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1 ENVIRONMENTAL LAW INSTITUTE RESEARCH REPORT $OPDQDFRI (QIRUFHDEOH6WDWH /DZVWR&RQWURO 1RQSRLQW6RXUFH :DWHU3ROOXWLRQ 1998

2 ALMANAC OF ENFORCEABLE STATE LAWS TO CONTROL NONPOINT SOURCE WATER POLLUTION Environmental Law Institute Copyright 1998

3 Acknowledgements This project was supported in part by Environmental Protection Agency Assistance Agreement No. X The views expressed herein should not be attributed to EPA nor should any official endorsement be inferred. Thanks also to the Richard King Mellon Foundation for its support of the Environmental Law Institute s sustainable use of land program. Institute staff contributing to the project included James M. McElfish, Jr., Jay Austin, and Tobie Bernstein, with additional help from Lavea Brachman; those contributing to the underlying research included, in addition, Susan Casey-Lefkowitz, Ken Rosenbaum, Andrew Galbreath, Laura Kosloff, Carl Bruch, Mary Duffy Becker, and Chris Semonsen. Thanks to Dov Weitman and Kristen Martin of EPA s Nonpoint Source Branch, and to the many state reviewers of this information. Interpretations of state laws and programs, and any errors or omissions, are solely the responsibility of the Institute s staff. Almanac of Enforceable State Laws to Control Nonpoint Source Water Pollution Copyright, Environmental Law Institute, All rights reserved. ELI Project # , ISBN #

4 Table of Contents Page No. Introduction...1 Alabama...5 Alaska...9 Arizona...13 Arkansas...17 California...21 Colorado...31 Connecticut...39 Delaware...45 District of Columbia...51 Florida...55 Georgia...61 Hawaii...67 Idaho...71 Illinois...75 Indiana...79 Iowa...85 Kansas...91 Kentucky...97 Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma i

5 Oregon Pennsylvania Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming ii

6 Introduction Because of increasing interest in methods for controlling nonpoint sources of water pollution, the Environmental Law Institute (ELI) has been identifying and collecting enforceable provisions in state laws that bear on, or that could be brought to bear on, discharges from these sources. Nonpoint source discharges, which consist generally of polluted runoff from farms, forests, land development and other activities, are not regulated under the federal Clean Water Act s National Pollutant Discharge Elimination System permitting program. 1 Instead they are addressed primarily through nonregulatory means, such as planning, incentive and cost-share mechanisms, voluntary Best Management Practices (BMPs), and other approaches. 2 Yet, increasingly, states are finding it necessary to deal with nonpoint source discharges that cannot be prevented, controlled, or abated adequately by these means. A broad summary of existing enforceable state laws was published by ELI in late 1997 as Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution (available on the Institute s website % ). That study identified the types of enforcement-based state laws that apply to nonpoint source discharges, and the opportunities and obstacles affecting their use. 3 This new study builds upon the prior study. It provides a state-by-state summary of enforcement-based laws that are potentially applicable to nonpoint source water pollution. Scope of Study This study consists of 52 summary reports for the states, the District of Columbia, and the Commonwealth of Puerto Rico. The laws identified for each state do not represent the totality of that state s efforts to control nonpoint source water pollution % such as the voluntary, technical assistance, cost-share and other provisions that typically serve as the core of most state programs. Rather, the summary reports identify only the enforceable provisions that can apply to nonpoint source discharges in each state. For purposes of this study, enforceability is defined as the ability of the state to impose a sanction upon an unwilling person or entity. This definition excludes provisions that simply prescribe the withholding of a benefit % such as the many forest and agricultural tax laws that require repayment of back taxes if a management plan is violated, or laws that allow a state agency to condition receipt of cost-share moneys upon compliance by the recipient. The reader should note that the state laws identified are ones that could be used to address nonpoint source pollution. The summaries are not limited to state laws that are currently being used in this way. State laws written at various times and for various purposes can often be applied in new ways. Knowledge of existing enforceable laws is becoming increasingly important as many states attempt to deal with large inventories of waters that are impaired, in whole or in part, by nonpoint sources. States that must prepare load allocations for nonpoint sources under Total Maximum Daily Loads (TMDL) requirements, for example, will need such enforceable mechanisms to assure that the load allocation targets can be met. 4 Coastal states also need to demonstrate their ability to use enforceable mechanisms in order to continue to receive coastal zone 1

7 and nonpoint source financial assistance from the federal government under the terms of the Coastal Zone Act Reauthorization Amendments of The state reports are, in essence, inventories of provisions that could be pressed into service to deal with nonpoint source water pollution discharges or activities that frequently cause such pollution. Because they are available without new legislation, these provisions present state agencies, governors, attorneys general, and citizen groups with potential tools that can be used in improving water quality. Organization of State Reports The enforcement-based provisions described in each state report are grouped under six headings for purposes of easy reference and to facilitate comparison among states. States with lengthy summary reports do not necessarily have stronger or more comprehensive laws than those with shorter reports. Nor do the summaries show how the state is using its array of tools. The first three headings appear under the general category "Discharge Prohibitions." They are intended to identify enforceable state provisions that apply to nonpoint source discharges without regard to the type of source or activity creating the discharge: Water Pollution Control Law is intended to identify provisions in the state s primary water pollution law or environmental code that can be used as a basis for enforcement against some (or any) discharges from nonpoint sources. This section includes provisions in these laws that are broad enough to cover nonpoint sources even when, to date, they have been used only to address point source discharges. The reader should note applicable limitations, such as laws that cover only discharges of "waste," or laws that require the government to prove that the discharge caused impairment of the receiving waters. Other Discharge Limitations is intended to identify nuisance-type enforceable provisions, laws that protect public water supplies from impairment, public health laws, and other miscellaneous (often older) laws that apply to nonpoint source discharges. Often these provisions are usable only where there is a demonstrated harm, or where particular listed substances are discharged into the state s waters. Fish/Fisheries Laws is intended to identify provisions in state fish and game laws that impose discharge prohibitions or limitations, and provisions that may be used to take enforcement action when a nonpoint discharge results in taking, death, or injury to fish or other aquatic life. The next three headings are grouped under the general category "Operational Requirements." This category is intended to identify laws that impose enforceable operating requirements -- not just discharge prohibitions -- for three particular kinds of activities that often result in nonpoint source water pollution discharges: Forestry Requirements is intended to identify enforceable regulatory requirements applicable to silviculture activities, including the harvesting of timber. If forestry 2

8 enforcement is only under the water pollution control law, however, this section may indicate that no specific operating requirements apply. For example, forestry best management practices that are not themselves enforceable are not listed here, even though the state may take enforcement action under its water pollution law if forestry operations cause water pollution incidents. Agriculture Requirements is intended to identify enforceable regulatory requirements applicable to agricultural activities. It may include limits on soil erosion, pesticide use, fertilizer use, manure spreading, and regulation of animal operations with respect to nonpoint source discharges. This section does not report on state point source regulation of concentrated animal feeding operations (CAFOs) required under the federal Clean Water Act, but may identify state programs that address a wider universe of animal feeding operations than do federal CAFO requirements, or state programs that impose specific licensing, setback, manure management, or other requirements particularly relevant to nonpoint source pollution. Development and Other Earth-Disturbing Activities is intended to identify enforceable state requirements applicable to excavation and land-clearing activities. In general, it does not include provisions that simply implement the urban stormwater point source requirements of the federal Clean Water Act. Enforceable requirements applicable to some other kinds of nonpoint sources are not directly addressed in this compendium, such as laws addressing on-lot sewage systems, dams and hydromodification projects, marinas, and mineral development. Conclusions This review of the laws in 50 states, Puerto Rico, and the District of Columbia indicates that most states have a number of enforceable authorities that can be used to address various nonpoint source discharges, but that legal coverage of all nonpoint sources is often incomplete. The laws contain numerous exemptions, especially for agriculture and forestry. Much regulation under state laws is left up to local entities. These include conservation districts (only some of which have regulatory and enforcement powers) and municipal governments (which may or may not address nonpoint sources under their zoning and regulatory powers). The implications of the many exemptions and limitations are discussed in detail in ELI s 1997 study. This almanac of enforceable state laws is intended to raise the level of visibility of these enforceable mechanisms, and to serve as a resource to state and federal legislators and policy makers seeking to control nonpoint source water pollution in the years ahead. The array of existing enforceable state laws that can be brought to bear on nonpoint source discharges is both impressive and discouraging. Impressive because of the diversity and ubiquity of state legal mechanisms. Discouraging because of the inconsistent treatment of similar problems from one state to the next, and because of the significant gaps in coverage that still exist in many states. 3

9 Endnotes U.S.C. 1342; see definitions of "discharge of a pollutant" and "point source" at 33 U.S.C. 1362(12), (14) U.S.C. 1329, added to the Clean Water Act in 1987, provides a federal basis for planning and federal funding of state nonpoint source control programs using these tools. 3. See also, James M. McElfish, Jr., "State Enforcement Authorities for Polluted Runoff," 28 Envtl. L. Rep. (Envtl. L. Inst.) (April 1998). 4. See 33 U.S.C. 1313(d) U.S.C. 1455(d)(16). All submitted state programs were conditionally approved by the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, but most need to demonstrate their ability to use the enforceable mechanisms identified in their submittals and/or to develop additional mechanisms. See 4

10 ALABAMA Enforceable Provisions Applicable to Nonpoint Source Water Pollution Water Pollution Control Law DISCHARGE PROHIBITIONS Alabama s water pollution control law, which requires a permit for discharge of "pollution," provides a basis for enforcement against some nonpoint source discharges, but regulations exclude nonpoint source discharges from agriculture and silviculture from the permit requirement. The state also maintains that it may directly enforce against nonpoint sources, if they cause violation of water quality standards. In addition, the law provides two general authorities which allow the state to take enforcement action to deal with any type of water pollution resulting from negligence, or any water pollution that produces a health hazard. "Every person, prior to discharging any new or increased pollution into any waters of this state, shall apply to the commission [now the Alabama Department of Environmental Management (ADEM)] in writing for a permit and must obtain such permit before discharging such pollution." 1 But although Alabama s permit requirement is not limited to point sources, 2 nevertheless a permit is not required for discharges "from non-point source agricultural and silvicultural activities." 3 Enforceable provisions may include water quality standards. 4 In addition to setting standards, the regulations only require specifically, however, that "nonpoint source discharges shall use best management practices adequate to protect water quality consistent with the Department s nonpoint source control program" with respect to antidegradation of waters meeting water quality criteria and outstanding state and national waters. 5 The referenced program, however, appears to be largely based on cost-shares and technical assistance. 6 Enforcement of these provisions follows this procedure: "Whenever the commission [ADEM] determines that any person is violating, or is about to violate, any of the provisions of this chapter, or any rule or regulation or order or permit...thereunder, [ADEM] may notify such person of such determination... Within such time as may be specified in such notice, such person shall file with the commission [ADEM] a full report showing steps that have been taken and are being taken to control such pollution. Thereupon, the commission [ADEM] may make such orders as in its opinion are reasonable." 7 Enforcement includes orders, injunctions, civil actions for damages for pollution (including "any reasonable costs to prevent, minimize, or clean up any damage," costs for restocking of fish killed, civil penalties of $100 to $25,000 per day, and criminal penalties for willful violation or grossly negligent violations. 8 The law also provides that ADEM, the attorney general or any district attorney "may commence a civil action for damages for pollution of the waters of the state including, but not limited to, any reasonable costs to prevent, minimize or clean up any damage resulting from the wrongful act, omission or negligence of a person." 9 5

11 Furthermore, "Any and all pollution is...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 [ADEM] by order or injunction. Any order issued under this subsection shall be deemed to be final and conclusive for the purposes of this chapter." 10 Other Discharge Limitations Nuisance liability is noted above. Alabama law gives some rulemaking powers with respect to pollution discharges to the department of conservation and natural resources. 11 But the department cannot make "any rules or regulations which will hamper industry or which will interfere with the operation of any industrial plant or plants or any industrial operation...[or] which will hamper or interfere with the construction of dams built for impounding private waters...[or] which will in any way hamper or interfere with the maximum development of private waters as a source of food, farm income and recreation in the state of Alabama..." 12 Fish/Fisheries Laws The taking or killing of any fish by depositing in any public stream or body of water "any poison, poisonous substance...or other deleterious or poisonous matter" is an offense. 13 The taking or killing of any fish by any means other than those expressly allowed by law or regulation of the department of conservation and natural resources is an offense. 14 These are punishable as misdemeanors, with a fine of $50 to $200. Forestry Requirements OPERATIONAL REQUIREMENTS The State Forestry Commission has power to operate state forests and to administer all laws relating to timber and forestry. 15 "The commission shall have the power 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." 16 However, the commission has not adopted enforceable nonpoint source regulations, relying instead on voluntary BMPs. The commission has adopted licensing requirement for foresters. 17 There are no enforcement provisions in the regulations apart from the licensing requirements. The state reports that it relies on its water pollution control act for enforcement. State law provides for the establishment of soil and water conservation districts; 18 the districts have the power to carry out preventive and control measures and to provide assistance, to develop comprehensive plans, and "to make and, from time to time, amend and repeal rules and regulations not inconsistent with this article to carry into effect its purposes and powers." 19 Specifically, the supervisors of a district have authority to "formulate regulations governing the use of lands within the district in the interest of conserving soil and soil resources and preventing and controlling soil erosion." 20 Such regulations may only go into effect after a referendum results in their approval by 4/5 of the votes cast; and the supervisors are not required to adopt the regulations even if the referendum is favorable. 21 6

12 A separate law provides that "any management guidelines developed by watershed management authorities [a special form of authority within some soil and water conservation districts] to protect forested watersheds shall follow the best management practices established by the Alabama Forestry Commission as they pertain to forested watersheds." 22 Enforcement of soil and water conservation district land use regulations is by injunction sought by the supervisors in the circuit court; or the supervisors may perform the work and recover the expenses thereof. 23 Agriculture Requirements Enforceable land use regulation by soil and water conservation districts is described above. The Alabama Pesticide Act provides for pesticide registrations, for permitting of commercial applicators by the Dept. of Agriculture and Industry. 24 "Before any person is authorized to purchase and use restricted-use pesticides for application or use thereof, such person shall meet certain qualifications to be prescribed pursuant to rules and regulations...designed to satisfy the requirements of the Federal [FIFRA]...and to determine whether the user or applicator...can use and apply such products in a manner that will not endanger or be injurious to human health and nontarget animals, wildlife, vegetation, crops, and water or be detrimental to the general environment..." 25 The statute provides for penalties and injunctive relief. 26 Development and Other Earth-Disturbing Activities No operating requirements are set forth apart from any that may be contained in urban stormwater programs under the Clean Water Act or that may be authorized by general land use regulation such as zoning. Control of pollution from development activities is limited to stormwater permitting for activities over 5 acres. State law does provide for the formation of watershed management authorities, which include contiguous watershed lands which may lie within one or more soil and water conservation districts. 27 The land included in the authority must be in a single watershed and must encompass at least 50 square miles. The purposes include plans and programs relating to, among other things, "water pollution control...erosion prevention and control of erosion, floodwater and sediment damages." 28 Authority to make and enforce rules and regulations is not clearly among the enumerated powers of these watershed management authorities. 29 Individual local government jurisdictions, particularly in the coastal zone, also have some authorities over runoff and sediment under their general land use powers or the coastal zone program. 30 Endnotes 1. Ala. Code (I)(3). 2. Ala. Code (b)(3); Admin. Code (jj). 3. Admin. Code (a)4. This exception does not apply to concentrated animal feeding operations, concentrated aquatic animal production facilities, and certain silvicultural discharges treated as point sources by regulation. 4. Alabama asserted that these standards are directly enforceable against nonpoint source dischargers in its 1995 submittal under the Coastal Zone Act Reauthorization Amendments. 7

13 5. Admin. Code (3) ("antidegradation policy"); Admin. Code , -.10 ("Outstanding Alabama Waters", "Outstanding National Resource Waters"). 6. Ala. Code et seq. 7. Ala. Code (e). 8. Ala. Code (I) to (n), 22-22A-5(17) to (19), Ala. Code (m). 10. Ala. Code (I)(4). 11. Ala. Code et seq. 12. Ala. Code Ala. Code Ala. Code Ala. Code et seq. 16. Ala. Code ;Admin. Code 390-X Ala. Code ; Admin. Code 380-X to Ala. Code et seq. 19. Ala. Code (16). 20. Ala. Code Ala. Code Ala. Code 9-10A Ala. Code Ala. Code et seq. 25. Ala. Code (b). 26. Ala. Code Ala. Code 9-10A-1 et seq. 28. Ala. Code 9-10A Ala. Code 9-10A Ala. Code (7), (6). 8

14 ALASKA Enforceable Provisions Applicable to Nonpoint Source Water Pollution Water Pollution Control Law DISCHARGE PROHIBITIONS Alaska s water pollution control law includes some provisions that may be used to take enforcement action against nonpoint source discharges that pollute the waters of the state. Alaska law prohibits a person from "pollut[ing] or add[ing] to the pollution of the air, land, subsurface land, or water of the state." 1 The Alaska Department of Environmental Conservation (DEC) has broad authority to adopt pollution standards and "to determine what qualities and properties of water indicate a polluted condition..." 2 If an activity presents "an imminent or present danger" to the people of the state or would result in or be likely to result in "irreversible or irreparable damage" to the environment, the DEC may issue an emergency abatement order without a hearing. The affected party may present proof to the contrary or prove that the order would impose "substantial private hardship." 3 In the ordinary case, if the DEC has reason to believe that a violation has occurred or is about to occur, then it may notify the person involved and require a report stating the measures that have been or will be taken to correct or control the conditions. The DEC may issue a compliance order after the time period specified for filing the report. 4 Superior court may also enjoin violations of statute, regulations, orders or permits. 5 Sanctions imposed include civil penalties of between $500 and $10,000 for the initial violation and not more than $5000 for each subsequent day of the violation. The court will determine the amount of the penalty based upon the characteristics of the substance discharged, the "sensitivity of the receiving environment," and the "degree" of environmental degradation. Costs to the state and the economic savings of the violator shall also be considered. 6 If the violation occurs with criminal negligence, then it is a Class A misdemeanor. 7 Other Discharge Limitations A person is guilty of nuisance under Alaska state law if the person puts a "dead animal<excrement, or a putrid, nauseous, noisome, decaying, deleterious, or offensive substance into, or in any other manner <pollutes<a spring, brook, creek, branch, well or pond of water that is or may be used for domestic purposes." It is a misdemeanor to neglect or refuse to abate a nuisance under this statute. 8 The court may assess damages for costs of abatement. 9 There is a similar nuisance provision for placement of "obnoxious" matter or things on land. 10 A discharge limitation is imposed whereby before beginning "to construct a hydraulic project, or use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream, the person or governmental agency shall notify the commissioner..." 11 Proceeding without approval is a misdemeanor, 12 and sanctions are 9

15 calculated based on the cost of restoring a river, lake or stream to its original condition in addition to court penalties. 13 Fish/Fisheries Laws A person is generally liable to the state if the person "violates or disregards an order, permit, or other determination" of the DEC under the Water, Air, Energy, and Environmental Conservation Code and "thereby causes the death of fish, animals or vegetation or otherwise injures or degrades the environment of the state<" 14 The attorney general may recover damages under this provision, and liability includes costs recovered for the restocking of injured land or waters or to replenish a damaged or degraded resource or to otherwise restore the environment to its condition before the injury. 15 It is a class A misdemeanor if criminal negligence is found. 16 Obstruction, diversion or pollution of "water of the state, either fresh or salt, utilized by salmon in the propagation of species, by <casting, passing, throwing, or dumping tree limbs or foliage, underbrush, stumps, rubbish earth, stones, rock or other debris, or passing or dumping sawdust, planer shavings, or other waste or refuse of any kind in those waters" is prohibited without a permit. 17 Also a permit is required to render the waters described above "inaccessible or uninhabitable for salmon for spawning or propagation." 18 A violation of these provisions is a misdemeanor punishable by a fine of between $100 and $ The permit may be granted if the purpose is "to develop power, obtain water for civic, domestic, irrigation, manufacturing, mining, or other purposes tending to develop the natural resources of the state." 20 Forestry Requirements OPERATIONAL REQUIREMENTS With respect to forest resources and practices, the state, with the DEC as lead agency, "should exercise its full responsibility and authority for control of nonpoint source pollution with respect to the Federal Water Pollution Control Act." 21 While this policy is not itself an enforceable mechanism, the law further provides that the Commissioner of Natural Resources ("Commissioner") may issue nonpoint source pollution regulations subject to DEC approval. 22 On state, municipal, and private forest land, state law provides that "environmentally sensitive areas" shall be recognized "in the development of regulations and best management practices that are designed to implement nonpoint source pollution control measures authorized under this chapter." 23 Also "significant adverse effects of soil erosion and mass wasting on water quality and fish habitat shall be prevented or minimized." 24 Before operations begin on municipal or private forest land or on state land not managed by the division of forestry, the operator must submit to the state forester (who heads the division of forestry) a "detailed plan of operations" which must be reviewed within thirty days. Unless a stop-work order is issued or the agency extends the review period, the operator may commence work, at the latest, thirty days after submission of the plan. 25 The plan must be renewed annually. The state forester may grant a variance 10

16 from the statute or regulations if "the harm intended to be avoided by the requirement is not likely to occur because of site-specific circumstances relating to the particular activity and is not likely to cause harm to fish habitat or water quality." 26 Also small commercial operations and primarily noncommercial operations are exempt. 27 The Commissioner may assess civil fines and request that the attorney general seek an injunction for violations of directives or stop-work orders. 28 Upon making a determination that an activity violates this chapter, the state forester may issue a directive ordering the person to cease the violation or repair any resulting damage. If the person requests a hearing, then the activity may continue unless the state forester issues a stop-work order. 29 Where a person violates a directive requiring repair or correction of damage, the Commissioner may proceed with the repair and the violator is liable for the cost. 30 Violation of statute, regulation, directive or stop-work order can result in a maximum civil fine of $10, If criminal negligence is found, then the violation is a Class A misdemeanor. 32 For each state forest, the Commissioner is required to prepare a forest management plan that considers and permits various forest uses, as well as "soil characteristics, water quality and watershed management." 33 Under the Alaska Lands Act, regardless of whether a forest management plan has been prepared, before the Department of Natural Resources ("DNR") can authorize timber harvest (except for harvests of ten acres or less or timber salvaged from land cleared for nonforest use), the DNR must adopt a forest land use plan that considers, among other factors, fish and wildlife habitat, including retention of riparian, wetland and ocean-shoreline vegetation; water quality and watershed management. 34 Finally, the Commissioner is to adopt regulations to protect riparian areas that provide higher standards of protection for lands managed by the DNR than other public or private land. 35 Specifically, for state lands managed by the DNR, no harvest is permitted within 100 feet of the water body, subject to certain exceptions and depending upon whether the land is located north or south of the Alaska range. 36 Whereas the timber harvest riparian standards for private land located in a coastal spruce or hemlock forest vary depending upon the water classification, distance of the activity from the water body and slope stability standards. For other private forest land, riparian standards are established by regulation. 37 The same exemptions, enforcement mechanisms and sanctions apply here that are discussed above with respect to the general forestry provisions. Agriculture Requirements Generally, Alaska state law regulates the licensing of pesticides. 38 More specifically, "a person may not spray or apply<pesticide or broadcast chemical in a manner that may cause damage to or endanger the health, welfare, or property of another person, or in a manner that is likely to pollute the air, soil, or water of the state without prior authorization of the [DEC]." 39 Enforcement and sanctions follow same provisions as outlined above under general discharge limitations. Development and Other Earth-Disturbing Activities Alaska law provides for local land use regulation, planning and zoning, but state law does not prescribe specific nonpoint source duties in this context. 11

17 Endnotes 1 Alaska Stat Alaska Stat Alaska Stat Alaska Stat (a)-(c ). 5 Alaska Stat Alaska Stat (a)(1)-(3). 7 Alaska Stat (a)(1). 8 Alaska Stat (a), (b). 9 Alaska Stat (b). 10 Alaska Stat Alaska Stat (b). 12 Alaska Stat Alaska Stat Alaska Stat (a). 15 Alaska Stat (b),(c ). 16 Alaska Stat (a)(1). 17 Alaska Stat (a)(1). 18 Alaska Stat (a)(2),(3). 19 Alaska Stat Alaska Stat Alaska Stat (5). 22 Alaska Stat (d). 23 Alaska Stat (b)(2). 24 Alaska Stat (b)(5). 25 Alaska Stat (c ),(e), (i). 26 Alaska Stat (a). 27 Alaska Stat (c ). 28 Alaska Stat (a),(d). 29 Alaska Stat , Alaska Stat (e). 31 Alaska Stat (a). 32 Alaska Stat (b). 33 Alaska Stat (a). 34 Alaska Stat (a),(c ). 35 Alaska Stat (b). 36 Alaska Stat (a). 37 Alaska Stat (a),(b). 38 Alaska Stat Alaska Stat

18 ARIZONA Enforceable Provisions Applicable to Nonpoint Source Water Pollution Water Pollution Control Law DISCHARGE PROHIBITIONS Arizona s water pollution law has provisions that authorize development of a program for nonpoint source discharges, which may include, but does not require, development of enforceable mechanisms. It also has a general discharge prohibition applicable to intentional or grossly negligent discharges. Arizona also provides for aquifer protection permits that address some nonpoint source discharges to groundwater. Arizona law requires the Department of Environmental Quality (DEQ) to adopt not only permit requirements for point sources and for certain facilities likely to pollute aquifers, but also to adopt a "program to control nonpoint source discharges of any pollutant or combination of pollutants into navigable waters." 1 Thus, enforceable mechanisms could be created by regulation. Enforcement mechanisms available under the law generally include orders, injunctions, and court actions to recover civil penalties not to exceed $25,000 per day. 2 Arizona s general discharge prohibition makes it a criminal offense to discharge, with intent or gross negligence, any substance to waters without a required permit or other "appropriate authority," or to violate a water quality standard. 3 Arizona has a regulatory program for aquifer protection permits that has some bearing on nonpoint discharges. Facilities that may produce discharges to groundwater require an aquifer protection permit. 4 Some of these include nonpoint source activities, such as mines. The DEQ is further authorized to issue general permits under the aquifer protection program, including general permits requiring use of best management practices and addressing urban runoff, silviculture, and certain other activities. 5 Other Discharge Limitations Nuisance authorities provides some additional enforcement authority where specific health or environmental hazards can be shown. Arizona defines an environmental nuisance as "creation or maintenance of a condition in the soil, air or water that causes harm to the public health or the environment and that is not otherwise subject to regulation under this title." 6 Examples include: "6. the pollution or contamination of any domestic waters" and "7. use of cesspools, septic tanks, or sewage for fertilizing or irrigation without approval." 7 The director of DEQ may serve an abatement order, which becomes final in 30 days. Failure or refusal to comply with order enables DEQ to abate the nuisance itself and recover costs. 8 DEQ may also file an action in superior court for enjoin further violation, compel compliance, or for abatement. 9 Other nuisances, including some water-pollution related actions, are specified by law. 10 Arizona also has a savings clause that preserves other causes of action, including public and private nuisance law

19 Another law provides that "No person shall dump, deposit, place, throw or leave refuse, rubbish, debris, filthy or odoriferous objects, substances or other trash on any waterways or the shorelines of any waterways of the state." 12 Violation is a misdemeanor, and the violator may be ordered to "correct any unlawful condition, issued a written warning or written repair order, or issued a citation." 13 The crime of criminal littering or polluting is committed if a person unlawfully "1. Throws, places, drops or permits to be dropped on public property or property of another which is not a lawful dump any litter, destructive or injurious material which he does not immediately remove. 2. Discharges or permits to be discharged any sewage, oil products or other harmful substances into any waters or onto any shorelines within the state..." 14 The offense is a felony if it is a knowing violation, if the material exceeds 300 lbs. or 100 cu.ft., or if it is done for a commercial purpose. It is a misdemeanor if it is not a felony and "involves placing any destructive or injurious material on or within fifty feet of a highway, beach or shoreline of any body of water used by the public." 15 Fish/Fisheries Laws The game and fish commission may bring an action against "any person, corporation, or government agency, to restrain or enjoin the person, corporation, or government agency from discharging or dumping into a stream or body of water in the state any deleterious substance which is injurious to wildlife." 16 It is also unlawful to take a fish by any means other than angling unless otherwise provided by the commission, subject to fine of $10 and misdemeanor penalty. 17 Because there is no intent requirement, this may provide some recourse for fish kills. Forestry Requirements OPERATIONAL REQUIREMENTS State law does not appear to specify operational requirements related to nonpoint source water pollution from forestry activities. Agriculture Requirements Arizona law provides that the director of DEQ shall adopt rules for agricultural general permits consisting of BMPs for "regulated agricultural activities" defined as "application of nitrogen fertilizer or a concentrated animal feeding operation." 18 The agricultural general permits are not subject to the general legal criteria for general permits or BMPs. 19 Individual permits for regulated agricultural activities are generally not required. 20 Agricultural BMPs are those that DEQ has determined "to be the most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities." 21 The Director shall require "application of all economically feasible" BMPs that are the "most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities but shall not require application of more stringent practices if such a requirement would result in cessation of the regulated activity." 22 Advisory committees were established to develop appropriate BMPs and recommend them to DEQ. Representatives from DEQ, the state department of agriculture, Dept. of Water 14

20 Resources, and college of agriculture at University of Arizona are on the committees. 23 Use of BMPs may be waived in a specific region if DEQ determines that existing regulated agricultural activities will not cause or contribute to violations of water quality standards. 24 Violation of the BMPs can result in revocation of the general permit after notice and opportunity for hearing and a requirement that the operation obtain an individual permit. 25 Arizona law also directs the director of DEQ to adopt, by rule, a "surface water quality general grazing permit consisting of voluntary best management practices for grazing activities". 26 The rule must be adopted within 180 days after receiving the recommendations of a grazing best management committee. 27 The committee includes representatives of DEQ, the state Dept. of Agriculture, the Dept. of Water Resources, the dean of the University of Arizona College of Agriculture, and 3 cattle ranchers and 1 sheep rancher appointed by the governor. Although the director shall require the application of economically feasible VBMPs that are "the most practical and effective means" of reducing or preventing discharge of pollutants by grazing activities, the director "shall not require application of more stringent practices if such a requirement would result in cessation or significant reduction of grazing activity." "The director may waive the use of voluntary best management practices in a designated region if he determines that existing grazing activities will not cause a violation of the adopted water quality standards for navigable waters." 28 Because the law requires development of and issuance of a permit, it is arguably an enforceable mechanism, but the term "voluntary" may pose impediments to actions beyond simply requiring the permit. Arizona regulates pesticides and provides for permits, licensing, and certifications, including training requirements and reporting, buffer zones, pesticide management areas, and enforcement. 29 Registration requirements designed to protect water quality are enforceable. 30 Continued registration, sale, or use of a pesticide is not allowed if it would cause a "violation of water quality standards at the applicable point of compliance." 31 Development and Other Earth-Disturbing Activities No operating requirements are set forth, apart from any that may be contained in urban stormwater programs under the federal Clean Water Act or that may be authorized by general land use regulation such as zoning. Boards of supervisors may adopt and enforce standards for excavation, landfill and grading to prevent unnecessary loss from erosion, flooding and landslides. 32 Endnotes 1. Ariz. Rev. Stat. Ann A. 2. Ariz. Rev. Stat. Ann , Ariz. Rev. Stat. Ann A. 4. Ariz. Rev. Stat. Ann A. 5. Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann , Ariz. Rev. Stat. Ann A. 15

21 9. Ariz. Rev. Stat. Ann C. 10. Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann A. 15. Ariz. Rev. Stat. Ann B. 16. Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann , , Ariz. Rev. Stat. Ann , Ariz. Rev. Stat. Ann , Ariz. Rev. Stat. Ann A. 21. Ariz. Rev. Stat. Ann B. 22. Ariz. Rev. Stat. Ann E. 23. Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann B. 25. Ariz. Rev. Stat. Ann G. 26. Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann Ariz. Rev. Stat. Ann B. 29. Ariz. Rev. Stat. Ann , 3-352, et seq. 30. Ariz. Rev. Stat. Ann et seq. 31. Ariz. Rev. Stat. Ann D. 32. Ariz. Rev. Stat. Ann

22 ARKANSAS Enforceable Provisions Applicable to Nonpoint Source Water Pollution Water Pollution Control Law DISCHARGE PROHIBITIONS Arkansas water pollution control law contains a general discharge prohibition that may be used to take enforcement against nonpoint source discharges that cause water pollution or against the placement of wastes that are likely to cause water pollution. The Arkansas Water and Air Pollution Control Act 1 makes it unlawful to "cause pollution... of any of the waters of this state," or to "place or cause to be placed any sewage, industrial waste, or other wastes in a location where it is likely to cause pollution of any waters of this state." 2 "Pollution" is defined as "such contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, or such discharge of any liquid, gaseous, or solid substance in any waters of the state as will, or is likely to, render the waters harmful, detrimental, or injurious to public health, safety, or welfare; to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses; or to livestock, wild animals, birds, fish, or other aquatic life." 3 The Arkansas Pollution and Ecology Commission enforces the Act, and is authorized to conduct investigations to determine the existence of violations. The Commission may conduct administrative proceedings, and also may institute civil enforcement actions in the proper court. Except in emergencies, no administrative penalty may be assessed without the opportunity for a hearing, and the Commission must provide public notice and an opportunity to comment. Parties may request an appeal to the court without a jury. Administrative penalties may be no greater than $10,000 per day of violation; civil actions may result in penalties not over $10,000 per day of violation, an order to enjoin violations and/or compel compliance, an order for remedial measures, and recovery of all costs, expenses, and damages. 4 Any violation of the Act also is a criminal misdemeanor, punishable by imprisonment for not more than one year, a fine of not more than $25,000, or both. A purposeful, knowing, or reckless violation that "creates a substantial likelihood of adversely affecting" human health or the environment is a felony, punishable by imprisonment for not more than 5 years, a fine of not more than $50,000, or both; a purposeful, knowing, or reckless violation that "places another person in imminent danger of death or serious bodily injury" is punishable by imprisonment of not more than 20 years, a fine of not more than $250,000, or both. Further, if pecuniary gains are made from the commission of the offense, the state may seek an additional fine of double the amount of the gain. 5 Other Discharge Limitations In addition to the prohibition under the Water and Air Pollution Control Act, Arkansas Solid Waste Management Act makes it unlawful to "sort, collect, transport, 17

23 process, or dispose of solid waste... in such a manner or place as to cause or be likely to cause water pollution within the meaning of the Arkansas Water and Air Pollution Control Act. 6 Enforcement and penalties are the same as for the process enumerated in the Water Pollution Control Act, above. 7 The Litter Control Act makes it unlawful to drop [or] discard... litter... into any river, lake, pond, or other stream or body of water within this state." 8 There is no violation of the Act if the property is designated as a permitted disposal site, if the litter is deposited in such a manner as to prevent it from being carried away or deposited by the elements in waters of the state, or if the person is the owner or tenant in lawful possession of the property and the litter does not create a public nuisance, health or fire hazard. Violation of the Act is a misdemeanor; first-time offenses are subject to a $100 fine or 100 hours of community service. 9 Various sections of the code refer to nuisance law, but none specifically define "nuisance" or nuisance standards in the context of water pollution. 10 The Department of Pollution and Ecology is among the agencies authorized to pursue legal actions for public nuisance, 11 as is the State Board of Health, which may investigate and report on potential nuisances, order their abatement, or order the local sheriff to compel compliance. 12 Arkansas caselaw reflects instances where water pollution was held to be an actionable nuisance. 13 In addition, the zoning law provides that "every structure, fill, development... placed within a flood prone area in violation of measures enacted under the authority of this section is a public nuisance." 14 The Right to Farm Act prevents pre-existing farms from being sued for nuisance, stating that "agricultural facilities running for one year without nuisance will not be held liable for nuisance due to changes in the surrounding locality." 15 However, unlike similar laws in other states, Arkansas Act makes an exception for pollution, and allows nuisance suits for pollution to be brought even against pre-existing farms:"damages sustained by pollution will not be limited by this section." 16 Fish/Fisheries Laws The Arkansas code contains two separate provisions applicable to protection of fish that may provide enforceable mechanisms for some nonpoint source discharges. "Any person who shall poison any lake or stream of water for the purpose of killing fish, stock, or for any other purpose shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500)." 17 In addition, "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." 18 For purposes of this provision, "waters of this state" are defined as "all streams, lakes, ponds, sloughs, bayous, marshes, or other waters, wholly or in part within this state." 19 "Any person violating this section shall be deemed guilty of a felony. Upon conviction, he shall be confined in the state penitentiary for a term of not less than one (1) month nor more than twelve (12) months." 20 18

24 Forestry Requirements OPERATIONAL REQUIREMENTS State forestry laws do not appear to contain enforceable provisions directly relating to nonpoint source discharges. There is a single restriction on tree-cutting near river beds. "It is unlawful to remove any trees growing below the normal high watermark on any river or stream in this state which has been designated as a navigable river or stream.... Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000). 21 Agriculture Requirements Soil Conservation Districts are authorized to make regulations to control erosion. 22 If the regulations are violated, directors of the local soil district may bring an action in chancery court, which may order the person to comply or take abatement measures, or authorize the directors of the district to enter the land to abate the violation. If the directors abate the violation, they may apply to the court to order the offender to reimburse the costs of abatement. The Arkansas Pesticide Control Act 23 makes it unlawful for any person to "dispose of, discard, or store pesticides or pesticide containers in a manner as to... pollute any water supply or waterway. 24 Enforcement is handled by the State Plant Board, 25 which may make inspections to determine if violations exist and bring an action in the appropriate court for an injunction. 26 Violations are a misdemeanor, punishable on the first offense by a fine of $100 - $1000, and on subsequent offenses by a fine of $500 - $ The Arkansas Pesticide Use and Application Act primarily prohibits use of pesticides without a license. However, it also authorizes the State Plant Board to "issue regulations relating to the conditions under which pesticides may be applied and... restrict or prohibit use of pesticides to prevent unreasonable adverse effects" to plants, wildlife, fish, humans, animals, or beneficial insects. 28 Use of pesticides without a license or violation of the regulations is a misdemeanor, subject to a fine of $100-$2000 for "commercial parties" and $100-$500 for "private parties." 29 Development and Other Earth-Disturbing Activities Apart from any programs for the control of urban stormwater under the federal Clean Water Act, or that may be authorized under general land use regulation such as zoning, Arkansas has minimal authority potentially applicable to nonpoint sources. The zoning law declares that "every structure, fill, development... placed within a flood prone area in violation of measures enacted under the authority of this section is a public nuisance." 30 Thus, where municipalities have promulgated zoning ordinances restricting development in floodplains, violators can be prosecuted under nuisance law. 19