 (1997).

269. E.g., ALA. CODE § 9-8-26 (1987); GA. CODE ANN. § 2-6-35 (1990); 70 ILL. COMP. STAT. 405/23 (West 1996); KY. REV. STAT. ANN. § 262.350-.390 (Michie 1994); LA. REV. STAT. ANN. § 3:1209 (West 1987); MONT. CODE ANN. § 76-15-701 (1997); N.C. GEN. STAT. § 139-9 (1997); S.C. CODE ANN. § 48-9-1510 (Law. Co-op. 1987); TENN. CODE ANN. § 43-14-219 (1993); TEX. AGRIC. CODE ANN. § 201.121 (West 1982); W. VA. CODE § 19-21A-9 (1997).

270. NEV. REV. STAT. § 548.410 (1995).

271. WIS. STAT. ANN. § 92.11 (West 1990 & Supp. 1997).

272. OKLA. STAT. ANN. tit. 82, § 521 (West 1990).

273. E.g., GA. CODE ANN. § 2-7-99 (1990).

274. Id. § 2-7-100 (1990); KY. REV. STAT. ANN. § 217B.180 (Michie 1995).

275. E.g., KAN. STAT. ANN. § 2-2472 (1991) ("pesticide management areas" with special BMPs); KY. REV. STAT. ANN. § 217B.050 (Michie 1995 & Supp. 1996).

276. MASS. GEN. LAWS ANN. ch. 132B, § 6 (West 1991) (emphasis added), Compare MINN. STAT. § 18B.07, subd. 2 (1996) ("use, store, handle, distribute or dispose of ….") (emphasis added).

277. R.I. GEN. LAWS § 23-25-19 (1996); DEL. CODE ANN. tit. 3, § 1235 (same) (1997); GA. CODE ANN. § 2-7-106 (1993) (similar).

278. FLA. STAT. ANN. § 487.031 (West 1991 & Supp. 1998). Compare 7 PA. CODE § 128.103(c) (1996) ("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.").

279. MICH. COMP. LAWS ANN. §§ 324.8323-.8324 (West Supp. 1997).

280. GA. CODE ANN. § 2-7-170(a) (1990).

281. P.R. LAWS ANN. tit. 12, § 803 (1997).

282. ARK. CODE ANN. § 14-387-201 (Michie 1987).

283. CAL. HEALTH & SAFETY CODE §§ 116990, 116995 (West 1996). Nevada has a similar provision. NEV. REV. STAT. § 568.330 (1995).

284. ARIZ. REV. STAT. ANN. §§ 49-202.01, .02 (West Supp. 1997).

285. Id.

286. NEV. ADMIN. CODE ch. 445A, § 309(I) (1997).

287. N.M. STAT. ANN. § 74-6-4(K) (Michie 1993).

288. KY. REV. STAT. ANN. §§ 224.71-100 to -145 (Michie 1995 & Supp. 1996).

289. GA. CODE ANN. §§ 12-7-6, 12-7-7 (1996).

290. ARIZ. REV. STAT. ANN. §§ 49-247, -201.29 (West 1997).

291. IDAHO CODE § 38-102 et seq. (1994); OR. REV. STAT. §§ 527.724, .765 (1995).

292. CONN. GEN. STAT. ANN. § 22a-354i (West 1995 & Supp. 1997).

293. MD. CODE ANN., NAT. RES. II § 5-905(b) (1996).

294. W. VA. CODE STATE R. tit. 61, §§ 6C-4.3, -4.4 (1993).

295. See supra text accompanying notes 219-22.

296. ME. REV. STAT. ANN. tit. 17, § 2805 (West 1983 & Supp. 1997).

297. N.H. REV. STAT. ANN. § 431:35 (Supp. 1997).

298. Id. § 485-A:17:III (1992 & Supp. 1997).

299. Id. § 483-B:3.III.

300. N.C. GEN. STAT. § 113A-52.1 (1997).

301. 9 VA. ADMIN. CODE § 10-20-120 (1996).

302. GA. CODE ANN. § 12-7-6(a) (1996).

303. OR. REV. STAT. § 527.770 (1995).

304. ME. REV. STAT. ANN. tit. 17, § 2805 (West 1983 & Supp. 1997).

305. Id. at tit. 38, § 413(2) (West 1989 & Supp. 1997).

306. VT. STAT. ANN. tit. 6, § 4810 (Supp. 1997).

307. Id.

308. KY. REV. STAT. ANN. § 224.71-120(9) (Michie 1995).

309. DEL. CODE ANN. tit. 7, § 6037(b) (1991 & Supp. 1996).

310. FLA. STAT. ANN. § 576.045(4) (West Supp. 1998).

311. IDAHO CODE § 39-127 (1993) (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); IOWA CODE ANN. § 455E.6 (West 1997) (no liability for cleanup or damages to groundwater from nitrates if application followed soil test results and fertilizer label).

312. DEL. CODE ANN. tit. 7, § 2980 (Supp. 1996); VA. CODE ANN. § 10.1-1181.2 (Michie 1993).

313. PA. STAT. ANN. tit. 3, §§ 1712, 1713 (West 1995).

314. See supra text accompanying notes 146-64.

315. MICH. COMP. LAWS ANN. § 286.473a (West 1996).

316. Id.

317. ME. REV. STAT. ANN. tit. 17, § 2805 (West 1983 & Supp. 1997).

318. OHIO REV. CODE ANN. § 1511.021 (Anderson 1997).

319. VA. CODE ANN. § 10.1-2100 (Michie 1993).

320. MD. CODE ANN., NAT. RES. II § 8-1808 (1990 & Supp. 1997).

321. N.Y. ENVTL. CONSERV. LAW § 15-2701 (McKinney 1997).

322. ME. REV. STAT. ANN. tit. 38, § 435 (West 1989 & Supp. 1997).

323. N.H. REV. STAT. ANN. § 483-B (1992 & Supp. 1997).

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