440977504
LEGAL AND INSTITUTIONAL
APPROACHES TO WATER QUAILTY
MANAGEMENT PLANNING
AND IMPLEMENTATION
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MARCH, 1977
LIBRARY
PROTECTION
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EPA REVIEW NOTICE
This report has been reviewed by the Environmental Protection
Agency and approved as satisfying the terms of the subject
contract. Approval does not signify that the contents neces-
sarily reflect the views and policies of the Environmental
Protection Agency, nor does mention of trademarks or commercial
products constitute endorsement or recommendation for use.
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f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
APIH ' VI
SUBJECI Legal and Institutional Approaches to Water Quality Management
Planning and Implementation
FROM Edmund M. Notzon, Acting Director
Water Planning Division (WH-554)
TO.- All Regional Water Division Directors
A'lTN: Regional 208 Coordinators
Technical Guidance Memorandum: TECH-35
Purpose
This memorandum transmits the recently completed report, "Legal and
Institutional Approaches to Water Quality Management Planning and
Implementation." It is intended for use by state and areawide agencies
in the development of their water quality management programs.
Background
This handbook offers examples of a variety of documented control tech-
niques for pollution problems required to be covered by the water quality
management planning program. Differences in the source and magnitude of
pollution problems and in the legal and political setting across the
country make it impossible to recommend a single most desirable solution
to each water pollution problem. Instead, this handbook evaluates
different possible legal and institutional approaches to the control of
a particular source of pollution according to a number of criteria
including administrability, enforceability and constitutionality.
It is not likely that any single planning area will need to regulate all
the sources of water polli'tion discussed in the handbook. State and
areawide water quality management agencies will choose from the regulatory
agenda those elements that solve their water quality problems and fit
their region's governmental style, institutions, and citizen preferences.
Section 208 recognizes the great diversity of these conditions around the
country and provides states and localities with great flexibility to
tailor the management system, including regulatory programs, to respond
to these varying needs.
The handbook includes evaluations of various local and state laws and
programs. These evaluations represent the viewpoint of the authors and
not necessarily those of the Environmental Protection Agency, neverthe-
less, draft chapters of the handbook have been reviewed both within and
F PA Form 1370 6 (Rr
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outside EPA and we believe that the material in the handbook is
informative and provides useful guidance. While a revision is not
planned at this time, we are interested in receiving comments on the
handbook.
If you would like further information on this handbook, please contact
Bill Lienesch of the Program Development Branch (426-2522). Additional
copies are available from the Water Planning Division Library (755-6993)
Enclosure
cc: State and areawide agencies
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LEGAL AND INSTITUTIONAL APPROACHES TO
WATER QUALITY MANAGEMENT PLANNING AND IMPLEMENTATION
Contract No. 68-01-3564
Project Officer
William C. Lienesch
U.S. Environmental Protection Agency
Washington, D.C.-20460
March 1977
LIBRARY
!l« S. ENVIR3m,'L..iAL PROTECTION
EDISON, N. J. 08817,
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PROJECT DIRECTORS
Edward I. Selig Eve Endicott
PROJECT STAFF:
Alan S. Miller
Henry S. Atherton, III
Myron P. Schamis
ASSISTED BY:
Wayne Weiner
Esther Tepper
Janet Coffin
CONSULTANTS
Elizabeth H. Haskell
Jon A. Kusler
Prepared for the U.S. Environmental Protection Agency
Under Contract No. 68-01-3564 by:
Environmental Law Institute
1346 Connecticut Avenue, N.W.
Washington, D.C. 20036
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ACKNOWLEDGMENTS
The assistance of the following persons is gratefully acknowledged:
Professor A. Dan Tarlock of the University of Indiana School of Law,
who gave expert advice on chapter 8 of this handbook; Nancy Sachs,
who edited a number of the chapters; and Nina Kole and Sheila Kerr,
who patiently typed the voluminous final manuscript.
We would also like to thank our project officer, William Lienesch, for
many valuable suggestions and a constructive attitude throughout.
Numerous other EPA officials provided helpful advice and comments on
draft chapters. In addition, many state and local officials and staff
members of private organizations gave generously of their time in
answering our inquiries and commenting on drafts. We owe much to the
assistance of these individuals.
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LEGAL AND INSTITUTIONAL APPROACHES TO
WATER QUALITY MANAGEMENT PLANNING AND IMPLEMENTATION
SUMMARY TABLE OF CONTENTS*
INTRODUCTION i
Footnotes INT-FN-1
CHAPTER ONE: CHOICE OF APPROPRIATE LEVELS AND
AGENCIES OF GOVERNMENT FOR PERFORMANCE OF
SECTION 208 MANAGEMENT TASKS 1-1
Footnotes I-FN-1
CHAPTER TWO: LEGAL ISSUES IN WATER POLLUTION REGULATION II-l
Footnotes I I-FN-1
CHAPTER THREE: LOCATIONAL CONTROLS FOR WATER QUALITY III-l
Footnotes III-FN-1
Suggested Readings III-SR-1
CHAPTER FOUR: MUNICIPAL WASTEWATER TREATMENT FACILITIES:
RESTRICTIONS ON TIMING AND LOCATION OF HOOKUPS AND
EXTENSIONS IV-1
Footnotes IV-FN-1
Suggested Readings IV-SR-1
CHAPTER FIVE: ONSITE WASTEWATER DISPOSAL SYSTEMS V-l
Footnotes V-FN-1
Suggested Readings V-SR-1
CHAPTER SIX: MANAGEMENT OF STORMWATER AS A NONPOINT
SOURCE IN URBAN AND URBANIZING AREAS VI-1
Footnotes VI-FN-1
Suggested Readings VI-SR-1
CHAPTER SEVEN: AGRICULTURE AND SILVICULTURE VII-1
Appendix A A-l
Appendix B B-l
Footnotes VII-FN-1
Suggested Readings VII-SR-1
CHAPTER EIGHT: SALT WATER INTRUSION VIII-1
Footnotes VIII-FN-1
Suggested Readings VIII-SR-1
*Detailed tables of contents are provided at the beginning of each chapter,
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CHAPTER NINE: MINING IX-1
Footnotes IX-FN-1
Suggested Readings IX-SR-1
CHAPTER TEN: LAND DISPOSAL OF SOLID WASTES AND SLUDGES X-l
Footnotes X-FN-1
Suggested Readings X-SR-1
CHAPTER ELEVEN: WELL INJECTION OF RESIDUAL WASTES XI-1
Appendix A-l
Footnotes XI-FN-1
Suggested Readings XI-SR-1
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INTRODUCTION
LEGAL AND INSTITUTIONAL APPROACHES TO WATER QUALITY
MANAGEMENT PLANNING AND IMPLEMENTATION
TABLE OF CONTENTS
1.0 The Section 208 Framework i
2.0 Scope of the Handbook iii
3.0 Description of Control Techniques: Organizational
and Analytical Approach vi
3.1 Planning vii
3.2 Standard Setting vii
3.3 Administrability viii
3.4 Enf orceability viii
4.0 Institutional Considerations; Choosing the Appropriate
Level and Agency of Government to Enact, Administer,
and Enforce Controls ix
4.1 Mission Orientation and Position in the Politi-
cal Spectrum x
4.2 Scope of Jurisdiction by Comparison to Scope
of the Problem xi
4.3 Relationship to Other Institutions with Parallel,
Complementary, or Conflicting Responsibilities. .xi
4.4 Availability of Necessary Resources or Ability
to Acquire Them xii
5.0 Legal Issues xii
5.1 Sources of Authority xiii
5.2 The Legitimacy of the Goal and the Reasonable-
ness of the Means to Achieve It xiv
5. 3 The "Taking" Issue xiv
6.0 Coordination of Section 208 and Other Federal Programs xv
6.1 Section 404 Dredge and Fill Regulation xv
6.2 The Coastal Zone Management Act xv
6.3 The Clean Air Act xvi
6.4 The National Flood Insurance Program xvii
6.5 The 701 Comprehensive Planning Assistance
Program xvii
Footnotes
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LEGAL AND INSTITUTIONAL APPROACHES TO WATER QUALITY
MANAGEMENT PLANNING AND IMPLEMENTATION
INTRODUCTION
1.0 The Section 208 Framework
As interpreted by the U.S. Environmental Protection Agency (EPA) and
the courts,J7 section 208 of the Federal Water Pollution Control Act
Amendments of 1972 (FWPCA) requires preparation of water quality man-
agement plans (1) by areawide water quality management planning agen-
cies in areas specially designated because they have "substantial wa-
ter quality control problems" as a result of "urban-industrial concen-
trations or other factors" and (2) by state water quality management
planning agencies in those areas of states which have not been so desig-
nated. The required water quality management plans will both encompass
and go beyond other planning programs mandated by the act. The key
element of the section 208 planning program* is its requirement that
every plan be capable of implementation: that it identify the control
techniques (permits, incentives, performance standards, etc.) and the
institutions through which comprehensive water pollution management
will be carried out at the areawide or statewide level. The combina-
tion of control techniques and the institutional arrangements for their
implementation are here called "management strategies."
While the choice of control techniques and institutions identified in
water quality management plans will be limited for some sources by the
existing regulatory framework established under other provisions of
the FWPCA, many of the sources of pollution which must be dealt with
in section 208 water quality management programs are not covered else-
where in the act. To take the most significant examples, most point
source discharges are already regulated under section 402 via the Na-
tional Pollutant Discharge Elimination System (NPDES), while nonpoint
sources named in section 208 such as agricultural and silvicultural
runoff have so far been controlled largely through private, state, and
local initiative, where they have been regulated at all.
Moreover, the NPDES focuses primarily on the implementation of efflu-
ent limitations on individual discharges. Section 208 is directed
towards the need for comprehensive planning to meet water quality goals.
For example, section 208 includes a requirement for locational controls
that recognizes the importance of the spatial distribution of discharges
^Throughout the course of this handbook the terms "section 208" planning
agencies or programs, management agencies or plans, etc. and the terms
"water quality" planning agencies or programs, management agencies or
plans, etc. will be used together and interchangeably.
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on water quality. Finally, section 208 provides for control of sources
of groundwater pollution.
In sum, section 208 requires water quality planning agencies to
identify concrete approaches for filling in the gaps in the existing
management structure. The planners must also identify agencies which
have or should be given the authority to undertake the programs neces-
sary to supplement the existing regulatory approaches so that all
sources of water pollution which stand in the way of attaining federal
water quality goals and state water quality standards can be controlled.
Thus water quality management plans generally must identify and include:
-treatment works necessary to meet anticipated
municipal and industrial waste treatment needs
for a 20 year period with provision for annual
updating;
-construction priorities for such treatment works
with time schedules for initiation and completion;
-a regulatory program to 1) control or treat all
point and nonpoint pollution sources, including
in place or accumulated pollution sources; 2) con-
trol the location, modification, and construction
of any facilities which may result in any discharge
within the area; and 3) assure that industrial or
commercial waste discharges into any publicly owned
treatment works meet applicable pretreatment re-
quirements;
-measures necessary to execute the plan (including
financing), the time required, costs, and its eco-
nomic and environmental impact upon the residents
of the area;
-a process to identify agriculturally, silviculturally,
mine, and construction related nonpoint sources of
pollution, and proposed procedures and methods (in-
cluding land-use requirements) to control such sources
to the extent feasible;
-a process to identify salt water intrusion into
rivers, lakes, and estuaries, and proposed procedures
and methods to control such intrusion to the extent
feasible;
-a process to control the disposition of all residual
waste generated which could affect water quality; and
-a process to control the disposal of pollutants on
land or in subsurface excavations to protect ground
and surface water quality.
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iii
Of course, different states and different substate or interstate
areas will have a different mix of pollution problems and different
pollution control priorities. EPA's regulations allow for the tai-
loring of individual planning processes to fit the specific water
quality problems to be solved.
After certification by the governor of the particular state and
approval by the EPA Regional Administrator, the water quality man-
agement plan is to guide EPA's construction grant program for muni-
cipal treatment works and the NPDES permit program for point source
discharges in the area. Approval of construction grants and dis-
charge permits is made expressly contingent upon their conformity
with the plan. Once the initial plan is completed, one or more
"management agencies" are to be designated to implement the plan.
Management agencies must satisfy several criteria listed in the act.
As a group, they must be able to carry out the management plan; de-
sign, construct, and manage waste treatment works; raise revenues
and incur indebtedness; assure that communities participating in
waste treatment management pay their proportionate share of treatment
costs; and refuse to receive wastes from municipalities which fail
to comply with any provisions of an approved plan.
2.0 Scope of the Handbook
This handbook will offer examples of a variety of documented control
techniques for pollution problems which will be covered by the plan-
ning process for water quality management. Clearly, differences in
the source and magnitude of pollution problems and in legal and polit-
ical settings across the country make it impossible to recommend a
single most desirable solution to each water pollution problem. In-
stead, different possible legal and institutional approaches to the
control of a particular source of pollution are analyzed according to
a number of criteria which will be outlined below in section 3.0.
These criteria will help to present the relative advantages of differ-
ent techniques from different perspectives and will enable planning
agencies to evaluate the usefulness and appropriateness of different
approaches to their particular needs.
The choice of specific water pollution problems for this handbook re-
quired some selectivity. Section 208 does not itself establish any
particular programs but rather speaks in general terms about the need
to control a variety of pollutant sources. The potential scope of a
regulatory program is therefore vast and uncertain. Limitations of
time and space have precluded treatment of all the possible sources
of water pollution. The following list of chapters describes the
scope of each and suggests some of the areas which are not covered.
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IV
Overview Chapters
Chapter One: Choice of Appropriate Levels and Agencies of Government
for Performance of Section 208 Management Tasks'This chapter gives
a general overview of the existing institutional structure for water
pollution control and suggests criteria which may help in choosing an
institutional structure for the implementation of a water quality man-
agement program. Section 4.0 below provides a brief introduction to
these institutional issues.
Chapter Two: Legal IssuesIn this chapter the basic legal issxies
respecting statutory authority to undertake management programs and
constitutional restraints on the form of such programs are summarized.
A brief overview of the legal issues discussed in chapter 2 may be
found in section 5.0 below.
Chapters on Control Techniques and Management Strategies_
Chapter Three: Locational Controls for Point and JSfonpo in t Sources--
This chapter presents controls on the location of both point and
nonpoint sources as a means of controlling pollution. Zoning approaches
as well as more innovative performance oriented devices are discussed.
Chapter Four: Municipal Wastewater Treatment FacilitiesThis chapter
focuses on controls on the timing, number, and location of hookups to
and extensions of the municipal wastewater treatment system. Since
publicly-owned treatment works are subject to the NPDES, the chapter
does not discuss effluent limitations on the plants themselves. Nor
does it discuss controls on the location of treatment plants, which are
discussed generally in chapter 3. Finally, industrial pretreatment
requirements are not discussed in view of forthcoming EPA guidance on
the sub j ect.
Chapter Five: Onsite Wastewater Disposal SystemsImproperly installed
or maintained or installed in unsuitable locations, such systems, which
include but are not confined to septic tanks, threaten ground and sur-
face water quality. The elements of a comprehensive control program
are discussed, including: soil testing; locational controls; require-
ments for innovative individual and community systems; licensing require-
ments; maintenace requirements; and controls on the pumping and disposal
of septage. In addition, considerable attention is given to the concept
of management entities for individual and community onsite systems.
Chapter Six: Management of Stormwater as a Nonpoint SourceIn this
chapter, management strategies are explored for controlling pollution
from Stormwater runoff in both urban and developing areas. The emphasis
is on preventive approaches for detaining Stormwater or retarding its
flow at or near the sites on which it falls, where it can still be con-
sidered as a nonpoint source, rather than on centralized collection and
treatment of stormwater as a point source. In some circumstances, pre-
ventive approaches may be the best means of controlling erosion and sed-
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imentation, combined sewer overflows, and runoff of various surface
pollutants into receiving waters. Preventive controls also raise
difficult questions of land use regulation, with which the chapte^
accordingly deals.
Chapter Seven: Agriculture and SilvicultureThis chapter focuses
on the control of erosion and sedimentation from farming and forestry
activities. While such controls will help keep fertilizer, herbicides,
and pesticides out of water, other more focused controls on such sub
stances (such as restrictions on their application) are not covered.
Incentives are among the control techniques discussed, as arc cr:'_t i -,-<~
areas programs. Since section 208 specifically addresses the probleias
of runoff from manure disposal areas, controls on animal feedlots »nd
manure spreading areas are treated briefly.
Chapter Eight: Salt Water IntrusionThis chapter suggests management-
approaches for the prevention of salt water intrusion into both subsur-
face and surface waters. Various mechanisms for aquifer protection and
restrictions on withdrawals of ground and surface water are di seussec'.
Irrigation return-flow, which is subject to the NPDES, is not roverc-c,
Chapter Nine: MiningControls on both surface and deep mining are
discussed, including controls adopted under reclamation statutes, in m-
sealing statutes, and water pollution control statutes. The elements
of a comprehensive permitting program are described, including cont~o.1r,
on exploration and operating and provisions for reporting, inspect".' ug,
permit renewal, and bonding. The legal issues peculiar to abandoiu-;
mi ties, often the source of acid mine drainage, are discussed,
Chapter Ten: Land Disposal of Solid Wastes and Sludges This
chapter discusses many of the elements of comprehensive planning
for the management of residual wastes, with special emphasis on land-
fill regulation and the regulation of municipal and industrial sludge
disposal/reuse. While section 208 provides authority for states and
designated areas within states to plan for the implementation of pro--
grams to resolve water-related residuals problems, continual reference
is made in this chapter to the requirements of the recently enacted
Resource Conservation and Recovery Act of 1976. Regulations to be prom-
ulgated by EPA pursuant to the 1976 act have not yet been drafted, bu*:
it can be expected that this legislation will necessitate significant
changes in many existing state and local programs and policies, particu-
larly in the areas of mandatory planning, regionalization of residuals
management, resource recovery, and hazardous waste management.
Chapter Eleven: Well Injection of Liquid Residual Wastes-This chapter
is a general introduction to the water pollution concerns raised by
the well injection of liquid residual wastes. The use of environmental
impact statements as well as more traditional permitting requirements
are explored. As is noted in the introduction to the chapter, another
important source of authority over the subsurface injection of liquids
is the federal Safe Drinking Water Act.
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VI
It is not likely that any single planning area will need to regulate
all the sources of water pollution discussed in the handbook. Area-
wide planning organizations will choose from the regulatory agenda
those elements that meet their water quality needs and fit their re-
gion's governmental style, institutions, and citizen preferences.
Section 208 recognizes the great diversity of these conditions around
the country and provides states and localities with great flexibility
to tailor the management system, including regulatory programs, to
respond to these varying needs.
As part of a comprehensive system, the regulatory elements should sup-
port other water pollution control steps to constitute a complete wa-
ter quality management system. The clear aim of Congress in writing
section 208 was to overcome irrational fragmentation of water quality
responsibilities, in which jobs are unnecessarily duplicated, or, as
is more often the case with nonpoint sources, left undone. Various
regulatory programs are meant to be coordinated to achieve clean water
goals at the lowest cost, in the most fair and administratively worka-
ble manner. Furthermore, regulation is just one of several approaches
that belong in a comprehensive water quality management program. Data-
gathering and water quality standard setting; wastewater treatment fa-
cilities planning, construction, financing, and operation; and main-
taining public participation, information, and education programs are
all part of the process but are all subjects beyond the scope of this
handbook. Administration of an antidegradation program is also the
subject of a separate project.
The primary focus of the handbook is on control techniques: including
the state and local enabling authority, regulations, licensing proce-
dures, and incentives which have been used around the country to con-
trol the sources of water pollution discussed. However, since such
"control techniques" are only as effective as the agency or level of
government which implements them, each chapter discusses at some length
the choice of appropriate level and agency of government for each con-
trol technique as well as any intergovernmental or interagency strate-
gies for strengthening management effectiveness. This is the "insti-
tutional" pir*- of the analysis. The "legal" component extends beyond
description of the types of state and local legislation underlying most
control teclaiques to an assessment of fundamental questions of enabling
authority ar constitutional issues raised by the control under discus-
sion. The general issues treated in the description of control techniques,
including institutional and legal ramifications, are summarized below.
3,0 Description of Control Techniques^ Organizational _an_d Analytical
Approach
Of necessity, differences in subject matter and scope required some
flexibility in the organization of individual chapters. Throughout
the course of the handbook, however, certain perspectives for descrip-
tion and criteria for analysis recur, and it is important that these
perspectives and criteria be described briefly.
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vii
3.1 Planning
One concern of the authors throughout the handbook has been the ex-
tent to which long-range planning can be integrated with particular
control strategies which depend on ad hoc decisionmaking. Just as
section 208 attempts to connect a continuing planning process to
day-to-day decisions - be they development decisions or methods of
undertaking activities on the land - so this handbook attempts,
wherever possible, to identify ways in which data-gathering and fore-
casting by planners can have an impact on individual permit grantings,
plan reviews, etc. Control techniques which themselves embody this
marriage of planning and decisionmaking are singled out for special
attention. This is the case, for example, with adequate public fa-
cilities ordinances, discussed at length in chapter 4, which key con-
trols on development (e.g., building permits, subdivision approvals)
to long-term plans for the provision of public facilities.
All the chapters stress the relationship between agency data-gathering -
surveys of groundwater resources and critical areas identification, for
example - and the operation of a regulatory program. The appropriate-
ness of a particular institution to undertake a particular regulatory
function is often gauged by the breadth and depth of its planning ex-
pertise.
3.2 Standard Setting
While many of the control techniques discussed in this handbook in-
volve the issuance of licenses or permits and hence are superficially
similar, the real heart of a particular regulation may be the standards
it sets or allows to be set, to which the proposed activity must conform.
Readers will find frequent references to the "performance standard" dis-
cussed as a control technique in and of itself. Limits on the amount
of soil which can be allowed to erode from a site as a result of earth-
disturbance or limits on the amount of stormwater runoff discharged from
developed areas are two examples of water quality related performance
standards. Several chapters evaluate the pros and cons of adopting a
performance standard approach to regulation, in which the discharger is
given a free hand to devise his own technical method of control, versus
the detailed code approach, in which the regulating agency decides which
is the most appropriate method of pollution abatement. For example, sec-
tion 4.1 of chapter 6 discusses this issue in depth in the stormwater
runoff context. The use of soil loss limits for control of erosion and
sedimentation from agriculture and silviculture is discussed in section
2.1.3 of chapter 7,
Where a need is felt for detailed standards, there remains the problem
of drawing the line between necessary and helpful detail and inflexible,
innovation-stifling specificity. For this reason, the authors frequent-
ly recommend that only general standards be included in state and local
legislation, with detailed standard-setting left to the expertise of an
implementing agency. In comparison with legislation, agency regulations
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viii
can be more easily amended if standards are found too confining, be-
come obsolete, or are discovered to be otherwise deficient in light
of trial-and-error experience.
3.3 Administrability
The goals of section 208 will not be served simply by putting more
state and local legislation on the books. Difficult administrative
problems must be anticipated, and the chapters suggest some of them.
For example, plan reviews, inspections, monitoring, and other activ-
ities may be required of the implementing agency. Wherever possible,
the general magnitude of budgetary and staff demands involved is dis-
cussed, although for the most part such matters are beyond the scope
of this handbook. Chapter 3, "Locational Controls," for example,
discusses the difficulty of relating land use planning to water plan-
ning goals and the costliness of sophisticated attempts to do so.
Where the number of operations to be regulated is particularly great,
methods of assigning priorities and sharing the administrative burden
between different levels and agencies of government are explored. Thus
chapter 10 suggests a sharing of state and local responsibility for
sanitary landfill regulation with the state taking a leading role in
supervising disposal of hazardous and other special wastes. Wherever
pertinent, the use of a critical areas approach to water pollution
control is explored with a view both to focusing attention on areas
most prone to damage from water-borne contaminants and also to maxi-
mizing the effectiveness of existing environmental management structures
and staff.
In some cases a realistic assessment of the difficulties of following
up a regulatory program with adequate monitoring and inspections will
lead to a conclusion that mere regulation is not enough. Thus chapter
5 indicates that, a permitting program for onsite wastewater disposal
systems may not be enough in some situations in view of the typical
lack of expertise and follow-up capacity at the local level. Alterna-
tives for institutional assumption of installation and maintenance func-
tions are described.
3.4 Enforceability
In the same vein, control techniques will be analyzed from the stand-
point of their relative ease of enforcement. While traditional court-
imposed penalties will be discussed, emphasis will be placed on enforce-
ment techniques that may be less familiar to drafters of legislation
but easier for implementing agencies to use and, therefore, more effec-
tive. Such techniques include enforcement bonds, discussed at length
in chapter 9 on mining, and provisions allowing the enforcing agency
to undertake and charge for remedial work, which are found in a number
of forest practices acts described in chapter 7.
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IX
In addition, the individual chapters explore methods for enlisting
the enforcement assistance of private institutions and individuals
as well as that of levels and agencies of government other than the
one principally charged with implementation of the control technique
under discussion. To illustrate: chapter 5 ("Onsite Wastewater Dis-
posal Systems") discusses the ways in which those involved in real
estate transfers can be instrumental in enforcing permit and mainte-
nance requirements for onsite wastewater disposal, while chapter 7
("Agriculture and Silviculture") describes the complaint process de-
veloped in the mid-west to alert soil conservation districts to vio-
lation of soil loss limits or soil conservation standards.
4.0 Institutional Considerations: Choosing the Appropriate Level
and Agency of Government to Enact, Administer, _and Enforce Controls
No two institutional frameworks for water quality management will be
the same. While the management structure must possess the powers enum-
erated in section 208(c)(2),* no one agency need possess all the requi-
site authority and probably most will not. By definition, moreover,
the mix of point source discharge controls, locational controls, and
controls on nonpoint sources called for under section 208 will require
enlisting the powers and unique virtues of a number of levels and agen-
cies of government. The range of possible combinations is infinite.
Chapter 1, the general discussion of institutional issues, does not
attempt, therefore, to offer models for assigning water pollution func-
tions. Instead, it suggests certain evaluative criteria by which such
assignments might well be made. The discussion then proceeds to cat-
alogue the general strengths and weaknesses of different levels and
agencies of government, of different professional orientations in agency
staffing, and of nongovernmental entities such as citizen boards.
The control and source-specific chapters that follow take this general
framework as a point of departure. Where the actual history of involve-
ment of a particular agency or level of government in the implementation
of a particular control technique differs from the generalized view of
that institution, however, the general focus will be traded for the more
narrow one in keeping with the empirical approach of the individual chap-
ters. Since the primary focus of each chapter is on control techniques,
moreover, no attempt will be made to evaluate the suitability of every
*That section stipulates that management agencies as a group must be
able to 1) carry out the management plan; 2) design, construct, and man-
age waste treatment works; 3) raise revenues and incur indebtedness; 4) as-
sure that communities participating in waste treatment management pay their
proportionate share of treatment costs; and 5) refuse to receive wastes
from municipalities which fail to comply with any provisions of an approved
plan.
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X
possible governmental institution to the task of performing a par-
ticular task according to the criteria set out in the institutional
overview chapter. That is a task which can only be performed by each
water quality planning agency. Instead, the existing and possible
institutional arrangements for the effectuation of a particular con-
trol will be discussed.
Generally the discussions in the individual chapters attempt to
highlight the following features of an institution or institutional
arrangement:
1. Mission orientation and position in the political spectrum;
2. Scope of the institution's jurisdiction by comparison with
the scope of the problem or problems with which it deals;
3. Relationship to other institutions with parallel, comple-
mentary, or conflicting responsibilities; and
4. Availability of necessary resources or ability to acquire
them.
4.1 Mission Orientation and Position in the Political Spectrum
The effectiveness of any management agency will depend in part upon
its objectives and position in the political spectrum. A soil con-
servation district, for example, may perceive its primary mission as
increasing the productivity of farmland through voluntary assistance
programs, and it may not be enthusiastic about taking on a regulatory
role in a broadly focused anti-erosion program designed primarily to
protect and improve water quality. Ways in which such a change in
traditional mission may be "sold" to the districts are discussed in
chapter 7 on agriculture and silviculture, as are methods to involve
other agencies, such as state water pollution control agencies, whose
mission is environmental protection.
Appointed planning boards may be less accountable to a variety of pub-
lic constituencies than elected city councilors. Zoning boards will
look more favorably upon development proposals than conservation com-
missions. Local boards of health, which ordinarily regulate subsurface
disposal of sewage, are primarily concerned with abatement of public
nuisances and protection of public water supplies from pathogens, not
with avoidance of nitrate or sulfate pollution which can hasten eutro-
phication of surface waters. In many parts of the country, moreover,
health boards seem to lack either the expertise or the political in-
dependence required to protect groundwaters against malfunctioning or
improvidently located septic systems. Chapter 4, dealing with sewer
systems, and chapter 5, dealing with onsite wastewater disposal, em-
phasize the need to tie zoning and planning approvals to adequate sewer
capacity or appropriateness of onsite systems and to give more politi-
cally independent state agencies an oversight role.
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XI
4.2 Scope of Jurisdiction by Comparison to Scope, ojf^the
Problem
State, regional, or county governments may have a broader perspec-
tive than cities and towns on problems of areawide concern, such as
cumulative pollution from numerous nonpoint sources located in a
number of municipalities, as is noted in chapter 6 on stormwater
runoff. Similarly, metropolitan areawide governments, such as those
established in the Minneapolis-St.Paul and Bade County areas, may be
the most effective organizations for the performance of waste disposal
services and for the setting of minimum standards that the member muni-
cipalities must follow with respect to the preservation of environmental
amenities. However, the federated form of local government has been
hampered by controversies over the division of powers, especially with
respect to zoning, subdivision controls, and building codes.
Special districts may also be organized on a broad enough scale to
comprehend areawide problems, can be given fiscal powers that enable
them to circumvent local debt limitations, and, because of their rel-
ative political insulation, can take a highly focused approach to their
mission. On the other hand, in some areas the proliferation of quasi-
autonomous, special-purpose districts has fragmented local government
and forestalled the emergence of comprehensive approaches to areawide
problems. For some problems, a coordinated statewide program admin-
istered through local districts may be an effective compromise approach.
This is illustrated, for example, by the groundwater management districts
in Florida, which "follow as nearly as practicable" natural river basin
boundaries; which are authorized to do anything necessary to protect
and replenish groundwater; and which may be delegated additional powers
by the state Department of Natural Resources, which, in turn, may ex-
ercise directly any powers granted to the districts (see chapter 8).
4.3 Relationship to Other Institutions with Parallel, Comple-
mentary, or Conflicting
As noted previously, the aim of water quality management programs is
to promote more effective and more comprehensive water quality manage-
ment at the areawide level, not to add another level of review to fur-
ther fragment the present institutional structure. Accordingly, every
opportunity will be taken in the chapters that follow to encourage the
use of existing institutions and to suggest ways of forging links be-
tween existing agencies and levels of government.
Chapter 1, the institutional overview chapter, points out that typ-
ically no one management agency will have all the necessary powers and
necessary breadth of scope to undertake the total water quality manage-
ment task. Instead, inter-institutional strategies must be devised.
Chapter 4 takes a particularly detailed look at the relationship between
state, regional, and local controls over the timing and location of
sewer hookups and extension. Chapter 10 suggests ways of resolving the
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xii
jurisdictional conflicts over solid waste management which exist
in many areas through state programs which assure that localities
cannot block necessary regional waste disposal facilities.
4.4 Availability of Necessary Resources or Ability to
Acquire Them
Finally, at any level of local government the effectiveness of an
agency will depend largely upon the resources at its command, in-
cluding budget, manpower, expertise, and data input. Here again,
governments of state or regional scope may command more impressive
resources than municipalities and may be able to employ their re-
sources in a more cost-effective manner.
Where the level or agency of government otherwise best suited to
implement a particular control technique is lacking in expertise or
other resources, suggestions are made in the handbook for tapping
what resources may exist in other levels or agencies of government
via shared jurisdiction, cooperative agreements, or other means.
For example, the appropriate management agency for a suburban ero-
sion and sediment control program may well be the local or county
general purpose government. Chapter 6 notes the way in which Mont-
gomery County, Maryland has tapped the special erosion control ex-
pertise of the local soil conservation district and made the most of
the district's and the U.S. Soil Conservation Service's resources.
The silviculture section of chapter 7 suggests the importance of
involving the state water pollution control agency and fish and wild-
life agency in the drafting and enforcement of regulatory provisions
relating to logging work in and around streams.
5.0 Legal Issues
Matching pollutant sources with appropriate control techniques will
repeatedly raise key legal and constitutional issues which will be
briefly summarized here. A much more detailed discussion of legal
questions may be found in chapter 2. That chapter establishes a com-
mon vocabulary and description of the state of the law in key areas
so that fundamental legal concepts do not have to be repeated in each
of the later chapters.
Some legal issues, such as the extent to which statutes and regula-
tions must contain specific standards in delegating discretionary
powers to regulatory agencies, vary so little from one control con-
text to another that not much need be said about them outside the
"Legal Issues" overview chapter. Other issues vary from one control
context to another and are, therefore, discussed first in the overview
chapter and then in each of the later chapters in turn. Still other
legal issues arise only in a particular control context, and so the
discussion of them is confined to the appropriate individual chapter.
An example of such a specialized legal issue is the problem of legal
liability for continuing acid drainage from abandoned mines.
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xiii
The legal issues that arise most often in connection with the de-
scriptions of individual controls in the handbook are:
1. whether the state, regional entity, local or
special purpose unit of government chosen to
exercise a particular control technique has
the power necessary to do so;
2. whether the proposed control technique serves a
valid governmental objective and whether it is
reasonably calculated to meet that regulatory
objective; and
3. whether the proposed control technique operates
to "take" private property for public use without
payment of just compensation.
5.1 Sources of Authority
State and sub-state agencies and authorities and local units of gov-
ernment possess only those powers expressly granted or necessarily
implied from enabling statutes and, in the case of local units of
government, from state constitutional provisions and "home rule" au-
thorizations. Regulations that exceed the scope of such authority
violate state and federal due process requirements and are invalid.
The precise wording of each individual statute will have to be ana-
lyzed, taking into account any judicial gloss upon it. before a wa-
ter quality planning agency can determine whether or not a particu-
lar agency or level of government has the authority necessary to im-
plement a particular control technique. In some cases the statute
will be ambiguous or silent, and a statutory amendment will be required.
The "Legal Issues" overview chapter and the chapters devoted to dif-
ferent control techniques for different sources of pollution can do
no more than outline the general powers of different agencies and units
of government. Examples of particular control techniques which states
or localities have adopted under broadly representative enabling leg-
islation may suggest to another state or locality with similarly-worded
authority the reach of its power. This is the case, for example, with
timing and locational controls on development and with stormwater run-
off controls adopted under the typical enabling statutes for zoning
and subdivision control described in chapters 5 and 6, respectively.
In other cases a state agency or locality may find that its general
enabling authority is not general purpose enough. One such case would
be a state wishing to regulate sedimentation from certain agricultural,
silvicultural (forestry), and dredge and fill activities under a water
pollution control statute that defined "water pollution" in terms of
point source discharges only. Chapter 2, the "Legal Issues" overview
chapter, chapter 3 on locational controls, and chapter 7 on agricul-
ture and silviculture suggest other possible sources of authority, such
as shoreland or wetlands protection statutes, wild and scenic river
legislation, and general state land use programs.
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XIV
In those cases where no existing authority can be found for the
adoption of a particular control technique, the citations to in-
dividual states' enabling laws in the "Legal Issues" overview chap-
ter and in the chapters that follow will provide state and local
water quality planners with a number of models to look to, ranging
from the conservative to the highly innovative.
5.2 The Legitimacy of the Goal and the Reasonableness
of the Means to Achieve It
The close relationship between the protection of water quality and
the protection of public health means that the more direct approaches
to regulation of polluting activities, such as discharge limitations,
will not be called into question by the courts as unrelated to legit-
imate governmental objectives. In recent years, moreover, the rela-
tionship of land use to water quality has been recognized by many leg-
islatures and many courts. Leading opinions which may serve as prece-
dents for communities seeking to enact wetlands protection statutes or
ordinances and other critical areas protection programs, for example,
are referenced in chapter 3 on locational controls.
A more frequent ground for attacking innovative approaches to control
of water pollution is that they are not reasonably related to the
harm sought to be avoided. End-of-the-pipe controls discharge
limitations and treatment requirements are clearly calculated to
minimize pollution. The cause-effect relationship behind preventive
measures such as controls over the location, conduct, and maintenance
of development generally the only measures available for nonpoint
sources may be harder to visualize. Wherever there may be a ques-
tion about the appropriateness of a particular control technique to
solve a particular pollution problem, an effort has been made to include
persuasive judicial precedent attesting to the measure's reasonableness,
It is for this reason, for example, that the language from court deci-
sions describing the relationship between water quality and controls on
the timing and location of sewer hookups and extensions is quoted at
such length in chapter A.
53 The "Taking" Issue
The constitutionally protected right not to have one's private prop-
erty taken by the government without the payment of just compensation
is a familiar one. In some extreme cases the effect of a regulation
may be to prohibit virtually all productive use of a particular piece
of property. The "Legal Issues" overview chapter suggests that state
and local officials' fears that strong regulatory programs will be
struck down as uncompensated "takings" have little basis in the actual
decisions of the highest courts in most states. Since much has been
made of the "taking" issue in recent years, however, every chapter at-
tempts to cite judicial approval "for the types of controls discussed
and to suggest ways in which both the landowner's right to some use of
his property and the public's right to water quality can be protected.
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XV
6.0 Coordination of Section 208 and Other Federal Programs
EPA regulations require that state water quality management plans be
coordinated with numerous other federal requirements for resource and
development planning.^/ This requirement is due in part to the pos-
sibility of needless duplication or conflict between programs. In
addition, a review of other relevant planning programs may reveal op-
portunities for achieving water quality goals more efficiently. Some
programs, such as coastal zone management, may serve multiple objec-
tives. The purpose of this section is to briefly describe the rela-
tionship between section 208 and other particularly relevant federal
programs. There are, of course, other federal programs that are re-
lated to section 208 but because of limitations of space only those
thought most relevant by the authors are discussed here. See EPA pro-
gram guidance memo SAM-11 (Jan. 23, 1976) for a more exhaustive list
of federal and other programs related to the 208 program. Other ap-
plicable EPA program guidance memoranda will be noted where appropriate.
At the outset, it should be noted that federal law requires that funds
appropriated for a program be spent for the purposes of that program.J5/
Thus, program coordination cannot be used to shift funds in a way that
is inconsistent with federal objectives. In most cases, however, there
are substantial opportunities for avoiding duplication of similar tasks
and procedural requirements within each program.
6.1 Section 404 Dredge and Fill Regulation
Section 404 of the FWPCA provides the Secretary of the Army with au-
thority to regulate the discharge of dredged or fill material into wa-
ters of the United States through the issuance of permits .4_/ Under this
program the Corps has asserted jurisdiction over fresh water wetlands
adjacent or contiguous to other navigable waters and any other waters
necessary to protect water quality.V
There are several ways in which the section 404 program can be coor-
dinated with the needs of water quality management planners.6/ First,
the Corps program can serve as a wetlands protection plan that includes
water quality considerations. (See chapter 3, section 4.2). Dredge
and fill regulation should also be noted as part of the process required
by section 208 to identify and control pollution from construction ac-
tivity. The 404 program already provides a mechanism for some coordin-
ation since no federal permit may be issued until any necessary state
approval has been obtained.jV The Corps regulations also provide for
the creation of federal-state agreements to jointly process permit ap-
plications, j}/
6.2 The Coastal Zone Management Act
The Coastal Zone Management Act ("CZM")_9/ provides funding for states
to develop coastal zone programs. The program is a voluntary one but
participating states must satisfy criteria promulgated by the Office of
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XVI
Coastal Zone Management in the National Oceanographic and Atmospheric
Administration of the Department of Commerce. For example, states
are required to prepare an inventory of coastal resources, to define
permissible land and water uses in the regulated areas, to designate
areas of special concern, and to establish procedures protecting
these areas. Additional funding is available to deal with the effects
of new or expanding energy facilities in coastal areas under amendments
passed in 1976.107
The Coastal Zone Management Act is directed more towards funding state
planning than to direct regulation, but there are many opportunities
for coordination with 208 requirements.ll/ For example, the determin-
ation of permissible uses and use priorities required for CZM plans
could be integrated with similar decisions required for water quality
purposes in section 208 plans. In addition to coordination of plans,
regulatory requirements can also be designed to serve dual purposes.
Water quality considerations are likely to be a substantial part of a
CZM program, and the addition of criteria to reflect the special needs
of coastal ecosystems may not require significant changes in the reg-
ulatory framework.
The Coastal Zone Management Act is explicit regarding the resolution
of any conflict between its goals and requirements of the FWCA. Sec-
tion 207(f) dictates that the FWPCA is controlling. Thus, water qual-
ity standards will not be affected by CZM plans. However, CZM funding
can be used to supplement areawide planning efforts, and the two plan-
ning processes should be done in close cooperation to avoid needless
duplication of effort.
6.3 The Clean Air Act
The Clean Air Act Amendments of 1970 12/ require states to develop im-
plementation plans ("SIPs") for the attainment and maintenance of na-
tional ambient air quality standards. In areas with serious air qual-
ity problems, states must prepare long term projections that indicate
the sources and allocation of different emissions.13/
For several reasons, the attainment of air and water quality goals re-
quires close coordination of the respective programs for each type of
pollution.IA/ Disposal of pollutants generated by power plant scrubbers
may result in water pollution, while burning of sludge from sewage
treatment plants may lead to an air pollution problem. Less directly,
the location of waste treatment facilities can have major growth in-
ducing impacts creating subsequent air pollution problems. In a sim-
ilar fashion, air pollution requirements may direct industry toward
areas with water pollution problems, trading one problem for another.
Several mechanisms can be used to coordinate programs and avoid these
problems as much as possible. First, specific tasks required for both
programs should be handled by the same agency wherever possible. For
example, population projections, public participation programs, and
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XV11
program development strategies could be done in common.L5/ Second,
common geographic boundaries should be used for planning wherever
feasible. Finally, where responsibility is divided, representation
of both interests should be involved in major policy decisions.16/
6.4 The National Flood Insurance Program
Under the National Flood Insurance Program, communities with areas
designated as subject to serious flood hazards must adopt adequate
land use control measures or lose access to loans from federally super-
vised lending institutions. Y]J Participation in the program is also
necessary in order to be eligible for federally subsidized flood in-
surance. Land use requirements will vary to some extent with the flood
problem, but in most cases communities will have to adopt procedures
to regulate all new development or construction; to assure that new
or replacement water supply and/or sewage systems are designed and lo-
cated to avoid impairment or contamination during flooding; and to pro-
hibit fill or encroachments in a floodway that would increase the water
elevation of the 100 year flood more than one foot.18/ Restrictions
will also be necessary to limit flood related erosion.19/
Although the flood insurance program is not directly concerned with
water quality, its requirements will be compatible with section 208
water quality management programs in many areas. Restrictions on de-
velopment, for example, may serve both goals by providing a buffer area
around streams. (See chapter 3, note 10 and accompanying text.) Reg-
ulation of impermeable surfaces could also serve dual objectives. (See
chapter 6, section 2.3.) Finally, the accepted importance of protec-
tion from floods may provide an additional rationale for water quality
programs challenged in court. (See chapter 2, section 3.6.)
6.5 The 701 Comprehensive Planning Assistance Program
Section 701 (c) of the Housing Act of 1954 20_/ has provided substantial
planning monies to hundreds of communities in the past 20 years. Al-
though the program is not primarily concerned with the environment, it
does provide funding that could be used for water quality purposes.2j_/
The focus of 701 assistance is similar to that of section 208 in its
emphasis on areawide planning. With some exceptions, only one areawide
planning organization is eligible for funding in each metropolitan area.22/
The Housing and Community Development Act of 1974 provides that 701
plans must include a land use element. After August 22, 1977 no grant
can be given unless HUD is satisfied that the plan includes an adequate
land use element. This element must include studies and procedures
necessary for effectively guiding decisions with a significant impact
on where growth will or will not take place,23_/ In addition, planning
activities must include an environmental assessment that indicates the
impacts of the proposed plan.2.4/ The environmental conclusions must be
reflected in the land use plan._2_5/
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xviii
701 plans also must provide for coordination of local, areawide,
and state land use policies, including capital investment policies.26/
Specifically, the land use plan is required to demonstrate consistency
with capital improvement programs and any transportation, open space,
and public utility plans.
HUD regulations require that 701 plans be consistent with a completed
208 plan.2JY This may necessitate use of a common data base and some
agreement on growth policies. Although this requirement technically
comes into effect only after completion of the 208 plan, the opportun-
ity to share resources should be an adequate incentive to justify co-
operation at all stages. Moreover, the difficult policy choices and
implementation strategies required for both programs will be practical
only if there is a unified approach.
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INTRODUCTION
FOOTNOTES
1. See EPA regulations governing Policies and Procedures for Con-
tinuing Planning Process, 40 C.F.R. Part 130, and Part 131,
Preparation of Water Quality Management Plans. And see Natural
Resources Defense Council v. Train, 7 Envir. Rep. cases 2066,
5 ELR 20405 (D.D.C. 1975).
2. 40 C.F.R. § 130.34(a)(2).
3. 31 U.S.C. § 628.
4. The scope of the program was defined to include "all waters of
the United States" in Natural Resources Defense Council v.
Callaway, 392 F. Supp. 685 (D.D.C. 1975). Regulations were
issued by the Corps of Engineers in accordance with this opin-
ion. 40 Fed. Reg. 31320 (July 25, 1975).
5. 40 Fed. Reg. 31320, 31324, § 209.120(d)(2), (July 25, 1975).
6. See EPA Program Guidance Memorandum SAM-11, Attachment 5, "Corps
of Engineers/Environmental Protection Agency Joint Guidance for
Cooperative Action for Water Quality Management."
7. 33 C.F.R. § 209.120(f)(3).
8. Id. § 209.120(f)(3)(v).
9. 16 U.S.C. §§ 1451-1464.
10. Pub. L. No. 93-370, adding a new section 308 to the Coastal Zone
Management Act. Proposed implementing regulations appear at 41
Fed. Reg. 46724 (1976).
11. See EPA Program Guidance Memorandum SAM-11, Attachment 2, "Guidance
on Coordination between CZM and EPA Water Quality Management Pro-
grams" (1976).
12. 42 U.S.C. § 1857 et se£.
13. 40 C.F.R. §§ 51.44, 51.45.
14. U.S. Environmental Protection Agency, Revised Program Guidance
Memorandum SAM-8, "Relationship between Air Quality Planning and
the State and Areawide Water Quality Management Program; Eligible
Uses of Section 208 Funds for Water Quality Analyses" (Nov. 15, 1976)
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INT-FN-2
.15. id. at 2.
16. For an example of a 208 agency attempting to coordinate air
quality problems in the planning process, see George Hagevik,
''Achieving an Integrated Planning Program: An Issue Paper for
the 208 Areawide Water Quality Management Workshops" (workshops
sponsored by EPA and conducted by National Association of Re-
gional Councils, 1976).
J7, 4/1 U.S.C. § 4001 et seq.
18. ?4 C.F.R. § 1910.3, 41 Fed. Reg. 46976 (1976).
19. See generally, Tierney, "The National Flood Insurance Program:
Explanation and Legal Implications," 8 Urb . Law . 279 (1976).
20. 40 U.S.C. § 461.
21. jSeje Larry Houston, "Relationship of the 701 Comprehensive Planning
ruid the 208 Program," in Proceedings of a Symposium on the Role of
the Environmental Protection Agency in Land Use Planning 27 (1975).
22. 24 C.F.R. § 600.40.
23. 42 Fed. Reg. 6099 (Feb. 1, 1977).
24. 24 C.F.R. § 600.65.
25. 42 Fed. Reg. 6096 (Feb. 1, 1977).
26. 24 C.F.R. § 600. 72 (b) (4). See also 42 Fed. Reg. 6100 (Land Use
and Housing Element Guidelines § D, Feb. 1, 1977).
27. 24 C.F.R. § 600.73(c)(6)(ii), 42 Fed. Reg. 6096 (Feb. 1, 1977).
28. See EPA Program Guidance Memorandum SAM-11, Attachment 1, "Inte-
grating 208 Planning and 701 Comprehensive Planning" (May 2, 1975).
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CHAPTER ONE
CHOICE OF APPROPRIATE LEVELS AND AGENCIES OF GOVERNMENT FOR
PERFORMANCE OF SECTION 208 MANAGEMENT TASKS
TABLE OF CONTENTS
1.0 Introduction: The Existing Institutional Framework 1-1
2.0 Criteria for Evaluating Institutional Arrangements
and for Assigning Regulatory Functions 1-3
2.1 Administrative Effectiveness 1-6
2.2 Political Acceptability 1-7
2.3 Comprehensiveness and Effectiveness! Environ-
mental , Economic, and Social 1-7
2.4 Equity 1-8
2.5 Political Accountability 1-8
3.0 Assessment of Agencies' Past Performance 1-9
3.1 Municipalities 1-9
3.2 Special Districts 1-12
3. 3 Urban County 1-16
3.4 Regional Councils 1-18
3.5 The State 1-20
3. 6 Summary 1-21
4.0 Intergovernmental Strategies 1-23
4.1 The Existing Institutional Setting for
Intergovernmental Strategies 1-23
4.2 Representative Intergovernmental Strategies 1-24
5.0 Appropriate Agency: Politics, Personalities^ and
Professions 1-27
6.0 Role of Citizen Boards and Professional Agencies 1-30
Footnotes
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CHAPTER ONE
CHOICE OF APPROPRIATE LEVELS AND AGENCIES OF GOVERNMENT FOR
PERFORMANCE OF SECTION 208 MANAGEMENT TASKS
1.0 Introduction: The Existing Institutional Framework
Clearly, techniques for controlling water pollution are not likely to be
effective unless the task of implementing them is entrusted to appropriate
agencies. These become more variant and more numerous as one moves from
the federal down to the local level of government. In fact, the insti-
tutional inventory of even a relatively small substate region may reveal
a patchwork of agencies at different levels of local government, each
exercising some part of the authority necessary for the success of an
areawide wastewater control technique.
Typically, water pollution regulation is exercised by general-purpose
state and local governments and by the U.S. Environmental Protection
Agency (EPA). Point source regulation is carried out mostly by state and
federal environmental agencies through the National Pollutant Discharge
Elimination System (NPDES) permitting process. Most NPDES states and
EPA are emphasizing compliance-monitoring and enforcement rather than
permit issuance. _!/ A few states, such as New York and Florida, authorize
local as well as state regulations and permits for point source dischargers.
In addition, sanitary districts, such as the Metropolitan Sanitation Dis-
trict of Greater Chicago, may issue permits to dischargers for their sewer
systems. All municipal dischargers must now enforce pretreatment standards
for industrial sources discharging to municipal sewers.
Local governments (municipalities and some counties) are the main regulators
of nonpoint sources that result from the urbanization process, such as
surburban erosion, septic tanks, and stormwater runoff. In general, there
is much less regulation of nonpoint sources than point sources. Regulatory
techniques used include zoning, subdivision ordinances, grading and fill
requirements, and other land use and performance controls. (Figure 1 shows
the number of local governments with planning, zoning, and building
regulations in 1968.) The typical objectives of these local land use
and building regulations have had less to do with water quality than
with the protection of property values, traffic flow, safety, or the
avoidance of nuisances. Yet local land use controls can affect the cha-
racter, direction, and sometimes the rate of growth of suburbs, commercial
buildings, industries, recreation and health facilities, and impacting
point and nonpoint sources of water pollution.
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1-2
Figure 1
-PROPORTION OF GOVERNMENTS WITH PLANNING, ZONING, AND BUILDING REGULATION ACTIVITIES, BY SMSA LOCATION AND TYPE AND SIZE OF
GOVERNMENT, 1968
Percent of governments with
Coverage group
TotaP..
Within SMSA'S-
Outside SMSA's
County governments .. . .
Within SMSA's
Outside SMSA's
Within SMSA's -
I960 population of
50 000 or more
5 000 to 49 999
Under 5 000
Outside SMSA's
5,000 to 49,999
1 000 to 4 999
New England-type townships
Witnin SMSA's
5 000 or more
Under 5000
OutsideSMSA's .... . .
i960 population ot
5,000 or more..-. . .. . . .
1,000 to 4,999 - - - -.
Number of
governments
17,993
7,609
10, 384
.--- - 3,049
404
2,645
9,984
4,977
314
1,303
3,360
5 007
1,352
3 675
4,960
2,228
765
1.463
2,732
333
2,399
Planning
board
59.6
65.2
55.4
52.3
80 0
48.1
66.8
67.7
98.4
92.9
54.9
66.0
91.8
56 5
49 4
57.1
79.1
45.7
43.0
79 3
37 9
Zoning Subdivision
ordinance regulation
53 3
68 3
42.3
23.3
49.3
19 4
68 9
74.8
98.7
97.0
54.0
63.0
90 5
52 9
40.4
57 3
81 0
44.8
26 6
73 9
20 1
44.9
59.3
34.4
29.1
62.9
23.9
53.1
61.2
92.7
90.0
47.7
45.0
81 9
31.3
38.4
54 3
74.0
44.0
25 4
72 7
18 8
Building
code
46,4
59 5
36.8
13,6
39.4
9.7
64.9
69.0
98.7
91.8
57.4
60.9
73 5
51.3
29.1
41.9
58.7
33.5
18.7
52 9
15.2
Housing
code
27.3
36.5
20.5
6.9
18.6
5.1
39.8
44 8
85.3
53.3
37.8
34.8
54 4
27 6
14.5
21.2
22.7
20.4
8 9
16 2
7.9
Any building
regulation '
78.3
82.3
75 3
58.9
86.1
54.7
89.2
86.2
100.0
99.9
79.5
92.2
98 4
89.3
68.3
73 0
91 5
63. i
54 4
84.4
69 4
' These figures cover units reporting any of the other specified types of activity
or a local building-permit system.
2 The "total" relates to governments subject to sample survey representation,
and thus omits (a) all municipalities and townships of less than 1,000 population
located outside of SMSA's; and (b) township governments located in States where
these governments lack municipal-type powers
Source: "Local Land and Building Regulation," Allen D Manvel, Commission
Research Report No 6
Source: National Commission on Urban Problems, Building the American
City 209 (Washington, D.C.: Government Printing Office,
1968).
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1-3
Local governments rarely regulate rural nonpoint sources (agriculture,
mining, silviculture.) As Chapter 2, the legal overview chapter, points
out, 20 states forbid the application of local zoning or subdivision
ordinances to agricultural lands. Twenty-six states exempt existing
uses from local land use regulations. When agriculture, mining, and
silviculture are regulated for pollution abatement, state natural re-
source and agriculture departments usually perform the task. In the
past, their regulations were designed to maximize harvests and produc-
tion and to increase extraction of minerals, not to protect water qual-
ity. More recently, however, state erosion conti-ol and mine reclamation
laws have been adopted which seek to prevent water pollution, among
other problems.
Since 1970, state governments have become more involved in the regulation
of urban and suburban land uses that had previously been in the exclusive
domain of local governments. States' actions usually apply to particular
polluting sources, such as power plants or stripmines; to vulnerable
environmental areas such as wetlands, flood plains, or coastlines; or to
large-scale development and key facilities considered to influence regional
growth substantially. Only a few states, such as Vermont, Florida, Hawaii,
Oregon, and Maine, have more comprehensive state land use programs. Typi-
cally, local development review is retained, with state or regional review
added. Alternatively, a state may mandate that localities take specific
land use regulatory action. Even these incremental moves engender state/
local conflicts as mayors and planning and zoning officials move to pro-
tect local prerogatives, and as small landowners and developers resist additional
regulation. (Figure 2 identifies state land use programs adopted as of
January 1974.)
There are very few areawide regulatory bodies. Existing ones include
the Twin Cities Sewer Board and Metropolitan Council, the San Francisco
Bay Conservation and Development Commission, and the Lake Tahoe Regional
Water Quality Agency. While some special-purpose sanitary districts
may regulate point sources, they are rarely authorized to regulate non-
point sources and land uses. Flood control districts usually construct
and operate flood control facilities, but these districts, along with
soil and water conservation districts, primarily provide technical assist-
ance and education, or direct services to abate erosion and storm runoff.
Regional councils usually perform planning, coordination, and technical
assistance tasks, and rarely implement water quality protection or pro-
vide service delivery. Most state and local governments have been
reluctant to give areawide planning bodies regulator}' duties and have
been particularly reluctant to delegate land use control authority to
regional planning or special-purpose agencies. 2]
2.0 Criteria for Evaluating Institutional Arrangements and for Assigning
Regulatory Functions
This handbook suggests a variety of techniques and agencies for regulating
nonpoint sources, point source location, and construction and use of
sewers. Some examples show the need for decentralizing controls, while
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1-4
Figure 2
STATE LAND USE PROGRAMS*
(January 30,1974)
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevarb
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Guam
Puerto Rico
Statewide^
Land Use
Planning and
Control
P
P
P
P
P
P
Pand R
P
Pand R
_
_
-
Pand R
R(limited)
P
Pand R
_
_
P
_
_
-
_
Pand R
P
_
_
P and R
_
P
-
Pand R
Pand R
Coastal2
Zone
Management
_
_
NA
NA
yes
NA
yes
yes
-
yes
NA
_
NA
NA
NA
yes
yes
yes
yes
NA
NA
NA
NA
NA
_
_
NA
-
NA
yes (Partial)
yes
NA
NA
yes
NA
NA
yes
yes
NA
yes
NA
yes
Wetlands3
Management
yes
yes
yes
yes
_
-
yes
yes
yes
.
yes
yes
_
yes
yes
yes
_
yes
yes
yes
yes
_
Power*
Plant
Siting
yes
yes
yes
_
yes
yes
yes
yes
_
yes
yes
yes
yes
yes
yes
yes
yes (cz)
yes
yes
_
yes
yes
yes
yes
_
yes
-
yes
yes
yes
Designation"
Surface5 of Critical
Mining Areas
yes -
yes -
yes yes
- yes
yes -
- yes
yes
yes
yes -
yes
yes
yes -
yes
- -
yes -
yes yes
yes -
yes
- -
~
yes -
yes
yes -
yes -
yes
yes
yes yes
yes
~
yes -
yes -
yes
yes -
yes -
yes
yes
yes
Land Use7
Tax
Incentives
^-
yes
yes
yes
yes
yes
yes
yes
yes
yes
yes
_
yes
yes
yes
-
yes
yes
yes
yes
yes
yes
yes
-
yes
yes
yes
yes
yes
yes
yes
yes
yes
~
yes
-
Flood8
Plain
Management
-
yes
yes
yes
yes
yes
yes
-
~-
yes
-
yes
~
yes
yes
yes
-
~
yes
~
-
.
yes
-
yes
y&s
yes
yes
*Table Explanation
Indications that a State has a program in one of the above
categories does not constitute an evaluation of the effectiveness of
the program.
1. P indicates the State has a land use planning program under
way. R indicates the State has authority to review local plans or has
direct control. NA, not applicable,
2. State has authority to plan or review local plans or the
ability to control land use in the coastal zone.
3. State has authority to plan or review local plans or the
ability to control land use in the wetlands.
4. State has authority to determine the siting of power plants
and related facilities.
5. State has authority to regulate surface mining.
6. State has established rules, or is in the process of establish-
ing rule's, regulations, and guidelines for the identification and desig-
nation of areas of critical state concern (e.g., environmentally fragile
areas, areas of historical significance).
7. State has adopted tax inducements to withhold or delay
development of open space (e.g., tax on present use, rollback penal-
ty, contract between the State and landholders to provide preferen-
tial tax for commitment to open-space usage).
8. State has authority to regulate the use of floodplains.
Source: Council of State Governments, The Land Use Puzzle 34 (1974).
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1-5
others show the need to centralize regulatory functions with other
governmental responsibilities in areawide or state agencies with a
broader geographic perspective. For instance, there are powerful argu-
ments for regulating the extension of sewer facilities at the county or
other substate regional level, while activities like mining or well disposal
are often best approached from a statewide perspective. Still other exam-
ples, such as regulation of onsite wastewater disposal and erosion control,
illustrate ways that state and local agencies can jointly regulate a single
pollution source by sharing responsibilities for standard-setting, monitoring,
and enforcement.
The best that this handbook can offer, however, is very generalized guidance
or very focused evaluations. Clearly, a general observation that soil
conservation districts are generally unacustomed to and leery of an enforce-
ment role may be irrelevant to a locality with a particularly aggressive
district which wants enforcement authority. Similarly, the selection of a
county-administered sewer regulation program in one state should not sug-
gest the county as the appropriate level of government in a state without
a strong county governmental framework. For water quality management
planners struggling with the particular dilemmas raised by their unique
institutional setting, this institutional overview chapter offers gen-
eralized guidance on the assignment of water quality functions to manage-
ment agencies. Just as important as what is done to regulate pollution
is who performs the work, because the organization chosen as regulator
will determine significantly the effectiveness, acceptability, and fair-
ness of the program.
To select who shall regulate water quality, these three institutional
questions need to be answered:
1. What level of government has existing powers that can be used for
water quality or should assume new functions? Should the regulatory
functions be shared? If shared, what level could best establish
standards, issue permits, conduct surveillance and monitoring, and
bring enforcement actions?
2. Which agency at each level of government should be the regulator?
For example, should new regulatory power over nonpoint s^urc^s be assigned
to a sanitary district or public works department, a soil conservation
district, a flood control district, a zoning board, or a regional council?
Or should all these agencies be involved? Should a completely new
regulatory agency be established?
3. Within each of these agencies, what should be the roles of an elected
or appointed board as compared with a full time professional staff? For
example, should erosion permits and standards be issued by an appointed
zoning board or elected city council, or should they be handled exclusively
by the city's planning department or building permit office?
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1-6
There is no one institutional model, or even a dozen, to answer these
questions for each area. As geography, population, land use, economy,
political preferences, water resources, and pollution sources differ,
so must water quality institutions. Rather than offering models to
guide placement of water pollution regulatory functions, five insti-
tutional design criteria are suggested to help officials decide who
should regulate in their region or state. These criteria are ways to
think about organizations and are objectives to be achieved when estab-
lishing governmental structures of any kind. The criteria are:
2.1 Administrative Effectiveness
The agencies assigned regulatory tasks must have the administrative and
legal capability to perform the assignment effectively and efficiently.
Administrative effectiveness can be best achieved when:
-Agency(s) can set standards; hold hearings; issue permits or licenses;
set charges or fees; conduct monitoring, surveillance and site inspections;
bring administrative and judicial enforcement actions; impose penalities;
or take whatever regulatory steps are called for in the water quality
management plan.
-Agency(s) has adequate funds to carry out the assignment or is likely
to have such funds approved to provide sufficient trained manpower,
data, equipment, and administration.
-Agency(s) has technical/managerial competence to conduct policy and
program planning and to evaluate its own performance.
-Other functions and missions of the Agency(s) are compatible with and
support the water quality regulatory functions. For example, promotion
of industrial development and pollution regulation are usually incom-
patible, conflicting government missions and should be organizationally
separate. In general, regulatory functions (standard-setting and
enforcement) need to be separated organizationally from the construction
and operation of public treatment facilities. Chapter 4 points out that
water and sewer planning are compatible with comprehensive land use
planning and calls for their placement within the same jurisdiction.
Chapter 5 suggests that regional sanitary or utility districts can also
be effectively assigned administration and maintenance of community
onsite waste disposal systems.
-Interagency and intergovernmental coordination and flexibility occur
between the water quality regulatory agency and related water agencies,
solid waste managers, public facilities suppliers, land use planning and
regulatory bodies, and power and transportation agencies. The number of
governmental agencies will be kept to a minimum, reducing duplication of
activities and offices.
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1-7
-Agency(s) can communicate clearly and frequently its program goals
and requirements to other governmental agencies and affected private
individuals. Minimum time and money is required for regulated parties
to gain governmental regulatory approvals or to meet governmental
requirements to secure authorized financial or technical aid.
-Minimal personnel disruptions and program slowdown occur when any new
governmental program is established.
2.2 Political Acceptability
There should be a reasonable likelihood that the proposed regulatory
agency will be designated or, if necessary, created or strengthened
within a reasonable period of time, according to the areawide water
quality management plan. In order to ensure this, it is important that:
-Organizations and assignments are compatible with the governmental
style of the city and state, and their structural and procedural traits.
-Regulation is financially affordable to affected jurisdictions.
-Regulatory powers exist or are likely to be authorized.
2.3 Comprehensiveness and Effectiveness: Environmental,
Economic, and Social
There should be maximum attainment of water quality goals by the
regulatory means chosen at the lowest overall cost to society (including
environmental, social, and economic costs, and costs to government.)
Balanced, comprehensive decision-making is likely to result when:
-Long-range planning for water quality can be integrated with the regu-
latory control strategy.
-Every level of government that regulates water quality is responsible
also for a sufficient number of other functions so that conflicts and
tradeoffs between water quality and other environmental, economic, or
social objectives can be evaluated and resolved to the overall benefit
)f the community. A balance of governmental objectives results. This
>rocess internalizes the external diseconomies that can occur when water
juality is achieved, but costs are passed along in terms of air pollution,
sprawl, or other environmental or social problems.
The agency's jurisdiction is similar to the natural boundaries of the
egion in which the regulated pollutant occurs and is sufficiently large
o allow consideration of all relevant natural environment, economic, and
olitical factors. The jurisdiction of the agency assigned regulation should
Iso be large enough to enable the benefits of water pollution regulation to be
argely consumed within the jurisdiction. Flexibility to choose the
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I-l
most advantageous regulatory solution for most effective performance
should be possible. For example, if stormwater problems are generated
by flows from surrounding mountains, calling for a regional control
strategy, as in Denver, then stormwater management and regulation need
to be assigned to an areawide agency and not to each of dozens of munici-
palities in the region. On the other hand, if downspout disconnection
is the desired technical solution, as in Springfield, Illinois, the
municipality, with its power to adopt local ordinances, may be the most
logical regulatory jurisdiction.
-The agency's jurisdiction is large enough to permit economies of scale
in government program administration, such as hiring inspectors and
purchasing monitoring equipment.
2.4 Equity^
The costs and benefits of the governmental regulatory program should be
fairly distributed among affected groups and various geographical areas.
This can best be achieved when:
-Similar pollution sources are regulated in a similar manner and to the
same degree throughout the region and state. Fair standards are adopted
and enforcement strategies are evenhanded as to size and type of source.
-Improved water quality that results from regulation is fairly distributed
among user groups and geographical areas of the state and region.
-Those who create water pollution problems bear the costs of control.
-Due process requirements are met; agency's procedures are fair.
2.5 Political Accountability
Key regulatory decisionmakers in governmental organizations should be
accessible to and controlled by affected individuals and groups, in
proportion to their stake in the outcome of a governmental decision.
Such accountability is most likely to be attained when:
-Adequate communication is available to private individuals and groups
about forthcoming governmental decisions, such as adoption of standards
and regulations, along with the choices available and the costs and
benefits of each alternative.
-Frequent formal and informal opportunities are extended to citizens
to participate in water quality decisions. Multiple points of access
exist, such as through political parties, direct administrative processes,
elections, and advisory groups.
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1-9
-Some procedure exists for affected citizens to control decisionmakers,
such as through election of officials, recall of appointed leaders, and
referenda.
Some f these five criteria might produce conflicting requirements for
institutional design, and so the planning process must rank the five as
to their importance locally. For example, political accountability may
fav. allocation of regulatory respc. sibilities : smaller local juris-
dictions, while jurisdictional and cost-effectiveness may argue for
assignment to larger regional agencies or state governments.
3.0 Assessment of Agencies' Past Performance
Which of the institutional design criteria from the previous section
point toward assignment to municipal governments? To regional agencies?
To state agencies? To help answer these questions, reflections on the
past administrative, political, and economic performance of these levels
of government are summarized here.
The conclusions and research cited are based, generally, on evaluations
of agencies performing traditional pollution control functions, such as
regulation of point sources, construction and operation of treatment
facilities, water quality and land use planning, and regulation for pur-
poses other than water quality. There is very little history, and con-
sequently much less evaluation in the literature, of agencies regulating
nonpoint sources or land use for water quality protection. Accordingly,
the evaluative conclusions about institutional performance must be
extrapolated to regulation of nonpoint sources in the section 208 planning
process.
3.1 Municipalities
In the past, general-purpose municipalities have demonstrated the following
strengths that argue for their involvement in nonpoint source regulation:
-Political acceptability. Regulation of nonpoint sources associated with
urban growth through such techniques as zoning, building regulations,
and performance standards are traditionally local prerogatives. Dis-
placing or even sharing these with regional or state governments engenders
opposition from local officials, builders, chambers of commerce, as well
as other home rule proponents. Local regulation will often be most
compatible with an area's governmental style. The political acceptability
that would result will be critical to a regulatory program's implementation.
In 1966 Matthew Holden concluded that pollution control is essentially
a bargaining process in which successful regulation depends on the consent
of the regulated, who have the power to frustrate officially declared
objectives if they choose. _3_/ In 1975 Irwin, Selig et al. confirmed
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1-10
that this process still exists, but with government agencies' hand
slightly strengthened since 1966. kj If this bargaining approach
continues, and local governments are better able to generate the poli-
tical acceptance for nonpoint source regulation, then municipalities
could have more success in gaining voluntary compliance. That may be parti-
cularly true when such previously uncontrolled sources as urban storm-
water and suburban erosion are concerned. However, if regulatory
emphasis shifts from political bargaining to increased reliance on
administrative and judicial adversary proceedings, then state and federal
enforcement may be needed.
-Recognition of Political Interests. Majority views can be mobilized
and exerted best within smaller, local jurisdictions. However, minority
political interests are most often recognized in a larger, more hetero-
geneous jurisdiction, such as a region or state.
-Administrative Efficiencies. Government cost and manpower savings can
result if existing local regulatory agencies, such as health departments,
zoning boards, and building inspectors, can take on water quality regu-
latory work, piggybacking related water quality assignments on current
tasks. Regional or state agencies may need completely new program staffs
to regulate urban nonpoint sources. It is also easier and usually quicker
for regulated parties to deal with their local agencies.
-Comprehensiveness and Equity. These result from balance of interest
and assessment of tradeoffs among several government missions. General-
purpose local and state governments, unlike special-purpose districts,
are in a position to weigh water quality pursuits against other govern-
mental functions, such as land use programs, growth strategies, housing,
employment, educational, health, and recreational objectives. The trade-
offs among these objectives can then be better understood and communicated
to citizens in the area, raising the quality of public debate concerning
the performance of government. 5j Priorities among governmental programs
can be set and overall economic effectiveness promoted. General-purpose
governments are less likely to be controlled by private or minority
interests than special districts, since the former are the focus of many
differing groups and demands. General-purpose governments tend to be
more concerned with overall governmental equity than are special-purpose
governments.
The institutional design criteria that argue against assigning key water
quality regulation to municipalities include:
-Geographic Inadequacy. Many local jurisdictions are smaller than the
hydrologic/economic region in which pollution problems occur and cannot
select the most cost-effective regulatory strategy or evaluate program
-------
1-11
impacts on the region.
-Inability to Control Externalities. Small local jurisdictions cannot
control externalities that occur when the costs and benefits of a govern-
mental program are not contained within the same jurisdiction. External-
ities argue for the assignment of functions to jurisdictions large enough
to contain the costs and benefits of a given service, such as water
pollution control. A study performed by the Advisory Council on Inter-
governmental Relations calls the control of externalities the responsi-
bility of an areawide or state unit, _6/ However, this control can take
the form either of direct administration of a program or of regulations
that require smaller units of government to compensate other jurisdictions
for spillover effects. Tj
-Inability to Take Advantage of Economies of Scale. Small towns and
cities are unable to benefit from economies of scale in administering reg-
ulatory programs. Economies of scale occur not only in construction and
operation of facilities, but also in governmental program administration,
in provision of monitoring facilities, data collection, personnel, and in
overhead.
-Inadequate Funds and Technical Expertise. Many smaller jurisdictions
lack money to acquire technical expertise, data, and adequate monitoring
and enforcement personnel, and they are not likely to have additional
money available for these purposes in the near future. Even asking
existing local agencies, such as health departments, to carry out water
quality regulatory tasks may put unmanageable financial burdens on local
governments. Local agencies have very little history and thus very little
expertise in regulating point sources of water pollutants.
-Lack of Political Will. Many small jurisdictions lack the political desire
to adequately regulate a major local industry or builder that is also
a major polluter, or to impose pollution control costs on friends and
neighbors. Localities compete to attract "desirable" residents, such
as new industries, commercial developments and housing, that will in-
crease local revenues and may not wish to impose strict environmental
performance standards or land use controls, fearing the affected party
may not locate in the jurisdiction.
-Poor Local Record on Land Use Planning and Zoning. The history of
local planning and zoning has been one of ineffective controls in many
areas. Although more than 75 percent of all local governments have
planning boards, zoning ordinances, or other land use and building
controls, these mechanisms have not served to manage metropolitan growth in
most instances. J5/ The indirect influence on land use decisions of
real estate taxes and provisions and pricing of public services has
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1-12
had a greater effect on the direction and type of land development than
have zoning and other direct controls. Public services, however, tend
to be determined by other economic and political forces, instead of
being used consciously to guide urban growth to suit environmental and
social objectives.
-Inadequate Legal Power to Regulate all Nonpoint Sources. Smaller
localities lack the legal power to regulate nonpoint sources such as
agriculture, mining, and existing uses. To be sure, municipalities
could be granted such powers by state legislatures, but this might be
politically difficult in states where agricultural and mining interests
are very strong.
-Inability to Assure Equity. Similar pollution sources located in
different local jurisdictions may be regulated in a different manner
with varying requirements.
-Poor Coordination with Other Local Governments. Although almost all
localities participate in some type of council of governments or other
type of regional coordinating body, local governments voluntarily coop-
erate with one another on only the most essential issues. Day-to-day
coordination of regulatory programs would probably not occur among
jurisdictions in the same region.
3.2 Special Districts
The desire to achieve economies of scale and fiscal equalization, to
control externalities, and to provide geographic adequacy within the
metropolitan region, riverbasin, or watershed argue for some assignment
of water quality regulatory functions to regional or state agencies,
or to achieve areawide cooperation by procedural agreements. Creation
of independent special districts has been the most popular, most expedient
approach to securing areawide services. The range of techniques to
secure governmental cooperation and areawide service delivery of various
types includes:
-informal cooperation;
-service contracts and joint services agreements;
-regional councils of local elected officials;
-federally encouraged substate districts;
-state planning and development districts;
-local special districts;
-transfer of functions;
-annexation;
-areawide special districts;
-regional councils;
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1-13
-urban county;
-city-county consolidations;
-federated areawide governments.
A 1973 report of the Advisory Commission on Intergovernmental Relations
has evaluated the effectiveness of these coordination techniques and their
conclusions appear in Figure 3. This same study favors general-purpose
regional governments to solve urban problems, including water pollution.
These structures have been politically unacceptable. Although special-
purpose regional agencies are more acceptable, they are judged by the
report to be administratively inefficient. The study concludes that
there is "an inverse relationship between effectiveness and political
feasibility and acceptance" in solving areawide urban problems on an area-
wide basis. _9_/ However, many other economists and political scientists
no longer favor total metropolitan reorganization as the most desirable
solution to urban problems. Lack of a sense of community at the regional
level and little agreement on common goals have been cited as problems. 10/
The most common approach to solving regional problems is the special
district. In 1972, there were over 300 areawide sanitation districts,
which were collecting, treating, and disposing of wastewater, such as the
Metropolitan Sanitation District of Greater Chicago, ll/ Seattle Metro
(the Municipalities of Metropolitan Seattle) is a dual-purpose, areawide
special-purpose agency, providing sewage treatment and disposal as well as
transportation services throughout King County. The agency regulates
discharges to its sewers, but must accept all volumes from its municipal
dischargers.
There are other special districts based on riverbasins. The Miami (Ohio)
Conservancy District is an intrastate basin arrangement, and the Delaware
River Basin Commission is an example of an Interstate basin agency. The
Miami District includes both commercial and industrial dischargers, as
well as municipal and nonpoint sources. These basinwide organizations and
sanitation districts usually do not have explicit regulatory authority
and would need additional state legislation in order to perform regulatory
functions.
Advantages of these special districts include their ability to:
-use a broader base for financing construction work than municipalities
(could use part of their user fees to finance regulation);
-achieve economies of scale in construction, maintenance, administration,
and monitoring work;
-account better than a municipality for the geographic/hydrologic nature
of the pollution problem;
-internalize economic externalities involving water pollution spillovers
from one municipality to another within a region;
-------
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1-15
-provide greater technical expertise and management competence than
many municipalities;
-link water quality regulation with other wastewater management responsi-
bilities that they may perform, such as controlling sewer connections,
and sewer use, and imposing pretreatment requirements;
-provide service uniformity throughout the region and, if given regulatory
powers, ensure equity of treatment of water polltuion sources in the area.
While special-purpose districts can achieve these economic and admini-
strative efficiencies, emphasizing technological solutions, they are
considered to have these problems:
-They provide little citizen access and control, and thus have low poli-
tical accountability. While over 40 percent of regional districts surveyed
by the Advisory Commission on Intergovernmental Relations (ACIR) in the
72 largest metropolitan areas have governing boards chosen by direct
election, voters usually are apathetic about special-district elections. 12/
As a result, these districts can be dominated by special economic interests.
Special districts have been more unwilling to accede to public demands in
the performance of their functions than general-purpose units. 13/
-There is little interagency and intergovernmental cooperation and coordi-
nation. Single functional special districts generally do not coordinate
their services with related local government units. Also, regional special
districts are often state-imposed. Thus, tensions and administrative
conflicts occur between special districts and general local governments,
as well as regional planning bodies and other special districts.
-They are unable to balance water quality objectives with related land
use, growth, housing, transportation, and economic missions. Independent
districts serve narrow functional interests rather than those of the
entire metropolitan area.
-Regulation by special districts is not in keeping with traditional govern-
mental style in most areas, and these units may have no experience,
expertise, or legal staffs to conduct regulatory work. It may also be
politically difficult for them to acquire such expertise and powers.
-The water quality regulatory role may conflict with the special district's
past primary mission as, for example, that of constructing and operating
publicly owned treatment facilities.
Because of these disadvantages, ACIR advocated that special districts
be abolished, consolidated, or subordinated to general-purpose units of
government. 1A/ Studies in California, Massachusetts, Michigan, and else-
where have also called for such action. 15/
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1-16
Figure 4 reports on evaluations of selected regional special districts,
including five that provide sewer services. It should be noted that the
greatest strength of special districts, their economic efficiency, applies
more to facility construction and operation than to regulatory programs.
3.3 Urban County
Much of the metropolitan governmental reform literature supports expanded
urban functions for counties. Hein, et al., in a recent study of regional
arrangements for environmental protection, judged urban counties the
most effective institutional arrangement in the United States for solving
emerging environmental problems. 16/ The reorganized or comprehensive
urban countythe county given the functions of the cityis seen as able
to achieve the economic and technological advantages of areawide approaches
while overcoming the inability of special districts to ensure public
accountability and to conduct water quality work in a broader governmental
context. Montgomery County, Maryland is an example of an urban county
that has taken an aggressive role in environmental protection, as described
in chapters 4 and 6. City-county governmental reorganizations liave pro-
duced urban counties in Miami (Dade), Jacksonville, Indianapolis, and
Nashville (Davidson). Such reorganizations have been judged to have
generally positive functional impacts. 17/ In these situations, a large
municipality forms the backbone of the urban county.
There are several advantages of counties taking on additional wastewater
management, land use controls and other regulatory and planning respon-
sibilities. They include the following:
-Geographical jurisdictions are large enough to be effective taxing
and service units and to provide regulatory services.
-They achieve equity of regulation throughout the county.
-Boundaries of counties more nearly match the boundaries of the natural
and economic region in which pollution problems occur than do munici-
palities, although, to be sure, the problem remains of making boundaries
coincide wi . . t.-e boundaries of multicounty problems.
-Some count1 .g^.ncies, such as health departments, perform inspections
and permitting., and could assume water quality regulatory tasks with
minimum additional cost and staff.
-All the advantages that accrue to general-purpose governmentsaccount-
ability, flexibility, ability to assess tradeoffs and to set priorities
among many governmental missionsapply to counties, as the largest
general-purpose governments below the state level.
The principal disadvantage of assigning water quality regulatory programs
to counties is that most counties do not now have the necessary statutory
authority to perform city-type functions. Counties have been generally
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Figure 4
Study Appraisals of Selected Regional Special Districts. 1958 1972
District
Bay Area
Rapid Trans
District'
Boston MDC2
Hartford
Metro
District3
# Of
Jurisdic-
tions
Functions
Economies
of Scale
Economic
Exter-
nalties
Access
and
Control
Citizen
Partici-
pation
General
Purpose
Character
Geography
Adequacy
3 counties Trans- + + ___*
portation
Two counties (Mann and San Mateo) withdrew from BARTDduetoan unresponsiveness to their transporta-
tion needs or lack of BARTD's facilities.
water * + *
sewer
park
Since appointment of commissioners is from the State level, communities have been unable to participate
in MDC activities and therefore the district has not been able to meet regional needs
Hartford water + + _-_.+
and 7 sewer
towns
One of the major findings of a commission studying the MDC was that it has lost tapport with electors
and recommended election of commissioners
Port of N.Y
and New Jersey
Authority5
Washington
Suburban Sanitary
Commission6
The Municipality
of Metro
Seattle'
Milwaukee - sewer + + - - - - *
Metro Sewerage
District4
Statistics show the MSD was more efficient in terms of waste treatment programs than any other plants
studied
12 counties Trans- 4 + - - - 4
portation
Local governments have no control over the Port Authority. The board members are appointed by the
governor of both States. Robert G Smith evaluated this governmental unit as the most independent of all
public authorities in New York City.
2 counties water + + - - - +
sewer
storm dram
refuse
A consultant group recommended that the WSSC utilize its present unified system for service delivery but
it should increase county control over district operations
11 cities sewer -* + +/- - +/- +
18 sewer trans-
districts portation
The composition of membership represents a balance of central city and suburbsSeattle has 9 council-
men and the Mayor as members, and the suburban and county governments have 10 members "Metro"
may perform any or all of six functionscomprehensive planning, sewage disposal, garbage disposal,
parks and parkways, water supply, and transportation
+ = favorable evaluation
- = negative evaluation
Sources
^Smith, Public Authorities in Urban Areas, (Washington National Association of Counties Research Foundation, 1969).
2Wakstem, "Boston's Search For A Metropolitan Solution" Journal of the American Institute of Planners (September, 1972).
Metropolitan District Study Commission, Report on the Metropolitan District Commission and Government Functions Committee of the Capital
Region Planning Agency, Governmental Organization for the Capital Region. (Hartford, 1965)
Metropolitan Study Commission Committee on Metropolitan Functions, Report on Sewage Disposal In The Milwaukee Metropolitan Area.
(Milwaukee, 1958).
5Smith
"Report on the Governmental Structure for the Exercise of Functions Performed by the Washington Suburban Samvary Commission. (Boo^-Allen
Public Administration Service, 1972)
'National Technical Information Service, Metropolitan Water ManagementCase Studies and National Policy Implications pp 295-316 (Cambridge,
Massachusetts, 1971)
*
Source: Advisory Commission on Intergovernmental Relations, Governmental
Functions and Processes: Local and Areawide 75, Substate Regionalism
and the Federal System, vol. 4 (Washington, D.C.: Government Printing
Office, 1974).
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1-18
unable or unwilling to take on additional urban and regional functions.
Most metropolitan counties perform traditional and often state-mandated
functions. Only 20 to 40 percent perform various urban functions, and
only 10 to 30 percent perform assorted regional functions. Metropolitan
home rule counties are notable exceptions and have taken on considerable
urban responsibilities. 18/ State legislative action would be required
to establish urban counties or to make existing urban counties effective
environmental regulators. 197 Political difficulty may be involved in
acquiring urban powers. While metropolitan regional reorganization has
occurred in over 20 percent of the states, it has never been without
major political problems.
While any strategy that involves areawide governmental arrangements will
be difficult, the most politically feasible regional approaches are
judged to be those based on the urban county and larger cities. 20/ The
least feasible are those that seek multipurpose special districts or
give regulatory powers to regional councils. _21/
If urban counties exist, strong arguments can be made for assigning them
water quality regulatory powers. If they do not exist, areawide planning
agencies must assess the political realities of urging major governmental
overhaul in the context of water quality planning. Attempts at general
governmental reorganization in the context of federally-mandated water
quality planning could irritate local officials and political groups as
an unwarranted federal intervention in local affairs. Needed political
support for pollution control regulation could be undermined in the process,
3.4 Regional Councils
Regional councils such as voluntary councils of governments or associations
of local governments established by the state, or substate regional plan-
ning districts could be expanded to take on regulatory responsibilities.*
Typically, today, they plan for various governmental services, coordinate
local governments, administer A-95 commenting procedures, and provide
technical assistance to member localities. Their assets, as regulators,
would be:
-Ability to coordinate planning. Regional councils are able to coordinate wafer
quality management planning, comphrehensive land use planning, and other
^Another type of regional council in the United States is the Twin Cities
Metropolitan Council. This council, created by the state, has authority
over some multicounty special-purpose agencies, including the Metropolitan
Sewer Board. It also has acquired some powers over land use in the region.
While this is an interesting institutional approach to solving areawide
problems, it is the only body of this type in the United States and so is
excluded here.
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regional planning. Most areawide wastewater management planning
organizations are regional councils, and if water quality planning
countinues after the initial two years of effort, regulation could be
closely linked with planning. The likelihood of plan implementation
would increase if the planning and regulatory functions were conducted
by the same agency. While local public works departments or sanitary
districts can coordinate regulation with their other water quality
operational functions, regional councils can better coordinate water
quality regulation with water quality planning and other planning tasks.
-Geographic adequacy. Regulatory programs could be established, conducted,
and evaluated in a large enough region to more closely match the boundaries
of the pollution problem. A regional council usually includes several
counties and municipalities in its jurisdiction.
There are disadvantages to assigning regulatory powers to regional councils
including:
-Lack of Constitutional Authority to Regulate. Most COG governing boards
apportion representation of member governments on a one government, one
vote basis, to appease smaller units that fear central city domination.
Although the one-person, one-vote standard applies to local governments,
courts have thus far refused to extend it to COGs, reasoning that COGs
perform a purely advisory role and do not exercise governmental power.
However, courts might think that water quality regulation satisfies the
governmental power test. 22j
-Little experience in water pollution control and lack of technical
expertise.
-Inability to coordinate effectively with local governments. Regional coun-
cils may have difficulty coordinating their activities with local governments
and may sometimes seem to be rivals for service delivery assignments.
-Political difficulty of giving most regional councils regulatory powers.
Today, these agencies have no regulatory and few implementation powers,
and local governments and states are not likely to approve their addition.
Hein sees councils of government as the least likely institution to be
built into strong regional governmental structures. 23/ He describes
the nebulous character of the umbrella-type regional council:
If floats above the counties and cities with no visible
means of support. To the cities and counties of the
region, it is a voluntary association of local government,
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1-20
which they control .... [R]egional government as an
agency of various federal programs and agencies . . .
is an umbrella suspended from the federal ceiling, held
up by cords of federal money .... As a clearinghouse
(A-95 review) it is expected to make judgements and take
actions that way be perceived as harmful by member
counties and cities. This contradicts its original
function of protecting and serving its members. 247
Mogolof has listed five forms of government that appear stronger than
councils of government: the urban county, transfer of functions to
state government, metropolitan special districts, federations, and city-
county consolidations. 25/
3.5 The State
The institutional design criteria favoring assignment of regulatory
powers to state agencies include:
-Geographic adequacy. State agencies have a broader geographical per-
spective than localities or substate regions. Solutions based on
riverbasins or watersheds can increase the economic effectiveness of
the regulatory program.
-Coordination of controls and planning. Coordination of water quality
regulatory controls with water quality planning is assigned in most
states to a water pollution control agency. Also, regulation of point
sources, which involves the state water pollution control agency, could
be better coordinated with regulation of nonpoint sources, if performed
by the same agency.
-Comprehensiveness and effectiveness. The state, operating through the
governor's office, state planning office, and budget office, can coor-
dinate water quality pursuits with planning and regulation of water
supply, natural resource protection, and other economic, social, and
environmental objectives. As in any general-purpose government, trade-
offs can be assessed, a balance sought, and priorities set among many
governmental responsibilities.
-Equity. All similar sources within the state are likely to receive
similar regulatory treatment.
-Legal sufficiency. States have police powers that allow them
constitutionally to regulate private lands, if that is needed for
nonpoint source control and location of sewer lines, for example.
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-Pollution regulatory experience. States have the most experience
regulating rural dispersed sources, such as agriculture, silviculture,
and mining. Also, regulation of point sources for water pollution
control is traditionally a state responsibility. In some states that
have regulated erosion and environmentally sensitive areas, regulation
of urban nonpoint sources (stormwater and erosion), as well as rural
sources, would be in keeping with the existing governmental style and
tradition. These states are exceptions, however. In most states where
urban stormwater and suburban erosion are regulated, local governments
are the main regulators. In those states, one of the main arguments
against a state regulatory role is that nonpoint source regulation
associated with urban growth is politically unacceptable for state govern-
ment. In these states, regional or state regulation of nonpoint pollution
associated with urban and suburban growth is considered an unwarranted
infringement on local rights and traditions.
Other problems with additional state regulation are:
-Lack of accessibility. Local citizens have less access to and control
over state regulatory agencies than local ones because of geographical
and political distance. However, minority interests may receive more
attention from state agencies than from local ones.
-Less political acceptance. States may prove less politically accept-
able than localities as drafters of regulations over previously uncon-
trolled sources. 26 / The cost of carrying out a regulatory program may
be much higher if a state has to hire surveillance and enforcement
personnel to inspect all urban nonpoint source sites rather than if a
local agency, using mostly existing staff and local administrative pro-
cesses, carries out these tasks.
3.6 Summary
The functions that localities perform best are generally considered to
be the ones that have minimal impact on neighboring jurisdictions or
require considerable political accountability, popular participation,
and continuing political support for efffective performance. _27/
Permitting, site inspections, and surveillance for urban and suburban
erosion prevention can be conducted locally. However, some municipal-
ities may lack the technical expertise to develop standards for these
urban/suburban sources and to conduct instreatn water quality monitoring.
When large polluters are involved, localities may suffer incapacitating
political pressures which prevent effective standard-setting and enforcement,
States have the expertise to set standards, to perform in-stream monitor-
ing and to bring major enforcement actions for stormwater and suburban
erosion control, but they are often unable to tap local public
opinion or encourage needed citizen participation to support contro-
versial land use related programs. State action may be required
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to ensure equitable treatment of pollution sources throughout the state,
to stimulate local action on urban nonpoint pollution, and to provide
localities with the technical assessment of pollutants and water quality
impacts. States will likely have a greater role in regulation of rural
nonpoint sources, including standard-setting, permitting, monitoring,
and enforcement of controls on agriculture, silviculture, and mining
pollution.
Areawide planning agencies are best able to conduct and coordinate
planning for land use and water quality through a continuing planning
process. Some regional councils are also able to coordinate water
quality planning with capital improvement plans for their region. How-
ever, these agencies may lack the experience and state and local political
support required to take on direct pollution regulation.
As a rule, regulatory functions are most compatible with the other
responsibilities and capabilities of general-purpose city, county, or
state governments, rather than with those of special-purpose districts
and regional planning agencies which have less public accountability,
political support, and program flexibility. The experience of the U.S.
Soil Conservation Service illustrates the strengths of political rather
than natural resource boundaries. The service started with a preference
for watershed boundaries for its local soil conservation districts, based
on hydrological and technological considerations. However, the service
shifted to countywide districts, which fitted better into the political
and legislative system of the states. Political and legislative support
turned out to be more important to the service than natural environmental
considerations. 28/
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4.0 Intergovernmental Strategies
As the foregoing discussion illustrates, state, local, and areawide
governments have assets and capabilities which differ from state to
state. The answer to the question "Which level of government should
regulate?" usually is "All."a sharing of responsibilities with each
level performing the functions it handles best. Environmental success
stories point to the strength of intergovernmental action. The issue
becomes how to draw the levels of government together into specific
institutional arrangements.
4.1 The Existing Institutional Setting for
Intergovernmental Strategies
Today's institutional maze in which water quality agencies will oper-
ate consists of many agencies of general-purpose local, state, and
federal governments; regional planning bodies; and a wide array of
special-purpose authorities, some serving small local jurisdictions
and others serving entire metropolitan regions, river basins, or water-
sheds. Local government fragmentation has greatly increased since the
1960s, mainly because of the continued proliferation of special dis-
tricts for sewage treatment, water supply, fire protection, and other
services. By 1972, there were over 1,000 areawide special districts
and authorities in metropolitan regions. Sanitary districts were the
most common, numbering over 300._29/ Most special districts are located
within a single county._30/ The fragmentation process has been stimu-
lated by federal areawide grants and planning requirements, combined
with local governmental reluctance to reorganize themselves to meet
demands for regional services. Furthermore, the boundaries of most
of these special districts differ. Each was established to optimize
the economic efficiencies and political necessities of one particular
governmental service, and each type of service has its own optimum
jurisdiction from these standpoints.
Excessive fragmentation of governmental agencies has produced ineffi-
cient and inequitable services and regulations. One town or county
passes along the costs of poor waste management to its neighbor in
the form of pollution. These external diseconomies, as they are called,
also occur when provision of one service is promoted to the detriment
of other governmental objectives in the same community. In some cases,
functions are assigned to jurisdictions that do not have the management
expertise, sufficiently broad geographic perspective, or adequate legal
authority to regulate or perform the required service.
Federal, state, and local units have pursued regional strategies that
often work at cross-purposes and create tensions between general-purpose
local governments and special districts, or between planning agencies
and operating authorities. Plans are drafted by regional councils that can
neither implement the plans nor ensure conformance of special districts and substate
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entities with those plans. Affected individual citizens and groups have
been shut out from effective participation in governmental decisions and
are unable to recall or otherwise control some decisionmakers, such as
those administering special districts.
Many different procedures and structures have been utilized in an attempt
to increase intergovernmental cooperation and overcome problems of metro-
politan fragmentation. Multipurpose special districts, single-purpose
special districts over several counties, intergovernmental agreements,
voluntary metropolitan councils of government, and urban counties have
been established in some instances. Twenty percent of the states have
sought metropolitan regional reorganization. 31/ Researchers and metro-
politan reformers have urged multipurpose regional governments, but few
have been created. Recent research has identified the county, reorganized
and given urban powers, as the core of what is called metropolitan govern-
ments in the United States. 32/ There are no multicounty general-purpose
metropolitan governments in the United States, nor are there any multicounty,
multipurpose metropolitan special districts. 33/ The Municipality of
Metropolitan Seattle (Seattle Metro), a special district, has two functions,
wastewater and transportation management, but operates essentially in one
county, King County.
Local elected officials and the voters have opposed major reorganizations of
local governments into larger, unified governments. Since 1945, only seven
city-county consolidations have been approved by the voters in areas with
populations over 100,000. 34/ Creation of metropolitan federations is even
rarer. The Twin Cities (Minnesota) Regional Council, along with its Metro-
politan Sewer Board, is often cited as an example of a two-tiered metropolitan
federation in which a multicounty regional council controls a special-purpose
multicounty district. It is, however, the only instance of this governmental
structure in the United States, and it has been characterized as a state agency,
not a regional one. 35/ Usually, it has been more politically acceptable
for local decisionmakers to act on a function-by-function basis and establish
an independent special district or to enter into an interlocal contract than to
seek multipurpose regional governmental approaches.
Intergovernmental service agreementsprocedures to achieve cooperative
actionsare a common practic among local governments, particularly for sewage
and solid waste disposal and water supply, often because there is no practical
alternative. Cooperation is more apt to come in areawide rather than local
aspects of a function. A 1972 survey showed over twice as many agreements in
the sewage disposal function as in the construction of sewage lines. 36 /
Metropolitan and suburban jurisdictions are most frequently involved in
service agreements. Rural municipalities in at least 16 of the 71 functions
surveyed made heavier use of state agencies for interjurisdictional co-
ordination. 37/
4.2 Representative Intergovernmental Strategies
While bold government restructuring may be the only way to achieve truly
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comprehensive regional environmental management, initial water quality
management planning efforts may want to focus on improving the effectiveness
of any communication and coordination between existing institutions. Once
the present structure has been rationalized, more innovative approaches
will be easier to accomplish.
A particularly successful intergovernmental regulatory strategy for control
of certain pollution sources, including erosion, septic tanks, and stormwater,
might be to have the state set minimum standards and implementation guidelines.
Local governments, soil conservation commissions, or sanitary districts could
then adopt standards at least as strict as the state's, and establish a
permitting, surveillance, and enforcement process. The state could share
enforcement powers or maintain an appeals process to hear complaints about
local decisions. Local ordinances would be approved by the state agency,
and local performance reviewed periodically. If the local agency failed
to adopt such an ordinance or did not administer it adequately, the state
agency would assume responsibility for that jurisdiction. State standards
would be in effect until a local ordinance was adopted. Localities could
adopt more stringent standards. Typically, mining, forestry, and agricultural
practices would be covered by state permitting and enforcement processes,
not local ones. State agencies might also provide the localities with funds,
technical assistance, access to computers,and environmental data, upon request.
Virginia uses this general approach to control erosion from large-scale
construction activities (most other erosion sources are exempt). 38/ The
Virginia Soil and Water Conservation Commission sets minimum standards and
guidelines for local implementation. Conservation districts, after approval
of their erosion control program by the state commission,' establish conser-
vation standards for various types of soils and land uses, including control
techniques; review and approve control plans of individual construction
applicants; issues permits; and conduct monitoring, inspections, and enforcement,
Where there is no conservation district, or where the local govenment has a
state-approved program (whether or not a district exists), the locality
develops the erosion and sediment control program and exercises the responsi-
bilities of a district. However, the local government can assign any of
these jobs to the local conservation district by joint agreement. A town
within a county can adopt its own program, establish a joint program with
the county, or assign responsibility to the conservation district. The state
conservation commission may review erosion and sediment control plans when
applicants request commission approval and the plan involves land in more
than one local jurisdiction. The state commission also reviews erosion and
sediment control plans of state agencies. Final decisions of the conservation
districts can be reviewed by the state commission, which are then subject
to court review.
Another common sharing of responsibilities between state and local governments
is demonstrated by regulation of septic tanks in North Carolina. 39/ The
state established standards and guidelines for approval of septic tanks.
Local health officers issue permits, conduct site visits, surveillance, and
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enforcement for septic tanks up to 10,000 gallons. The larger septic
tanks, those for large commercial establishments, must receive permits
from the Department of Natural and Economic Resources (DNER) in Raleigh.
DNER has been training local sanitarians and providing technical assistance
to local programs to help ensure that local permit issuance will not mean
reduced pollution control. In other states, septic tank regulation might
also involve regional planning agencies which could conduct soil surveys
and map an area's acceptability for such disposal. Meanwhile, the state
could set standards and legal minimum that localities would enforce
through permits.
Intergovernmental approaches may be appropriate for regulating dischargers
to public sewer systems. EPA, the state water quality agency, and local
governments or sanitary districts could divide responsibilities for standard-
setting, permitting, monitoring, and enforcement.
In deciding where to assign land use controls, the literature 4Q/ generally
supports a sharing of powers between regional or state agencies and muni-
cipalities, which means an incremental shift of local controls to higher
authorities. In almost every case, however, the need for continued local
administration is stressed. Recommendations usually call for regional or
state standards for local land use controls. Regional standards would
govern large-scale developments and critical environmental areas. Some
states have sought to have these significant developments first viewed
locally and then regulated by a regional or state agency. One analyst
suggests an appeal from local zoning action to a regional or state agency
or special court. 4I/
Other land use reformers suggest that land use controls be granted
selectively to local governments, such as only to larger municipalities and
those that effectively use the controls. 42/ Some analysts suggest that
joint interlocal zoning be conducted or that urban counties be more
involved. 43/ By assigning land use controls for water quality to a general-
purpose land use regulatory agency, such as a zoning commission rather than
a water agency, land use management can pursue multiple objectives and avoid
a myopic focus on water quality.
The Bade County, Florida government is an example of an urban county with
land use powers. It has subdivision control power over the entire county,
including the area inside municipalities. It also zones areas outside
incorporated municipalities and sets minimum performance and service standards
for municipalities. The county reviews municipal conduct of its powers and
can take over inadequately performed functions. Also, Bade County has a
coordinated permitting process. The Bade County Development Impact Committee
(DIG) is made up of the representatives of various county departments affecting
developments, as well as other state and local authorities which influence
or are influenced by development. 44/ The DIG reviews all developments of
county impact and development impact statements, and either resolves conflicts
or refers them to the County Executive Commission for resolution.
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1-27
The Bade County DIG represents an attempt to provide a key ingredient
needed in intergovernmental strategies: effective and improved inter-
governmental and interagency coordination. Decentralized governmental
systems are more complex than unified approaches with just one regulatory
agency. However, these decentralized, intergovernmental patterns are less
disruptive of existing governmental roles, can draw on the strengths of
all participating jurisdictions, and will likely be favored by wate<" quality
management planners.
The means of achieving coordination among water quality actions and
agencies can vary from area to area. Some communities may rely on sucn
procedural techniques as the use of A-95 reviews or environmental impact
statement reviews. Other coordination techniques include intergovernmental
contracts and agreements for the joint exercise of powers. New review and
approval procedures may be established that require a water quality co-
ordination agency to approve government grants or construction that affects
water quality. Other planning areas may seek organizational solutions
involving the transfer and consolidation of functions within a new or
existing agency of government.
When several agencies are involved in regulation, planning, and management,
some agency, such as the state water quality agency, should be designated as
the lead agency or chief coordinator. The coordinating agency must be able
to impose sanctions against local, regional, and state agencies that fail to
comply with provisions of the plan. The states are ultimately responsible
for adoption and implementation of effective areawide water quality plans. 45/
One coordination approach is suggested by the Model Land Development Code,
which calls for local governments to be allowed to exercise additional land
use controls if they develop their controls in accordance with state or
regional standards. 46 / The Virginia erosion control law, previously dis-
cussed, utilizes such an approach.
In Washington, 47/ Virginia, _48/ --md Vermont,49/ permit coordination laws are
used to link state agency procedures, hearings, and deadlines when more than
one state agency issues a development or construction permit. Local agencies
could be allowed to participate in these permit coordination processes. These
states' coordination laws are limited, however, because the coordinated process
is optional with the applicant. If the state would benefit but the applicant
would not, no coordination is achieved. Other coordination techniques that
could be used include adoption of state and local growth policies to achieve
environmental, as well as other social and economic goals; coordination of
state agency planning; and environmental appellate review.50/
5. 0 Appropriate_Agencyj PojJLtics, Personalities^ and Professions
The previous section discussed the impact of structure and governmental form on
.regulatory programs. However, in assigning regulatory powers structure may
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not be as important as the politics, personalities, and professions that
characterize the regulatory agency and its staff. These considerations are
particularly important in deciding which agencies should regulate which water
pollutants after the level(s) of government are selected.
A regulatory agency's relationship with political parties, legislators, mayors,
and pressure groups is critical, as are the personalities of the top managers
and t'w behaviorial aspects of agency personnel. Indeed, Hein concludes that
structure appears to be less important than "political, personality and
situitional iactors" in raising the issue of limiting growth and enforcing
noise and visual pollution controls. 51/ If a state or local agency has
received substantial political support in the past, it may be more politically
acceptable as a water quality regulator. Governing bodies may be more inclined
to give that agency the necessary statutory authority and funds for regulation.
The professional makeup of the regulatory agency will influence its approach
to regulation. Engineers tend to perform differently from lawyers. As Irwin, Selig,
et al. point out, engineers will emphasize the need for cooperative relationships
with dischargers to achieve compliance and stress negotiations between engi-
neers. 52 / Engineers as regulators tend to settle for less than perfect
compliance, while keeping one eye on utimate objectives. Engineers tend to view
available resources for abatement as fixed and not to be challenged. On the
other hand, lawyers may fear that agency cooperation will be misused by sources
to gain unnecessary delays. They tend to focus on what the law says must be
done and less on limits to available resources. Lawyers are more likely than
engineers to favor adversary proceedings of both the judicial and administrative
sort and to view sanctions and adversary proceedings as deterrents to other
potential, polluters.
The effect of interest groups will vary from agency to agency. It is relatively
easy for a special technological constituency and professional staff to control
a special district which is based on the paramount importance of technological
solutions. Nontechnological constituencies will be less influential with special
districts. On the other hand, general-purpose governments will likely involve
more persons and interest groups than just the technologists.
Different administrative styles result from different agency histories,
constituencies, legal authority, and professional disciplines. In state
government, the water pollution control agency is likely to be staffed
largely by sanitary and other engineers and to a lesser extent by biologists
and other scientists. More recently, these agencies have added attorneys
to the staff as regulation has been stepped up. State health departments
also hire engineers and public health school graduates, and have a close
relationship with the local health departments which, in many instances,
carry out state regulations for septic tanks, water supply, and solid waste
disposal sites.
Conservation departments, with responsibility for fish, wildlife, wetland,
forestry, and parks, are staffed more by natural resource managers. They
tend to emphasize direct land and water management approaches, technical assi-
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1-29
stance, and charges to users and to have a less adversarial regulatory style.
Planning agencies at all levels have a mix of professional disciplines, including
natural scientists, economists, and political scientists; however, most
are planning school graduates. The legal staff is minimal or nonexistent
since these agencies have no regulatory responsibilities.
Agencies that have traditionally conducted regulatory programs are usually
best able to quickly assimilate a regulatory perspective over nonpoint sources.
The agencies that have provided farmers, mining companies, and foresters with
technical and financial assistance, as well as direct management aid, may be
unable to adopt enough of an adversary posture to conduct an effective regul-
atory program over the same parties. The assistance function could continue
to dominate the regulatory responsibility.
For example, in some regions, the soil conservation districts have such
strong ties to farmers as technical assistants that it would be extremely
difficult for them to adopt a regulatory posture and to add concern for water
quality to their previous mission of soil conservation. In other areas, the
soil conservation districts may be more inclined to regulate erosion than a
state water pollution control agency which regulates point sources but resists
nonpoint source controls. Attitudes often vary with the personality and
viewpoint of agency staff and leadership.
The same consideration applies at the local level. A city's public works
department or sanitary district, which traditionally has been a service organi-
zation, may find it difficult to adopt an administrative style and professional
mix to regulate the same municipal and industrial users. However, building
inspectors, county health departments, zoning commissions, and environmental
departments have a history of local regulation and have the staff, procedures,
and attitudes to regulate water pollution sources.
State water pollution control agencies' styles also vary from state to
state. Where pollution problems are particularly severe, and political support
for tough enforcement is strong as, for example, in Illinois, New York, and
Calif ornia-the r-t ate has an enforcement style based on administrative proceed-
ings and court actions. Other states emphasize cooperative compliance in which
state's engineers work with sources in a technical assistance mode. Here,
sources comply voluntarily for the most part. The staff works with the dis-
charger on his problem and does not confront him with the full force of the
law. In some states, statutes emphasize informal negotiation. In any state,
however, a considerable amount of compliance depends on voluntary compliance
by sources, negotiation, and consent orders, a negotiated agreement enforced
in the courts. If this regulatory pattern is applied to nonpoint sources,
then a major consideration in assigning regulatory jobs is who can strike the
best bargain with the dischargers to achieve a solution the regulatory and reg-
ulated parties can accept.
Irwin, Selig, et al. point out that bargaining style has important substantive ram-
ifications for enforcement. They identify as characteristics of an ef-
fective f>n!V- A /! o'Tvam:. (1) visibility of pressures (the willingness
to seek pt-nalt !«<<, in response to violations); (2) consistency (and therefore
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1-30
predictability); and (3) a certain amount of distance between the regula-
tors and the regulated._53_/ Ultimately, the"question must be asked, "Which
agency and administrators have a history of political stamina to enforce
pollution controls effectively?" Hines, in his 1971 study of water pollu-
tion regulation, concludes that "the problem with administration of water
quality laws has not been too much flexibility, but too little backbone to
use coercive measures when conciliatory approaches fail to produce com-
pliance. "54/
6.0 Role of Citizen Boards and Professional Agencies
After levels of government and agencies are selected as water quality regu-
lators, a third institutional issue arises: what should be the role of
elected or appointed boards and fulltime professional staffs? State and
local governments use a variety of citizen boards and commissions to reg-
ulate water pollution, to administer zoning and other land use controls,
and to direct special districts. Some boards are elected, others appointed
by the governor, city or county council, or mayor. These boards exercise
a variety of policy setting, budgetary, regulatory, adjudicatory, planning,
and review powers. Some are purely advisory to full time agency staff.55/
A 1974 survey of cities indicates that more cities are likely to expand
existing boards (51 percent) than to create new ones to perform environmental
functions. 5J5/ Environmental matters are assigned to planning commissions,
parks and recreation commissions, or historic preservation boards. However,
in only 14 percent of these cities were boards given any enforcement functions
Most employ education, investigation, and advisory techniques.
These state and local citizen bodies can be particularly useful in generating
political support and voter acceptance for regulatory programs and in expand-
ing citizen participation in decisionmaking. Thus, some states have found
them useful in adopting regulations, environmental performance standards,
and land use plans. An advantage of local and state boards is that their
business is usually conducted in public, opening up governmental decisionmak-
ing processes to the view and participation of the public.
However, citizens who serve part time and who are usually unpaid are less
effective in making decisions that require considerable technical expertise
or investment of time, such as issuing permits, conducting surveillance, or
bringing enforcement actions. Professional agencies do these jobs better.
Citizen boards tend to operate in an ad hoc manner and may treat similar pol-
lution sources differently. Their decisions tend to be based on personal
points of view and less on policy implications and rigorous analysis. A group
of decisionmakers acts less decisively than a full time professional staff and
moves more slowly in abating a pollution crisis. A department that must await
a consensus from a governing board is slowed in its regulatory process. A ma-
jor criticism of appointed boards is their lack of political accountability
and their dilution of the chief executive's administrative abilities. Since
members serve staggered terms and can be removed only for "cause," it takes a
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1-31
governor, city council or mayor several years to appoint a majority.
Furthermore, some board members may have conflicts of interest between
their regulatory duties and their full time jobs. For example, many
realtors and builders serve on zoning commissions. An ordinance re-
quiring public financial disclosure and forbidding conflicts of interest
may be appropriate if regulatory powers are assigned citizen boards.
In conclusion, boards composed of appointed or elected members could
adopt goals and policies, while the day-to-day implementation of those
policies should be left to professional, technical staffs.
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CHAPTER ONE
CHOICE OF APPROPRIATE LEVELS AND AGENCIES OF GOVERNMENT FOR
PERFORMANCE OF SECTION 208 MANAGEMENT TASKS
FOOTNOTES
1. William A. Irwin, Edward I. Selig, Khristine L. Hall, Alan S. Miller,
Richard A. Liroff, and Jeffrey N. Shane, Enforcement of Federal and
State Water Pollution Controls: A Report to the National Commission
on Water Quality 5 (Washington, B.C.: Environmental Law Institute,
1975) [hereinafter cited as Irwin et al.] (available from the National
Technical Information Service: PB 246 321 (vol. 1); PB 246 322 (vol.
2); PB 246 320 (vols. 1 and 2)).
2. For additional discussion of water quality regulation, see id.;
Matthew Holden, Jr., Pollution Control as a Bargaining Process
(Ithaca, N.Y.: Cornell University Water Resources Center, 1966);
and N. William Hines, Public Regulation of Water Quality in the
United States (Washington, B.C.: National Water Commission, 1971).
3. Holden, Pollution Control as a Bargaining Process, supra note 2.
4. Irwin et al., supra note 1.
5. Advisory Commission on Intergovernmental Relations, Governmenta1
Functions and Processes: Local and Areawide 8, Substate Regionalism
and the Federal System, vol. 4 (Washington, D.C.: Government Printing
Office, 1974) [hereinafter cited as 4 ACIR].
6. T-d. at 7.
7. Id.
8. Marion Clawson, Suburban Land Conversion in the United States; An
Economic and Governmental Process 5-9 (Baltimore: Johns Hopkins Press,
1971).
9. Advisory Commission on Intergovernmental Relations, Regional Decision-
Making: New Strategies for Substate Districts 12, Substate Regionalism
and the Federal System, vol. 1 (Washington, D.C.: Government Printing
Office, 1973) [hereinafter cited as 1 ACIR].
10. C. J. Hein, Joyce M. Keys, and G. M. Robbins, Regional Governmental
Arrangements in Metropolitan Areas; Nine Case Studies (Washington,
D.C.: Government Printing Office, 1974) [hereinafter cited as
Hein et al.].
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I-FN-2
11. 1 ACIR, supra note 9.
12. 4 ACIR, supra note 5.
13. jCd.
14. Advisory Commission on Intergovernmental Relations, The Problems of
Special Districts in American Governments 73-85 (Washington, D.C.:
Government Printing Office, 1964).
15. California Council on Intergovernmental Relations, Allocation of
Public Service Responsibilities 20 (Sacramento, 1970); Report of
the Governor's Special Commission on Local Government 8 (Lansing,
Mich., 1972); and Special Commission Relative to the Finances and
Operations of the Massachusetts Bay Transportation Authority, First
Report 8, House Document 5671 (1969).
16. Hein et al., supra note 10, at ii.
17. 4 ACIR, supra note 5, at 51.
18. Id. at 49.
19. Hein e_t aJL. , supra note 10, at ii.
20. Id. at 225.
21. Id.
22. Michael Jungman, "Areawide Planning Under the Federal Water Pollution
Control Act Amendments of 1972: Intergovernmental and Land Use Impli-
cations," 54 Tex. L. Rev. 1047, 1070 (1976).
23. Hein _et _al. , supra note 10, at 225.
24. Id.
25. Melvin Mogulof, Governing Metropolitan Areas; A Critical Review of
Council of Governments and the Federal Role (Washington, B.C.: Urban
Institute, 1971); and id., Five Metropolitan Governments (Washington,
B.C.: Urban Institute~1972) .
26. The lack of an areawide planning element in the Clean Air Act has
caused some persons concern. For example, Roger Strelow, in "Review-
ing the Clean Air Act," 4 Ecol. L. Q. 583, 589 (1975), wrote,
"There is growing recognition that if regulations impacting heavily
on people's lifestyles are developed too far away from the 'grass
roots,' the public will neither support nor accept them."
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I-FN-3
27. 4 ACIR, supra note 5, at 68.
28. Robert J. Morgan, Governing Soil Conservation: Thirty Years of the
New Decentralization (Ames, Iowa: Iowa State University Press, 1965).
29. 4 ACIR, supra note 5, at 46.
30. While, in 1972, 2,418 special districts had boundaries extending into
two or more counties, three-fifths of these were soil conservation
districts located in nonmetropolitan areas. 1 ACIR, supra note 9,
at 2.
31. Hein e_t al., supra note 10, at ii.
32. Id. See also Mogulof, Five Metropolitan Governments, supra note 25.
33. Hein et al., supra note 10.
34. 1 ACIR, supra note 9, at 12.
35. Hein .et al., supra note 10, at 225.
36. 4 ACIR, supra note 5, at 32.
37. For additional information on governmental arrangements in metro-
politan areas, see Hein et al., supra note 10; I and 4 ACIR, supra
notes 9 and 5; Roscoe Martin, Metropolis in Transition: Local
Government Adaptation to Changing Urban Needs (Washington, D.C.:
Government Printing Office); Mogulof, Governing Metropolitan
Areas: A Critical Review of Council of Governments and the Federal
Role, supra note 25; Committee for Economic Development, Modernizing
Local Government (New York, 1966); id. , Reshaping Government in
Metropolitan Areas (New York, 1970); and National Commission on
Urban Problems, Building the American City (Washington, D.C.:
Government Printing Office, 1968).
38. Erosion and Sediment Control Act, Va. Code tit. 21, ch. 1, Soil
Conservation Districts Law, id., §§ 21-89.1 to 21-89.15 (Cum. Supp.
1975).
39. For a discussion of the North Carolina regulation of septic tanks,
see Elizabeth H. Haskell, Land Use Organizations for North Carolina
76-77 (Raleigh: North Carolina Land Policy Council, 1976).
40. See 4 ACIR, supra note 5, at 65; Fred Bosselman and David Callies,
The Quiet Revolution in Land Use Controls (Washington, D.C.:
Government Printing Office, 1971) ; Rockefeller Brothers Fund Task
Force, The Use of Land (New York: Crowell Co., 1973); and Clawson,
Suburban Land Conversion in the United States: An Economic and
Governmental Process, supra note 8.
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I-FN-4
41. Clawson, Suburban Land Conversion in the United States; An Economic
and Governmental Process, supra note 8, at 345-46.
42. David Heeter, Toward a More Effective Land Use Guidance System; A
Summary and Analysis of Five Major Reports (Chicago: American Society
of Planning Officials, 1969).
43. U.
44. Fred P. Bosselman, Duane A. Feurer, and Charles L. Siemon, The
Permit Explosion: Coordination of the Proliferation (Washington,
D.C.: Urban Land Institute, 1977).
45. U.S. Environmental Protection Agency, State Continuing Planning
Process Handbook 5 (Washington, B.C., Dec. 1975).
46. American Law Institute, A Model Land Development Code, Proposed Official
Draft, Articles 2 and 3 (Philadelphia, 1975).
47. For a description of the Washington Environmental Coordination Pro-
cedures Act, see C. E. Corker and R. W. Elliott, "The Environmental
Coordination Procedures Act of 1973, or ECPA! ECPA.' RAH RAH RAH!"
49 Wash. L. Rev. 463 (1974).
48. For a description of the Virginia law, see Hearings Before the Subcomm.
on Fisheries and Wildlife Conservation and the Environment of the
Virginia House Comm. on Merchant Marine and Fisheries (Sept. 18, 1975)
(testimony of Gerald P. McCarthy, Chairman, Va. Council on the Environ-
ment, and appendix).
49. For a description of the Vermont law, see Interagency Permit Committee:
Interim Report, Part II, to Honorable Thomas P. Salmon (Oct. 30, 1975).
50. For a description of these various land use and environmental coordina-
tion techniques, see Bosselman, Feurer, and Siemon, supra note 44.
51. Hein &t^ al^. , supra note 10, at 212.
52. Irwin ej: al.. , supra note 1, at 37.
53. Id. at 8.
54. Hines, Public Regulation of Water Quality in the United States, supra
note 2, at 580.
55. Elizabeth H. Haskell and Victoria Price, State Environmental Management;
Cases Studies of Nine States 270-71 (New York: Praeger, 1973).
56. Steve Carter, Murray Frost, Claire Rubin, and Lyle Sumek, Environmental
Management and Local Government 35 (Washington, D.C.: Government
Printing Office, 1974).
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CHAPTER TWO
LEGAL ISSUES IN WATER POLLUTION REGULATION
TABLE OF CONTENTS
1.0 Introduction II-l
2.0 Sufficiency of Enabling Authority II-2
2.1 Sufficiency of Pollution Control Power Delegated
to State Agencies II-2
2.1.1 State Water Pollution Control Laws II-2
2.1.2 Other Sources of Enabling Authority
for State Water Pollution Control II-3
2.2 Sufficiency of Pollution Control Power Delegated
to Local General Purpose Units II-4
2.2.1 General Land Use Enabling Authority II-5
2.2.2 Special Pollution Control Enabling
Authority II-6
2.2.3 Home Rule Powers II-6
2.3 Sufficiency of Pollution Control Power Delegated
to Regional Planning Agencies or Other Entities II-7
2.4 Sufficiency of Pollution Control Power Delegated
to Special Purpose Units of Government, II-7
2.5 Preemption of Local Regulations by State
Pollution Controls 11-12
3.0 Other Constitutional Tests 11-12
3.1 Regulatory Compliance with Statutory Procedures 11-12
3.2 Valid Objectives Served by Point and Nonpoint
Source Pollution Regulations 11-12
3.3 The Relationship Between Regulatory Standards
(the Means) and Regulatory Goals (the Ends) 11-13
3.4 Equal Protection 11-15
3.5 Standards for Delegating Discretionary Powers
to Regulatory Agencies and Boards 11-15
3. 6 The Taking Issue 11-16
Footnotes
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CHAPTER TWO
LEGAL ISSUES IN WATER POLLUTION REGULATION
1.0 Introduction
Water pollution regulation for point and nonpoint sources raises a number
of legal issues pertaining to the scope of regulatory powers and the
compliance of regulations with broader constitutional requirements.
Five common questions regarding the scope of enabling authority are discussed
below:
1. Are state agencies delegated sufficient power
to regulate point and nonpoint pollution sources?
2. Are local, general purpose units of government
delegated sufficient power to regulate point
and nonpoint sources under (a) general land use
control statutes, (b) special enabling statutes,
or (c) home rule powers?
3. Are regional planning agencies or other regional
entities delegated sufficient powers under one or
more sources of enabling authority?
4. Are special purpose units of government delegated
such powers?
5. Do state pollution regulations preempt local
regulations across the board or under certain
circumstances?
Assuming adequate enabling authority, state and local regulations must meet
added constitutional tests. Common issues also discussed below include:
1. To what extent must regulations comply with statutory
procedures?
2. Do point and nonpoint controls serve
valid police power objectives?
3. To what extent must regulatory standards
(the means) be related to regulatory
goals (the ends)?
4. To what extent must regulation treat similarly
situated property owners equally?
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II-2
5. To what extent must regulations contain specific
standards in delegating discretionary powers
to regulatory boards?
6. To what extent may pollution controls diminish
property values without invalidly "taking"
private property?
Each issue will be discussed in turn.
2.0 Sufficiency of Enabling Authority
2.1 Sufficiency of Pollution Control Power Delegated to State Agencies
State agencies possess only those regulatory powers expressly granted or necessarily
implied from enabling legislation.JL/ Regulations which exceed the scope of
enabling legislation violate state and federal due process requirements
and are invalid. Authority for adoption of point and nonpoint pollution control
regulations may be found in specific water pollution control legislation
or other land use control statutes.
2.1.1 State Water Pollution Control Laws
A 1975 report prepared for the United States Environmental Portectlon
Agency, Compilation of Federal. State and Local Laws Controlling Nonpoint
Pollutants 2/ analyzes and quotes statutes authorizing state regulation of point
and nonpoint water pollution. This report concludes that states have adequate
water pollution control enabling authority for most point sources but
not for nonpoint sources. The report places water pollution legislation
in four main categories with regard to nonpoint sources : _3/
1. Statutes which deal only with point source pollution and are not
broad enough to include pollution from nonpoint sources. The report suggests,
but does not conclude definitively, that the statutes of Nevada, Iowa,
and Kansas fall in this category.^/
2. Statutes which specifically cover both point and nonpoint sources. Only
Massachusetts and Georgia apparently qualify.^/
3. Statutes which do not specifically consider point or nonpoint sources
of pollution (since no specific reference is made to the source of pollution).
The report indicates that the legislation of more than half of the states falls
into this category and that "[b]ecause the statutes are broadly drawn and
not limited by references to specific types or sources of pollution, the
state agency responsible for administering the statute apparently has
a sufficiently broad legislative mandate to regulate and abate pollution
from both point sources and nonpoint sources."j>/
4. Statutes which do not specifically address point or nonpoint
pollution or which include a definition of point source pollution
but no corresponding reference to nonpoint sources in the legislation.
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II-3
The report ambiguously concludes that:
It is certainly arguable in states with such legislation
that, although specific types of pollution are referenced
in the legislation, the general purpose clause and the
general definition of pollution are sufficiently broad
to include nonpoint sources of pollution. However, it
is also arguable that when the legislatures enacted
statutes which specifically mention one or more types
of sources of pollution, the legislative intent was
merely to control pollution from those sources which
were specifically identified.]_/
2.1.2 Other Sources of Enabling Authority for State Water
Pollution Control
Despite the uncertain scope of explicit water pollution statutes with
regard to nonpoint sources, authority for regulation of nonpoint pollution
may be found in statutes authorizing state control of critical areas or
of particular uses. Pollution control is often an explicit although
secondary regulatory objective in these statutes. These statutes usually
authorize a natural resource, state planning, or other agency rather than a
pollution control agency to adopt regulations:
1. Shoreland (inland lake and stream) statutes - State agencies in Wisconsin,
Minnesota, Vermont, Maine, Michigan, and Washington are authorized to
adopt standards for local regulation of shoreland areas (inland lakes and
streams) for the purpose of protecting aquatic life, reducing water pollution,
and meeting other objectives.^/ Pollution control is usually an express
objective. A variety of provisions have been adopted pursuant to such
statutes to reduce nonpoint pollution including fill and grading controls,
tree-cutting regulations, and sanitary codes.
2. Flood plain legislation - Twenty-four states authorize state agencies
to directly regulate or adopt standards for local regulation of floodway
or broader flood plain areas._9/ Pollution control is often an express,
albeit secondary, objective. Regulations are often adopted pertaining
to storage of flammable or polluting materials on the flood plain. Onsite
waste disposal systems are usually prohibited in all or a portion of
the flood plain.
3. Wetland legislation 10/ - Fifteen states authorize state agencies to
directly regulate coastal wetlands or establish local standards for
such regulation; four authorize state regulation or state standard-
setting for local regulation of inland wetland areas. Many programs
reduce water pollution by regulating dredge and fill and location
of onsite waste disposal systems in tight soil and high groundwater
areas.
4. Coastal Legislation 11/ - Every coastal and great lake state has
adopted legislation directly regulating certain coastal zone areas
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II-4
or uses or establishing standards for local regulation of such areas or
uses. Examples of direct regulation include Rhode Island, Delaware,
and New Jersey. State standard-setting for local regulation is authorized
in Maine, North Carolina, Washington State, Wisconsin (Great Lakes), and
other states. Many of these acts list pollution control as a primary
or secondary objective. Programs often adopt standards pertaining
to nonpoint sources such as dredge and fill, onsite waste disposal,
tree-cutting and alteration of wetlands.
5. Scenic and Wild River Statutes j-2/- Almost one half of the states
authorize a state agency to regulate directly or establish standards
for local regulation of scenic and wild river areas. Control of pollution
is often an express objective. Most programs tightly control industrial,
commercial, and mining uses in such areas, prohibit dams and other waterway
improvements; establish minimum lot sizes and setbacks for residential
structures; and control tree-cutting.
6. Legislation Pertaining to Development of Regional Impact 13/ -
Florida and Vermont have adopted legislation authorizing the control
of development of regional impact by state agencies or regional
commissions. The Vermont act contains a variety of provisions related
to point and nonpoint sources of pollution. Conditions pertaining
to grade and fill, wetland protection, tree-cutting, and other types
of conditions are commonly attached to development permits.
7. Plumbing and Sanitary Codes - Virtually all states authorize
state agencies to adopt sanitary and/or plumbing codes. Administrative
regulations adopted pursuant to these statutes typically prohibit
onsite water disposal systems in high groundwater, near surface bedrock,
or under tight soil conditions.14/
8. Subdivision Control Statutes 15/ - State subdivision review or interstate
land sales acts have been accepted in at least thirteen states. Typically
these acts require that proposed lots be suitable for onsite waste
disposal (if sewage disposal systems are not provided). Grading and
fill controls may also be required.
9. Mining Control Statutes 16/ - Statutes in thirty-eight states authorize
the adoption of surface mining controls. Most list pollution control as
a primary objective. The pollution impact of each proposed mining operation
is evaluated.
10. Utility Plant Siting Controls - Statutes in over half the states
authorize the regulation of utility plants.JL7/ Many of these list
water pollution control as a principal objective.
2.2 Sufficiency of Pollution Control Power Delegated to Local
General Purpose Units
Like state agencies, local units of government generally possess only
those regulatory powers expressly granted or necessarily implied from
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II-5
enabling statutes and state constitutional provisions._18/ Legislatures
delegated local units regulatory powers through (a) general land use
enabling statutes for zoning, subdivision controls, and building
codes; (b) special enabling statutes pertaining to sanitary and plumbing
codes, nuisances, erosion controls, and so forth; and (c) constitutional
statutory "home rule" provisions which permit local units to exercise
"residual powers" (not exercised by the state) pertaining, primarily,
to matters of local concern.
It is impossible to lay down iron clad rules concerning the sufficiency
of enabling authority for local government control of point and nonpoint
sources of pollution throughout the nation, since land use control statutes
and case law interpretations differ somewhat from state to state. Nevertheless,
several generalizations are possible.
2.2.1 General Land Use Enabling Authority
General land use enabling statutes authorizing cities, villages, towns,
or boroughs to adopt zoning, subdivision controls, and building codes
appear sufficiently broad to permit adoption of several types of nonpoint
pollution controls in most states. Only a small portion of the general
enabling acts specifically mention pollution, but authority for adoption
of such controls may be found in broad statutory language authorizing
the adoption of regulations to protect public "health and safety", protect
the "public welfare", and "promote the most suitable use of land throughout
a community."JL9/ Subdivision enabling acts commonly authorize regulations
requiring the installation of sewage disposal facilities. Many communities
have, pursuant to zoning enabling authority, adopted fill and grading
controls, control of solid waste disposal sites, controls on mineral
operations, and controls on the types and manner of uses in shorelands, slopes,
coastal areas, and other areas sensitive to pollution sources. Subdivision
regulations are used to control land development practices such as grading
and fill (which may lead to sedimentation), drainage, the use of septic
tanks, and the installation of sewers.
Despite the sufficiency of delegated powers for control of certain
nonpoint pollution sources, general land use control enabling powers
are limited in several respects:
1. Zoning enabling statutes for one or more classes of local government
units (e.g., cities) specifically exempt agricultural uses in twenty states.2Q/
The exemptions effectively prevent zoning control of agricultural practices
causing point or nonpoint pollution sources such as erosion, feed lots,
and application of fertilizers. One court held that the agricultural
exemption applied to the application of sewage sludge to a field as fertilizer.21/
Agricultural uses are also typically exempted from subdivision control and
building code enabling acts.
2. Zoning enabling statutes for one or more classes of local government
partially or wholly exempt existing uses in twenty-six states._22_/ As a result,
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II-6
the power of a local unit to prohibit existing point and nonpoint pollution
sources by zoning is restricted. Subdivision regulations and building
codes apply prospectively in all states.*
3. In general, zoning, subdivision controls, building codes, and other
special codes do not apply to governmental uses such roads and sewage
treatment plants which may be major polluters._23/ In some instances,
governmental uses are exempted by enabling acts. More often, courts hold
governmental uses exempt from local regulations as a matter of case law
based upon theories of "preemption" or the lack of legislative intent to
control such uses.^24/ Federal uses are invariably held exempt from state
and federal controls unless the federal government has agreed to be bound.25/
State uses are also generally exempt from local controls.J26/ Local governments
are generally exempt from the regulations of another local unit or even
their own regulations if they are operating in a governmental capacity.27/
Quasi-public uses such as public utilities are usually considered
bound by local regulations but are specif ically exempted by some enabling
statutes.28/
4. Serious preemption issues may also arise in many states concerning
local regulation of point sources of pollution (e.g., industries, municipal
sewage treatment plants) where the state simultnaeously regulates such
uses. See discussion below.
2.2.2 Special Pollution Control Enabling Authority
Special enabling statutes adopted in a small number of states specifically
authorize local point source pollution controls._2_9/ A larger number authorize
sanitary codes 3^7 and other nonpoint pollution controls such as shoreland
zoning and regulation.3l/
The pattern and scope of special enabling authority is highly varied
throughout the nation. These regulations are subject to several limitations
common to general land use control enabling authority including (1) general
Inapplicability to governmental uses and (2) possible preemption by state
pollution controls. However, nuisance regulations and sanitary codes may,
in some instances, apply to existing as well as new uses.
2.2.3 Home Rule Powers
Constitutional and statutory home rule power is delegated to municipalities
in thirty-four states and counties in twelve states. See Figure 1. In
general, home rule powers are confined to matters of "local" concern.32/
Therefore, the adoption of local point source pollution controls pursuant
to home rule powers may, in some instances, be open to dispute, due to
the widespread adoption of state-level point source controls and legislative
^However, certain "housing" and plumbing codes have retroactive application.
In addition, a number of states expressly authorize the application of zoning
regulations to existing uses through "amortization" or other provisions.
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II-7
statements that water quality is a matter of statewide concern, Nonpoint
pollution controls more clearly lie within home rule powers.
Local nonpoint pollution controls adopted as part of zoning, subdivision
controls, or building codes would, in most states, need to comply with
broad local land use control enabling authority despite home rule powers since
courts generally require that local units comply with specific statutory
enabling authority addressing a subject even where granted broad home
rule power.33/
The extent to which local units of government have, in fact, adopted pollution
regulations pursuant to home rule power is unclear. A wide range of controls
might be possible concerning construction, septic tanks, sewer connections,
solid waste, sludge disposal, erosion, agricultural uses, and so forth. Never-
theless, regulations adopted pursuant to home rule powers are subject to
several limitations common to other regulations including (1) inapplicability
to governmental uses, in most instances, and (2) possible preemption by state
pollution controls.
2.3 Sufficiency of Pollution Control Power Delegated to Regional
Planning Agencies or Other Entities
Apparently every state has authorized the formation of regional planning
agencies encompassing several or many local units of government. These agencies
are playing a leadership role in 208 water quality management planning
but are not authorized to regulate land uses._34/
Several statutes authorize local units of government to delegate regulatory
powers to regional planning agencies, 35/ but few have done so.
Despite the general lack of regional planning agency implementation authority,
a number of special regional metropolitan units of government and regional
regulatory agencies have been created by special enabling acts and vested
with regulatory powers, such as the Twin Cities Metropolitan Waste Control
Commission 36/ the San Francisco Bay Conservation and Development Commis-
sion^/ and the Lake Tahoe Regional Planning Agency Commission.J38/
2.4 Sufficiency of Pollution Control Power Delegated to Special
Purpose Units of Government
Special purpose units of government such as flood control districts, soil
and water conservation districts, and sanitary districts are not generally
authorized to regulate land use, or are vested with narrow regulatory powers
such as the power to adopt erosion controls held by soil
and water conservation districts in many states._39/ However, the scope of
special district powers is limited; and districts have been reluctant to
regulate land uses, relying instead on public educaton and persuasion.
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II-8
FIGURE 1*
HOME RULE CONSTITUTIONAL AND STATUTORY POWERS
State
Alask.
Ariz.
Calif.
Colo.
Conn.
Dela.
Flor.
Geor.
Idaho
Illi.
Iowa
Kans.
Louis.
Maine
Constitutional
Home Rule Provisions
Art. 10 ss. 9, 10, 11
Art. 13, s. 2
Art. 11, s. 6 et seq.
Art. 20, ss. 1-6
Art. 10 s. 1 (limited)
Art. 8, s. 1 et seq.
Art. 15, s. 1
Art. 12, s. 2
Art. 1, s. 6a et seq.
Art. 3, s. 38A
Amdt. 25
Art. 12, s. 5
Art. 6, ss. 5, 6, 8, 17
Art. 8 s. 1
Unit
1st class boroughs
and cities
Cities over 3,500
Cities (including towns)
counties
Cities and towns over
2,000
Towns, cities, boroughs
Municipalities over
1,000
Counties, municipalities
Counties, municipalities
Counties and incorpor-
ated cities and towns
Certain counties, munici-
palities over 25,000, other
municipalities
Cities
Cities, counties
Parishes and
municipalities
Municipality
Extracted from E. Strauss and J. Kusler, Statutory Land Use Control
Enabling
Authority in the Fifty States (Federal
Insurance Admin., U.S.
Dep't of Housing and Urban Development, 1976).
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II-9
FIGURE 1 (cont'd)
Constitutional
Home Rule Provisions
Unit
Mary.
Mass.
Mich.
Minn.
Mo.
Nebr.
Neva.
N.J.
N.Y.
Ohio
Okla.
Oreg.
Penn.
R.I.
Tenn.
Texas
Utah
Wash.
W.V.
Wise.
Art. XI-A, ss. 1-7
Art. XI-F, ss. 1-10
Art. XI-E, s. 6
104-104H
Art. 7, s. 22
Art. 12, ss. 3, 4, 5
Art. 6, s. 18a-18d (county)
Art. 6, s. 19 (city)
Art. 11, s. 2 et seq.
Art. 8, s. 8
Art. 9, ss. 9, 11-13
Repealed, 1964
Art. 18, ss. 3-7
Art. 18, ss. 2-7
Art. XI, s. 2-2a
Art. VI, s. 10
Art. 15, s. 1
Repealed 1968
Art. 28
Art. 11, s. 9
Art. 11, s. 5
Art. 9, s. 3
Art. 11, s. 5
Art. 11, ss. 10, 11
Amend 21
Art. 6^, s. 39a
Art. 11, s. 3
Baltimore, counties
Cities, towns
Cities, villages
City, village, county
Counties over 85,000,
cities
Cities over 5,000
Cities and towns
Municipalities
Municipalities
Municipalities
Cities over 2,000
Counties, cities, towns
Cities of 1st class
Cities, towns
Cities, counties
Cities over 5,000,
counties
Cities, towns
Counties, cities, towns
Municipalities (cities,
towns,, villages) over 2,000
Cities, villages
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11-10
FIGURE 1
HOME RULE CONSTITUTIONAL AND STATUTORY POWERS
State
Alask.
Ariz.
Calif.
Colo.
Conn.
Dela.
Flor.
Geor.
Statutory Home Rule Provisions
Generally 29.13.010 et seq.
Also: 29.08.010, 29.08.050, 29.23.555,
29.73.020, 29.73.030
Generally 9 281 et seq.
Govt 23700 et seq. (counties)
Govt 34400 et seq. (cities)
Generally 36-28-1 et seq. (counties),
also 66-31-25
Generally 7-187 et seq.
Generally 22-801 et seq.
166.011 et seq. (cities)
125.001 et seq. (counties)
Generally Chapter 69-10
Specific Reference
To Land Use
Statute: 29.13.100
(15) (bids, code)
Constit: Art. 15
s. 2-8404 (zoning)
Idaho
1111.
Iowa
Generally relies on constitution
24 s. 1-1-9
City Code, title XV, Code of Iowa
358A.8 (zoning)
332.3 (bids, code)
Kans.
Generally relies on constitution.
19-101 et seq. Also 12-137, 12-138,
15-124
Louis.
Generally 33:1381 et seq,
Constit: Art. 6
s. 17 (zoning)
Maine Generally 30 s. 1912 et seq
Mary.
Generally 23A s. 9 et seq. (city)
25B s. 3 et seq. (county)
Statute:
23A s. 9(c) (zoning)
Mass.
Generally Chapter 43B
Mich.
Generally Chapter 117
s. 117j. 4; (zoning)
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11-11
FIGURE 1 (cont'd)
Statutory Home Rule Provisions
Specific Reference
To Land Use
Minn.
Generally 410.04 et seq.
Mo.
Nebr.
Generally relies on constitution
19-501. 19-603. 19-610. 19-606
Neva.
Appears to rely on constitution 266.005,
266.010
N.J.
Home Rule Act 40;42-1 et seq.
N.Y.
Municipal Home Rule Law, Book 35c
Ohio
701.05, 701.06
Okla.
11 s. 558 et seq.
Oreg.
Generally 203.710 et seq. (county)
Penn.
Generally 53, s. 13101 et seq.
R.I.
Tenn.
Texas
Generally s. 1165 et seq. (cities)
s. 1606a et seq. (counties)
Statute: 1175(26)
(zoning)
Utah
Wash.
35.22.030 et seq. (cities over 10,000)
W.V.
Home Rule Chapt. 8A repealed 1969,
now consolidated with: Chapter 8 -
Municipal Law (8-12-2)
Statute: 8-12-5(30)
Statute: 8-12-13 (bldg.
code)
Wise.
Generally 66.01; also 61.34(5),
64.14
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11-12
2,5 Preemption of Local Regulations by State Pollution Controls
The adoption of state-level point source pollution controls in all
50 states raises serious preemption issues for local point source controls,
although the issue has not been widely litigated to date. Only a small number
of states, such as Florida and New York, expressly authorize local as well
as state controls. 4^/ In general, courts hold that state regulations pertaining
to a particular subject "preempt" conflicting local regulations concerning
the same subject whether adopted pursuant to general statutes, special statutes, or
home rule. t±\J But, legislative intent is the real issue._42/ Until recently,
point sources of pollution were regulated almost entirely at the state level
and major nonpoint sources (e.g., fill and grading) at the local level.
However, preemption is an emerging issue relating to nonpoint sources, with
increased state regulation of these sources. Enabling statutes may, of
course, clarify the matter by expressly providing that state regulations
do not preempt local controls which equal or exceed state regulations.
3.0 Other Constitutional Tests
In determining the constitutionality of regulations, courts first look to
the sufficiency of enabling authority to authorize, in a general sense,
adoption of regulations as discussed above. Having decided this, they
determine whether regulations comply with broader constitutional requirements
(discussed below).
3.1 Regulatory Compliance with Statutory Procedures
Courts generally require that regulations be adopted and administered
in close compliance with statutory procedures.^/ Statutory procedures
typically include notice and hearing prior to adoption of regulations
in the evaluation of special permits, publication of regulations, voting
requirements, amendments, and procedures for issuance of development permits.
Despite the insistence upon close compliance with statutory procedures, courts
have not traditionally demanded much in the way of "comprehensive" planning
prior to adoption of regulations, 44 / although this position is gradually
changing in some states. This is surprising considering the prior
planning requirements contained in the zoning enabling acts of 42 states
and subdivision enabling acts of 22 states.4^57 This reluctance may be due,
in part, to the failure of many acts to specifically describe "comprehensive"
plans and to the poor quality of many planning efforts. Courts have
often found the required "plan" embodied within regulations.46/
3.2 Valid Objectives Served by Point and Nonpoint Source Pollution
Regulations
Courts require that regulations serve valid police power objectives to
satisfy due process requirements.^/ However, courts now afford legislatures
broad discretion in selecting regulatory objectives 48/ and have strongly
endorsed protection of health and safety, 49/ prevention of nuisances,50/
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11-13
and prevention of water pollution._51./ They have given less weight
to protection of aesthetic values and protection of wildlife values »_52/
but this is slowly changing.
3.3 The Relationship Between Regulatory Standards (the Means) and
Regulatory Goals (the Ends)
In order to satisfy due process requirements, regulatory standards (the
means) must have some reasonable tendency to achieve the regulatory goals
(the ends)._53_/ The most common ground for invalidation of pollution controls
has been the failure of the regulatory standards to accomplish or aid
in the accomplishment of the regulatory goals. For example, the Minnesota
Supreme Court held invalid a rule of the state pollution commission
prohibiting discharge of sewage effluent at a point 1.1 miles downstream
from a city water supply intake.54/ The court felt that such prohibition
was unreasonable in light of the very remote possibility of pollution
of a city's water supply which would require simultaneous (a) low flow
conditions in the stream and diverse winds, likely to occur once every
26 years, and (b) breakdown of both the city sewage treatment and water
supply treatment facilities.
Reasonable regulations must, of course, be based upon an adequate
factual base. For example, the Delaware Supreme Court held invalid the
refusal of a zoning board of adjustment to issue a permit for a trailer
park because of possible pollution of a nearby creek because of lack
of evidence of possible pollution. The court stated:
The finding concerning pollution of the creek is a
finding of nothing more than a possibility, not a
probability; the evidence on which it is based is simply
the expression of fears of pollution by lay witnesses; no
reason appears in the record why any possibility thereof
cannot be eliminated by proper safeguards. Although
public safety is a proper matter for the Board's consideration,
the mere possibility of contamination of a stream is clearly
insufficient to justify the denial of an otherwise permitted
use, at least when there is no evidence to indicate
that the possibility cannot be avoided by adequate methods.55/
Reasonable regulations msut take into account varying conditions
and circumstances. For example, the Illinois supreme court held
invalid a county pollution control ordinance requiring that all
streams and ditches "used for the final discharging of effluent
from sewage treatment and disposal systems must be of a continuous
flow.'V56/ The court noted:
The ordinance would apply inflexibly without consideration
of the practical impossibility of compliance and without
regard to the quality of treatment that might be obtained
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11-14
by other means . . .No specific scientific or other
evidence was presented to demonstrate the hygienic
necessity for the unusual restriction that effluent be
finally discharged into a continuously flowing stream.
Rather, the county's attempted justification for the ordinance
was through simply generalized expert testimony, that such a
requirement tends, through a more rapid process of
dissolution, to reduce the potential threat sewage
waste poses to public health.511
Assumptions concerning the "cumulative effects" of potential pollution
sources must also be reasonable. For example, the Pennsylvania supreme
court held invalid a four-acre minimum lot size requirements for an un-
sewered area despite arguments the cumulative effects of future development
would cause water pollution. The court noted:
The township engineer's testimony on the subject of
drainage and sewage was vague and unconvincing, consisting
as it did, of the bald statement that he felt there was
a danger of pollution. In addition, this opinion was based
upon the hypothetical case of the entire township being
developed on the basis of one acre lots maximum, a situation
very unlikely to occur in the near future and probably never.58/
The reasonableness of a regulation in a given circumstance may depend
upon many other factors including existing uses; natural resource
values and hazards at the sites; existing water quality; property
values; and broader water and land use policies and plans. Quite clearly
the relationship between the ends and means need not be demonstrated with
mathematical precision. As noted by the Supreme Court "[i]f the validity
of the legislative classification ... be fairly debatable, the
legislative judgement must be allowed to control."59/
Courts have, in some instances, sustained regulations for particular
polluting uses even where a comprehensive program addressing all such
uses has not been instituted. For example, a county court in New York
sustained an air pollution control law regulating the maintenance of
incinerators and fuel burning equipment in privately owned dwellings,
notwithstanding the alleged fact that privately owned dwellings were
responsible for less than 1 percent of total pollution from all
sources._60/ The court held that:
[T]he fact that legislation, which is reasonably related
to the public health and welfare, and thus consitutes a
proper exercise of the police power under the due process
clauses of State and Federal Constitutions, is merely
a step in the direction of something which will enure
to the public health and comfort, and that it does not
go as far as it might, is not a reason for invalidating
it.61/
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11-15
3.4 Equal Protection
In order to satisfy equal protection requirements, regulations must
avoid discriminating between similarly situated landowners. j>2/ Dis-
crimination is a successful basis for constitutional challenge
in land use control cases, 63 / although it has rarely been successfully
applied in pollution cases.
Although the principle of equal treatment for similarly situated
landowners is clear, problems arise in deciding whether landowners
are "similarly situated." Courts have, with some exception, held
that regulations which apply primarily or exclusively to new uses do not
discriminate against existing uses, because retroactive regulation is not
favored and existing uses are differently "situated" than new uses.64/
Courts have also not usually demanded that regulations apply to all
areas or uses at once and have permitted legislative bodies to address
"an existing evil without covering the whole field of possible abuses."65/
Courts have held that identical regulations need not apply to lands
with similar natural resources characteristics, since differences may
arise in planning goals and the broader regulatory context.66/
3.5 Standards for Delegating Discretionary Powers to Regulatory
Agencies and Boards
Statutes and local ordinances typically delegate to regulatory boards "permitting"
authority for structures, fills, and other uses with pollution potential
without establishing rigid guidelines for allowed and prohibited uses.
Regulatory boards exercise a combination of fact-finding and policy-setting
power in determining the appropriateness of proposed uses in particular
circumstances.
In traditional zoning contexts, courts have often held that quite certain
standards must be established to delegate discretionary powers and limit
the exercise of such powers. J37/ However, with little exception, courts
have sustained unquantified standards such as "protection of public
safety" or "prevention of nuisances."j>8/ Similar standards are often
contained in pollution prevention statutes and ordinances. Courts have
sanctioned broad discretionary pollution control powers in a number
of cases. For example, the New York supreme court upheld a state pollution
control statute against attack that it did not contain sufficiently specific
standards with the following rationale, which is quoted at some length
because of its applicability to most pollution controls:
The Legislature may constitutionally confer discretion
upon an administrative agency only if it limits the field
in which the discretion is1 to operate and provides
standards to govern its exercise . . . That does not,
however, mean that a precise or specific formula must
be furnished in a field "where flexibility and the
adoption of the (legislative) policy to infinitely
variable conditions constitute the essence of the
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11-16
program." Lichter v. United States. 334 U.S. 742, 785 .... It
is enough if the Legislature lays down "an intelligible
principle,": specifying the standards or guides in as
detailed a fashion as is reasonably practicable in the
light of the complexities of the particular area to be
regulated . . . Obviously, the Legislature cannot
"constitutionally [be] required to appraise before-
hand the myriad situations to which it wishes a particular
policy to be applied and to formulate specific rules for
each situation. Necessity therefore fixed a point beyond
which it is unreasonable and impractical to compel the
Legislature to prescribe detailed rules." American Power
& Light Co. v. Securities and Exchange Commission . . .
329 U..S. 90 , 105 ... If it were otherwise, the Court added
the "legislative process would frequently bog down."69/
A similar broad grant of power to an expert agency was sustained in a
federal court decision affirmed by the Supreme Count.J^O/ However, the
Illinois supreme court held invalid a broad grant of discretionary power
to determine the sufficiency of pollution controls to a nonexpert county
zoning board of adjustment.71/
Despite the legal sufficiency of broad discretionary pollution:powers,
local units of government often find that adoption of a clear statement
of regulatory goals, minimum quantified performance standards where
applicable, and discretionary powers with regard to other matters are
advisable to give certainty to landowners and guide the exercise of
administrative discretion.
3.6 The Taking Issue
The issue of regulations "taking" private property without payment of
just compensation is an overestimated and overpublicized restraint
upon regulations. Courts do, of course, invalidate pollution regulations
in some instances, but rarely as a taking of property. Regulations
are more often found "unreasonable."
Judicial approval for pollution controls is due to several factors. First,
courts often uphold regulations which are soundly conceived and where some
economic use remains for land even if the regulations substantially
diminish property values. T2J Pollution controls typically establish
performance standards for uses or prohibit only limited uses with high
pollution potential, while permitting a wide range of existing uses
if in compliance with minimum standards (e.g., residences in a lakeshore
area if adequately set back from the water and on large lots). Second,
courts give great weight to regulations with a reasonable relationship
to public safety or prevention of nuisances and invariably support such
regulations even where they severely impact upon private property.73/
Courts have reasoned that property owners do not have a property right to
threaten public safety or cause nuisances; therefore, regulations preventing
such activities do not take property.74/ The Supreme Court has noted that
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11-17
when human life is involved, legislatures may "adopt the most
conservative course which science and engineering have to offer . . .'' 7 5/
An additional rationale for support of pollution regulations iei found
in the landmark Wisconsin case, Just v. Marinette County.76/ In that
case, the court sustained state and county shoreland zoning controls containing
many land use control standards for protection of water quality including
tight control of filling and grading in wetlands adjacent to lakes
that caused a substantial decrease in property values. The court held
that tight wetland controls did not "take" property because of the relationship
between wetlands and water quality and the need to preserve lakes for the
common good. The court clearly distinguished contrary wetland cases
from other jurisdictions and concluded that no taking occurred because
the landowner has no inherent right to destroy the natural suitability of
the land at the expense of harm to the public:
While loss of value is to be considered in
determining whether a restriction is a constructive
taking, value based upon changing the character
of the land at the expense of harm to public rights
is not an essential factor or controlling.77/
Despite this overall judicial approval, courts have occasionally
disapproved pollution regulations which are not soundly conceived or
impose unique and special burdens upon private property owners for the common
good. For example, some courts have held that regulations prohibiting riparians
from boating, swimming, and fishing to protect the water supply are unreasonable
or a taking of property.78/
Courts will no doubt be called upon during the next decade to decide
whether particular regulations are valid or invalid as a taking. Never-
theless, based upon existing cases one may expect overwhelming support
for soundly conceived point and nonpoint source pollution controls. This is
particularly true for prospective regulations.
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CHAPTER TWO,
LEGAL ISSUES IN WATER POLLUTION REGULATION
FOOTNOTES
1. _E.£., A. H. Smith Sand & Gravel Co. v. Department of Water Resources,
313 A.2d 820 (Md. App. 1974).
2. Aspen Systems Corporation, Compilation of Federal, State and Local Laws
Controlling Non Point Pollutants (Washington, D.C.: U.S. EPA, 1975).
3. Id. at 9-13.
4. Id. at 10.
5. Id. at 11.
6. Id., at 13.
7. Id.
8. E.&., Wis. Stat. Ann. §§ 59.971, 144.26 (West 1974 & Supp. 1976);
Wash. Rev. Code Ann. § 90.58.010 et_ jse£. (Supp. 1976). For a more
complete listing, see E. Strauss and J. Kusler, Statutory Land Use
Control Enabling Authority in the Fifty States (U.S. Dep't of Housing
and Urban Development, Federal Insurance Admin., 1975) [hereinafter
cited as Strauss and Kusler].
9. j:.£., 111. Ann. Stat. ch. 19, § 65f (Smith-Kurd Cum. Supp. 1973-76)
La. Rev. Stat. Ann. § 455A.35 (West 1971). See also Strauss
and Kusler, supra note 8.
10. .£.£., Mass. Ann. Laws ch. 130, § 105 (Michie/Law Co-op 1974); Md.
Nat. Res. Code Ann. § 9-101 (1974). See also Strauss and Kusler,
supra note 8.
11. E.&. , N.C. Gen. Stat. § 113A-100 (Supp. 1975); R.I. Gen. Laws § 46-23-1
(Supp. 1976). State coastal zone regulation in Maine, Washington,
and Wisconsin (a Great Lake state) is undertaken pursuant to shoreland
or shoreline regulation acts which also apply to inland lakes and
streams. See note 8 supra.
12. 1E.£., Cal. Pub. Res. Code Ann. § 5093.50 (West Cum. Supp. 1977); Md.
Nat. Res. Code Ann. § 8-401ff (1974 & Supp. 1976).
13. Vt. Stat. Ann. tit. 10, § 6001 (1973 & Supp. 1976); Fla. Stat. Ann.
§ 380.05.06 (West 1974).
-------
II-FN-2
14. See J. W. Patterson, R. A. Minear, and T. K. Nevded, Septic Tanks and
the Environment (Springfield, Va.: National Technical Information
Service, NTIS PB 204 519, June 1971).
15. Mich. Comp. Laws Ann. §§ 560.105(b), 560.117 (1967 & Supp. 1976);
Minn. Stat. Ann. § 83.20 (West Supp. 1976). See also Strauss and
Kusler, supra note 8, table 13 at 16.
16. See E. Imhoff, T. Friz, and J. LaFevers, A Guide to State Programs
for the Reclamation of Surface Mined Areas (Geological Survey Circular
No. 731, 1976).
17. See National Association of Regulatory Utility Commissioners, 1974 Annual
Report on Utility and Carrier Regulation 480, table 42 (Washington, B.C., 1976)
18. See, e_.£., 1 R. Anderson, American Law of Zoning § 3.05 at 131
(1968) [hereinafter cited as R. Anderson], citing Ball v. Jones.
272 Ala. 306, 132 So.2d 120 (1961); Trust Co. of Chicago v. City
of Chicago, 408 111. 91, 96 N.E.2d 499 (1951); City of Somerset
v. Weise, 263 S.W.2d 921 (Ky. 1954); and other cases.
19. The Standard State Zoning Enabling Act promulgated by the U.S.
Department of Commerce in 1926 and adopted by most states
authorizes (in section 3) regulations to "secure safety," "promote
health and general welfare," and "facilitate the adequate provision
of sewage." Regulations are to encourage "the most appropriate use
of land throughout . . . [a] municipality."
A model subdivision regulation act developed by Edward M. Basset
et ai_. and also adopted in part by many states authorizes regulations
which will "tend to create conditions favorable to health, safety,
convenience, or prosperity." Such regulations may include require-
ments for "water, sewer, and other utility mains, piping, connections
and other facilities." Edward M. Basset et_ £LL. , Model Laws for
Planning Cities, Counties, and States (Cambridge, Mass.: Harvard
University Press, 1935).
20. See Strauss and Kusler, supra note 8.
21. Grundy County v. Soil Enrichment Materials Corp., 9 111. App. 3d 746,
292 N.E.2d 755 (1973).
22. See Strauss and Kusler, supra note 8.
23. Id.
24. See, £.£., Rutgers State Univ. v. Piluso, 60 N.J. 142, 286 A.2d 697
(1972); Town of Bloomfield v. New Jersey Highway Auth., 18 N.J. 237,
113 A.2d 658 (1955).
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II-FN-3
25. See E. Yokely, Zoning Law and Practice § 2-25 at 112 (3d ed. 1965)
and cases cited therein; 2 R. Anderson, supra note 18, at 119-20
and cases cited therein.
26. See, e_.&. , Mackie v. Township of Redford, 4 Mich. App. 233, 144 N.W.2d
690 (1966), and cases cited at note 24 supra.
2.7. See 2 R. Anderson, supra note 18, § 9.03 at 106, and cases cited
therein. JE._g_., State v. Kopp, 330 S.W.2d 882 (Mo. 1960); Appeal
of Radnor Township School Authority, 434 Pa. 249, 252 A.2d 597 (1969).
28. 2 R. Anderson, supra note 18, § 9.29 at 173. See generally State
ex rel. Kearns v. Ohio Power Co., 163 Ohio St. 451, 127 N.E.2d 394
(1955); Kahl v. Consolidated Gas, Elec. Light & Power Co., 191 Md.
249, 60 A.2d 754 (1948).
29. E.&., Fla. Stat. Ann. §5 403.021(4) and 403.061(20) (West Supp. 1975);
N.Y. Envir. Conserv. Law § 17-1101 (McKinney 1973).
30. E.&., Wis. Stat. Ann. § 59.07(51) (West 1974).
31. See, £.&. , Wis. Stat. Ann. §§ 59.971, 144.26 (West 1974 & Supp. 1976);
Minn. Stat. Ann. § 105.485 (West Supp. 1976).
32. See, e^£. , Willoughby Hills v. Corrigan, 20 Ohio St. 2d 39, 278 N.S.2d
658 (1972).
33. See generally 1 R. Anderson, supra note 18, §§ 3.06, 3.07 at 133 ff.,
and cases cited therein.
34. However, several states authorize regional agencies to assume zoning
and other powers upon agreement of cities, towns, or counties. %,& »
Nev. Rev. Stat. § 278.140.
35. E_.£. , La. Rev. Stat. Ann. § 33:13 (West Supp. 1977); N.M. Stat. Ann.
§ 14-57-1 (1976); N.D. Cent. Code § 11-35-01 (1976).
36. J3ee Minn. Stat. Ann. § 473.504 (West Supp. 1976) (for powers of the
Metropolitan Waste Control Commission). See also 1975 Neb. Laws
act 317, which authorizes metropolitan counties to zone lands not
otherwise adequately regulated by July 1978. California has estab-
lished regional water pollution control boards. See Cal. Water
Code Ann. § 13200 (West 1971 & Supp. 1977).
37. Cal. Gov't Code Ann. § 66600 et seq. (West 1966 & Supp. 1977).
38. Id, § 66801 _et seq.
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II-FN-4
39 !&> N-D- Cent- Code § 4-22-27 (1975); Wis. Stat. Ann. § 92.09
(West 1972 & Supp. 1976); Md. Nat. Res. Code Ann. § 8-1104 (1974
& Supp. 1975).
40. See note 31 supra.
41. See 56 Am. Jur.2d Municipal Corporations § 374 at 406 (1971), which
states: "An ordinance in conflict with a state law of general char-
acter and statewide application is universally held to be invalid."
Courts have often held that state licensing and other regulations
pertaining to a subject requiring a regional or statewide perspective
pre-empt local regulations. _£.&., In re Public Serv. Elec. Gas Co.,
35 N.J. 358, 173 A.2d 233 (1961) (borough zoning did not apply to
transmission lines subject to state regulation); Erbsland v.
Vechiolla, 35 App. Div. 2d 564, 313 N.Y.S.2d 576 (1970) (state regu-
lation of uses in navigable waters prevents city regulation of
boatyard); Duquesne Light v. Upper St. Clair, 377 Pa. 323, 105 A.2d
287 (1954) (township could not regulate electric transmission lines
regulated at state level); Ringleeb v. Township of Parsippany-Troy
Hills, 59 N.J. 348, 283 A.2d 97 (1971) (township regulation of solid
wastes pre-empted by state regulation). However, courts have upheld
more restrictive local regulations where there was no need for a
uniform statewide policy. ]£.£. , Miller v. Fabius Township Bd., 366
Mich. 250, 114 N.W.2d 205 (1962) (township regulation of water skiing
valid despite less restrictive state regulations pertaining to the
subject). Agreements may be made for uniform state pollution control
policy, particularly point sources. This was recognized by the
Vermont Supreme Court in Kedroff v. Town of Springfield, 127 Vt. 624,
256 A.2d 457 (1969), which held that state pollution controls
"amended" or "repealed" local zoning. The court voted that pollution
control embraced "the states as a whole, and is not merely a local
concern." Id. at 461. On the other hand, the Wisconsin Supreme
Court, in State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974),
recognized that erosion control may be validly exercised through
local "zoning and subdivision and land use regulations." Id. at 418.
42« See, ja.£. , Hartford Union High School v. Hartford, 51 Wis.2d 591,
187 N.W.2d 849 (1971); Golden v. Board of Selectmen of Falmouth,
358 Mass. 519, 265 N.E.2d 573 (1970).
43. See, ja._g_., County Builders, Inc. v. Lower Providence Township,
5 Pa. Commonw. Ct. 1, 287 A.2d 849 (1972); Hutchins v. Prasifka,
450 S.W.2d 829 (Tex. 1970).
44. See generally discussion of comprehensive plan requirements in
1 R. Anderson, supra note 18, § 5.02 et seq., at 230 ff., and
cases cited therein; and C. Haar, "In Accordance with a Compre-
hensive Plan," 68 Harv. L. Rev. 1154 (1955).
45. Strauss and Kusler, supra note 8, table 37 at 7.
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II-FN-5
46. See, &_£,_, De Meo v. Zoning Comm'n of Bridgeport, 148 Conn. 68,
167 A.2d 454 (1961); Cleaver v. Board of Adjustment, 414 Pa. 367,
200 A.2d 408 (1964) .
47 £&» Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E.2d
9 (1949); Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34
(1951).
48. See, e^&., Berman v. Parker, 348 U.S. 26 (1954).
49. See, e_.&., Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946).
50. See, e_.&. , Pierce Oil Corp. v. City of Hope, 248 U.S. 498 (1919);
Hadacheck v. Los Angeles, 239 U.S. 394 (1915).
51. See, _e.&., Shirley v. New Hampshire Water Pollution Comm'n, 100 N.H.
294, 124 A.2d 189 (1956); Madison Metro. Sewerage Dist. v. Committee
on Water Pollution, 260 Wis. 229, 50 N.W.2d 424 (1951).
52« ^ee, e_.£., Barney & Casey Co. v. Town of Milton, 324 Mass. 440,
87 N.E.2d 9 (1949); Morris County Land Improvement Co. v. Parsippany-
Troy Hills Township, 40 N.J. 539, 193 A.2d 232 (1963). Compare
Corsa v. Tawes, 149 F. Supp. 771 (1957); United States v. Joseph
G. Monetti, Inc., 331 F. Supp. 151 (1971); Potomac Sand & Gravel
Co. v. Governor of Maryland, 293 A.2d 241 (1972); Turnpike Realty
Co. v. Town of Dedham, 284 N.E.2d 891 (1972). For cases on wild-
life law, see Michael Bean, The Evolution of National Wildlife
Lav?, prepared for the Council on Environmental Quality by the
Environmental Law Institute (Washington, B.C.: Government Printing
Office, forthcoming).
53. See, £.&. , Nectow v. City of Cambridge, 277 U.S. 183 (1928).
54. North Suburban Sanitary Sewer Dist. v. Water Pollution Control
Comm'n, 281 Minn. 524, 162 N.W.2d 249 (1968).
55. Zoning Bd. of Adjustment of New Castle v. Dragon Run Terrace,
222 A.2d 315, 318 (Del. 1966).
56. Krol v. County of Will, 38 111. 2d 587, 233 N.E.Zd 417, 419 (1968).
57. Id.., 233 N.E.2d at 419-20.
58. National Land & Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597,
609 (1965).
59. Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).
60. Oriental Boulevard Co. v. Heller, 297 N.Y.S.2d 431 (1969).
61. Id. at 437-38.
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II-FN-6
62. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
63. ,£..£., Marquette Nat. Bank. v. County of Cook, 24 111. 2d 497, 182
N.E.2d 147 (1962); Christine'Bldg. Co. v. Troy, 367 Mich. 508, 116
N.W.2d 816 (1962).
64. E.&., Zahn v. Board of Pub. Works, 195 Cal. 497, 234 P. 388 (1925),
aff'd, 274 U.S. 325 (1927). Ikrt ^ee State v. Glidden Co., 228 N.C.
664, 46 S.E.2d 860 (1948).
65. Whitney v. California, 274 U.S. 357, 370 (1967).
66. See, .e.£., Kozenik v. Montgomery Township, 24 N.J. 154, 131 A.2d 1
(1957).
67. See generally cases cited in Annot., 58 A.L.R.2d 1083 (1958);
D. Mandelker, "Delegation of Power and Function in Zoning,"
1963 Wash. U. L. Q. 60.
68. Mandelker, in "Delegation of Power and Function in Zoning," supra
note 67, at 74, comments: "Judicial approval of nuisances standards
has been overwhelming, and in many instances the fact that a noxious
use is being regulated has encouraged the court to uphold the dele-
gation."
69. City of Utica v. Water Pollution Control Bd., 5 N.Y.2d 164, 156 N.E.2d
301, 304-05 (1959).
70. Texas Co. v. Montgomery, 73 F. Supp. 527 (1947), aff'd. 332 U.S. 827
(1947).
71. Krol v. County of Will, 38 111. 2d 587, 233 N.E.2d 417 (1968). This
ordinance provided that "all sewage treatment or disposal systems to
be installed in Will County must be of a design and location that is
approved by the Health Authority." The court found that the require-
ment vested the Health Authority with discretionary power which was
"not controlled, limited or guided by any rules, criteria or require-
ments in the ordinance." Id. at 420.
72. See, £.£. , Potomac Sand & Gravel Co. v. Governor of Maryland, 266
Md. 358, 293 A.2d 241 (Md. Ct. App. 1972), cert, denied. 409 U.S.
1090; Spiegle v. Beach Haven, 46 N.J. 479, 218 A.2d 129 (1966);
Simon v. Needham, 311 Mass. 560, 42 N.E.2d 516 (1942).
73. See cases cited in notes 51, 52 supra and note 77 infra.
74- See. _§.£.» Mugler v. Kansas, 123 U.S. 623 (1887).
75. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83 (1946).
76. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).
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77. Id., 301 N.W.2d at 771. The court also noted at 201 N.W.2d 768:
Is the ownership of a parcel of land so absolute
that man can change its nature to suit any of his
purposes? The great forests of our state were
stripped on the theory man's ownership was un-
limited. But in forestry, the land at least was
used naturally, only the natural fruit of the land
(the trees) were taken. The despoilage was in
the failure to look to the future and provide for
the reforestation of the land. An owner of land
has no absolute and unlimited right to change the
essential natural character of his land so as to
use it for a purpose for which it was unsuited in
its natural state and which injures the rights of
others. The exercise of the police power in
zoning must be reasonable, and we think it is not
an unreasonable exercise of that power to prevent
harm to public rights by limiting the use of
private property to its natural uses.
78. See, e_.£. , Bino v. .City of Hurley, 273 Wis. 10, 76 N.W.2d 571
(1956); Pounds v. Darling, 75 Fla. 125, 77 So. 666 (1918).
Contra, State v. Heller, 123 Conn. 492, 196 A. 337 (1937);
Commonwealth v. Hyde, 230 Mass. 6, 118 N.E. 643 (1918).
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CHAPTER THREE
LOCATIONAL CONTROLS FOR WATER QUALITY
TABLE OF CONTENTS
1.0 Introduction: Land Use Water Quality Relationships III-l
2.0 Zoning and Other Local Land Use Controls III-4
2.1 Rezonings and Restrictions on
Existing Development III-5
2.2 Large Lot Zoning III-6
2.3 Zoning for Protection of Open Space III-7
2.4 Planning for New Developments: Subdivision Controls
and Performance-Oriented Zoning Techniques III-9
2.5 Zoning: Some Conclusions 111-10
3.0 Environmental Impact Review 111-12
3.1 Introduction 111-12
3.2 Illustrative Environmental Impact
Statement Requirements 111-14
3.3 Delay and Costs of the Impact Statement Process 111-15
3.4 Legal Issues 111-16
3.5 Conclusions 111-16
4.0 Designation of Environmentally Sensitive Areas .' 111-17
4.1 Multi-Purpose Critical Areas Programs 111-18
4. 2 Single-Purpose Critical Area Programs 111-20
5.0 Acquisition of Property Interests II1-24
5.1 Examples of Property Acquisition Programs . .111-24
5. 2 Legal Issues 111-25
5.3 Conclusions 111-26
6.0 Taxation and Charges Approaches to Land Use Regulation IIT-27
7.0 Legal Issues 111-28
7.1 The Taking Issue 111-28
7. 2 Protection of High Quality Waters 111-31
7.3 Equal Protection 111-32
7.4 Conclusions 111-33
Footnotes
Suggested Readings
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CHAPTER THREE
LOCATIONAL CONTROLS FOR WATER QUALITY
1.0 Introduction: Land Use Water Quality Relationships
One means of improving water quality is to focus on reducing the quantity
and improving the quality of discharges from particular activities. This
is the approach taken by most of the chapters in this handbook which
detail methods for controlling pollution from activities like agriculture,
silviculture, construction, and mining.
Section 208, however, also recognizes the relationship between the location
of activities and their impact on water quality. Section 208(b)(2)(C)(ii),
described by Russell Train as "potentially the most far-reaching provision
in Section 208," I/ requires that the areawide waste treatment management
plan include "the establishment of a regulatory program to regulate
the location, modification, and construction of any facilities within such
area which may result in any discharge in such area . . ." Other sections
list "land use requirements" among the procedures and methods to be set
forth to control pollution from agriculture, silviculture, construction,
and mining.^/ These provisions are amplified in EPA regulations which
require, in part, that plans include: _3/
-a summary of existing land use patterns;
-a description of regulatory programs to assure that any substantive
changes in the use of lands within the planning area which might cause
new or deleterious discharges are regulated; and
- identification of necessary changes in state and local land use
laws or certification by the Governor that the plan is in
conformance with such laws.
Land use restrictions may also be required to satisfy water quality
standards, particularly along river stretches designated under anti-
degradation provisions.^/
Land use planning is also essential because of the potential impact
of discharge requirements on industrial siting decisions. The Fifth
Annual Report of the Council on Environmental Quality suggests three factors
in this relationship._5/ First, the extra costs associated with introduction
of pollution control technology in older plants may cause such facilities
to be abandoned sooner in favor of new plants. New plants are most
likely to seek locations in less densely populated areas where land is
cheapest.
A second possible influence of the act depends on the implementation
of cost recovery requirements for waste treatment. If such requirements
lead industry to provide their own treatment systems, another incentive for
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III-2
more decentralized industrial location could result.
Finally, water quality standards in heavily industrialized areas could
be so stringent that new manufacturing is effectively precluded. Again,
the result could be pressure to locate in areas where water quality is still
high which may mean less densely populated areas.
None of these influences will necessarily determine any individual siting
decision. Transportation costs, taxes, and other factors will remain
important in the decisionmaking process. But to the extent these pressures
do come about, they emphasize the need for close coordination between land
use and water quality planning.^/
As a procedural matter, land use decisions that impact water quality will
have to mesh with waste load allocations required by section 131.11 (f) and (g)
of the 208 regulations. Point sources will have to be in compliance with
the plan and therefore the specific waste load allocation in order
to be approved by EPA. No means for coordinating nonpoint sources is
provided in the act and specific approaches should be described in the plan.
For purposes of 208 planning, the more important question is how land
use controls can effectuate water quality objectives. Siting controls
reflect at least two determinants of water quality. First, the spatial
distribution of discharges can make a significant difference in impact.
Concentrations of particular effluents along a river stretch are more likely
to overload the assimilative capacity of the river than are the same
effluents distributed along the river. T_l Differences in water levels
along the river because of either natural conditions or dams regulating
the flow of water also result in different levels of degradation from equivalent
amounts of effluent. Second, soil characteristics and geology have a lot
to do with how much effluent reaches the water as the result of nonpoint
discharges. For any given land use, water quality impacts will be affected
by several natural characteristics, such as infiltration rates, climate,
soil erosiveness, and geomorphic setting.8/ Soil erodability is a fixed
property but sediment can increase drastically due to depletion of ground
cover or steep slopes.jV
The relationship between land use and water quality is important at
both the macrocosmic, or broad planning level, and the more localized
site development level. At the macro level, for example, it has been suggested
that in some situations water pollution may be related to the average
distance of discharges from a water body, or at least to the existence
of a buffer area.1.0/ Planning that provides for development away from rivers
might therefore be used to minimize degradation of water quality.
The relationship between urban form and water quality is being investigated
in numerous studies.JJ^/ However, because of the idiosyncratic nature of
both urban development and water bodies, general rules may not exist.
Development itself can influence the character of the receiving body and
therefore its reaction to effluents. To further complicate matters,
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higher density development may offer opportunities for economies in
treatment that offset higher pollution levels.
At the site specific level, confidence about the availability of measures
to predict the consequences of development is much greater. One optimistic
assessment of current techniques claims that it is now possible to
"accurately predict the consequences of placing various land uses in
the natural environment prior to the decision to do so."!^/ Other observers
are less sanguine about the exactitude, or at least the general applicability,
of current methods. 3J5/ One hypothesis (untested) is that the more sophisticated
and costly predictive models are the most accurate ones. A recent study
prepared for EPA noted that "although increased accuracy does usually imply
increased complexity, the reverse is not true and a common fallacy is to
mistake complexity for accuracy ."JL4/
This modeling problem must be addressed at the inventory and assessment stage,
but it is also relevant to the selection of a regulatory program. The more
sophisticated programs, such as overlay mapping, require a great deal of
information in return for the promise of much greater sensitivity to land
use/water quality relationships. Whether the additional expense is justified
by the benefits is a decision that may vary with local needs and the
desire for precision. Legal considerations may also be relevant; the
adequacy of the technical basis for a regulatory program is likely to
be a significant argument in any court challenge. The more technical
support there is for a given restriction on development, the better
the chances a court will uphold it.15/
A recent review of land use/water quality relationships examined most of
the issues raised in prior studies and concluded that mitigative
measures and related performance standards should be the focus of planning
processes. Land use was considered a relatively inefficient means of water
pollution control with three exceptions: location of onsite sewage
disposal systems; prevention of direct encroachment upon wetlands; and
protection of important aquifers and groundwater resources.^167 Resolution
of this important technical issue is outside the scope of this handbook.
This chapter will present a range of land use controls for those applications
judged appropriate during engineering evaluations.
Five general approaches to land use control will be discussed in this
chapter as they relate to water quality: zoning control, critical areas
protection, environmental impact review, property acquisition, and taxation
and charges. In addition, general legal issues are discussed following
the presentation of these five topics. It should be noted that many
communities have already adopted or are considering locational controls
for other purposes, e.g., growth guidance. The reader is therefore
advised to' read this chapter in conjunction with the introduction and with
chapters 4 and 6, which discuss the relationship of water quality management
programs to other planning requirements.
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2.0 Zoning and Other Local Land Use Controls
Zoning has been the principal means of land use control in America since
1926 when the Supreme Court decided Euclid v. Ambler Realty Co. 17/
and the Department of Commerce released the Standard State Zoning Enabling
Act. Euclid upheld the validity of comprehensive zoning regulations, and
the Standard Act provided a model that was enthusiastically received.
The statutory scheme has undergone some significant changes since the 1920's,
but the basic principles remain much the same.18/ Land is divided into
districts in which certain uses are permitted, often as of right but
sometimes subject to conditions. Although originally zoning divided
land into only three or four districts, 24 or 25 now seems to be a
minimum. The purposes of zoning have also undergone considerable
transformation. While use of the zoning power to regulate use without
compensation still depends on a showing that the restriction promotes the
public health, safety, morals, or welfare of a community, the inter-
pretation of these tests has expanded tremendously.197
Zoning was originally devised with the idea that conflicting uses in
urban areas should be separated. There was little concern for the
environment per se. However, environmental values have long been at
least implicit in many zoning applications. For example, in granting an
injunction against a gravel pit in a residential district, a Massachusetts
court noted that "[t]here is no constitutional right to convert wild
land into waste land."20/
More recently, courts have emphatically recognized the legitimacy of
restricting land use for environmental reasons. In Hackensack Meadowlands
Comm'n v. Municipal Landfill Authority,21/ the New Jersey Supreme Court
upheld a prohibition on the disposal of waste collected outside the
state's territorial limits. One justification for the law was the need
to protect ecologically sensitive areas from the increasing pressure
for sanitary landfill sites. The court noted that"[t]oday it cannot possibly
be questioned that the preservation of the environment and the protection
of ecological values are, without more, sufficient to warrant an exercise
of [the police] power."22/
As discussed above, technical studies indicate that buffer zones restricting
development around water bodies and aquifers may be an important means
of protecting water quality. Numerous forms of zoning controls might
be incorporated in a waste treatment management plan to reduce or prohibit
development in sensitive areas. This section will consider some of the
simplest and most traditional approaches, such as restrictions on
rezonings and variances, and then suggest some of the newer and more
innovative concepts.^_3/ For purposes of this discussion, it is assumed
that at least general technical studies have been done and the necessity for
some redirection of development has been demonstrated.
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2.1 Rezonings and Restrictions on Existing Development
Where no development has occurred, rezoning may be the simplest way to
affect development. A more comprehensive regulatory program may not be
necessary, particularly where the land area involved is small. Zoning can
be changed despite potential impacts on existing landowners. Numerous
legal issues can arise as a result of rezoning, but the basic right of
governments to change existing zoning is not in doubt. As one authority
notes:
If the community is to plan its pattern of land use,
it must be able to alter its plan, and if courts can
nullify zoning changes whenever landowner expectations
suffer, plans would either petrify or be much less
exacting at the outset. The law assumes that landowners
understand this risk and somehow factor it into the
price they will agree to pay for the raw land.24/
Rezonings are basically subject to the same legal tests applied
to other police power regulations , adequacy of enabling authority,
compliance with procedural requirements, and obediance to constitutional
limitations.^/ One unique problem is the question of vested rights. A
property owner who has begun development acquires a right to continue his
use despite changes in zoning. The important legal issue is the point
at which rights become vested. For example, the rule in Maryland has
been that no development rights attach to property unless there has been
"actual construction in reliance upon a building permit." This rule was
recently applied where a builder had obtained a building permit and expended
over a million dollars but not yet started construction. 2j6/ However, other
courts have used a more flexible approach and found that rights
inure when substantial expenditures have been made in good faith reliance
on the actions of the local government.27/
A rezoning may also be challenged when the change is not in conformance with
a comprehensive plan and is alleged to be "spot zoning." Although strict
enforcement of comprehensive plan requirements is a more recent phenomenon, 28/
courts have a long history of invalidating zoning amendments that
appear arbitrary or discriminatory. In general, Professor Williams notes
three tests for the existence of spot zoning:
1) the use permitted under rezoning is very different
from the prevailing use in the surrounding area;
2) the area involved is rather small; and
3) the change was to the benefit of a specific developer
rather than the community as a whole.29/
Although numerous cases relevant to these specific formulations could
be examined, the issue arises most often when more permissive zoning is
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adopted. In the context of strengthened regulation to benefit water quality,
spot zoning should not be a problem so long as the decision clearly
identifies the basis for the change and enabling authority is adequate.
Where development already exists, there may be very little governmental
opportunity to eliminate that use other than through purchase or condemnation.30/
Zoning regulation cannot eliminate nonconforming uses unless they amount to
a nuisance._31/ However, in many states amortization ordinances may be
adopted in conjunction with zoning laws fixing the remaining life of
existing uses._32/ The use must terminate once the amortization period
expires.
State courts differ on the amortization period that must be allowed
and the right of the landowner to make improvements or otherwise
prolong the nonconforming use.J33/ Some states also prohibit termination of
nonconforming uses. This is the case in Massachusetts, although courts
there continue to uphold substantial changes in the regulation of uses.34/
In most jurisdictions, a balancing test applies and each case is judged on
the importance of the public interest in relation to the private loss.J3V
2.2 Large Lot Zoning
Minimum lot size requirements, although an inherently crude regulatory technique,
can serve several water quality purposes. First, where septic tanks are
used for waste disposal, minimum areas may be necessary for effective absorption.
This issue is discussed in chapter 5._36/ Second, stormwater runoff rates
can be reduced by restrictions on residential density. This problem can be
approached more directly, by performance-oriented planning controls, as described
in chapter 6. Third, some types of terrain, particularly hilly areas, may
be easily eroded if intensively developed. ( Runoff also increases with
slope.) 37/ Finally, groundwater may be threatened where development exceeds
the filtration capacity of an aquifer.38/
This discussion will consider general requirements for minimum lot sizes or
lot area per dwelling unit. These controls are a common use of zoning powers.39/
Where a public health justification for the regulations can be clearly
proven, the legal basis for large-lot zoning is indisputable.40/
The basic requirement is a factual one: can the government demon--
strate that restriction is justified by the asserted public health
benefit? This factual question requires that the government make some
evidentiary showing. But whether this showing is closely scrutinized
can vary with state court attitudes toward the police power and suspi-
cions about possible exclusionary motives.42^7 Very large acreage require-
ments, such as three acres or more, are also likely to be examined more
closely.42/
Even where public health reasons cannot be proven, some state courts have
accepted other justifications for lot size requirements. For example, protection
against overcrowding and preservation of open space have sometimes been
cited as acceptable grounds.4_3/ However, when the lot size requirements
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serve to exclude racial or economic groups by increasing housing costs, many
courts will scrutinize the alleged justification much more closely.
This is particularly so where the area is currently facing development
pressures in a metropolitan area as opposed to being in more rural
surround ings. 4-47 In such cases, making adequate provision for low income
housing as part of an overall plan increases the likelihood of judicial
acceptance. 45/
A recent and important decision involving the obligation of local
governments to make low income housing possible explicitly addresses the
conflict between ecological goals and limitations on exclusionary zoning.
In Southern Burlington County NAACP v. Township of Mount Laurel, 46/
the township included environmental factors among the reasons justifying low
density requirements. The court invalidated the zoning and rejected the
environmental defense by stating:
This is not to say that land use regulations should not
take due account of ecological or environmental factors
or problems. Quite the contrary. Their importance, at last
being recognized, should always be considered. Generally
only a relatively small portion of a developing municipality
will be involved, for, to have a valid effect, the danger
and impact must be substantial and very real (the construction
of every building or the improvement of every plot has some
environmental impact) not simply a make-weight to support
exclusionary housing measures or preclude growth and the
regulation adopted must be only that reasonably necessary for
public protection of a vital interest.
2. 3 Zoning for Protection of Open Space
Zoning to preserve open space is another land use control that could
be used to restrict development for water quality purposes. One
way in which water quality objectives can be translated into open
space requirements is through limitations on impermeable surfaces,
an approach considered separately in chapter 6. Some ordinances
provide for open space requirements in terms of green areas,
but most of them limit only the lot coverage of structures. Paving
for parking lots or other purposes is not controlled. 4J5/ Open
space requirements also might be used to create holding zones
pending completion of studies on land capabilities and limitations.
California requires that all cities and counties in the state
adopt both an open space plan and an implementing ordinance. 49 /
This legislation provides broad authority for restrictions on
new development.
The validity o*. open space requirements depends on the purposes
they are designed to serve. Where a clear relationship can be
demonstrated between development and water pollution, it may
be possible to enact open space controls for water quality purposes.
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This may be a technically defensible approach along river bodies where
buffer zones provide a valuable filtering service, as discussed above
in section 1.0. For example, a prohibition on impermeable surfaces
within 150 feet of the Chatahoochee River imposed under Georgia's
Metropolitan River Protection Act, 50/ was found to be reasonably
related to the safety and health of the community.51/
Water quality benefits may also be achieved through open space
programs primarily designed to serve other purposes. For example,
agricultural districts are used in some states to help preserve
valuable farmland.^/ California's open space program recognizes
aesthetic and recreational benefits from open space, but courts in
most states may be hesitant to support regulation on these grounds.53/
Courts in California have also rejected open space zoning in
some circumstances.54/
The most important justification for open space controls is undoubtedly
flood plain management. Flood plains are the areas adjacent to rivers
periodically subject to flooding.^55_/ Development in flood plains
risks substantial human and economic losses and increases flood heights
and velocities, spreading damage over an expanded area. Dams, flood
walls, and other public works projects can prevent or reduce flood damage,
but only at great expense and often with significant environmental
consequences. Regulation of development in flood plains is therefore
a highly desirable approach for controlling flood-related damage.
Under the National Flood Insurance Act, communities within one-hundred-
year flood plains 56_/ must adopt land use controls for flood plain
management in order to qualify their residents for federally financed
assistance for construction. The relationship between these requirements
and section 208 is discussed in the introduction. Generally, development
restrictions under a flood plain program would be similar to those desirable for
water quality purposes. 57_f Activities with low flood damage potential,
such as agricultural, recreational, and other uses that do not require
structures or fill, will also be acceptable from a water quality stand-
point.
Flood plains are also likely to have important water quality values because
the area closest to the river often serves a valuable buffer function. More-
over, flood plains are often particularly susceptible to development
pressures because they are relatively flat and because of their obvious
aesthetic and recreational attractions. An estimated 5 percent of the
U.S. population now lives on flood plains.58/
Flood hazards also may provide a more legally defensible rationale for
regulation than water quality objectives alone. Because of the clear
threat to public health and safety, courts generally support restrictions
on development in floodways. For example, in Turnpike Realty Co. v.
Town of Dedham, 59/ the Massachusetts Supreme Judicial Court upheld
a zone that allegedly reduced the value of property by over 80 percent.
The property was limited to agricultural, horticultural, or recreational
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uses. The court stated,"Although it is clear that the petitioner is
substantially restricted in its use of the land, such restrictions must
be balanced against the potential harm to the community from overdevelopment
of a flood plain area. "_6()/
Flood plain regulations thus provide one potentially valuable tool for
integrating water quality controls with other programs. The most
effective water quality protection may occur when water quality requirements
are integrated into a larger, multi-purpose program for regulation of
density and design. This issue will be addressed further below.61/
2.4 Planning for New Developments: Subdivision Controls and
Performance-Oriented Zoning Techniques
Many states provide local governments the power to regulate subdivisions.62/
The model zoning enabling act developed in the 1930's provided for review
of street layout and the adequacy of utility services as a condition for
plat approval, and requirements for open space and even dedication of land
gradually evolved. Performance bonds are also sometimes used to assure
compliance with plans.
These traditional subdivision controls focus primarily on design and services
apart from ecological values. However, there may be no obstacle
to adding additional requirements to the subdivision approval process.
For example, soil tests or other information might be required. More detailed
analysis might be required through the use of an environmental impact
statement, 63_/ an approach discussed separately below.
Using modified subdivision controls to serve water quality objectives
offers the advantage of an existing institution. The system is already
in place and developers are accustomed to it, whereas a new system may
require considerable time to enact and implement. Moreover, a unified
subdivision approval procedure facilitates integration of land use and water
quality objectives. On the other hand, the planning boards and other
institutions traditionally responsible for subdivision review may not be
competent to evaluate water pollution issues. The review procedure may be
similar, but the expertise required is not.
One approach to integrating these functions more effectively is the use
of flexible zoning techniques. Flexible zoning is characterized by sub-
stantial administrative discretion.j54/ For example, planned unit developments
eliminate almost all of the usual zoning restrictions in return for review
of the overall desirability of a development. As a trade-off for this
flexibility, the developer can be asked to make design changes that
might go beyond the usual zoning controls. Moving buildings away from a
stream, for example, might merit higher density elsewhere on the site.
This approach offers some opportunity for including water quality objectives,
but some criteria are necessary. The land use negotiation process
is also a poor forum for discussion of technical water quality issues.
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A more innovative approach that is also more expensive and complicated
is the use of an environmental inventory and related performance
standards. This method attempts to match land uses with land capabilities;
the burden of developing this information is assumed by the local government.
The developer is then informed of acceptable tolerances, such as maximum
quantities of runoff. He then must prepare a design that satisfies this
standard. This approach is described in detail in chapter 6 and will
not be discussed further. Hammer6>5_/ doubts the usefulness of the environmental
inventory approach for water quality planning, primarily because it
tends to be oriented towards different objectives and because it does
not adequately reflect mitigative measures.66/
Another innovative approach for incorporating water quality goals into
zoning is the use of effluent allocations.^/ Under this approach, the
necessity of some increases in discharges is recognized and some procedure
is provided to allocate water loads. For example, one plan might limit
the share of "available" discharge allocated any one applicant to 50 percent
so that growth can be accomodated. Under another alternative, the available
effluent limit could simply be allocated on a first-come, first-served
basis (consistent with conformance to best available technology requirements)
to avoid having to set a percentage figure without supporting criteria.
After all "emission rights" have been allocated, new growth would then
depend on further reductions in existing discharges. Such reductions
would have to be implemented through the discharger's permit unless the
new applicant chose to pay for improvements by an existing source.
This approach has not been used for water quality purposes but it does
have a precedent in the trade-off policy adopted under the Clean Air
Act.68^/ An analogy also might be drawn tti the principles developed for
allocation of water rights. (See chapter 8 below.)
Because allocation schemes have not been used, the legal issues are
difficult to predict. Equal protection is a probable issue becaase of
the necessity for distributing burdens among dischargers. Taking
claims also may be raised by the owners of property no longer able
to use their property for any use that results in a discharge.
Allocation approaches, if considered, will also require close coordination by
state and local authorities. The state must be involved in any decisions
that involve waste load allocations and changes in discharge permits.
Local governments will want to maintain control over the basic land use
decisions regarding acceptable locations for future dischargers.
2.5 Zoning: Some Conclusions
The preceding analysis has suggested some of the ways that land use
controls already in place or being considered for other objectives can be
modified to serve water quality goals. However, many localities do not
use the land use powers they already have. One authority estimates that only
5,000 out of 60,000 jurisdictions with land use powers exercised them in
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1974.j>9/ Even allowing for some overlap among levels of government,
the gap between the few sophisticated communities and the majority of
communities is obviously considerable. Thus, many places may be able to
make significant progress simply be implementing the powers they already have.
On the other hand, it may be asking too much to expect that more than a
relative handfull of communities will have the resources and commitment to
go beyond these traditional methods and adopt highly technical planning
systems.
Even assuming that zoning is implemented, traditional zoning techniques
are subject to challenge on numerous grounds.K)/ Several criticisms are
pertinent to the use of zoning for water quality objectives. One issue
is the impact of zoning on land values. Artificial development pressures
may be created that bear no relationship to land use and environmental
objectives. More fundamentally, the notion that land should be segregated by
use ignores differences in the operation of uses. The focus is on segregating
activities, not on conforming uses to desired social objectives. The character-
istics of different uses also may change over time, so that even consistent
administration may produce unintended consequences over time. Finally,
zoning has been attacked for its inherent susceptibility to corruption and
arbitrary dec is ion-making.71/
Some of the more innovative zoning techniques are one answer to these
criticisms. States can also help improve the zoning process. First, they
can provide technical assistance to help overcome some of the resource
limitations at the local level. A Wyoming statute, for example, explicitly
authorizes planning grants to local governments of up to $10,000 per year.7_2/
Second, states- can intervene in the preparation (or condition the exercise)
of comprehensive plans by establishing state goals that must be reflected
in local plans, an approach used in Oregon.2_3/ Comprehensive plans
are becoming increasingly important in light of the trend among courts and
legislatures to require that zoning be in accordance with a comprehensive
plan._7_4_/ Finally, states can intervene more directly, by substituting
state controls for negligent or recalcitrant localities. For example,
a Nebraska law mandates that counties within a standard metropolitan statistical
area prepare plans and enforce zoning and subdivision regulations
where the responsible municipalities fail to do so.75/
Conditions can also be imposed through requirements in the state enabling
act.2_6/ The Adirondack State Park Agency in New York is governed in part by
a regional planning authority.^77/ Hawaii has gone even farther and in 1961
instituted a statewide zoning system.^78/ The act divides the state into
four districts: urban, rural, agricultural, and conservation. Different
procedures are provided for regulation of activities in each.
The preceding section reflected the predominant local role in zoning. This may
be essential politically in most states, but it also guarantees that much
of the delay and inefficiency in past approaches will continue. The following
two sections suggest procedures for more formal environmental analysis and
for broader state involvement. The necessity for representation of local
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interests is, however, recognized throughout this handbook. In almost all
of the approaches discussed, state intervention is concomitant with an increase
in local authority. Local power is supplemented, not usurped.
3.0 Environmental Impact Review
3.1 Introduction
Implementation of most of the more sophisticated control techniques discussed
in this chapter require substantial information. As noted above in section 1.0,
the water quality impact of development is a function of many variables. Even
rough approximations of effect will require some review of building plans
and the geomorphic characteristics of the site. Judicial acceptance of most
types of regulation also will depend on evidence of the technical base
supporting the control program.
Environmental impact requirements offer a means of integrating information
requirements with the operation of a regulatory program. Because of the
National Environmental Policy Act (NEPA) and the many state and local laws
modeled after it, 7_9_/ the term "environmental impact statement" has assumed
a rather specialized meaning. Impact statements are often associated with
voluminous documents, lawsuits, and bureaucratic delays. However, the
general concept of environmental impact statements is simply to require
some systematic attention to the foreseeable consequences of an activity. The
format in which such statements are produced, the scope of considerations
they address, their level of detail, and the way in which they are reviewed
and used will depend on the specific purposes they are intended to serve.
Some jurisdictions use them as a decisionmaking document and integrate
them with the regulatory process. Others use them primarily for information
purposes.
The context of impact statements also varies among the governments that
require them. The most common elements are the five required in NEPA:
1. the environmental impact of the proposed action;
2. any unavoidable adverse impacts from implementing the
proposed action;
3. alternatives to the proposal;
4. the relationship between local short-term
uses of man's environment and the maintenance and
enhancement of long-term productivity; and
5. irreversible commitments of resources which would be
involved if the proposal is implemented.
Another key feature of environmental impact review procedures is circulation
among relevant experts and the public prior to the government's decision.
This provides a method for evaluation by affected groups and experts from
different disciplines.8O/
Impact statements are usually applied to specific projects, such as a dam
or housing development, rather than to a program or policy.8jY The impact
statement has particular utility for evaluation of specific proposals and
sites that cannot be adequately considered through broader techniques.
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Such evaluation was always possible through hearings or permit procedures,
but the impact statement provides a convenient forum for organizing and clarifying
technical and policy issues.
Having a long range view of [the consequences of]
a given decision, and a basis for stopping the
project, one may have at hand a strong basis for
linking decisions to policiesa connection that has
been difficult to achieve under the land use control
system that relies on zoning and the general plan.82/
Some authorities also argue that environmental impact statements can
facilitate the preparation of comprehensive plans.8^3/ A good planning
process should already accomplish much the same function, but the impact
statement approach may provide necessary additional detail regarding
water quality issues.
There are at least several ways in which environmental impact statements
might be coordinated with water quality programs. Where a statement is already
required, water quality objectives might be specifically addressed by
requiring that the applicant evaluate the impact of his proposal on the
waste load allocations contained in the water quality management plan. The
reviewing government should specify the data to be collected and the model(s)
used to avoid later disagreements. As indicated earlier, impact statements
may be most useful for evaluating issues inadequately handled by performance
standards, or where more detailed evaluation is wanted for a specific site.
However, they could also be used in conjunction with no discharge rules
or other standards as a mechanism for review of the applicant's proposed
means of compliance. In this way the statement is integrated with existing
licensing requirements and does not become a separate layer of bureaucracy
for the applicant. It should also be emphasized that the impact statement
cannot substitute for policy, it can only clarify issues and implement policy.84V
A good example of the possible application of an environmental impact
requirement is the regulation of septic tanks. In some areas, the
topography and soil characteristics may require a general prohibition on
the use of septic systems. 85 / However, in many places a
general prohibition will not be necessary. Site specific analysis
will be necessary, possibly through the use of criteria discussed in the
format of an impact statement.86/
An initial question in the formulation of an environmental impact review
process is the definition of activities that require a statement. Impact
statements can only be required where some governmental approval is
necessary, although governmental review may not have included environmental
considerations.87/ Many ongoing private activities, particularly most nonpoint
sources of pollution, will not trigger the EIS procedure unless some permit
requirement is imposed. For those activities that are within the scope of
governmental review, two approaches are most commonly used for defining
the scope of the impact statement requirement. One method is to define
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actions that always require environmental analysis, such as some arbitrary
size of new developments. For example, a Bowie, Maryland ordinance requires
impact statements for all zoning matters other than actions limited to
a single family dwelling.88/ A second approach relates the impact statement
requirement to environmental significance; filing is only required if a
brief environmental clearance determines that the proposed action has
a potentially significant environmental impact. This procedure is used by
many California governments and for local projects funded by the Department
of Housing and Urban Development.89/
In the context of water quality, both approaches have some merit. Some
activities, such as mining and well disposal, are almost inherently
associated with water pollution problems and an impact statement should
be routinely required. Similarly any development in a wetland probably
merits detailed review^ On the other hand, residential development is not
always a source of pollution. A preliminary general environmental clearance
is probably desirable where the risks of development are ambiguous.
The impact statement may not necessarily eliminate uncertainty, but it can
be the basis for monitoring requirements or other conditions as a precautionary
measure.
3.2 Illustrative Environmental Impact Statement Requirements
Although the federal EIS process has received the most notoriety, the
impact statement concept is now almost as prevalent among state and
local governments. At the state level, California's program is particularly
advanced. The California Environmental Quality Act requires state and
local agencies to prepare an environmental impact report (EIR) on any project
"which may have a significant effect on the environment. "_90/ California's
law is more detailed than NEPA, and specifically requires a discussion of
mitigation measures and of the growth-inducing impact of the proposed
action.
California is also one of the small minority of states that require the
preparation of impact statements on private actions licensed by local
governments.91/ The Massachusetts and Washington requirements also have
been interpreted to apply to locally licensed private activity.92j This
application results in the use of EIRs for land use decisions and accounts
for a large fraction of the estimated 6,000 impact statements prepared
annually.^/
The most interesting feature of the California experience is the variation
in the way impact statements are used. In Sacramento County, an
interdisciplinary team of environmental specialists prepares EIRs.
Internalizing the process allows the agency to build on earlier studies
for evaluation of broad issues; the focus is therefore on the specific
issues in each case.94/
Santa Clara County reviews impact statements within its planning department.95/
Using a relatively small staff, the county uses the impact statement as an opportunity
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for detailed negotiations with the developer. County staff become involved
in the site planning process. Every effort is made to reach an acceptable
agreement of design and mitigation measures prior to the actual EIR review.
On rare occasions, the statement serves as an opportunity for the applicant
to appeal an unsuccessful initial submission.
Many smaller communities lack the resources to hire full-time experts. They
rely on independent consultants by the government as needed. j>6/ Costs
are passed along to the applicant under a provision in the state law._97/
A substantial consultant business has grown to serve this demand.
Although California has accumulated by far the most experience with
impact statements, communities in many other states have experimented
with EIS procedures. Recent surveys by various authorities uncovered
local environmental impact statement requirements in Colorado, New Jersey,
Massachusetts, New York, Iowa, Virginia, Washington and Michigan.98/
Bowie, Maryland adopted an ordinance modeled after NEPA in 1973.99/
Zoning and subdivision approvals are covered but applications for building
permits are exempted. Review of impact statements is handled jointly
by a Commission for Environmental Quality (appointed by the city council)
and the Advisory Planning Board. Bowie's procedure is fairly typical of
local ordinances in that it is piggy-backed upon zoning and site plan
authority rather than upon separate enabling authority.
3.3 Delay and Costs of the Impact Statement Process
Impact statements are sometimes criticized for their cost and for their
contribution to bureaucratic delays. Any new paperwork requirement
will inevitably add some delay and expense at first. The real issues
are whether these problems diminish with experience, and to the extent
they do not, whether the costs are justified.
Studies at both the state and federal level indicate that the costs of
preparing impact statements decline with use. A review of the California
experience suggests that initial uncertainties in the process are a considerable
source of delay. As applicants and government reviewers become more familiar
with the issues, most projects become relatively routine and the costs
decline.100/ A study of the federal experience by the Council on Environmental
Quality stressed the importance of integrating the environmental evaluation
with the agency's decisionmaking process. In most instances the environmental
analysis need not add any time to the project review.101/
The cost of impact statement preparation obviously varies considerably
from project to project. Estimated costs in California were approximately
0.5% for housing projects.1Q2/ This cost can be largely transferred
to the developer by requiring that he provide the statement. However,
this may lead to less than a credible evaluation unless, as is done by
some California governments, the reviewing agency specifies the acceptable
consultants. If the government takes a more active role, public costs
may be substantial. California has addressed this issue with a provision
allowing imposition of fees to cover the costs of preparing impact
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statements.1.03/ Fees of $100 to as much as $2500 or more have been cited.104/
The more important question may be whether the costs are justified. If
impact statements do in fact produce projects that are more environmentally
acceptable, the benefits may be worth the costs. From an economic stand-
point, it also makes sense to impose the costs of development on the
purchaser. JL05/
3.4 Legal Issues
The authority to impose impact statement requirements is clearly within
the scope of the police power. In many instances, the impact statement may
require little more than a change in the format of filing requirements. The
procedural changes in review, such as interagency circulation, may also
be accomplished by regulation. Numerous local governments have adopted
impact statement requirements without specific enabling authority.106/
However, to eliminate uncertainty and provide some assurance of continuity,
it may l>e desirable to adopt specific authority. The North Carolina
Environmental Quality Act provides:
The governing bodies of all cities, counties, and
towns acting individually, or collectively, are hereby
authorized to require any special-purpose unit of gov-
ernment and private developer of a major development
project to submit detailed statements, as defined . . .
of the impact of such projects. 1-0,7 /
Local governments probably do not have the authority to charge fees
beyond the actual costs of review unless they are empowered to set
taxes.JL08/ Due process questions have been raised about the improper use
of environmental impact statements to delay projects.109/ This has
not been a significant issue to date and should not arise if the reviewing
agency provides a reasonable and definite period for review and gives
adequate notice of the type of information necessary.
3.5 Conclusions
Impact statements can serve the purposes of water quality planning, particularly
as a supplement to the site review process. New point sources are already
subject to impact statement requirements under the FWPCA* and can supplement
the broader process. The impact statement is most efficient as a means
of evaluating site specific questions. Areawide problems and land use
characteristics should be evaluated in a more general forum. Program-
focused ' impact statements that address policies or problems of general
significance may be one approach.
*EPA has not required impart statements on new point sources when the permit
is issued by the state.
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Second, some thought to describing in advance situations in which impact
statements are and are not required may avoid considerable difficulty
at a later stage. Preliminary, skeletal assessments can be required
for borderline cases.
Finally, the necessity for expertise in the review process argues for
use of some regional or at least metropolitan-wide authority to share
the costs. Circulation of statements should include state and federal
authorities where possible to gain the widest range of expertise. Reliance
on consultants may be a second-best approach. However, costs are likely to
be higher and there may be a question regarding the consultant's willing-
ness to criticize a possible future client.
4.0 Designation of Environmentally Sensitive Areas
Zoning is primarily a tool to accommodate development. In many, if not most
areas, water quality goals will require more than a minor adjustment to
the standard land regulatory process. However, some areas are sufficiently
sensitive to development that more than the usual planning and mitigation
measures are necessary. The special demands of flood plains, discussed
above, have often been incorporated in zoning requirements. Performance-oriented
zoning systems also seek to include land capability as a variable in
land use planning.
Critical* areas programs focus first on the environmental resource and
only secondarily on the type of development that can be accommodated.110/
The function of regulation in these areas is primarily to preserve an
ecologically valuable resource, such as a wetland or coastal zone. Control
of development in these areas will often also serve water quality objectives.
For example, wetlands serve a cleansing function and their destruction
may lead to increased pollution.Ill/ Moreover, critical areas programs
often include a data collection and inventory component that could
include water quality information. Where these programs already exist, the
integration of section 208 water quality management requirements
should be seriously considered. In other communities, water quality
goals may provide one more reason for adopting such a program.
Another factor in the evolution of some approaches to critical areas
management is the realization that important environmental resources
often have greater than local significance. Local zoning procedures
may therefore lack the broader perspective of statewide interests.
Considerable interest exists in procedural reforms along the lines of
proposals made in the ALI Mo^^_J1aj^^JDejvej.opjnent_Cod^_ 112/ and the
ABA industrial site selection process.113/
^"Critical" may be an unfortunate term since it suggests severity. As
actually implemented, the critical areas concept has much broader appli-
cation. See Council of State Governments, State of the Art for Designa-
tion of Areas of Critical Environmental Concern 1-3 (Lexington, Ky.:
Dec. 1974).
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Although they differ considerably in their focus and means of implementation,
critical areas programs share some common threads for purposes of section
208 water quality management. First, they recognize that growth may have
to be carefully regulated or even prohibited in some areas. Second, as
already suggested, critical area programs frequently include some state
involvement. Although some programs include significant preemption of
local authority, the state role is more often part of an expansion of
authority at all levels of government. Finally, these programs generally
follow a similar procedure: problem identification (such as flooding,
secondary impacts of unregulated growth, or destruction of wetlands);
an inventory of the resource base; designation of specific areas in need
of protection; and creation of a management program, usually including
specification of permissible and prohibited uses.
Most of these laws are of relatively recent vintage; serious evaluation is
therefore difficult. However, the number and variety of programs do provide
a rich source of examples for possible approaches. Most critical area
programs have been directed towards the protection of one class or type of
resource, such as wetlands. Some single-purpose programs are discussed
below; others, including forest and hillside erosion protection, are discussed
in other chapters. More recently, states have adopted more comprehensive
statutes that can be applied to any area meeting specified criteria, although
these programs have in fact been applied very selectively.114/
4.1 Multi-Purpose Critical Areas Programs
A recent survey found 13 states with comprehensive critical area programs
in various stages.115/ Although all 13 of these statutes include broad
statements of purpose and scope, they differ considerably in their specifics,
particularly in the extent to which they create regulatory programs.
The basic operation of the comprehensive critical areas approach is illustrated
by the programs in Florida and Colorado. The Florida Environmental Land
and Water Management Act of 1972 was enacted "to protect the natural resources
and environment" and "to plan for and guide growth and development."116/
The act defines its scope in terms of general goals rather than specific
issues.117/ It specifically excludes certain types of land from designation,
including agricultural and forest lands.118/ Coverage is also limited to
five percent of land in the state. Implementation of the act involves
a multi-step procedure. First, areas are nominated. Any individual,
group, or agency can make a nomination and, as an example, 72 nominations
were received in 1974.
Following nomination the proposal is subject to review and evaluation by
the Division of State Planning. Evaluation follows detailed guidelines
developed by the agency; every alternative must be exhausted before
designation, including acquisition. The process can be extremely
lengthy. However, because as of 1975 there was no statewide resource
inventory, designations must be judged independently rather than from
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among all possible sites. The final decision on designation is up to the
cabinet (a unique institution made up of six independently elected
officials) rather than the evaluating agency, apparently because of
a desire for greater public accountability.119/ Whatever the rationale,
decisionmaking by top level public officials does assure high visibility
and public awareness. It also complicates the process and may result
in fewer applications of the law than would occur under a bureaucratic
regime.
The designation process includes enunciation of principles for permissible
development. Local governments then have six months to adopt acceptable
regulations; if they fail to do so, the cabinet may substitute its own rules.120/
Regulations are administered by local governments but the Division of State
Planning may also seek relief for inadequate enforcement.121/
As of early 1976, three areas had been designated.122/ The first area
to be designated was actually approved by a special act of the legislature,
allowing regulation without using up any of the 5 percent limits. 3.2J3/
The active involvement of the governor and key legislators reflects
the highly political nature of the process.124/ The result is a somewhat
ponderous system, but one that has considerable credibility and public support
in a highly sensitive area.125/
The Colorado critical areas program, generally referred to by its bill number,
H.B. 1041, 126/ differs from the Florida law in several significant respects.
A wide-ranging resource inventory was asked of local governments using guidelines
developed by appropriate state agencies. Critical areas are also defined
in much more explicit terms: natural resource areas are limited to shore-
lands of major publicly owned reservoirs and significant wildlife habitats.
The most significant departure from the Florida approach, however,
is in the respective roles of the state and local governments. The state
role is exercised primarily through an independent agency created by the act,
the Land Use Commission. While the commission and other appropriate
agencies provide technical assistance, local governments retain primary
responsibility at all stages of the program. They decide on areas
for designation and implementing regulations; the commission can only
suggest modifications or additional areas for designation. The commission
can seek judicial review if its recommendations are rejected, but it is unclear
how much deference its views will be given by the court.127/ Management
is by permit from the local government. The only state role is provided
in the review of regulations.
Implementation of H.B. 1041 has encountered numerous obstacles. Several
counties publicly stated their unwillingness to accept funds provided to
counties for the purpose of assisting in the implementation of the act.
They resisted on the grounds that the sums involved were not worth
the hearings and red tape required in return. The law also did not appear
to offer many communities any more than could be accomplished under
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existing law.128/ Indeed, by dispensing with formal designation, counties
had the advantage of avoiding state review. Even the chairman and director
of the Land Use Commission were quoted as having some doubt about the
efficacy of the system.1297 Although voluminous guidelines have been
produced, actual implementation has been negligible.130/
These experiences may be too limited to form the basis of any major
conclusions.131/ One hypothesis is that although specification of goals
and an inventory of resources are highly desirable, the implementation process
will inevitably be a political one. Technical assistance does not obviate the
necessity for state representation of state interests. While the Florida
program is superior in this respect, the Colorado program is more advanced
in its recognition of the need for priorities and an overall planning framework.
These examples also suggest that statewide designation processes are most
useful for large or particularly valuable resource areas. They may therefore
fulfill part of the purpose of an antidegradation program. The differences
in the Colorado and Florida approaches also suggest some of the possible
ways to divide authority among state and local agencies. Finally,
both programs illustrate the inherent expense and complexity of critical
area programs. The information expense is borne entirely by the state
rather than by the developer.132/
4.2 Single-Purpose Critical Area Programs
While the multi-purpose critical area programs are a relatively recent development,
programs directed at specific problems, like flood plains and wetlands, have
been in existence for many years. These programs lack the policy focus and
perspective of multi-purpose approaches; protection of one resource may
simply direct development into another equally sensitive area elsewhere.133/
For example, limitations on sewer hookups may lead to increased use of
septic tanks with their potential seepage and other problems.134/ However,
single-purpose programs are likely to be more flexible, less costly, and
more politically acceptable. Their operation also offers valuable experience
for the design of future programs. The range and variety of these laws
is suggested by a list compiled by a recent U.S. Department of the Interior
study.135/
Although numerous programs might be profitably considered, only a sampling
of those most directly related to water quality objectives are included here.136/
On a statewide level, the California Coastal Act of 1976 137/ and the
Delaware Coastal Zone Act adopted in 1971 138/ provide an interesting contrast.
The Delaware program may be unique in its simplicity. No new "heavy industry"
or offshore bulk-transfer facilities are allowed along a strip one to five
miles wide along its coastline. Other development, including expansion
of preexisting heavy industry, is allowed if a permit is obtained
from a state board following preparation of an environmental impact
statement. The act was primarily directed against energy development, which
was effectively precluded. Despite the complaints of some corporate
officials that performance standards would be more equitable, the law
enjoys considerable public support and has withstood a lawsuit and several
efforts to amend it.139/
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The California Coastal Act imposes regulations on a zone from 1,000 yards
inland along the coast outward to the limits of state territorial waters.
Any development projects in that area require a permit from either temporary
regional commissions 14O/ or from the state Coastal Zone Conservation
Commission. However, numerous exemptions were provided. Most notably,
"urban land areas" having residential areas zoned to a density of four or
more units per acre are not regulated. A categorical exemption may also be
created by a two-thirds vote of the commission, and a "grandfather clause"
exempts projects begun prior to January 1, 1977.
For those areas where the act applies, development is strictly regulated
according to several principles. First, construction is to be confined
within already developed areas; subdividing is allowed only where half of
the parcels in the area have already been developed, based on a similar or
larger lot size. Another provision protects "sensitive coastal resource
areas" of regional or statewide significance. Such areas are to be designated
by the state commission in consultation with the affected regional and
local governments when the zoning procedure offers inadequate protection.
Additional protective measures must then be adopted by the local government,
subject to state review. In deference to local concerns about the extent
of state authority, designations of "sensitive areas" must be approved
by concurrent resolution within two years of the lapse. Another key
feature provides stiff penalities for violations (up to $5,000 per day
of intentional violation) and allows enforcement by the state or "any
person." Citizens may also sue the state for failure to implement non-
discretionary duties.
Although the act was only recently approved, its adoption followed several
years experience under a similar regime created as the result of a state-
wide initiative in 1972.141/ The initiative provided three years for develop-
ment of a coastal plan. During that time a permit process governed all
construction in a 1,000-yard strip inland, including areas within urban
centers. After 10,000 applications, less than 4 percent of proposed
projects were rejected, although many more were modified.142/ Several
of the projects disapproved were large, controversial proposals, such as
a renwal of drilling off the Santa Barbara coast.143/
This approach may demonstrate the value of experience as a source of political
support. Proponents of the permanent coastal protection law passed in 1976
could point to the record accumulated_ during the preceding three years
as evidence that the system worked. Similarly, a citizen enforcement procedure
also was created by the initiative without causing any great disruption.
Three years also allowed time for careful consideration of a detailed
plan that could be defended in the legislature.144/
The critical areas program most relevant to water quality may be the
various wetlands protection programs. Wetlands serve many valuable
purposes, including the natural purification of water.145/ Their
protection from uncontrolled development may therefore serve as part of a
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section 208 program.
Federal law and policy imposes some regulation on activities in wetlands
that should be reflected in the water quality management process. Sec-
tion 404 of the FWPCA continued the traditional jurisdiction of the Army
Corps of Engineers over the disposal of dredged or fill materials. The
Corps regulates these activities through a permit program. Since dredging
and dumping of fill materials are among the most serious threats to wet-
lands, this program is of great importance. The scope of the 404 program
and its relation to section 208 are discussed in more detail in the intro-
duction to this handbook.
EPA has also recognized the importance of wetlands protection. An agency
policy statement provides that funding for construction of waste treatment
facilities which will interfere with a wetland ecosystem will be provided
only where there is no feasible alternative.146/ Finally, the U.S. Depart-
ment of Agriculture provides some funding for wetlands maintenance under
the Water Bank Statute.147/ These federal programs provide the potential
for some control on development in every wetland area.
In many states, wetlands protection programs are well established. Al-
though coastal wetlands programs are most common, an increasing number of
states also protect freshwater wetlands.148/ The regulatory approach used
in most of these statutes is quite similar, A recent New York law passed
to protect freshwater wetlands is typical: the state Department of Envi-
ronmental Conservation is required to prepare a statewide inventory and
map of freshwater wetlands; land use regulations and a permit program must
be established by local governments, counties, or the state; an appeals
board is established; and tax abatement provisions are provided to relieve
the burden on affected landowners.149/ A parallel statute protects tidal
wetlands.150/
Regional and local programs for wetlands protection are also relatively
common. For example, the San Francisco Bay Area Conservation and Develop-
ment Commission has regulated development along the city's shoreline since
1965. Operation of the agency was an important model for the state
coastal zone law discussed above.151/ The commission also began by draft-
ing a plan and imposing a moratorium on development in the interim.L52_/
Regulation was later extended to the first 100 feet back from the bay;
controls over activities further inland depend on the exercise of author-
ity by local governments. Local governments typically create conservancy
districts or overlay maps to regulate development in wetlands. These
ordinances frequently specify permitted and restricted uses, the latter
including dredging and filling.153/
The initial' problem in wetlands protection is to define the affected area;
the exact boundaries of wetlands fluctuate with the seasons and tnanmade
disturbances. Wetlands may also be defined in ways that will affect the
scope of their boundaries. Connecticut's program describes tidal wetlands
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in terms of vegetation, and inland wetlands in terms of soil character-
istics. 154_/ Some other states refer to water levels or tidal action.
For example, the Maine program includes "any swamp, marsh, bog, beach,
flat or other continuous low land above extreme low water which is sub-
ject to tidal action or normal storm flowage at any time excepting periods
of maximum storm activity."155/ Some local ordinances use extremely vague
and general definitions which may create substantial administrative
difficulties.
One answer to the definition problem is to rely primarily on mapping
techniques with an opportunity for affected landowners to seek variances
from any regulatory requirements. A buffer zone should also be provided
to control activity adjacent to the wetland. Preparation of inventories
and maps can be a very expensive process,156/ but assistance is available
in many parts of the country from the U.S. Geological Survey. The USGS
surveys may be insufficiently precise to support a regulatory program,
but if too broad an area is included, exceptions can always be made. For
example, a Farmington, Connecticut ordinance allows a landowner to avoid
regulation through scientific proof that "the land in question, or a por-
tion of it, does not have a soil type [of the type identified by the state
enabling statute as characteristic of a wetland] classified by the National
Cooperative Soils Survey as poorly drained, very poorly drained, alluvial,
or floodplain."157/
From the standpoint of water quality, the most important aspect of wetlands
protection laws is the procedure for regulation of development and activi-
ties on wetlands. One approach is to spell out activities that are prohib-
ited, permitted subject to governmental approval, and permitted in all
cases. For example, a Connecticut statute provides for the regulation of
[d]raining, dredging, excavation, or removal of soil, mud, sand,
gravel, aggregate of any kind or rubbish from any wetland or
the dumping, filling or depositing thereon of any soil, stones,
sand, gravel, mud, aggregate of any kind, rubbish or similar
material, either directly or otherwise, and the erection of
structures, driving of piles, or placing of obstructions,
whether or not changing the tidal ebb and flow.158/
Permission to conduct any of the listed activities requires a permit from
the Commissioner of Environmental Protection. His decision is to be based
on a list of general criteria, including the public health and welfare,
the impact on wildlife, and the protection of property from flooding.159/
This approach has been criticized on the grounds that regulation should
focus on impact rather than activities.160/ As an alternative, performance
standards could be used which allow development or activities whenever com-
patible with the environment. However, obviously compatible or incompatible
activities should be specified in order to limit administrative costs. In
practice, performance standards may not differ greatly from more traditional
regulations since each system depends on the exercise of reasonable admin-
istrative discretion. Regardless of the approach, overly harsh or unjusti-
fiable conditions may not be sustained in court.161/
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5.0 Acquisition o f _ j'rogertjr Interests
Previous sections of this chapter suggested numerous noncompensatory
regulatory techniques that could be used to control the location of activities
with an influence on water quality. Although approaches may be relatively
inexpensive to implement (particularly if administrative costs are shifted
to the developer), they may not always be politically or legally acceptable.
Political opposition may impede passage of stringent land use controls, and
it has already been noted that overly harsh regulations may be invalidated
as a "taking" of property without just compensation. Government acquisition
of land, or at least partial interests in land, may be one answer to this
problem.
Property acquisition programs can be categorized two ways. The first
distinction is between fee simple acquisition and purchase of a lesser
interest. Fee simple ownership is the most complete form of land ownership.
In contrast, a partial interest can be transferred that conveys some lesser
right, such as the authority to develop the land. Scenic easements are a
common example of a less than fee simple interest. In many areas, particularly
where pressure for growth is not intense, development rights may be considerably
less expensive than full title to the land, 162/ yet adequately serve water
quality objectives.
The second distinction between property acquisition programs is between
permanent and temporary acquisition. The latter is often referred
to as "land banking" and has few precedents in this country. Use:of land banking
faces some legal obstacles but model enabling legislation has been proposed
by the American Law Institute.163/ The primary reason for interest in
land banking is the possibility for growth management.164/ However, water
quality purposes could also be served if a temporary growth moratorium would
facilitate planning.
5.1 Examples of Property Acquisition Programs
At least 38 states have adopted legislation authorizing acquisition
of scenic easements.165/ Several states have also enacted laws providing for
purchase of development rights from farmers.166/ The state is able to preserve
prime agricultural land while the farmer often has his property taxes
significantly reduced. Numerous states also allow localities to use
condemnation powers to maintain open space.167/ Boulder, Colorado has
agressively used a development rights purchase program to preserve a large
area of open space, reportedly at a total cost significantly below the fee
simple price of the land.168/
The land banking concept is largely uncontested in the United States,
although numerous examples exist in Canada and other countries.169/
Puerto Rico has maintained a land bank since 1964.170/ That program
is managed by the Puerto Rican Land Administration, a public corporation.
Although the project was intended to control the direction of growth
as well as to stabilize land prices, speculative pressures have necessitated
release of land earlier than planned.171/
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in order to avoid hold outs or inflationary bidding.188/ These problems are
avoided if eminent domain authority is available.
One issue specific to land banking approaches is whether an intention
to dispose of the land at a later date constitutes an acquisition of property
for unspecified use. Arguably, an unspecified future use could not satisfy
the "public purpose" test. The issue was raised in a challenge to the
Puerto Ri'caa program and decided in the government's favor, based on the
,.te^sj.1.1^ .«t-ed 1.0 regulate the land market.189/ Enabling legislation should
be adequacy to deal with this issue by citing the public interest in
p-evo.nLing "water pollution.
5.3 Conclusions
Acquisition of property interests is an invaluable tool in the arsenal
of water pollution control techniques. Where regulation is either politically
or legally unacceptable, it guarantees that public interests can still
be protected.
However, purchase of property interests is also an inherently blunt instrument.
Condemnation will often be as politically unpopular as less disruptive forms
of regulacion. Moreover, the belief that purchase is a possibility may
cause landowners to resist regulation in the hope of obtaining a profit
for what the state could legally require without compensation.190/
A provision in a Massachusetts wetlands bill suggests a middle
ground. It anticipates the possibility that compensation will be
required in some instances. However, instead of specifying in advance that
compensation should be paid in any given case, the legislation simply
provides that the state may pay for the loss in property value beyond
the constitutional limit determined by the courts.191/ An early Massachusetts
Supreme Court decision suggested that this approach might violate limits
on delegation of authority,192 / but the issue has apparently never been
raised again.193/ This approach minimizes public expense and avoids inviting
resistance from landowners. It does not, however, respond to political
opposition or any stringent regulation.
The cost of acquisition is obviously another significant consideration.
Protection of water quality may require purchase of development rights over
large areas. Public purchase transfers the cost of regulation to the
public, which may be expensive but equitable. Where the benefit is
of state significance, some mechanism for state financing may be appropriate.
Otherwise, the affected locality may be reluctant to deplete its tax base.
Finally, although an open purchase procedure may risk raising the ultimate
costs, public review is essential to avoid arbitrary or politically motivated
use of the condemnation power. Judicial oversight may not be adequate
to meet this need. A better approach may be to list specific criteria
for purchase in the statute so that selection of property can be objectively
evaluated.
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6.0 Taxation and Charges Approaches to Land Use Regulation
At the outset of this chapter it was noted that indirect regulatory devices
may be inadequate to meet the requirements of section 208. The problem
arises because the act requires section 208 to provide for attainment of
1983 requirements; the impact of taxes, charges, and other indirect approaches
is inherently uncertain. However, indirect mechanisms may still be desirable
as a supplement to other regulatory techniques, reinforcing the incentives
for the desired behavior. The imposition of fees can also be justified by the
costs created by the landowner for administration and enforcement. Where a
problem is not yet significant but is expected to worsen charges can be
used to discourage the undesired activity. Finally, special assessments
are a useful means for allocating the costs of public improvements.
Taxes and charges in a variety of forms are a common feature of many
environmental programs.j_9A_/ Indeed, section 208(C)(2)(E) requires that
designated management agencies have the authority to assess waste treatment
charges. In the context of land use controls, charges are most common in
the form of subdivision exactions and special assessments. For example,
the law is generally clear in most states that large subdivisions may be
required to dedicate land for parks and schools.195/ However, the law
is less clear on the need to earmark funds and on the acceptability
of requiring payments in lieu of dedication.196/
Special assessments might be viewed as the opposite of exactions in that
the government is charging a fee for benefits provided to a readily
identifiable group of landowners. Typically, assessments are imposed
for sewers, streets, sidewalks, and the like and are apportioned on the
basis of the front footage of the land along the improvement .1_9 7 /
While the possible forms of fees and assessments are limited only by the
imagination of the relevant local government and the scope of enabling
authority, there are some significant legal constraints. In addition to the
questions about in lieu payments and earmarking requirements already
mentioned, assessments should be restricted to no more than the private
benefits received. There is also sometimes argument about whether the
benefit is public or private.198/ in the case of exactions, the affected
locality should be able to demonstrate the connection between new development
and the service required.199 / For example, a municipality was held not
to have the authority to require a developer to contribute to offsite
drainage improvements designed to handle runoff from neighboring property
as well as the developer's. However, the court indicated that a
special assessment approach might have been acceptable.200/ A
California court upheld a $50,000 fee charged a developer for a drainage
ditch to serve the subdivision.201/ Courts have also universally disapproved
requirements for offsite improvements.2^02_/
Taxes and charges have also been applied directly to the use of land in
ways that might be applicable to water quality purposes. For example, many
states use preferential taxation schemes to help preserve farmland.203/
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Such systems could be used to encourage nondevelopment for water quality
purposes, such as buffers along rivers and streams. A more comprehensive
taxation scheme was adopted but never implemented in Montana. Under
the Montana Economic Land Development Act of 1975, 204/ land was to be categorized
for one of six usesagriculture, recreation, residential, commercial, industrial,
and open space. If the land was used in accordance with the designated pur-
pose, the owner was to receive a substantially lower tax rate.205/
In summary, there are numerous precedents for taxation and charges approaches
in the land use field. Where the costs can be fairly allocated to the
responsible party, most state courts are willing to uphold such requirements.
From the standpoint of economics these regulations make good sense because
the party creating the problem is forced to pay for it. Such requirements
also may reduce the impact of water quality related improvements (and planning)
on fiscally strapped local governments. However, in order to satisfy the
requirements of section 208, charges schemes will probably be forced
to serve primarily a supplementary function.
7.0 Legal Issues
The principal legal questions involved in locational controls are similar
to those discussed generally in chapter 2. The key issue continues to be what
restrictions under which circumstances will be upheld, as a permissible exercise
of the police power and which will require compensation.
7.1 The Taking Issue
This question must be addressed on a state-by-state, case-by-case basis.206 /
Several key cases however, illustrate the range of opinions regarding the
permissible scope of the police power. Although most of these cases are
drawn from the area of wetlands protection and flood plain regulation,
the legal issues are very much the same. In each instance, the ordinance
is passed to restrict development on lands that serve important public
purposes; the necessity for the restriction is subject to scientific
proof and evaluation; and the value of the property owned by the complaining
landowner is significantly reduced by the regulations.
One range of opinion among courts is evident in decisions in Wisconsin
and Maine regarding similar wetlands protection laws. The Wisconsin
case, Just v. Marinette County, 207/ involved a challenge to the state
Shoreland Protection Act described above. The Justs attempted to fill
their property in contravention of the county ordinance adopted in compliance
with the state law. The court upheld the restrictions provided by the
ordinance for reasons very relevant to this type of regulation in general:
The Justs argued their property has been severely
depreciated in value. But this depreciation is not
based on the use of the land in its natural state but
on what the land would be worth if it could be filled
and used for the location of a dwelling. While loss
of value is to be considered in determining whether
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a restriction is a constructive taking, value based
upon changing the character'of.the land at the
expense of harm to public rights is not an essential
factor or controlling.208/
The Maine case, State v. Johnson 209/ reached almost the opposite conclusion
of the Wisconsin court. Stressing that the benefits of wetlands protection
accrued to the public, the court concluded that the public should foot
the bill for its protection. The court did support related restrictions
on the draining of sanitary sewage into wetlands, but distinguished
these regulations as justified by additional considerations of health-
A Connecticut opinion used a similar rationale to invalidate a flood plain
ord inane e.210/
Judicial attitudes have also fluctuated with greater public under-
standing of the importance of environmental values. For example,
the New Jersey Supreme Court held unconstitutional a "Meadowlands
Development District" in 1963.211/ The court noted that the purpose
of the regulation was to keep the land in its natural state and concluded
that although the purpose was "laudable," compensation was required.2121
Ten years later in an opinion written by the same judge the court noted:
The approach to the taking problem, and the result, may be
different where vital ecological and environmental considerations
of recent cognizance have brought about rather drastic land use
restriction in furtherance of a policy designed to protect important
public interests wide in scope and territory, as for example,
the coastal wetlands act [cite omitted] and various kinds of flood
plain use regulation. Cases arising in such a context may properly
call for a reexamination of some of the statements 10 years ago in
the largely locally limited Morris County Land case . .213/
The complexity of the taking problem is illustrated by another opinion of
the Maine court only three years after the Johnson case. The decision
In re Spring Valley Development 214/ involved a challenge to the validity
of the Maine Site Location Act. The plaintiff had prepared a site for
development, but the state directed a halt in further activity pending
application for a permit required by the law. Although the Johnson
case was distinguished on the grounds that the Location Act left some
reasonable use to the developer, the court used a strikingly different test
for determination of the validity of the statute.
The public welfare demands that the land be used for another
purpose or that the impact of the same use be diminished. [The
regulation is not unreasonable] in view of the overriding public
interest. 215/
Judicial reactions to taking cases will continue to hinge on changing
definitions of what is a "reasonable use under the circumstances."216/
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In some states, a "reasonable use" may be one that provides at least
some economic return. However, the rationale in the Just case pro-
vides a forceful argument in behalf of more stringent regulation when
necessary to protect lands serving a vital public function. The
reason has to do with the legitimate expectations of property owners;
so long as the regulation is based on scientific evidence rather than
subjective evaluations, the landowner can legitimately be required to
assume the risk of later regulation.217/
Of course, the crucial burden for the government is to demonstrate the
vital purpose of the land in its natural state and the corresponding
public harm if the land is developed. Where the benefit is one that
has not been recognized before (as contrasted with flood plain regula-
tion and more recently, wetlands protection), or one that requires
complex scientific evidence to demonstrate, the government will have
to present expert testimony. Because of the expense and possible
necessity for similar presentations elsewhere, the state may want to
assist in the development of defensible regulations by providing
relevant expertise.
Some commentators have suggested the need for a more flexible approach
to the taking issue. One solution is partial compensation when the
impact of regulation exceeds some legislatively established standard
of reasonableness.
Another response to the dilemma posed by regulation and compensation
is transferring development rights rather than money. Under this con-
cept, the owner of land forbidden to develop beyond some minimum den-
sity receives the right to use that lost potential on another site.
The literature supports this concept but there is little actual exper-
ience to evaluate. The legality of awarding development rights instead
of monetary compensation was considered in a recent opinion by the
highest court of New York. In Fred F. French Investing Co. v. City of New
York 218/, the court held unconstitutional a New York zoning classifica-
tion that restricted certain property to use as a park in return for
the right to develop another area in midtown Manhattan. However, the
court did not reject the concept of transferring development rights,
only the ambiguous interest given the property owner. Under the
New York scheme, the property owner had no assurance of either an ac-
ceptable lot to which to transfer his development rights or of the ad-
ministrative approvals (there were three tiers) necessary to accomplish
the exchange. Since the court appeared to accept the basic validity
of the "TDR" concept, a different formulation with more assurances for
the developer might fare favorably.
Despite this continued uncertainty in many states, several points should
be made about the taking problem. First, taking problems should not be
confused with questions of evidentiary sufficiency. Documentation of
the need and value of regulation by studies, expert testimony, or other
means will always be necessary to support regulation in any particular
case. A recent California case, for example, emphasized the importance
of testimony by ecology experts:
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The means of preserving such values and insight
into the activities by which they may be endangered
are probably not within the understanding and competence
of the ordinary prudent man who lacks special training.219/
A recent Florida case reached similar conclusions.220/ A related
question to that of scientific evidence is the need for careful consideration
of boundaries. Arbitrary or ambiguous line drawing may itself be grounds
for court challenge.221/
Finally, an effort should be made to explicitly permit all uses which will
not interfere with ecological purposes of the law. Since the test for
compensation always depends on the availability of reasonable uses of the
land, the more uses permitted, the greater the likelihood that reasonable uses
will remain. This advantage of specificity in administration indicates the
desirability of allowing the implementing agency to issue rules interpreting
the act. It is unlikely that the legislature will have the expertise
necessary to define all permitted uses, and changing circumstances
(such as improved technology or operating procedures) might allow for
currently forbidden activities to be undertaken safely in the future.
Performance oriented standards should be used if possible so that a development
able to make adequate demonstrations of provision for water quality can be
allowed.222/
Flexibility should also be maintained in order to allow variances or
special permits in cases of undue hardship. Such procedures provide a
court with some assurance that the property owner has an adequate
opportunity to make his case. Courts are less inclined to overturn
administrative determinations of factual questions than broad legislative
rulings applied to specific parcels of land.
7.2 Protection of High Quality Waters
A legal question that may arise in critical areas protection has to do
with protection of water quality beyond levels necessary to protect the
public health and safety. Expert testimony and scientific evidence can
demonstrate the benefits of some regulation, but there will undoubtedly be
situations where the values being protected include preservation of
pristine waters or relatively clean waters. Compliance with the antidegradation
requirement, for example, may require it. Experts can attest to the value
of wilderness or natural areas, but a legal issue arises as to the acceptability
of such values as a justification for regulation.
One answer to this problem is judicial support for regulation for aesthetic
benefits. Several state courts have explicitly recognized the validity
of legislation based solely on aesthetic benefits.223/ By analogy,
a court accepting this approach should also find no problem with water
pollution legislation that exceeds the level necessary to protect public
health or even the economic value of recreation. However, most courts
have yet to adopt this rationale. There also may be some question
whether land use restrictions endorsed on this ground will receive the
same deference as those adopted for more traditional reasons.
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There is also some pertinent language in a recent U.S. Court of Appeals
opinion. The case involved the validity of EPA regulations providing
for nondeterioration of air quality, a provision that roughly parallels
the procedure for water quality. In response to allegations that the
law was unconstitutional, the court stated:
We find the arguments , . . to be insubstantial. Regula-
tion of air pollution clearly is within the power of the
federal government under the commerce clause, and we can
see no basis on which to distinguish deterioration of air
cleaner than national standards from pollution in other
contexts .... There is a rational relationship between
air quality deterioration and the public health and wel-
fare, and there is a proper legislative purpose in pre-
vention of significant deterioration of air quality.
Neither can the regulations be construed as an unconsti-
tutional "taking" under the Fifth Amendment, any more
than existing emission control regulations represent
such a "taking."224/
7.3 Equal Protection
Another legal issue that is most likely to arise'in the context of selec-
tive critical areas programs or effluent allocation schemes is the ques-
tion of equal protection. Generally, the Fourteenth Amendment requires
that similarly situated landowners should not be treated differently
without some rational basis. This standard is usually easily satisfied
by the state unless the law impinges on some "fundamental interest,"
such as race or the right to vote.225/ The issue arose in connection with
regulations of the Adirondack Park Agency, designed to protect a part of New York
with special scenic and recreational value. A court accepted the need for
a hearing to determine whether equal protection standards might be
violated because "other areas of similar unique, scenic and environmental
values in other parts of the state" were not also subject to regulation.226/
However, a Maryland court found no equivalent problem with a state law
regulating dredging in marshlands in one county.227/
A closely related question may arise where a legislative body tackles a
problem not susceptible to solution by that government alone. In such
cases, it might be argued that the law serves no rational purpose.
This issue is relevant to most state and local water pollution laws
since water quality is often affected by dischargers in more than one
state. For example, a detergent manufacturer argued that a Chicago
ordinance banning phosphates in detergents was unreasonable since the
city alone could not cure eutrophication in Lake Michigan.2287 A
federal court of appeals rejected this argument on the grounds that
the city has a legitimate interest in setting an example for other
neighboring communities. Legislation was an acceptable means to seek
cooperation from other jurisdictions.229/
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7.4 Conclusions
The imposition of locational controls for reasons of water quality
is sufficiently similar to the use of such controls for other environmental,
public health, and recreational benefits that few new legal issues should
arise. However, the need for careful statutory drafting and a detailed review
of local judicial precedent remains. Although each state must examine
its own laws, the trend in the vast majority of states appears to support
regulation that is clearly related to important environmental objectives.
This is so even where there is some question about the wisdom of the
specific legislative approach selected. However, there is still adequate
incentive to study legislative options carefully in order to obtain equally
essential political support.
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CHAPTER THREE
LOCATIONAL CONTROLS FOR WATER QUALITY
FOOTNOTES*
1. R. Train, "The EPA Programs and Land Use Planning," 2 Colum. J.
Envt'l L. 255, 275 (1976).
2. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.
92-500, § 208(b)(2)(F)-(H) [hereinafter cited as FWPCA].
3. 40 C.F.R. Part 131, 40 Fed. Reg. 55343 (1975). See also U.S. Environ-
mental Protection Agency, Guidelines for State and Areawide Water
Quality Management Programs ch. 6 (Nov. 1976).
4. See id. ch. 5. A handbook for implementation of antidegradation pro-
visions is also being prepared for EPA by the Environmental Law Institute.
5. Council on Environmental Quality, The Fifth Annual Report of the Council
on Environmental Quality 34-36 (Washington, B.C., 1974).
6. See chapter 1 for further discussion of institutional problems related
to implementation of a 208 program.
7. Concentrations of dischargers may be desirableup to a point. Large
sewage treatment systems may reduce the per unit cost of treating
effluent.
8. See generally notes 12-16 and accompanying text; I, McHarg, Design with
Nature (1969); K. Kulp, Environmental Site Planning (Council of Planning
Librarians Exchange Bibliography No. 1030, May 1976); and E. Kaiser et
al., Promoting Environmental Quality through Urban Planning and Controls
(1974). For examples of specific applications, see R. Bailey, Land
Quality Classification of the Lake Tahoe Basin, California - Nevada
(Forest Service, U.S. Dep't of Agriculture, 1974); and J. Tourbier,
Water Resources as a Basis for Comprehensive Planning and Development
of the Christina River Basin (1973).
9. These factors are also discussed in the context of particular activities
in other chapters. Erosion and sediment control are discussed in chap-
ters 6- and 7.
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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III-FN-2
10. C. Gates and D. Haith, Influence of Land Development and Land Use Pat-
terns on Water Quality 54-55 (Ithaca, N.Y.: Cornell Univ. Water Re-
sources and Marine Sciences Center, 1975); and R. Coughlin and T. Hammer,
Stream Quality Preservation through Planned Urban Development (Washington,
D.C.: U.S. EPA, EPA-R5-73-019, 1973).
11. Id.; D. Berry £t al., Land Use, Urban Form and Environmental Quality
(Chicago: Univ. of Chicago, 1974); I. Hoch, Urban Scale and Environ-
mental Quality (Washington, D.C.: Resources for the Future Reprints,
1972); and J. Omernik, Influence of Land Use on Stream Nutrient Levels
(Corvallis, Ore.: Corvallis Environmental Research Laboratory, EPA-
600/3-76-014, 1976). See also Croke, "An Evaluation of the Impact of
Land Use on Environmental Quality," in Environment: A New Focus for
Land-Use Planning (D. McAllister ed. 1973); D. McAllister, Survey and
Analysis of Location Criteria in Land-Use Planning (Los Angeles: UCLA
School of Architecture and Urban Planning, 1974); and S. Bellomo, C.
Cheng, and B. French, "Water Quality-Land Use Relationships," 2 Plan.
Envt'1 Briefs 1 (Sept. 1975). Several major studies on this subject
are currently in progress at the Urban Institute in Washington, D.C.,
at the University of New Mexico Department of Economics in Albuquerque,
and at the American Public Works Association.
12. D. Williams, P. Rowe, and C. Sharpe, "Improved Tools for Land Manage-
ment: Summing Up for the Future," 34 Urban Land 3, 4 (1975).
13. Croke, supra note 11, at 222; and McAllister, supra note 11, at 12.8.
14. G. Grimsrud, E. Finnemore, and H. Owen, Evaluation of Water Quality
Models: A Management Guide for Planners 18-19 (Washington, D.C.:
U.S. EPA, EPA-600/5-76-004, 1976).
15. See generally chapter 2. This issue is also addressed further infra,
notes 206-17 and accompanying text.
16. T. Hammer, Planning Methodologies for Analysis of Land Use/Water Quality
Relationships 77 (1976).
17. 272 U.S. 365.
18. See generally D. Hagman, Urban Planning and Land Development Control
Law §§ 28-31 (St. Paul: West Publishing Co., 1971).
19- See generally 1 N. Williams, American Land Planning Law §§ 5-6 (1974-
75).
20. Town of Lexington v. Simeone, 334 Mass. 127, 134 N.E.2d 123, 125 (1956),
discussed in 4 N. Williams, supra note 19, § 91.04.
21. 68 N.J. 451, 348 A.2d 505 (1975), remanded on other grounds,
425 U.S. 910 (February 22, 1977).
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III-FN-3
22. 68 N.J. at 473, 348 A.2d at 516. Cf. Carton, "Ecology and the Police
Power," 16 S.D. L. Rev. 26 (1971); M." Gleeson e_t at. , Urban Growth
Management Systems 58-61 (1976); and M. Alford and J. Hudson, Improv-
ing Environmental Quality through the Use of Local Ordinances and
Regulations 4-7 (Washington, D.C.: U.S. EPA, 1976).
23. For summaries of various zoning techniques, see Management and Control
of Growth (R. Scott ed. 1975). For other summaries of available con-
trol techniques, the reader is directed to 1 N. Williams, supra note
19, pt. 7; D. Hagman, supra note 18, M. Alford and J. Hudson, supra
note 22; M. Meshenberg, The Administration of Flexible Zoning Techniques
(Chicago: American Society of Planning Officials Planning Advisory
Service No. 318, 1976); Sedway/Cooke Consultants, Guide to Implementa-
tion Techniques for Air and Water Quality Management Plans (San Fran-
cisco: Ass'n of Bay Area Gov'ts, Jan. 1976); Land Use Planning Re-
ports; A Summary of State Land Use Controls (Silver Spring, Md.:
Report No. 5, M. Arnold ed., Jan. 1976); D. Brower e^ a.l_. , Growth
Management through Development Timing (Chapel Hill: North Carolina
Urban and Regional Planning, 1974); Kaiser et_ al. , supra note 8; and
A. Strong and J. Keene, Environmental Protection through Public and
Private Development Controls (Washington, D.C.: U.S. EPA, 1974).
24. R. Berger, "The Accommodation Power in Land Use Controversies: A
Reply to Professor Costonis," 76 Colum. L. Rev. 799, 821 (1976).
25. See chapter 2.
26. County Council for Montgomery County v. District Land Corp., 337 A.2d
712, 27 Zoning Dig. 551 (1975).
27. Avco Community Developers, Inc. v. South Coast Regional Comm'n, 122
Cal. Rptr. 810, 553 P.2d 546 (Cal. Ct. App. 1975); Board of Super-
visors v. Medical Structures, 213 Va. 355, 192 S.E.2d 799 (1972);
Clackamas County v. Holmes, 265 Or. 193, 508 P.2d 190 (1973); Diamond
v. Town of Cheltenham, 413 Pa. 379, 196 A.2d 363 (1964). See "Ask
Plan Landers," Planning, Nov. 1975, at 4; and M. Gleeson et al.,
supra note 22, at 67.
28. See section 2.5 infra.
29. 1 N. Williams, supra note 19, § 27.02.
30. Compensatory approaches suffer from the obvious limitations on govern-
mental resources. However, there may be situations where purchase or
condemnation is desirable. See section 5.0 infra.
31. See M. Gleeson ejt ad. , supra note 22, at 62-68 and cases cited therein.
32. See generally 4 N. Williams, supra note 19, §§ 109-116.
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III-FN-4
33. Id. See. e_.£., People v. Gates, 41 Gal. App. 3d 590, 116 Cal. Rptr.
172 (1974) (wrecking yard must be terminated in 18 months).
34. Building Inspector of Maiden v. Werlen Realty, 349 Mass. 623, 211
N.E.2d 338 (1965).
35. Grant v. City of Baltimore, 212 Md. 301, 129 A.2d 363 (1957); Naegele
Outdoor Advertising Co. v. Village of Minnetonka, 281 Minn. 492, 162
N.W.2d 206 (1968). See M. Gleeson _eit _al. , supra note 22, at 67,
n. 170.
36. See chapter 5, section 3.5, infra.
37. See C. Thurow, W. Toner, and D. Erley, Performance Controls for Sen-
sitive Lands ch. 7 (American Society of Planning Officials Plartning
Advisory Service Nos. 307, 308, 1975). (And see ch. 7, section 4.0, infra.)
38. See id. ch. 4; Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961).
And see ch. 8, infra.
39. See generally 2 N. Williams, supra note 19, §§ 38-46.
40. Id. at 23-24. But see Appeal of Kit-Mar Builders, 439 Pa. 466, 268
A.2d 765, 767 (1970) (sewerage problems will not excuse exclusionary
zoning where alternative methods exist for treating the problem).
41. Compare Board of County Supervisors of Fairfax County v. Carper, 200
Va. 653, 107 S.E.2d 390 (1959) with Flora Realty & Investment Co. v.
City of Ladue, 362 Mo. 1025, 246 S.W.2d 771 (1952). These cases are
somewhat dated by more sophisticated decisions, but they are still
considered to be leading opinions. See 2 N. Williams, supra note 19,
§ 39.14. For a recent affirmation of the principles in the Cooper
case, see Board of Supervisors of Fairfax County v. DeGroff Enter-
prises, Inc., 214 Va. 235, 198 S.E.2d 600 (1973).
42. See Flora Realty (three-acre tracts upheld); Fairfax County (two-acre
minimum invalidated); Steel Hill Dev., Inc. v. Town of Sanbornton,
469 F.2d 956 (1st Cir. 1972) (six-acre temporary restriction upheld);
and 2 N. Williams, supra note 19, § 39.14.
43. See 2 N. Williams, supra note 19, § 38.
44. Id. § 38.21-.22.
45. See Golden v. Planning Bd. of Ramapo, 334 N.Y.2d 138, 285 N.E.2d 242
(1972), U.S. cert. den. 411 U.S. 918 discussed in chapter 4.
46. 67 N.J. 151, 336 A.2d 713 (1975).
47. 67 N.J. at 187.
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III-FN-5
48. See 5 N. Williams, supra note 19, §§ 158.05-.06.
49. Cal. Gov't Code § 65910 (West). See F. Broadhead and R. Rosenfeld,
Open Space Zoning Handbook (Sacramento: Cal. Assembly Select Comm.
on Open Space Lands, 1973).
50. 1973 Ga. Laws act 66.
51. Pope v. City of Atlanta, 418 F. Supp. 665 (N.D. Ga. 1976).
52. See Alford and Hudson, supra note 22, at 317.
53. See generally Broadhead and Rosenfeld, supra note 49; 5 N. Williams,
supra note 19, §§ 157-158 and sources cited in § 157.01; and H. Coston
and J. Tourbier, Open Space Controls for the Protection of Water Re-
sources in the Christina River Basin (Newark, Del.: Univ. of Delaware
Water Resources Center, 1972).
54. Arastra Ltd. Partnership v. City of Palo Alto, 401 F. Supp. 962 (N.D.
Cal. 1975) (open space zoning amounted to inverse condemnation where
city had attempted to buy the property but after lengthy negotiation
sought to limit all economic uses to achieve the same result).
55. See generally J. Kusler and T. Lee, Regulations for Flood Plains
(Chicago: American Society of Planning Officials Planning Advisory
Service No. 277, 1972).
56. The one-hundred year flood plain is that area which will be flooded,
on average, no more than once every one-hundred years.
57. Kusler and Lee, supra note 55, at 44-65. For detailed legal analysis
and model statutory language, see U.S. Water Resources Council, Regu-
lation of Flood Hazard Areas to Reduce Flood Losses (2 vols. 1971);
Z. Plater, "The Takings Issue in a Natural Setting: Floodlines and
the Police Power," 52 Tex. L. Rev. 201 (1974); and F. Maloney and D.
Dambly, "The National Flood Insurance Program: A Model Ordinance for
Implementation of Its Land Management Criteria," 16 Nat. Res. J. 681
(1976).
58. Plater, supra note 57, at 204.
59. Turnpike Realty Co, v. Town of Dedham, 284 N.E.2d 891 (1972), cert.
denied, 409 U.S. 1108 (1973).
60. 284 N.E.2d at 900. The U.S. Water Resources Council, supra note 57,
includes a catalog of relevant cases at 467-71.
61. See also chapter 6
62. See generally 5 N. Williams, supra note 19, § 156; and Hagman, supra
note 18, ch. 9.
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III-FN-6
63. "The implementation of environmental impact statement (EIS) ordinances
has become rather widespread in recent years. Ordinarily, the EIS re-
quirement is appended to an existing subdivision control ordinance."
Alford and Hudson, supra note 22, at 299.
64. See generally Meshenberg, supra note 23.
65. Hammer, supra note 16, at 75-79.
66- But see Alford and Hudson, supra note 22, at 267-99; and M. Gleeson
e_t sd. , supra note 22, at 109-14.
67. See Alford and Hudson, supra note 22, at 320.
68. See Mandelker and Sherry, "Emission Quota Strategies as Air Pollution
Control Technique," 5 Ecol. L. Q. 401 (1976).
69. P. Wolf, The Future of the City: New Directions in Urban Planning 149
(New York: Watson-Guptill Publications, Whitney Library of Design,
1974).
70. For a general litany of these problems, see the authorities cited in
note 23 supra.
71. R. Babcock, The Zoning Game (Madison: Univ. of Wisconsin Press, 1966).
72. Wyo. Stat. § 9-862.
73. Or. Rev. Stat. § 197.040(2)(a) and (c) . Protection of natural resources
is one goal.
74. See, e..£., Wyo. Stat. Ann. § 9-856 (Supp. 1975); Baker v. City of Mil-
waukie, 533 P.2d 772 (Ore. 1975); and D. Mandelker, "The Role of the
Local Comprehensive Plan in Land Use Regulation," 74 Mich. L. Rev. 899
(1976).
75. Neb. Stat. Ann. § 84-151.
76. Id.
77. N.Y. Exec. Law. art. 27, § 800 et seq. (McKinney). See generally
Land Use Controls in New York State 106-32 (New York: Dial Press,
E. Moss ed. 1976).
78. Haw. Rev. Stat. ch. 205. For a general discussion of the Hawaiian
experience, see F. Bosselman and D. Callies, The Quiet Revolution in
Land Use Control (Washington, D.C.: Council on Environmental Quality,
1971); Robert G. Healy, Land Use and the States (Baltimore: Johns
Hopkins University Press, 1976); and P. Meyers, Zoning Hawaii; An
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III-FN-7
Analysis of the Passage and Implementation of Hawaii's Land Classi-
fication Law (Washington, B.C.: Conservation Foundation, 1976).
79. 42 U.S.C. § 4321 et seq. See generally K. Pearlman, "State Environ-
mental Policy Acts: Local Decision Making and Land Use," 43 J. Am.
Inst. Planners 42 (1977).
80. See P. Freisema and P. Culhane, "Social Impacts, Politics, and the
Environmental Impact Statement Process," 16 Nat. Res. J. 339 (1976).
81. See generally A. Miller, F. Anderson, and R. Liroff, "The National
Environmental Policy Act and Agency Policy Making: Neither Paper
Tiger Nor Strait-jacket," 6 ELR 50020 (1976).
82. A. Jokela, Self-Regulation of Environmental Quality: Impact Analysis
in Local Government 55 (1975).
83. J. Rogers, Environmental Impact Assessment, Growth Management, and the
Comprehensive Plan 135-37 (Cambridge, Mass.: Ballinger Publishing Co.,
1976). See also Pearlman, supra note 79, at 49-50.
84. R. Burchell and D. Listokin, The Environmental Impact Handbook 91-93
(New Brunswick, N.J.: Rutgers Univ. Center for Urban Policy Research,
1975); and Jokela, supra note 82, at 53-56, 70-76.
85. Specific criteria relevant to different water quality variables are
outlined in Burchell and Listokin, supra note 84, at 97-138; and in
D. Keyes, Land Development and the Natural Environment (1976).
86. For a discussion of performance standards applied on a site-specific
basis, see generally chapter 6.
87. Environmental Defense Fund v. Mathews, 6 ELR 20369 (D.D.C. 1976).
88. City Council of Bowie, Md., Ordinance 0-2-73, § 2 (July 16, 1973),
discussed in Bowie, Md. Commission for Environmental Quality, "The
Role of Environmental Impact Statements in Local Government Decision
Making," 6 Urb. Law. 95 (1974).
89. See generally Burchell and Listokin, supra note 84, at 59-61. For
experience in California, see Jokela, supra note 82.
90. Cal. Pub. Res. Code §§ 21000-21174 (West) as amended in 1976.
91. This issue was resolved legislatively following the decision of the
California Supreme Court in Friends of Mammoth v. Board of Super-
visors of Mono County, 8 Cal.3d 247, 10 Cal. Rptr. 16, 500 P.2d 1360
(1972). See Cal. Pub. Res. Code §§ 21169-21171 (West Supp. 1972).
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III-FN-8
92. See The Fifth Annual Report of the Council on Environmental Quality,
supra note 5, at 403-05.
93. Id. at 407.
94. See Jokela, supra note 82, at 47.
95. Id. at 38-39.
96. Id. at 39-46.
97. Cal. Pub. Res. Code § 21089 (West).
98. American Society of Planning Officials, "Planning Advisory Service
Memo 76-11" (Nov. 1976); Burchell and Listokin, supra note 84, at 14-36,
99. See "The Role of Environmental Impact Statements in Local Government
Decision Making," supra note 88.
100. Jokela, supra note 82, at 67.
101. Council on Environmental Quality, Environmental Impact Statements; An
Analysis of Six Years' Experience by Seventy Federal Agencies 26-33.
102. Jokela, supra note 82, at 66.
103. Cal. Pub. Res. Code § 21089 (West).
104. Burchell and Listokin, supra note 84, at 94.
105. _ld.
106. N. Yost, "NEPA's Progeny: State Environmental Policy Acts," 3 ELR
50090, 50093 (1973).
107. N.C. Gen. Stat. § 113A-8 (1971).
108. See, .§_.&. , Jewish Reconstructionis't Synagogue v. Village of Roslyn
Harbor, 386 N.Y.S.2d 198, 352 N.E.2d 115 (N.Y. Ct. App. 1976).
109. Jokela, supra note 82, at 56-59.
110. Critical areas programs often include "activities" as well as "areas"
of special significance. It follows from the preceding discussion
that it is primarily the latter that are of greatest interest from
the standpoint of waste treatment management.
111. C. Ablard and B. O'Neill, "Wetland Protection and Section 404 of the
Federal Water Pollution Control Act Amendments of 1972: A Corps of
Engineers Renaissance," 1 Vt. L. Rev. 51, 52 (1976).
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III-FN-9
112. American Law Institute, A Model Land Development Code art. 7 (1975).
113. American Bar Association Special Committee on Environmental Law,
Development and the Environment: Legal Reforms to Facilitate Indus-
trial Site Selection (final report, 1974).
114. For example, Florida's program is limited by statute to a maximum of
5 percent of the state. See generally 1 Institute for Environmental
Studies, Data Needs and Data Gathering for Areas of Critical Environ-
mental Concern 11 (Madison: University of Wisconsin, 1975); Council
of State Governments, State of the Art for Designation of Areas of
Critical Environmental Concern 14-15 (Lexington, Ky., Dec. 1974).
115. W. Matuszeski, "Trends in State Land Use Legislation," Envt'l Com.,
Sept. 1976, at 2, 4.
116. Fla. Stat. Ann. § 380-012 e_t se£. , § 380.021 (West).
117. This was defended on grounds that the state was too large and complex
for comprehensive solutions. See D. O'Connel, "Book Review: Carter,
The Florida Experience," 5 Ecol. L. Q. 594, 597 (1976).
118. See chapter 7 infra.
119. L. Carter, The Florida Experience 135 (Baltimore: Johns Hopkins
University Press, 1975).
120. This procedure was applied after designation of the Green Swamp.
See Healy, supra note 78, at 219.
121. An amendment approved in 1974 allows the state to impose interim
controls, but not a moratorium, after designation until the adoption
of implementing regulations.
122. Permit systems were adopted in each case that imposed tight constraints
on development. A recent review found 24 applications, most for single-
family homes, and most of them were approved. U.S. Department of the
Interior, Information/Data Handling Requirements for Selected State
Resource Management Programs: Technical Supporting Report C 180 (July
1975 draft).
123. This limitation has been criticized as highly arbitrary and a major
failing in the law. See Carter, supra note 119, at 133-35; and
Council of State Governments, supra note 114, at 14-15.
124. See Carter, supra note 119, at 228-65; and Technical Supporting Report
C_, supra note 122, at 202-03.
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III-FN-10
125. Nomination by the public also contributes to credibility and public
acceptance, although at the risk of haphazard implementation. See
Id.
126. Colo. Sess. Laws 1974, ch. 80, § 106-7-101 et seq.
127. The Land Use Commission has been a party to one case before the
Colorado Supreme Court, but the results were inconclusive. City of
Louisville v. District Court, 543 P.2d 67 (1975).
128. See Denver Post, Dec. 14, 1975, at 2.
129. Rocky Mountain News, Oct. 25, 1975, at 6.
130. For a summary of designations by county, see E. Imhoff, A Review of
Selected Laws and Governmental Programs in Colorado, As Related to
Mineral Resource Management and Surface Mining 6 (U.S. Geological
Survey No. 76-649, 1976).
131. Healy, supra note 78, ch. 8.
132. .Id. at 117-18.
133. 1 Institute for Environmental Studies, supra note 114, at 11.
134. See chapters 4 and 5 infra.
135. U.S. Department of the Interior, Methods and Techniques for Critical
Area Program Development; Technical Supporting Report A 79 (July
1975 draft).
136. The reader interested in further materials is directed to Technical
Supporting Report C, supra note 122; Technical Supporting Report A,
supra note 135; and Institute for Environmental Studies, supra note
113.
137. Cal. S.B. 1277, as amended by A.B. 2948 (enacted Aug. 25, 1976).
138. Del. Code tit. 7, § 70.
139. See Healy, supra note 78, at 151-52; and J. Pedrick, "Land Use Control
in the Coastal Zone: The Delaware Example," 2 Coastal Zone Management
£. 345 (1976).
140. The regional commissions will expire on June 30, 1979, by which time
their functions will have been transferred to local government agen-
cies certified by the state.
141. For a review of this experience, see G. Bowden, "Legal Battles on the
California Coast: A Review of the Rules," 2 Coastal Zone Management
J. 273 (1976).
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III-FN-11
142. Healy, supra note 78, at 223.
143. Id.
144. See jld. at 90-98.
145. See Thurow, Toner, and Erley, supra note 37, ch. 5.
146. U.S. Environmental Protection Agency, Protection of Nation's Wetlands:
Policy Statement, 38 Fed. Reg. 10834, 10835 (1973).
147. 16 U.S.C. § 1301 et seq.
148. See generally 1 Institute for Environmental Studies, supra note 114,
at 75-89. A model state wetlands protection statute is being prepared
for the Fish and Wildlife Service by the Environmental Law Institute.
149. N.Y. Envir. Conserv. Law § 24-0101 et seq. (McKinney).
150. Id.. § 25-0101 et seq.
151. See section 4.1 supra.
152. This moratorium was upheld in Candlestick Properties v. San Francisco
Bay Area Conservation & Development Comm'n, 11 Cal. App. 3d 557, 89
Cal. Rptr. 897 (Cal. Ct. App. 1970).
153. See Thurow, Toner, and Erley, supra note 37, at 45-47.
154. Conn. Gen. Stat. Ann. §§ 22a-29 and 22a-38 (West). See generally Comment, "The
Wetlands Statutes: Regulation or Taking," 5 Conn. L. Rev. 64 (1^72).
155. Me. Rev. Stat. tit. 38, § 472 (1977 Supp.).
156. A state wetlands inventory in New Jersey cost over $2 million. 1
Institute for Environmental Studies, supra note 114, at 87.
157. Thurow, Toner, and Erley, supra note 37, at 46.
158. Conn. Gen. Stat. Ann. § 22a-29(3) (West).
159. Id. § 22a-33.
160. Thurow, Toner, and Erley, supra note 37, at 47.
161. See Comment, "Recent State Wetland Cases: The Continuing Battle over
the Proper Scope of Regulation," 6 ELR 10125 (1976).
162. See note 168 infra.
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III-FN-12
163. Model Land Development Code, supra note 112, art. 6.
164. See "Land Banking Can Ease Some Growing Pains," Conservation Founda-
tion Letter (Conservation Foundation, Washington, B.C.), Dec. 1975.
165. J. Wagenlander, "The Urban Open Space Game," 6 Urb. Law. 950, 959
(1974).
166. See Regional Science Research Institute, Untaxing Open Space (Washing-
ton, D.C.: Government Printing Office, 041-011-00031-9, 1976).
167. See Model Land Development Code, supra note 112, § 6-501(1) and note
following.
168. Planning, Feb. 1975, at 5.
169. 4 United Nations, Urban Land Policies and Land-Use Control Measures
60-69 (New York, 1973).
170. See J. Costonis and R. DeVoy, The Puerto Rican Plan: Environmental
Protection through Development Rights Transfer (Washington, D.C.:
Urban Land Institute, 1975).
171. R. Fishman, "Public Land Banking: Examination of a Management Tech-
nique," in 3 Management and Control of Growth, supra note 23, at 67.
172. Thurow, Toner, and Erley, supra note 37, at 44.
173. See Model Land Development Code, supra note 112, § 6-203 and note
following.
174. M. Gleeson e_t^ al. , supra note 22, at 37.
175. IcL
176. Land Use, Open Space, and Government Process; The San Francisco Bay
Area Experience 110 (E. Smith and D. Riggs eds. 1976).
177. Wagenlander, supra note 165, at 953.
178. See chapter 2.
179. 16 U.S.C. § 1301 et seq.
180. 42 U.S.C. § 5305(a)(l).
181. See Thurow, Toner, and Erley, supra note 37, at 44.
182. Id. at 44-45.
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III-FN-13
183. M. Holbein, "Land Banking: Saving for a Rainy Day," Planning, Jan.,
1975, at 19.
184. Comment, "American Law Institute Endorses Land Banking," 5 ELR 10152,
10156 (1975).
185. The problem of lost tax revenues is one example.
186. Berman v. Parker, 348 U.S. 26 (1954).
187. 5 N. Williams, supra note 19, § 158.
188. "Land Banking Can Ease Some Growing Pains," supra note 164, at 5-6.
189. Commonwealth of Puerto Rico v. Russo, 95 P.R.R. 488 (1967). See also
Fishman, supra note 171.
190. See, e_._g_. , "Landowners Fight Wild River Effort," Washington Post,
Oct. 18, 1976, at Al.
191. The bill was struck down by the Massachusetts Supreme Court on other
grounds. In re Opinion of the Justices, 313 N.E.2d 561 (1974).
192. Parker v. Commonwealth, 178 Mass. 199, 59 N.E. 634 (1901).
193. See J. Costonis, "Fair Compensation and the Accommodation Power:
Antidotes for the Taking Impasse in Land Use Controversies," 75
Colum. L. Rev. 1021, 1078-79 (1975).
194. See generally W. Irwin and R. Liroff, Economic Disincentives for
Pollution Control; Legal, Political and Administrative Dimensions
(Washington, D.C.: Government Printing Office, EPA 600/5-74-026,
1974); and C. Schultze and A. Kneese, Pollution, Prices, and Public
Policy (Washington, D.C.: Resources for the Future, 1975).
195. Associated Homebuilders of Greater East Bay v. City of Walnut Creek,
4 Cal.3d 633, 94 Cal. Rptr. 630, 484 P.2d 606 (1971); Jenad v. Village
of Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673 (1966). See generally
D. Ragman, Windfalls for Wipeouts (Monticello, 111.: Council of
Planning Librarians Exchange Bibliography Nos. 618-20, 1975).
Illinois is a major exception. Pioneer Trust & Savings Bank v.
Village of Mt. Prospect, 22 111. 2d 375, 176 N.E.2d 799 (1961).
196. Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442
(1965) (earmarking not required); 5 N. Williams, supra note 19,
§ 156.08-.09 and cases cited therein.
197. See generally Hagman, supra note 18, §§ 198-200.
198. Id. § 200.
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III-FN-14
199. See Windfalls and Wipeouts, supra note 195, at 94-98 and sources cited
therein.
200. Divan Builders v. Planning Bd. of Township of Wayne, 122 N.J. Super. 508,
300 A,2d 883 (1973).
201. City of Buena Park v. Boyar, 186 Gal. App. 2d 61, 8 Cal. Rptr. 674
(1960).
202. See, £.£. , Baltimore County v. Security Mortgage Corp., 227 Md. 234,
175 A.2d 755 (1961); 2 U.S. Water Resources Council, supra note 57,
at 43.
203. For a summary and critical evaluation of these provisions, see
Regional Science Research Institute, supra note 166.
204. Mont. H.B. 672 (1975).
205. Delays in the implementation of the act have been due to questions
about the relationship of the law to existing zoning and other poten-
tial conflicts. Land Use Planning Reports, Nov. 1, 1976, at 5. The
administrative cost of the law was also estimated to be very high, as
much as $50,000 to $150,000 for Great Falls alone. Letter from John
R. Richards in Planning^, June 1976, at 2.
206. A summary of state court attitudes is provided in 1 N. Williams, supra
note 19, § 6. See also authorities cited in note 218 infra.
207. 201 N.W.2d 761 (1972).
208. Id. at 771.
209. 265 A.2d 711 (Me. 1970).
210. Dooley v. Town Plan and Zoning Comm'n, 151 Conn. 304, 197 A.2d 770
(1964).
211. Morris County Land Improvement Co. v. Township of Parsippany-Troy
Hills, 40 N.J. 539, 193 A.2d 232 (1963).
212. 40 N.J. at 555-56, 193 A.2d at 241-42.
213. AMG Associates v. Township of Springfield, 65 N.J. 101, 112 n.4,
319 A.2d 705, 711 n.4 (1974).
214. 300 A.2d 736 (Me. 1973).
215. Id. at 750. gee also "Recent State Wetland Cases: The Continuing
Battle over the Proper Scope of the Regulation," supra note 161.
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III-FN-15
216. See P. Soper, "The Constitutional Framework of Environmental Law,"
in Federal Environmental Law 20, 66-67 (E. Dolgin and T. Guilbert
eds. 1974); 1 U.S. Water Resources Council, supra note 57, pt. 3;
Berger, supra note 24, at 819-23; F. Bosselman, D. Callies, and J.
Banta, The Taking Issue 217-19 (Washington, D.C.: Council on En-
vironmental Quality, 1973); and R. Babcock, "On Land Use Policy,"
Planning, June 1975, at 12, 14-15; Note, "Preserving Scenic Areas:
The Adirondack Land Use Program," 84 Yale L. J. 1705, 1716-21 (1975).
217. See Bosselman, Callies, and Banta, supra note 216, at 302-09; and
Berger, supra note 24.
218. 39 N.Y.2d 587, 350 N.E.2d 381 (1976). See J. Costonis, "Fred F.
French Investing Co. v. City of New York: Losing a Battle but
Winning a War," 29 Land Use Law & Zoning Dig. 6 (1976).
219. Coastal Southwest Development Corp. v. California Coastal Zone
Conservation Comm'n, 127 Gal. Rptr. 775 (Cal. Ct. App. 1976),
discussed in 28 Zoning Dig. 334 (1976).
220. Moviematic Industries Corp. v. Board of County Comm'rs of Dade
County, (Dade County Cir. Ct. 1976). But see
Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956,
3 ELR 20018 (1st Cir. 1972), where the court upheld a six-acre
minimum lot requirement despite being "disturbed" by the lack of
evidence to support the limitation.
221. Sturdy Homes, Inc. v. Township of Redford, 30 Mich. App. 53, 186
N.W.2d 43 (1971).
222. See discussion in section 2.4 supra.
223. E.g. , Donnelly v. Outdoor Advertising Board, 339 N.E.2d 709 (Mass. 1975)
224. Sierra Club v. Environmental Protection Agency, 6 ELR 20669, 20682
(D.C. Cir. Aug. 2, 1976),
225. Recent Supreme Court equal protection cases include Roe v. Wade,
410 U.S. 113 (1973); and Dunn v. Blumstein, 405 U.S. 330 (1972).
See generally M. Gleeson _e_t al. , supra note 22, at 68-72.
226. Wambat Realty v. Adirondack Park Agency, 6 ELR 20690, 20695 (Clinton
County, N.Y. Super. Ct. 1976).
227. Potomac Sand & Gravel Co. v. Governor of Maryland, 226 Md. 358,
293 A.2d 241 (Md. Ct. App. 1972).
228. Proctor & Gamble Co. v. Chicago, 509 F.2d 69 (7th Cir. 1974), cert.
denied, 421 U.S. 978 (1975).
229. 509 F.2d at 81.
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CHAPTER THREE
LOCATIONAL CONTROLS FOR WATER QUALITY
SUGGESTED READINGS
American Law Institute. A Model Land Development Code. Proposed Official
Draft. Philadelphia, 1975.
Costonis, J. "Fair Compensation and the Accommodation Power: Antidotes
for the Taking Impasse in Land Use Controversies." Columbia Law Re-
view 75 (1975): 1021.
Gleeson, M. et al. Urban Growth Management Systems. Planning Advisory
Service, nos. 309, 310. Chicago: American Society of Planning Of-
ficials, 1975.
Hammer, T. Planning Methodologies for Analysis of Land Use/Water Quality
Relationships. Washington, D.C.: U.S. EPA, 1976. (EPA Contract No.
68-01-3551)
Jokela, A. Self-Regulation of Environmental Quality: Impact Analysis in
Local Government. Claremont, Cal.: Center for California Public Af-
fairs, 1975.
Kaiser, E. et al. Promoting Environmental Quality through Urban Planning
and Controls. Washington, D.C.: U.S. EPA, 1974. (EPA 600/5-73-015)
Keyes, D. Land Development and the Natural Environment. Washington, D.C.:
Urban Institute, 1976.
Scott, Randall, ed. Management and Control of Growth. 3 vols. Washington,
D.C.: Urban Land Institute, 1975.
Smith, E.; and Riggs, D., eds. Land Use, Open Space, and Government Process;
The San Francisco Bay Area Experience. New York: Praeger, 1976.
Soper, P. "The Constitutional Framework of Environmental Law." In Federal
Environmental Law, edited by E. Dolgin and T. Guilbert. St. Paul:
West Publishing Co., 1974.
Thurow, C.; Toner, W.; and Erley, D. Performance Controls for Sensitive
Lands. Planning Advisory Service, nos. 307, 308. Chicago: American
Society of Planning Officials, 1975.
Tourbier, J. Water Resources as a Basis for Comprehensive Planning and
Development of the Christina River Basin. Newark, Del.: Univ. of
Delaware Water Resources Center, 1973.
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III-SR-2
Train, Russell E. "The EPA Programs and Land Use Planning." Columbia
Journal of Environmental Law 2 (1976): 255.
U.S. Water Resources Council. Regulation of Flood Hazard Areas to Reduce
Flood Losses. 2 vols. Washington, D.C., 1971.
Williams, Norman. American Land Planning Law. 5 vols. Chicago: Callaghan
& Co., 1974-75.
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CHAPTER FOUR
MUNICIPAL WASTEWATER TREATMENT FACILITIES:
RESTRICTIONS ON TIMING AND LOCATION OF HOOKUPS AND EXTENSIONS
TABLE OF CONTENTS
1.0 Introduction IV-1
1.1 Municipal Wastewater Treatment Facilities and
the Section 208 Water Quality Management Planning
Process IV-1
1.2 Other Federal Requirements for Municipal Wastewater
Treatment Facilities IV-3
2.0 Interim Restrictions on New Connections IV-6
2.1 Sewer Moratoria IV-6
2.1.1 Appropriate Level and Agency of Government
Questions of Administrative Coordination
and Legal Authority IV-7
2.1.2 Other Legal Questions IV-9
a. Lack of Capacity IV-9
b. Reasonable Duration IV-10
c. Exemptions IV-11
2. 2 Sewer Allocation Policies IV-12
2.2.1 Sewer Allocation Policies Within the
208 Process IV-12
2.2.2 Level of Authority IV-15
2.2.3 Incorporation of Standards and Planning IV-15
2.2.4 Enforcement IV-16
2.2.5 Constitutional Questions IV-16
3.0 Controls on the Location and Timing of Sewer Services:
Comprehensive Planning for Sewer Systems and Timing and
Channeling Growth in Accordance with Capital Improvements
Programming IV-18
3.1 Introduction IV-18
3.2 Capital Improvements Programming and Development
Timing Described IV-19
3. 3 Level of Government IV-20
3.3.1 Drawbacks to a Local Approach IV-20
3.3.2 Two Examples of a Regional Approach:
Montgomery County, Maryland and Minneapolis -
St. Paul, Minnesota IV-22
a. Allocation of Authority Between State
and County: Montgomery County, Maryland...IV-22
b. A Regional Authority: Minneapolis -
St. Paul IV-23
3.4 Incorporation of Planning and Standards IV-25
3.4.1 Ramapo, New York IV-25
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3.4.2 Montgomery County IV-26
3.4.3 The Twin Cities IV-27
3.5 Implementation and Enforcement IV-28
3.5.1 Implementation and Enforcement with Respect
to Individual Development Decisions IV-28
3.5.2 Implementation and Enforcement of Plans and
Programs with Respect to the Construction
of New Public Sewer Facilities and Other
Governmental Action IV-30
3.6 Legal Authority IV-31
3.6.1 Authority to Limit Extensions to the Sewer
System IV-31
3.6.2 Authority to Undertake Comprehensive Sewer
Planning and to Time Development Accordingly...IV-32
3.7 Constitutional Questions IV-36
3.7.1 Reasonableness IV-36
3.7.2 Exemptions and Variances IV-37
Footnotes
Suggested Readings
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CHAPTER FOUR
MUNICIPAL WASTEWATER TREATMENT FACILITIES:
RESTRICTIONS ON TIMING AND LOCATION OF HOOKUPS AND EXTENSIONS
1.0 Introduction
1.1 Municipal Wastewater Treatment Facilities and the Section 208
Water Quality Management Planning Process
JL
Municipal wastewater treatment facilities, like industrial dischargers,
are subject to the National Pollutant Discharge Elimination System
created by section 402 of the Federal Water Pollution Control Act
Amendments of 1972 (FWPCA). Other key requirements of the FWPCA
applicable to municipal wastewater facilities are set out in sections
201(g), 301, and 302 of the act. By 1983 municipal waste treatment
facilities must meet best practicable waste treatment technology (BPWTT)
or whatever higher level of treatment is required to meet applicable
water quality standards.I/ Progress towards meeting both technology and
water quality based standards will continue to depend on upgrading
of old and construction of new treatment facilities and sewers.^/
Upgrading and expanding publicly owned treatment works, however, cannot
by itself assure achievement of 1983 standards. The treatment level
expected of the costliest and most advanced sewage treatment plant can
be undermined in a variety of ways. Among the threats to the sound
operation and required effluent quality of a municipal treatment plant
are certain industrial discharges to sewers; uncontrolled stormwater
runoff (where storm sewers and sanitary sewers are combined); and
excessive quantities of domestic sewage (when it results in inadequate
treatment or overflows).
In the case of industrial discharges to sewers, the extra dimension
of control needed takes the form of pretreatment ordinances requiring
industry to remove or neutralize those components of its discharge
which will either damage the treatment system of the municipal facility
or which will pass through it untreated._3/ Both the technical and the
legal and institutional aspects of pretreatment are the subject of a
separate handbook published by EPA's Water Planning Division.4/ EPA
is also working on a model pretreatment ordinance._5/
Another threat to the proper functioning of municipal treatment
facilities is the unpredictably-sized and frequently grit and oil-
laden stormwater from storm sewer cross connections and from roof
leaders, foundation drains, etc.6_/ Regulatory approaches for controlling
* This term, and variations on it, will be used to describe all publicly
owned centralized sewerage collection and treatment works. Decentralized,
small-scale and "cluster" systems will be discussed in the next chapter.
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IV-2
urban stormwater runoff are discussed in chapter 6.
The remaining troublesome contributor to substandard municipal discharges
is individual domestic discharges which, in total, exceed the design
flow of the particular treatment system. With most of the country
already experiencing rapid growth, 1J an^ with the observed tendency
of new sewer and sewage treatment capacity to accelerate that growth, _§/
controls designed to keep the volume of sewage flow in balance with the
particular sewage treatment facility's capacity will be an all important
part of most water quality management programs.
Unfortunately, in many municipalities and other local jurisdictions
around the country, existing sewage loads actually do exceed or are on
the brink of exceeding existing sewage treatment capacity. Short-
term controls are needed to avoid further overloading or to parcel
out severely restricted capacity in an equitable fashion. Such ad
hoc control techniques (bans on further sewer connections, generally
called sewer "moratoria," and sewer allocation schemes) are the subject
of the first two sections of this chapter.
Even when new sewage facilities are being planned or are undergoing
construction, moreover, water quality management plans need to include,
in the language of EPA's Guidelines for State and Areawide Water Quality
Management Program Development, methods for "managing the systems over
time in order to prevent growth from exceeding the designed capacity
of the system. "jV EPA's guidelines go on to recommend that water
quality management plans include schedules for hookups to the wastewater
collection and treatment system. Much of this chapter will discuss how
to tie the definition of the current service area and future, incremental
extensions of sewer lines and of the service area to a locality's plans
for location and timing of future growth.10/
As communities have discovered that major capital facility investments
and particularly investments in sewers determine the pattern of land
use development, 11/ many have sought methods to harness this cause-
effect phenomenon. This has been done in several cases by planning
new facilities, scheduling hookups, and locating and sizing new sewer
extensions to fit development priorities which reflect overall land use
plans. These plans will typically include both a desired rate of growCh
and the desired locations of such growth. Indeed, it has been observed
that the population projections necessary for sizing new or expanded
sewer facilities will not be realistic unless based on the "carrying
capacity" of the land.JJ^/ Critical environmental areas such as flood
plains and prime agricultural land will be put off limits to intensive
development and, therefore, to sewers. Considerations of energy and
transportation efficiency and a desire to conserve open space may
dictate giving priority in sewer service to applicants from already
developed or partially developed areas._13/
The goal of better water quality is served by the methods tying sewer
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IV- 3
services to land use planning described in this chaptercapital
improvements programming and adequate public facilities ordinances
in at least the following three ways;
1. With development permission firmly tied to
the availability of sewer capacity, the chronic
overloads of the past which have spawned the ubiquitous
sewer moratorium can be avoided in the future;
2. With sewering and onsite waste disposal (see chapter
5 )unavailable in flood plain and wetlands areas, the
adverse consequences of development in these areas
on water quality may be avoided. Development in
such areas reduces flood storage capacity thereby
adding to the size and frequency of flooding
flooding which pollutes as well as causing physical
damage and loss of life. Development in wetlands
may pollute groundwater and surface water and
destroys natural water purification systems.
Development along streams also increases the rate
of stormwater runoff by increasing the amount
of impervious surface; accelerated runoff disturbs
the natural balance between a stream or river
and its banks, causing erosion and sedimentation.
(This last point is also true, of course, of develop-
ment elsewhere.)
3. Under a comprehensive capital facilities programming/
land use planning scheme, preference for finite
sewer and sewage treatment capacity may be accorded
development based on its overall community contribution.
Among other factors to be weighed, low discharge
volume, a high standard of pretreatment, and water
conservation measures might entitle a particular
developer to priority.
1.2 Other Federal Requirements for Municipal Wastewater
Treatment Facilities
EPA points out in its Guidelines for State and Areawide Water Quality
Management Program Development that communities which do not themselves
develop a system for balancing sewer demand and sewer capacity may be
subject to having one imposed as a condition of the NPDES permit for the
municipal discharge:
In the event that a violation of an NPDES permit
permit occurs due to overloading of treatment works,
the Regional Administrator (or the State if the NPDES
program has been delegated to a State) may, under
authority of Section 402(h) of the Act, seek a court order
imposing a ban or restrictions upon sewer connections.
A series of planning and management actions to prevent
overloading of facilities may be included as special con-
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IV-4
ditions to permits issued to facilities in danger
of imminent overloading.14 /
The circumstances under which such conditions may be imposed are
further spelled out in EPA's Guidance Memorandum No. 10, "Guidance
for Conditioning of Municipal Permits in High-Growth Areas," (Jan.
15, 1974). Specifically, the guidance memorandum suggests several
conditions to be included in "permits issued to all facilities where
rapid growth (annual growth rate of 3 percent or more) is anticipated"
and (1) where the population served is greater than 10,000 and over-
load is imminent ("facility is operating in excess of 85 percent
of design flow or BOD loading requirement at time of issuance")
or (2) where, regardless of population served, overload is actual
("facility is already exceeding allowable BOD loading or flow rate
at time of permit issuance"). The suggested conditions of Guidance
Memorandum No. 10 are:
The permittee, in consultation with the several
independent agencies and local governments listed.
shall develop a schedule of new extensions, connections
and hookups of new sources (e.g., dwelling units) to
the waste treatment system over the duration of the permit.
This schedule should be consistent with existing or emerging
land use plans, open space plans, official zoning maps, and/
or capital improvement budgets of the various agencies
listed. A copy of this schedule or schedules, along with
a statement of concurrence (or non-concurrence) from the
local governments, should be provided to the State and EPA
within 180 days from issuance of this permit. Thereafter,
an annual report should be submitted by the permittee
to the State, EPA and the various local agencies tracking
the rate of actual hookups, connections and extensions
against the agreed-upon schedule. As the schedule is
periodically revised, copies of the new schedule should
be provided along with the annual report.
Location and sizing of the sewage treatment facility itself are beyond
the scope of this chapter. Detailed guidance for these decisions
is given in the FWPCA and in EPA regulations and guidelines, _15/
while locational controls generally are discussed in chapter 3 of
this handbook.
It is important to note, however, the close relationship between future
section 201 planning and state and areawide water quality management
planning. After the water quality management plan is approved, future
grants for section 201 facilities plans must be made to the management
agency or agencies designated in the plan and only for facilities
in conformance with the plan. Denver, Colorado is an example of a
region which has been coordinating section 201 facilities planning
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on a regional basis for some time. The Denver Regional Council
of Governments, which has been designated as the area's section 208
planning agency, reviews any comments on all construction grant
applications and plans for scope of work. Applications must be approved
by the council before they will be approved by the state. Construction
grant applicants are already using data for population projections,
land use, and instream water quality that are consistent with the area-
wide water quality planning program under section 208.16/
The process for reconciling any inconsistencies between section 201
facilities plans and section 208 water quality management plans is
outlined in EPA's Program Guidance Memorandum No. 66 entitled "Rel-
ationship Between Section 201 Facility Planning and Water Quality
Management (WQM) Planning." It reads in part:
Where future 201 planning results in recommended
projects not in general conformance with the recommenda-
tions of an approved WQM plan, review of the proposed
change must be made by the designated agency responsible
for operating the continuing WQM planning process. If
the proposed change is accepted by the WQM planning
agency, the WQM plan is to be revised. (Revisions will
then proceed through the normal State certification and
EPA approval process.) If the proposed change is
unacceptable, the approved WQM plan is controlling.
Much of the information necessary for facilities planning will, of course,
be the basis for future controls on the rate and location of sewer hook-
ups and extensions. Estimates of future municipal wastewater flows
based on economic and population projections, for example, will be at
the center of both section 201 facilities planning and section 208 water
quality management planning. These will provide the basis for the timing
of hookups and extensions. As for the spatial dimensionsthe exact
configuration of the service areathe section 201 facility planning
process will contribute valuable data useful for section 208 water
quality management planning determinations of what areas have soils
suitable for onsite wastewater disposal (see the following chapter) and
what areas are too environmentally sensitive and valuable to be serviced
at all.
Much of this information on what are commonly known as the "secondary
effects"* of sewage collection and treatment facility construction must
be gathered and evaluated as part of the environmental impact assessment
process under the National Environmental Policy Act (NEPA).l?/ If the
*EPA defines secondary effects as "(1) indirect or induced changes in population
and economic growth and land use, and (2) other environmental effects resulting
from these changes in land use, population, and economic growth." (EPA
Program Guidance Memo No. 50, "Consideration of Secondary Environmental
Effects in the Construction Grants Process," June 1975, at 11.)
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construction grant applicant's environmental impact assessment indicates
a project will have significant adverse primary or secondary effects (or
will be highly controversial), EPA will prepare an environmental impact
statement on it under the agency's NEPA regulations._18/ Additional
restrictions apply, as a matter of EPA and executive policy, to the
construction of wastewater treatment facilities which may interfere
with a wetland ecosystem or with the natural functions of a flood plain.19/
When at the end of the environmental impact assessment or statement review
process, EPA decides to award the construction grant, its policy is to
include in the grant document any conditions necessary to mitigate
adverse primary or secondary environmental effects. The EPA Administrator's
June 1975 Program Guidance Memo No. 50, entitled "Consideration of Secondary
Effects in the Construction Grants Process," lists ways in which secondary
effects may be mitigated, ways which include:
-phasing and orderly extension of sewer service
-improving land use planning
-better coordination of planning among communities
affected by the project
-sewer use restrictions
-improving land management controls to protect water
quality, such as sedimentation and erosion control
and floodplain management.20/
Thus both through its power under the NPDES to restrict sewer connections
where overload is threatened, and also through denial or conditioning of
construction grants, EPA has the leverage to follow through on the
requirement that water quality management plans include (1) measures to
prevent growth from exceeding the designed capacity of the wastewater
treatment system and (2) other measures, including land use controls,
to regulate the location of sources of water pollution, both the treatment
facility itself and contributors to it. The following discussion
suggests (1) certain tools which water quality management agencies
and water quality planning agencies should have if they are to be
equipped to avoid degradation of water quality through an overloaded
sewer system and (2) techniques by which the sewer system can itself
be made a tool to avoid degradation of water quality through ill-timed
of ill-placed growth._21/ Development of these or similar tools and
techniques should enable communities to avoid state or federally
imposed restrictions on their wastewater treatment facilities and
should smooth the way for obtaining state and federal funding when and
if such funding becomes necessary to upgrade or supplement inadequate
collection and treatment facilities.
2.0 Interim Restrictions on New Connections
2.1 Sewer Moratoria 22/
In the past few years the sewer moratorium has become a fact of surburban
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life and an all too familiar term in the vocabulary of development. The
concept of calling a temporary halt'to development is not new. For
many years municipalities have imposed temporary restrictions on the
issuance of building permits or on the processing of subdivision plans
or of rezonings, often to give themselves time to draft a new comprehen-
sive plan or a new zoning ordinance._23/ Increasingly, municipalities and
counties caught offguard by rapid growth find their sewer systems as
inadequate to deal with that growth as their master plans. And they
know if they don't act to limit access to overtaxed sewer systems, the
state probably will.
A decision to disallow further connections to an overloaded sewage
treatment plant may take many forms._24/ The sewer authority itself may
impose a ban on all further connections. This may be enough where the
municipality or other general purpose unit of government requires a sewer
connection permit as a precondition to the issuance of a building permit.
Alternatively, the local government may adopt an ordinance suspending the
issuance of building permits for construction requiring sewer service
or it may call a temporary halt to the processing of rezoning or subdivision
requests. Where neither the sewer authority nor the local governing authority
takes the initiative, the state may act to ban new connections to the treatment
plant.
There is also variation among sewer moratoria in terms of their coverage.
Even in situations where the treatment plant is severely overloaded,
the authority imposing the moratorium may want to exempt limited preferred
uses such as public facilities and low-income housing from the ban.25/
In cases where the public health hazard is less, an exemption for individual
(non-tract) single family homes and even for commercial and industrial
uses may be justified. Of course, where there is substantial remaining
capacityor where new but limited capacity will be coming on linea
sewer allocation policy rather than a sewer moratorium is the appropriate
control technique. Before describing the nature of sewer allocation policies,
however, the question of what agencies may impose sewer moratoria under
what circumstances will be discussed.
2.1.1 Appropriate Level and Agency of Government^Questions
of Administrative Coordination and Legal Authority
The key administrative problem with respect to the imposition of sewer
moratoria is coordination. If the sewer authority or the state imposes
a moratorium on the issuance of sewer connection permits, then the local
government body should predicate the approval of a subdivision plat and
the issuance of a building permit on the applicant's having a sewer connection
permit or the assurance of one by the time the property is ready to hook
up. Only if there are such formal coordinating mechanisms between the
sewer authority and other officials and agencies involved in the develop-
ment approval process can bureaucratic confusion and resulting inequities
be avoided.
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IV-8
Which level and agency of government is in the. best position to impose
a sewer moratorium is not so much a question of administrative workability
as it is one of adequate legal authority. It is not unusual, for example,
for the enabling legislation empowering a local sewer authority to
stipulate that the authority "shall" grant a connection permit to anyone
applying to tap into an available sewer line. In construing such a statute,
the Massachusetts Supreme Judicial Court cautioned that the word "'shall'
. . . is not to be construed as 'may'." Although the decision in that case,
Clark v. Board of Water and Sewer Commissioners of Norwood, 26/ went on to
say that the statute in question would not be construed to require the
sewer commissioners to grant an immediate connection where to do so would
endanger the public health, a sewer authority operating under such a
statute would have to sustain a heavy burden of proof and would not, of
course, enjoy the presumption of validity accorded the legislative
action of a general purpose unit of government.
With sewer moratoria imposed by general purpose units of government it
is the form in which they are adopted that generally determines their
legal validity. The cases make clear, for example, that a town
cannot adopt a moratorium by way of a zoning amendment or a subdivision
control regulation if the enabling legislation does not comprehend
protection of the integrity of the sewer system and its receiving
waters within the statutory purposes. Thus in striking down a zoning
amendment which prohibited the construction of new multiple dwellings
throughout a municipality and which was adopted, allegedly, to protect
the municipal treatment system from overload, the New York Court of
Appeals noted in Westwood Forest Estates, Inc. v. Village of South Nya_ck:
There is a distinction between the proper use of the
power to carry out the purposes of the enabling
statutes . . . and the improper use of the zoning
power to effect the general police powers of a
municipality ....
This is not to say that the village may not, pursuant
to its other and general police powers, impose other
restrictions or conditions in the granting of a
building permit to plaintiff, such as a general
assessment for reconstruction of the sewage system,
granting of building permits for the planned apartment
complex in stages, or perhaps even a moratorium on the
issuance of any building permits, reasonably limited
as to time.27/
Although state zoning and subdivision control enabling statutes
may explicitly include the assurance of adequate public
facilities and/or the prevention of pollution among their stated
goals, 28/ localities in jurisdictions where such powers have
not been construed broadly 29/ may well find that their surest
source of authority for enacting sewer moratoria is their
local police powers. The standard form for a sewer moratorium
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IV-9
adopted pursuant to the local police power is a limitation on
the issuance of building permits. It must be remembered, however, that
local units of government have no inherent police power authority; typically
they enjoy such authority under their charter or by a "home rule" provision
in their state statutes or constitution. JUD/ Despite the increase in
home rule legislation across the country, some local governments are still
severely limited in their authority, enjoying, under "Dillon's Rule"
"only those powers expressly granted, those necessarily implied therefrom,
and those that are essential and indispensable."31/
Where a locality has not been delegated the necessary police power authority
to impose a sewer moratorium, the local sewer authority or governing
body will have to call upon the state pollution control agency. Often,
in addition to being able to call upon the state's reserved police power
to protect the public health and safety, that agency will have explicit
pollution control legislation empowering it to impose sewer bans on municipal
treatment plants. If the state issues sewer connection permits, this
power can, of course, be exercised directly. If it does not, and if the
permit-issuing authority disregards the state order, section 402(h) of
the FWPCA provides that a state may obtain a court order enjoining future
connectionseither directly, if it administers the NPDES itself, or
through the regional administrator, if it does not. (The availability
of this remedy assumes that the treatment works is overloaded to the
point where it is in violation of its NPDES permit.)32/
2.1.2 Other Legal Questions
Assuming, then, that the level or agency of government deciding to
impose a sewer moratorium has the legal authority to do so, what other
legal tests must the moratorium satisfy? Briefly stated, the moratorium
must (1) be justified by a bona fide lack of treatment capacity and
consequent threat to the public health and (2) be limited as to time,
generally to the time necessary to alleviate the health hazard. In
addition, a moratorium should provide a variance procedure for hard-
ship cases and, in the case of a particularly lengthy ban, should
include one or more categories of allowable use so as not to deprive
property owners all use of their undeveloped land.
a. Lack of Capacity
The courts are in general agreement that a government authority which
has monopolized the provision of sewer service within a defined area
not only has a duty to allow connections by all applicants within
that area on an equal basis, 33/ but also to provide adequate treatment
capacity to carry and treat that flow.J34/ Therefore, the municipality
wishing to limit future sewer connections must sustain a heavy burden of
proof with respect to its claims of inadequate capacity and threatened
hazard to the public health. Gone is the presumption of legislative validity,
since in monopolizing sewer service the local government takes on the attributes
of a public utility and sheds its "legislative" or "governmental"
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prerogatives.
Thus while a court will not order a connection permit if it "would
at once overload the sewer and risk serious flooding and danger of
injury to persons or property," 35/ the cases attest to a judicial
unwillingness to take municipalities' cries of inadequate capacity at
face value. The Circuit Court of Fairfax County has even involved itself
in the numbers game of millions of gallons per day by which sewer
capacity is measured. In the most recent of its long series of
cases overturning denials of sewer taps by the County Board of Supervisors,
Langley Development Corporation v. Board of Supervisors of Fairfax County, 36/
the circuit court found that the board "did not possess any study of the
Blue Plains Plant or other evidence or factual basis upon which it
determined that a sewer moratorium or allocation policy was necessary to
protect the public health, safety or welfare" at the time the resolutions
which formed the basis of the moratorium were adopted. Further, the
court found that "a minimum of .6682 mgd of unallocated capacity would
exist even if there were some validity to the above referenced allocation
policy." The Langley case points up the necessity of backing up a
sewer moratorium with adequate documentation of the capacity figure on
which an allocation system is based and of the pollution hazard if
that capacity figure is exceeded.
b. Reasonable Duration
Westwood Forest Estates, Inc. v. Village of South Nyack, 37 / one of
the first cases to bless the sewer moratorium, if only indirectly,
was also one of the first to suggest that, to be valid, a moratorium should be
"reasonably limited as to time." Since the particular form the Westwood
moratorium took was declared invalid by the court, the New York court did
not elaborate on what it would consider "reasonable." Subsequent cases
suggest, however, that whatever time is necessary to construct the required
additional capacity or to upgrade the existing treatment process will be
considered "reasonable," as long as the municipality is not dilatory about
commencing construction. The Circuit Court of Fairfax County allowed
the county three years to furnish service in one instance, despite
the court's finding that the board of supervisors had been aware of the
lack of sewer capacity for almost a decade. In its letter opinion in
that case, ChantillyDevelopment Corporation v. Board of Supervisors of
Fairfax County, 38/ the court was careful to stipulate, however, that the
board "report to the court at six-month intervals their plans for
furnishing severs."
A New York case, Belle Harbor Realty Corp. v. Kerr, contains the following
warning to communities which fail to use the breathing spell provided by
the moratorium to good purpose:
[W]e suggest that the city may impose a reasonable
moratorium on construction in the area until the sewers
can be expanded to accomodate the area's needs. However,
if the city does choose to impose a moratorium, but then
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IV-11
fails to remedy the sewerage problem with dispatch, property
owners could, if so advised, sue to compel such remedial
action as well as for any damages which might have resulted
from the city's failure to perform its duty._39/
A recent U.S. District Court case, Smoke Rise, Inc. v. Washington
Suburban Sanitary Commission, 40/ suggests, however, that a municipality
with a legitimately delay-causing pollution problem need not be unduly alarmed
by the possibility of the kind of liability suggested by the Belle
Harbor case. Smoke Rise involved several five-year moratoria imposed
on certain drainage basins by the Maryland Department of Health and
Mental Hygiene. In holding that the moratoria were not unreasonable
as to time and thus did not constitute a deprivation of property without
due process, the court said:
While a police power moratorium must be reasonably
limited as to time, it is clear that the reasonableness
of the duration of the moratorium must be measured by
the scope of the problem which is being addressed.
The scope of the police power and the permissible duration
of its exercise must expand to meet the increasingly
complex problems of metropolitan, multi-jurisdictional
government.41/
In finding the five-year term of the Maryland moratorium reasonable,
the court cited problems of federal funding; regional planning (including
the delay in designation of the Metropolitan Council of Governments as
the section 208 areawide water quality planning agency); and the "inter-
jurisdictional complexity of the problem" in metropolitan Washington, problems
which the opinion describes in considerable detail. _42_/ The fact that the
court felt it necessary to describe the peculiar difficulties experienced
by metropolitan Washington at such length suggests, however, that a
community seeking to justify a moratorium of as much as five years
will have to have highly persuasive evidence of inability to solve the
overload problem in a shorter time.
c. Exemptions
Typically, local authorities are reluctant to impose across-the-board
sewer moratoria for several reasons. One, they do not want to invite
allegations that the moratorium constitutes an unconstitutional "taking"
because it has the effect of forbidding any use of undeveloped land.
(Munciipalities usually address this concern by exempting single-family
dwellings.) Two, municipalities may want to lure, or at least not discourage
industry and commercial development by exempting it. Third, a municipality
may have a public facility planned or under construction or may want to
exempt public facilities generally. Finally, a municipality will want to
avoid specific inequities by including in the ordinance a carefully
drafted variance provision to take care of the Inevitable cases
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of reliance, extreme hardship, etc. This list of typical exceptions
raises inevitable questions, however: do not such exemptions undermine
the primary case for< the necessity of the moratorium? Does not picking
and choosing between applicants raise constitutional questions of equal
protection?
The last exemption in the above list, a variance provision governed by
adequate standards, far from undermining the reasonableness of a moratorium,
adds to it. As for exemptions of whole classes of uses, the cases suggest
that these too may enhance the reasonableness of a moratorium by allowing
the property owner some use of his land. Since the validity of the moratorium
rests on the inadequacy of the community's sewer system, however, the
exemption should be justifiable in terms of its lesser sewage volume.
Thus, in upholding sewer moratoria which, in combination with sewer
allocation policies, effectively singled out subdivisions for single-
family homes, the Smoke Rise court observed:
Montgomery County and [the defendant Washington
Suburban Sanitary Commission] have adopted policies
which give low priority to the applications of these
conventional homebuilders vis-a-vis other commercial or
residential application for sewer hook-ups as additional
treatment capacity becomes available during the interim
period. In the view of this Court, such allocation
policies are rationally related to the legitimate purpose
of alleviating sewage overflows while simultaneously
affording sewer service to the greatest number of persons
and land uses. By selecting a different, less profitable
use for their land than single-family subdivisions, these
plaintiffs can expedite the availability of sewer service
to their properties. Under these circumstances, it cannot
be said that a taking has occurred.43/
What the courts will not tolerate, of course, is a selectively imposed
moratorium clearly designed to prevent the construction of a particular
development, like the one struck down in Kennedy Park Homes Association
v. City of Lakawanna as racially discriminatory.44/
2.2 Sewer Allocation Policies
2.2.1 Sewer Allocation Policies Within the 208 Process
Sewer moratoria are responses to emergency situations, situations
which communities and sewer authorities should, needless to say, seek
to avoid in the first place. Until more communities adopt the various
measures available to them to slow the rapid growth which precipitates
the sewer overload crises (measures which will be discussed in the following
section on Controls on the Location and Timing of Sewer Services) and
until the results of such measures as capital improvement programming and
development timing controls are fully felt, many communities and sewer
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authorities will be confronted with an excess of demand over available
sewer capacity and will have to resort to allocation policies for that
limited capacity if they are to avoid sewer moratoria. The primary
goals of a sewer allocation system are (1) to monitor and control the rate
at which capacity is exhausted in order to avoid overload and allow for
planning of future facilities and (2) to make limited existing and new
capacity available to applicants in an orderly, equitable way.
As they seek to avoid sewage overload, communities will also want
to avoid a situation in which the real determinant of the type of
future development is the availability of a sewer permit, rather than the
community's comprehensive plan or zoning ordinance. Most sewer policies
will, therefore, attempt to insure a balance between different types of
development, or the correcting of a previous imbalance, by allocating
a fixed percentage of capacity to each of several categories of use:
residential, commercial, industrial, etc. Where the amount of remaining
capacity is particularly small or a community's priorities particularly
pronounced, the range of categories will be correspondingly narrow, e.g.,
50 percent to public facilities (schools, hospitals, etc.) and 50
percent to low-income housing. The variants are limitless. Next comes
the question of how to pick and choose between applicants within use
categories.
Complicated schemes have been put forward for giving preference in allocation
of scarce sewage capacity to uses which promise to minimize adverse effects
on environmental quality by, for example, locating away fom environmentally
sensitive areas such as flood plains; pretreating wastes; or generating
low levels of wastewater to begin with. As the next section of this
chapter will, make clear, however, such schemes will be redundant once sewer
service areas are drawn to reflect a community's preferred growth sequence
and to protect critical environmental areas. In other words, once environmental
concerns are made part of the sewer location and sewer access decisionmaking
process, allocation of sewer capacity within the area eligible for immediate
servicing when demand exceeds supply need only reflect the community's
desire (1) to preserve or achieve balanced land use and (2) to award
permits to those developers who have waited in line the longest and who are
readiest to put their allocation to use.
This has been the approach of two of the very few jurisdictions which
have experimented with sewer allocation policies: Montgomery County,
Maryland 45/ and Fairfax County, Virginia.j46/ While such a policy has
the deceptively simple name of "first-come, first-serve," the complexity
of the development process in most jurisdictions makes the determination
of who came first a ticklish business. Montgomery County's regulations
run to 23 pages. Fairfax County's "Procedure for Allocating Sewer Taps,"
which was declared invalid by the Fairfax County Circuit Court,47/ is almost
equally complex. Some of the complexity is attributable to variations in
policy as between different watersheds within the two counties, but
much of it stems from the scrupulous attempts "to prevent the hoarding
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of and speculation in sewage treatment capacity which would prevent
persons with an intention to build in the reasonable future from doing so"
(Fairfax County) and at the same time "to distribute available sources of
sewerage service in order to insure balanced and orderly development" (Montgomery
County).
Under both policies, balanced development is assured by the allocation of
capacity between categories of use. The Maryland categories are:
1. public facilities and other public service buildings;487
immediate public health problems (as a result of failing
septic or other inadequate system)8 percent of total capacity
available;
2. commercial and industrial development25 percent;
3. residential development67 percent;
Commercial and industrial development is further broken down into
small and large development. Development contributing 2,500 gallons
per day ("gpd") or less receives 2 percent of the total capacity available.
Larger developments, accounting for 18 percent of total capacity, are limited
to 50,000 gpd per project except upon recommendation to the sewer authority
by the county executive, with the approval of the county council.
The residential development category is further broken down as follows:
1. individually owned single family dwelling units
2 percent;
2. small volume builders (those who build fewer than
ten dwelling units per year)3 percent;
3. low and moderate income housing28 percent;
4. conventional housing22 percent;
5. large tract planned developments (minimum
of 2,000 dwelling units within planned unit
development zones)-12 percent.
Under the Virginia system, sewage applicants are accorded capacity within
the appropriate use category according to the date that they file a
complete site plan, preliminary subdivision plat, or application
for a special exception or special use permit with the county Department
of Environmental Management. The Maryland policy gives developers two
months to grapple with the new policy. One month is devoted to advertising
the new procedures, and all applications for service received within
the first two months are put in an "Initial Group" and considered on an
equal footing regardless of date of submittal. Subsequently, any
remaining capacity is apportioned within each class according to the
date of application for sewer service.
Under a "Standard Priority System" designed to assign priorities where
demand exceeds supply even within the Initial Group, priority is given to
projects closest to the construction stage and to those experiencing the
longest delays. Nothing is left to the Washington Suburban Sanitary Commission's
(WSSC) discretion, however; priority subgroups are ranked according to
whether a project has an approved preliminary plan and a sewer authorization
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or only the former, etc. An additional subgroup system is imposed on
the one described, should capacity still be over subscribed. While
this rather rigid system applies to most of the categories of uses,
variations among the categories are explicitly provided for where dictated
by the realities of the development process or by the anticipated
shortfall in capacity allocated. In addition, the policy reflects
certain variations among treatment plants.
Both the Fairfax and Montgomery County allocation procedures are partic-
ularly emphatic in their provisions for recapture of capacity not actually
used within a specified period of time. Thus both policies require the
subdivision developer to commence construction of a certain percentage
of his units in each of a specified number of years to retain his
sewer allocation for those units.
2.2.2 Level of Authority
Planning for se.wer allocation is inseparable from the other planning
requirements of section 208 and is best done on an areawide basis. The
kinds of institutional framework within which ongoing planning for
sewage systems may be done are discussed at the end of this chapter.
Almost all of the hard decisions with respect to sewer allocation, many
of which will be susceptible to severe political pressures, can be
made in drawing up the policy itself: in deciding, for example, how
much capacity to allocate to public uses and how much to residential
development and when to impose a commitment recapture system. Once
all the priorities have been spelled out in the policy document, the
implementation of that policy should be a fairly routine and expeditious
process, best implemented by the sewer authority responsible for issuing
sewer permits. Whatever enabling authority was adequate to give the
agency its permitting power in the first place will probably be adequate
to support the ranking of applicants in accordance with areawide or
statewide policy when capacity is scarce. States administering the
NPDES can always use conditions in municipal NPDES permits to backstop
local authority.
2.2.3 Incorporation of Standards and Planning
Both Fairfax and Montgomery Counties have amended their policies several
times to deal with unanticipated situations and changing circumstances,
and, needless to say, new situations will continue to crop up and circum-
stances will inevitably change again. Yet Montgomery County's sewer
allocation policy forms part of its Ten-Year Water and Sewerage Plan, which
must be approved by both the county council and the state Department of
Health and Mental Hygiene. While the county Office of Environmental
Planning suggested that it be given the power to set and amend the
specifics of the program under general guidelines from the county
council, the council objected to delegating such authority, fearing the
politicization of the county bureaucracy.^/ Should the task of drawing
up a detailed sewer allocation policy and amending it where necessary
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be delegated to an administrative official or agency, ways of protecting
the decisionmaking process from predictable individual pressure must be
found. One possibility would be to hold public hearings on all proposed
amendments.
As suggested above, if planning for the sequential growth of sewer
service areas to accord with the provision of Other capital facilities
and with broader land use planning has been done, the sewer allocation
process can be administered in an evenhanded, expeditious way by the
sewer authority itself. The advantages of this system over an ad hoc
determination of the environmental desirability of every application for
a sewer connection are self-evident.
2.2.4 Enforcement
There are ways of requiring municipal treatment authorities to implement
a sewer allocation policy other than through new state legislation. If
a sewer allocation policy has already been instituted to comply with a
condition in an NPDES permit, then that permit provides the enforcement
mechanism for the municipal treatment authority's failure to abide by
the terms of its policy. Where such a condition was not felt to
be necessary in the past but becomes necessary, for example, because of
sudden growth in the service area, the NPDES permit might be amended
to include a sewer scheduling requirement. Should the treatment authority
violate such a condition by failing to enforce an allocation policy, it
would, of course, be subject to the imposition of a ban on all new
connections under section 402(h) of the FWPCA.
If state and/or local law provides, as is the case in Maryland, that
building permits may not be granted without a valid sewer permit
and if the priorities for sewer allocation reflect a development's zoning
or subdivision approval status, the involvement of zoning and planning
officials will ensure an informed and independent review of the sewer
authority's administration of the sewer allocation policy.
2.2.5 Constitutional Questions
Much of what has been said about the constitutionality of sewer moratoria
applies with equal force to sewer allocation policies. Certainly a
technique designed to avoid an emergency overload situation should
have as much validity as a stopgap, last-minute sewer ban, as long as
it is reasonably tailored to the danger to be averted. Smoke Rise,
it will be recalled, upheld Montgomery County's sewer allocation policy
as well as the state's sewer moratoria.^O/ It should not matter
at what stage the allocation policy is instituted as long as all
available capacity is assigned 51/ and diligent efforts are underway
to correct the shortage. However, it is legally dangerous as well as
bad policy to use sewer allocation as a land use regulatory technique or
to appear to be doing so by subjecting a sewage treatment plant to an
allocation policy as soon as it is built. (Again, a sewer allocation policy
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is simply a tool for assuring equitable and socially and environmentally
desirable distribution of oversubscribed sewer capacity among those
applicants who have already qualified for servicing by being within a
sewer service area. Methods for avoiding excessive numbers of eligible
applicants in the first place, i.e., controls on hookups designed to
keep new development in phase with existing and projected sewer capacity,
are the subject of the next section of this chapter.)
As fen the terms of the allocation policy, Smoke Rise suggests that if certain
uses are to be actively discouraged by a sewer allocation policy they should
be those which create the greatest burden on sewer systems, and vice
versa._52/ While some use should be left to the owner of undeveloped
land where the allocation policy will be in effect for some time, Smoke
Rise makes clear that the use does not have to be as profitable as any
of the ones made unavailable by the allocation policy. One category-wide
exemption which would minimize hardship could provide, for example,
that every property owner in geographic proximity to a sewer line could
effect a connection to that line for one single-family house.
One allocation priority which may be suspect is that commonly accorded
public facilities. While such a priority creates no problem if the
public facility is actually in the advanced planning or construction
stages, saving capacity for a project that is nothing more than a gleam
in a city councilman's eye will not square with a policy designed to
foster immediate use and will probably be found invalid.^53/ It may be
wise to combine a public facility category with a public health hazard
category for failing septic systems to reduce the possibility of idle
capacity.
One final legally troublesome point is the rigidity of the systems
exemplified by Fairfax and Montgomery Counties. While the very detail
of the policies may immunize them from legal attack for being too vague
or for delegating too much discretion, it lays them open to other legal
problems as well as to practical, administrative difficulties. It is
easy to imagine, for example, cases of reliance and substantial
investment which, for some reason, would not be recognizable under
the explicit terms of the two county allocation policies discussed
above. The possibilities for injustice seem particularly strong in
connection with the commitment recapture provisions of both the Montgomery
and Fairfax policies. Montgomery County's policy provides, for example:
The Commitment Recapture System (CRS) involves the
submittal by each applicant of a five year development
schedule. This schedule shall identify the portion of the
project to be constructed each year along with clearly
identified "checkpoints" in the development program which
permit monitoring the progress the applicant is making
in meeting the construction schedule and employing the
commitment.
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. . . Failure to comply with this schedule constitutes
failure to comply with the WSSC conditions of service
commitment or authorization and the allocation will be
cancelled.54/
Any provision that bold with as drastic implications for the developer will
inevitably give rise to questions of interpretation of the construction
schedule and to exemptions dictated by hardship (construction strikes,
acts of God). The Fairfax County policy provides for a special "Sewer
Tap Procedures Committee" to review all questions of interpretation before
referring them with their recommendations to the Board of Supervisors.
Given the intense political pressures that will inevitably be brought to
bear on the sewer allocation process, the sewer authority administrator
should not have the final say when application of the policy is disputed.
Some provision will have to be made for an appeal process.
At this point a community may well wonder if the unavoidable complexities
involved in drafting and administering a sewer allocation policy, even one
that purports to be based on a principle as simple as "first come, first
serve" are worth it. Unfortunately, by the time a community gets to the
point of needing a sewer allocation policy, it may have no choice. The
next section of this chapter will be devoted to measures a community
might take to avoid a shortage of sewer capacity in the first place.
3.0 Controls on the Location and Timing of Sewer Services:
Comprehensive Planning for Sewer Systems and Timing and Channeling
Growth in Accordance with Capital Improvements Programming
3.1 Introduction
Sewer moratoria and sewer allocation policies are, at best, short-term,
stopgap measures justified only by deficiencies in the sewer system
which threaten overflows of untreated sewage hazardous to public
health. Yet more and more communities have had to resort to these
measures, however unwillingly, because of dramatic increases in population
which have outstripped the communities' sewer construction programs
and their other capital investment programs as well. Thus the problems
of inadequate sewer and sewage treatment capacity stem from the reactive
nature of the system. In most jurisdictions, sanitary commissions
and municipalities are at the mercy of development forces not only
beyond their control, but, more to the point, beyond their powers of
prediction.
For example, when a developer requests a long sewer extension to an out-
lying subdivision, the flow from the subdivision can be estimated but the
number and timing of demands for connections along the length of the extension
cannot. Residential development in excess of the amount for which the sewer
line was sized may be drawn to the area and may precipitate a moratorium.
In addition, sudden, unpredictable demands are often placed on the
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system by subdivisions with failing septic systems or by failing privately-
owned sewage treatment plants usually known as "package plants"demands
which are, of course, impossible to refuse. Lacking more comprehensive
growth-staging tools, communities have resorted to "holding zones" and to
large lot zoning to avoid, among other problems, having their sewer
policy dictated by their septic system failures. Not only are such stop-
gap zoning techniques susceptible to challenge as exclusionary; _5_5/
they also promote the very pattern of scattered, sprawling development
and consequent costlier public serivices which the community may have set
out to avoid.
While many of the "costs of sprawl" are not of particular relevance
here, unplanned growth does have adverse consequences for water quality
beyond the overload of sewer systems and sewage treatment plants. Under
the existing system, in which location of sewer lines is dictated by
developers' locational choices, no account is taken of the nonpoint
pollutional effects of development and of the varying capability
of land to tolerate development. An example of these two factors in
combination is increased sediment loading in streams resulting from
new development. Since a developer will, in many cases, be reimbursing
the sewer authority for the cost of a sewer extension, it is often to
his advantage to locate in the low-lying parts of a watershed, along
streams, so that his sewerage may be carried by gravity flow. Also
carried into the watershed by gravity flow will be the sediment from
the development's construction and the accelerated stormwater runoff
from its paved surfaces. The increased stormwater runoff may well
create continuing pollution of the stream from erosion and sedimentation.*
3.2 Capital Improvements Programming and Development Timing Described
Until quite recently the passive approach to questions of the timing and
location of public improvements was considered legally unavoidable, with
traditional zoning districts being considered the only legitimate tool
for shaping the density and location of growth. Within the past five
years or so, however, adventurous jurisdictions around the country
have been experimenting with methods of establishing a temporal and
locational sequence for the various categories of development shown on
the zoning map. Although a few such jurisdictions have focused their
concern on the absolute rate or ultimate dimensions of their communities'
growth, 567 more have keyed their timing devices to keep pace with, but
not outdistance, long-term plans for the provision of public facilities.
The classic example of the latter approach is, of course, Ramapo, New
York. Ramapo is well-known not only because of the novelty and comprehen-
*Measures designed specifically to deal with stormwater runoff
are discussed in Chapter 6. We are merely making the
point here that controls on the location of sewer extensions
may help to avoid the adverse secondary effects of develop-
ment on water quality.
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siveness of its approach but also because of the highest state court's
approval of that approach in the landmark case of Golden v. Planning
Board of the town of Ramapo.57/ Briefly, Ramapo's innovation
lies not in the fact that it drew up a long-range (18-year) program
for the provision of public facilities ("capital improvements program")
but rather in the fact that it tied development permission to the
adequacy of those facilities, as defined by a rather rigid point system.
Under that system, out of 15 points necessary to obtain the special permit
required for all subdivisions, the developer will be credited with five
points if public sewers are available, three if package sewer plants are
available, and three if the development is in a rural zoning district and
can gain county approval for a septic system. The remaining points are
to be acquired from categories which assign values to (1) the percentage
of required drainage capacity available; (2) the proximity of a public
park, recreation facility, or public school; (3) the proximity of improved
(curbed and sidewalked) roads; and (4) the proximity to a fire house.58/
Zoning provisions like Ramapo's are now generally known by the name "adequate
public facilities ordinances."
Keying development permission to the adequacy of public facilities
puts a new emphasis on the public facility planning process. It is
no wonder then that the whole complex of planning and development
timing devices being described here is often termed loosely "capital
improvements programming." Many jurisdictions have adopted long-range
capital investment programs for years, but never before have they had
the tools they have now to assure that their plans are not made obsolete
or irrelevant by the unanticipated rate or location of private development.
Adequate public facilities ordinances also give new life to the comprehensive
planning process. That process now must guide the location and timing of
public facilities by identifying those areas where the community
desires growth to be concentrated and those areas it wishes to preserve
as low-density and by indicating the desired locational sequence and
rate of growth.
The coordination of private development with capital improvements
programming and of capital investments with broader land use planning
requires detailed provision for the interaction between public agencies
at all levels as well as between the community and the individual. This
brings us to the question of the most appropriate institutional level
or levels for the exercise of the myriad control techniques which make
up a capital improvements programming/development timing process. These
and other questions concerning the actual administration of such systems
will be explored in the context of three jurisdictions deeply involved
in working out such a process: Ramapo, New York; Montgomery County,
Maryland; and Minneapolis - St. Paul, Minnesota.
3.3 Level of Government
3.3.1 Drawbacks to a Local Approach
At the same time that the majority opinion in Golden v. Planning
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Board of Ramapo was being hailed as a giant leap forward for timed growth
control around the country, critics were pointing out the discrepancies
between the court's assumptions and reality. While the factual disputes
over such things as the amount of low-income housing in the town of Ramapo
are not of concern here, the larger question of the drawbacks to a
local approach to capital improvements programming, which the critics
also point out, is. The most relevant question raised by those critics
is the practicality and reasonableness of Ramapo's keying development
permission in part to the adequacy of local sewerage when the county, not
the town, controls the provision of sewage facilities. 5_9/
The legal difficulties of a municipality attempting to control the
activities of a larger than local sewer district are illustrated by a
recent Colorado sewer case, Robinson v. The City of Boulder.60/
Robinson involved the city of Boulder's denial of a water and sewer
extension to a proposed subdivision in Gunbarrel Hill, an area otuside the
city's limits but within its defined water and sewer service area. Boulder's
reason for denying the extension was that the planitiff's proposed development
was inconsistent with the Boulder Valley Comprehensive Plan and with certain
aspects of Boulder's interim growth policy. In holding that the city
must grant the requested extension, there being no utility-related
reason such as lack of capacity for its denial, the court pointed out
that the county, not the city, had land use authority over the unincorporated
areas. In view of this fact and the indication in the record that the
proposed development complied with county zoning regulations and with the
county planning staff's interpretation of the Boulder Valley Comprehensive
Plan, the court declined to address the question of whether the Boulder
Valley Comprehensive Plan would relieve the City of Boulder of "its
duty to the public in its proprietary role as a public utility" in any
other circumstances.61/
Robinson provides an excellent example of the kind of interjursidictional
problems glossed over in the Ramapo decision and it points up the
need for legal mechanisms to ensure that all actors on the development
scene are bound by the development timing plan, not just the developer
himself. Robinson also suggests the inherent limitations of any
local scheme. In cities like Boulder the development pressures
are going to be greatest and the existing public facilities poorest
in the unincorporated suburbs. Stringent development timing restrictions
applicable or enforceable only within the city limits will only increase
those pressures and aggravate sprawl on the city's perimeters.
Recent cases which have established a local duty to participate
in meeting regional housing needs 62/ add a legal reason to the above-
described institutional one for using a geographical area larger than the
local as the basis for planning the timed provision of public facilities
and for staging private development. If capital improvements programming
is done on a regional basis there is far less likelihood that it will
reflect the parochial interest in preserving the status quo or in
encouraging commercial and industrial development while discouraging
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the development of housing for the new work force.
3.3.2 Two Examples of a Regional Approach; Montgomery
County, Maryland and Minneapolis St. Paul,
Minnesota
Montgomery County, Maryland and Minneapolis - St. Paul, Minnesota
(the "Twin Cities") are two jurisdictions in which capital improvements
programming and sequential guiding of development are being carried out
on a regional basis. These two jurisdictions have been chosen as exemplary
because of the degree to which they emphasize controls on the provision
of sewer services. While the wisdom of according sewers such a preeminent
role may be questioned, 63 1/ the relevance of the two systems for state
and areawide water quality management planners cannot be doubted. Both
jurisdictions are extremely useful examples of methods for controlling
the timing and location of sewer lines and treatment plants so as to
avoid point and nonpoint pollution. Those aspects of the system which
attempt to accomplish more e.g., to ensure a balance of development types
will be discussed only if they have ramifications for water quality or
if they help assure judicial or political acceptability.
What is more, both Montgomery County and the Twin Cities offer excellent
models for the kind of interagency coordination which will be necessary
between state and areawide water quality planning agencies and designated
208 management agencies. It is to be expected that local and areawide
sewer authorities will often be chosen as management agencies under
section 208 64/, while planning functions will be vested in state and
regional, including county-wide, bodies who can oversee and coordinate
the activities of the sewer authorities from a broader subject matter and
geographic perspective.
a. Allocation of Authority Between State and County:
Montgomery County, Maryland
The Role of The County By statute effective January 1, 1970, the State of
Maryland required every county to adopt and submit to the state Department
of Health and Mental Hygiene a plan providing, inter alia, for the orderly
expansion and extension of community water supply and community sewerage
systems over a 10-year period. 6^f (In Maryland, public sewer and
water systems are denominated "community" systems while private systems
are designated "individual.") In Montgomery County, the preliminary plan
is prepared by the Office of Environmental Planning within the Office
of the County Executive with the assistance of the Washington Suburban
Sanitary Commission (WSSC) and the bi-county Maryland - National
Capital Park and Planning Commission ("Planning Commission") . Before
submission to the state department of health, the plan is refined through
public hearings and review and approval by the county council. The
county Water and Sewerage Plan must be revised annually.
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The Role of the Sewer Authority: The Washington Suburban Sanitary Commission
Detailed support for the county Ten-Year Water Supply and Sewerage Systems Plan
("Ten-Year Water and Sewerage Plan") is provided by a Six-Year Capital Improvements
Program (CIP) for sewers prepared by the bi-county sewer authority, the WSSC,
and forwarded to the county council with the county executive's
recommendations. After public hearings on the CIP are held, the county .
council modifies it as necessary to accord with the Ten-Year Water and Sewerage
Plan and approves it, returning it to the WSSC for adoption. No projects
may be undertaken by the WSSC within the county which are not set out in
the CIP and, thus, which are not in conformity with the Ten-Year
Water and Sewerage Plan. The county must also approve the WSSC's
annual operating budget.
The Role of the State: State Department of Health and Mental Hygiene
Not only must the state Department of Health and Mental Hygiene ("Department
of Health") approve the county Ten-Year Water and Sewerage Plan, its
delegated local health officers must ascertain that all subdivision plats
are in conformity with that plan and that sewer facilities may be used
as proposed by the developer without overloading the collection and treatment
facilities.
Just as important as its regulation of the private sector's discharges
into public sewerage systems is the Department of Health's regulation of
the construction of public sewerage systems themselves. In order to
obtain a permit to install or extend a sewerage system the WSSC, any
municipality, or any other provider of sewer services must obtain
the department's approval of its complete plans and specifications. 67/
Any inconsistencies between the WSSC's construction plans and the county's
Ten-Year Water and Sewerage Plan not revealed by the WSSC's Capital
Improvement Program or annual budget ought to be ironed out at this
stage.
b. A Regional Authority: Minneapolis - St. Paul
Although Montgomery County covers a large area (ca. 495 square miles),
it enjoys municipal powers under its home rule charter over all the towns
within that area (with the exception of Rockville, Gaithersburg, and
Takoma Park), so it partakes, in some ways, more of the character of
a local unit of government that it does of a truly regional one. It
is worth comparing Maryland and Montgomery County's system of sewer
planning, then, with that of a multijurisdictional region like Minneapolis -
St. Paul, which adds another level of governmental involvement to the
institutional pot.
The Twin Cities region encompasses 3,000 square miles, seven counties,
two corporate cities, Minneapolis and St. Paul, and approximately
300 other units of local government. In 1970 the population of the
entire region was 1,865,000 with about 40 percent of the metropolitan
residents concentrated in the two central cities. From 1960 to 1970
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the population in the central cities fell by 6 percent, while the
population of the rest of the metropolitan area rose by 55 percent.
Regional government came to the Twin Cities area largely as a result
of the Minnesota legislature's concern for certain areawide problems including
contamination of suburban wells by septic tanks and the location of utilities
and sewage treatment plants. In 1967 the state legislature passed a bill
creating the Metropolitan Council. A policymaking body with decisionmaking
powers, the Metropolitan Council consists of 14 members appointed by
the governor. Council policy is implemented through regional operating
agencies, local units of government, and private institutions. The only
regional operating agency with which we are concerned is the Metropolitan
Waste Control Commission (the WCC or the "commission"), formerly the
Sewer Board, the most fully developed of the regional management agencies.
Originally, constituted in 1967, the WCC's chairman and seven members are
appointed by the Metropolitan Council and represent combinations
of Metropolitan Council districts by two's._68/
The Role of the Metropolitan Council in Sewer PlanningWhat Montgomery
County is required by state law to do for sewers, water supply, and solid
waste, the Metropolitan Council is required to do for every kind of
development. That is, it must adopt a comprehensive development guide
to consist of "statements, goals, standards, programs, and maps presenting
guides for an orderly and economic development, public and private, of
the Metropolitan Area."j59/ The Development Guide includes a chapter
covering sewers, entitled "Waste Management." Part III of that chapter
is a detailed Policy Plan which includes highly specific sections relative to:
(1) revised boundaries for sewer service areas; (2) projects which should
be included in the Metropolitan Waste Control Commission's 1976 Development
Program and for which federal/state grants should be requested; and (3)
recommendations for studies of particular system improvements.
The Waste Control Commission now owns or will acquire "those interceptors
and treatment works determined by the Metropolitan Council to be necessary
to implement metropolitan sewer plans."_70/ Included within that category
are treatment plants in the "Freestanding Growth Centers," defined as a
limited number of rural centers that can potentially absorb urban
growth and where metropolitan investments can be concentrated. Local
governments will continue to own municipal collection systems. The
commission is responsible for preparing a detailed five-year Development
Program (the equivalent of the Maryland WSSC's six-year CIP) for expansion
and upgrading of the metropolitan facilities. The commission's program
must include, among other things, "a review and description of the public
need for the improvement, alternatives to the improvement (including
alternatives not involving capital expenditures) [and] the environmental
and social effects of the improvement . . . ."71/
Like its counterpart the Montgomery County Council, the Metropolitan Council
must approve both the sewer commission's capital program and its annual
capital improvements budget. Under the Metropolitan Council Act:
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No capital improvements shall be undertaken by the
commission unless authorized by the program or specifically
approved by the council. The.council shall not approve any
improvement not in substantial conformance with the appro-
priate policy plan.72/
The Role of Local Governments in Sewer PlanningThe Metropolitan Waste
Control Commission Act requires each local government unit to adopt
a policy plan for the collection, treatment, and disposal of the
sewage for which it is responsible and to coordinate it with the council's
Policy Plan. It is the Waste Control Commission which must review and approve
the local plans "as to those features affecting the Commission's responsibilities
as determined by the Commission. "_73/ The Waste Control Commission, in
turn, must describe to the council in its Development Program the
relationship of each project proposed in that program to the local sewer
plan of each affected local government.
Local governments are involved, moreover, in the evolution of the Development
Program. Individual projects proposed in the program have first been
developed through an individual facility planning process. Copies
of the project facilities planning report are sent to officials and
local interest groups of the affected community for review and
comment and a public hearing is held. Meetings between local government
representatives and the commission are held as necessary. In addition,
public hearings are held on the final, areawide Development Program. If
a local unit of government is dissatisfied with the programmed availability
of metropolitan sewer service it may request the council and commission to
consider amendment of the Policy Plan or Development Program under
special council procedures._74/
3.4 Incorporation of Planning and Standards
It is almost tautological to discuss the extent to which capital
improvements programming and development timing techniques of the kind
under analysis here take into account long-range planning, since in
many ways the techniques are themselves plansplans with teeth. The
teeth are the definitions of service area: areas where sewer and other
public services will be provided at specified times in the future.
Ideally, the delineation of service areas should follow the broader land
use and environmental planning of the community.
3.4.1 Ramapo, New York
Long before adopting its 18-year Capital Improvements Program and its
zoning ordinance amendment, Ramapo, New York undertook comprehensive
planning for the future growth and development of the town including what
land was to be preserved for parks and the protection of streams. Development
inconsistent with the emerging plan was prohibited through the use of
interim zoning, a policy which survived judicial challenge.^57 Permanent
preservation of open space was guaranteed by the adoption of model
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subdivision regulations 76/ and average density, cluster zoning, and
development easement laws, 111 as well as by- channeling development away
from critical areas through the town's capital improvements program and zoning
ordinance.
3.4.2 Montgomery County
In Montgomery County the bi-county "1964 General Plan for the Maryland-
Washington Regional District - on Wedges and Corridors," prepared
by the Maryland - National Capital Park and Planning Commission,
provides that development is to be channeled along the major transportation
corridors, while the spaces between those corridors (the "wedges") are to
be preserved for low density and rural development. "Wedges" are designed
to isolate certain towns from unrelieved urban sprawl and to protect river
basins from pollution. Nothing in the "Wedges and Corridors" plan indicates,
however, a desired sequence for growth, and a proposed county-wide growth
policy report has yet to be adopted.
This lack of a comprehensive staged growth plan on which to base their
sewer and water planning is a source of frustration to county officials.
To fill the gap, the drafters of the Ten-Year Water and Sewerage Plan have
taken the principles espoused in the "Wedges and Corridors" land use
plan and translated them into guidelines for determining which areas to
provide with sewer service in what sequence. As expressed in the comprehensive
Ten-Year Water Supply and Sewerage Systems Plan for FYs 1977-86 those
guidelines are:
1. Water and sewer service should be gradually extended
along the corridors to supply sufficient land to
accomodate anticipated growth (i.e., no "skip" develop-
ment, leaving large portions of vacant land in between
and requiring unnecessarily lengthy water and sewer
lines.)
2. When a Master Plan is adopted [for a county sub-area]
with staging built in, water and sewer categories should
be defined in accordance with that staging. Revisions
should not be made unless a Master Plan revision so
dictates.
3. Water and sewer service category advances should
not be made in areas of the County not covered
by a Master Plan.
4. Water and sewer service category advances should
not be made in Rural Zone areas. [The "Rural Zone"
is a zoning district of five-acre minimum lot size and
corresponds generally to the wedge areas delineated by
the General Plan.]
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5. Consideration may be given to requests that do
not conform to the above guidelines if there are
unique, beneficial features to the proposed development.
This may include such things as relief of health
problems or the promotion of housing opportunities
in accordance with adopted County housing policies. 7 8/
3.4.3 The Twin Cities
The difficulties experienced in Montgomery County as a result of land
use planning authority being vested in a different government agency
and an agency at a different jurisdictional level than the agency empowered
to plan sewer and water systems is avoided in the Twin Cities. There
the Metropolitan Council is responsible for both general planning and
the planning of sewage facilities. Extensions of sewer service
and new sewer construction are planned to coincide with the areas
delineated on the council's Development Framework Plan, which shows
the 1975 Urban Service Area ("the portion of the Metropolitan Area in
which governmental agencies should plan to support urban development and
redevelopment") and proposed additions to that area for 1976 through
1980 and 1981 through 1990. One of the criteria the council identified
in drawing the urban development boundaries was soil types. Areas with
features making them inherently unsuitable for development wetlands, steep
slopes, flood plains, and closely underlying bedrock were inventoried
to aid in the development of local land use plans and in the micro-planning
of public facilities. 79/
The recently adopted Metropolitan Land Planning Act £3_0/ is designed
to ensure that local planning and development within the Metropolitan
Region occurs in conformity with the general development and public
facilities planning undertaken by the Metropolitan Council. Under
the new act, local units of government (counties and, at their own
election, towns with urban powers) must develop land use plans designating
the existing and proposed locat Lon and intensity of agricultural,
residential, commercial, industrial, and public uses of land and water
and further designating areas of outstanding historic and environmental
value to be protected. A public facilities component of the plan must
designate and schedule areas to be sewered and areas not suitable for
public and/or private sewage disposal systems.
The local planning process required under Minnesota's Metropolitan
Land Planning Act parallels the planning requirements of section
208 of the FWPCA in many ways. Like areawide water quality management
plans, the local plans within the Twin Cities area must contain a management
element. This management element takes the form in the Twin Cities of
a required schedule for the adoption of (1) zoning and subdivision
ordinances; (2) controls over private sewage disposal systems; and (3)
capital improvements programming all calculated to put the comprehensive
land use plans into effect.
The Metropolitan Council will review the local government comprehensive
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plans for their consistency with the Metropolitan Systems Plans,
including the metropolitan waste control plan and budget, and with the
Metropolitan Development Guide. The council may require the local
government to modify any part of the plan substantially impacting on
or deviating from the council's plans. A local government wishing to
contest the Council's required modification may request a hearing
before the state Office of Hearing Examiners; the council will then
make a final decision based on the report of the hearing examiner.
3.5 Implementation and Enforcement
3.5.1 Implementation and Enforcement with Respect to Individual
Development Decisions
It is to be supposed that the local units of government in the Twin
Cities Metropolitan Region will propose as perhaps their central
control device for implementing their land planning and capital
facilities programs the type of adequate public facilities ordinance already
adopted in Ramapo, New York and Montgomery County, Maryland. The latter
ordinance provides in pertinent part, as follows:
No preliminary plan of a subdivision shall be approved
unless the Planning Board determines that public facilities
are adequate to support and service the area of the proposed
subdivision.
1. Public facilities may be determined to be adequate to
service a tract of land or an affected area when the
following conditions are found to exist:
[material related to adequate roads and mass
transportation deleted]
(b) The tract or area has adequate sewerage and water
service.
(i) for a subdivision dependent upon public
sewerage and water systems:
(1) Said area or tract to be subdivided shall
be deemed to have adequate sewerage and
water service if located within an area
in which water and sewer service is presently
available, under construction, or designated
by the County Council for extension of water
and sewer service within the first two years
of a current approved Ten Year Water and
Sewerage Plan.
(2) If said area or tract to be subdivided
is not situated within an area designated
for service within the first two years of a
current approved Ten Year Water and Sewerage
Plan, but is within the last eight years of
such plan, it shall be deemed to have adequate
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water and sewerage service if the
applicant provides community sewerage
and/or water systems as set forth in
Section 387C of Article 43 of the
Annotated Code of Maryland provided the
installation of such facilities shall
have been approved by the State Department
of Health and Mental Hygiene, the Washington
Suburban Sanitary Commission, the County
Health Department, and the Montgomery
County Council.
(iii) In its determination of the adequacy of
sewerage or water service, the Planning
Board shall consider the recommendation of
the Washington Suburban Sanitary Commission,
the capacity of truck lines and sewage treatment
facilities and any other information presented.
2. In considering questions of adequacy of public facilities . . .
the Planning Board shall consider, but not be limited to,
the nature, extent, and size of the proposed subdivision
and its impact in terms of the following:
(a) The estimated increase in population likely to
result when said subdivision is developed in
context with projected densities, as anticipated
by adopted area master plans and currently
approved subdivisions, in the surrounding area
and immediate vicinity of the proposed subdivision.
(b) The present or projected state of development
likely to result when said subdivision is developed
in context with projected densities, as anticipated
by adopted area master plans and currently approved
subdivisions, in the surrounding area and immediate
vicinity of the proposed subdivision.81/
Having considered the factors enumerated above, the Planning Board is authorized
to (1) approve the subdivision plan if it is in accordance with "the purpose
and other requirements" of the regulations; (2) approve subject to
whatever "conditions and/or modifications are necessary to bring the plan
and the proposed development into accord" with applicable regulations; or
(3) disapprove.
Consistency between the development of individual lots (as opposed to
subdivisions) and the Ten-Year Water and Sewerage Plan is ensured by the
requirement in the state law, reflected in the county's zoning ordinance,
that no building permit be issued where the provision of an individual
or community sewerage system would be inconsistent with the Plan or where
the development would cause existing sewerage facilities to be overloaded.82/
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3.5.2 Implementation and Enforcement of Plans and Programs
with Respect to the Construction of New Public Sewer
Facilities and Other Governmental Action
The fact that both the Montgomery County Council and the Twin Cities
Metropolitan Council must approve the capital improvements programs
and annual capital budgets for sewers has already been noted. Prior to
1974 the Metropolitan Council had approval power over the Waste Control
Commission's specifications as well, but that authority was cut back to
mere "review and comment" by the Metropolitan Reorganization Act of 1974.
This change came about at least partly because of a controversial decision
by the council in 1973 to recommend that the proposed Lake Ann interceptor
be sized to accommodate predicted growth through 1986 rather than for
the 40 to 50 year period which the commission had used, following the council's
policy set out in the Development Guide. After review of the Commission's
objections, the council withdrew its objections, citing immediate pollution
problems, local commitments, and the immediate need to accept a proffered
grant from EPA.83/
While the council still has the leverage of capital budget approval power
to ensure that plans and specifications conform to the commission's approved
Development Program, that may not be enough, since a project unsatisfactory
in its details may nevertheless "conform" to an approved Development Program.
A proposed project may be included in a Development Program and "approved"
by the council as much as five years before the detailed plans and
specifications are drawn up with the result that the "approval" will be
based on very sketchy information indeed. Before the 1974 amendment described
above, the council had on one occasion required the commission to revise
its plans and specifications for an interceptor sewer to protect trees
and their root systems in an adjacent forest in response to local concern.84/
Under the new law this ability to respond flexibly to details of a
project not revealed by the Development Program has been lost.
It is perhaps inevitable that certain construction decisions made by
the state pollution control agency and the sewer authority in fulfillment
of their mandate to protect water quality will be seen as "over-building" by
a government entity with a broader focus such as the Montgomery
County Council or the Twin Cities Regional Council. Montgomery
County has the offsetting power to restrict access to portions of
interceptor sewers.6>5_/ The Metropolitan Council has no such power but
has felt the need of it.86/
Another possible method for regulating sizing of sewer facilities and
number and location of hookups is through a pricing policy. This
method has been suggested for both the Twin Cities and for Montgomery
County. References to these proposals may be found in the footnotes; &]_/
more detailed discussion of those techniques is beyond the scope of
this chapter.
In both Maryland and Minnesota the state water pollution control agency
must approve all proposals and plans and specifications for sewer extensions
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and other new sewer construction. In both jurisdictions the state agencies
are supposed to review the applications for consistency with local or
regional sewer plans. Where the original governing body makes it a
practice to advise the pollution control agency on all such applications,
as the Metropolitan Council does, such review and approval power will
at least assure a dialogue between those agencies most concerned with
pollution control (the state agency and the local sewer authority) and
the governing body concerned more with secondary effects of sewer
system investments. In addition, state review and approval power over
sewer construction has been used to good advantage in the Twin Cities
to nudge reluctant localities to come up with their required sewer
plans .88^7 The Maryland Sewer Planning Act also uses state approval of
new construction as a stick to induce preparation of County Ten-Year
Plans and annual updates.89/
3.6 Legal Authority
3.6.1 Authority to Limit Extensions to the Sewer System
Whatever a municipality's duty to allow "all alike" to connect to its
sewer once it undertakes to be the sole provider of sewer service in the
area, "[t]he date of construction, the nature, capacity, location,
number and cost of sewers and drains are matters within the municipal
discretion with the exercise of which courts will not interfere, unless
there appears fraud, oppression or arbitrary action .... This discretion
extends to the area to be covered by the sewer, and to the location of
branch or lateral sewers."JK)/ Such discretion is. in many cases,
written directly into the state enabling legislation. It has been said
in support of leaving municipal discretion unfettered in this matter
that decisions respecting allocation of scarce financial resources are
peculiarly legislative matters and that even if courts were competent
to make such decisions, they would not be able to supervise their execution,
as would be necessary._91/ Regulation of sewer extensions may further
many legitimate governmental purposes: among them, assurance of a reason-
able economic return to the municipality; 92/ prevention of the dis-
locations and diseconomies of urban sprawl; and the protection of
critical natural areas.
It is tempting to try to distinguish between the cases establishing
a "proprietary duty" to furnish sewer services and those leaving it up
to "governmental discretion" by dividing them into two groups: (1) those
in which the developer merely wanted to hook up to the existing sewer
line and (2) those in which he was, in effect, asking the municipality to
build a new trunk line to serve him. Unfortunately for the hookup
versus extension theory, perhaps the most detailed discussion of the
proprietary duty is to be found in a case in which the court ordered
the municipality to extend sewer and water services to the planintiffs
even though such extension would involve building a new section of a
sanitary sewer trunk line. That case, Robinson v. The City of Boulder 93/>
suggests that the true factor which determines whether a municipality or
sanitary district has discretion over the extension of its services to new
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applicants is whether the applicant's property falls within the municipal
or district service area. Once having defined, monopolized, and served
a sewer service area, as the city of Boulder did through agreements with
other suppliers and by opposing other methods and sources of supply in
the area, a municipality or district takes on the attributes of a private
utility and must make its facilities within that area "available to
all alike. "_94/
In Maryland it is clear that a municipality is under no obligation
to furnish sewer service to a consumer outside the city unless that
consumer is in an area to which the extraterritorial service has
already been extended. In Mayor and Council of Rockville v. Goldberg, 95/
the Maryland Court of Appeals held that the city of Rockville could
deny the appellant sewer service even though there was an existing city
sewer line 800 feet away from his property and even though there was
adequate capacity in that line and in the city's sewage treatment plant
to service the proposed development. The court's holding in that case
reflects in great measure its desire not to undermine the city's annexation
policy. The decision, however, when read in the light of later cases
dealing with Maryland's overall sewer policy and law, leaves little doubt
that a governmental unit in Maryland has full authority to draw
boundaries for a sewer service area and to grant or deny service
accordingly, whether or not that area coincides with the boundaries of any
governmental entity.
3.6.2 Authority to Undertake Comprehensive Sewer Planning
and to Time Development Accordingly
No judicial language could be more heartening to the cause of sewer planning
and to state and areawide water quality management planning in general
than that to be found in the section of Smoke Rise, Inc. v. Washington
Suburban Sanitary Commission approving Maryland's Department of Health
and Mental Hygiene regulations (Regulation 10.03.26) limiting the use
of private sewage disposal systems in areas planned for future sewering
under a county's Ten-Year Water and Sewerage Plan. It is worth quoting
at considerable length from the federal district court's language in that
case:
Regarding the legitimacy of the purpose of Regulation
10.03.26, the Regulation itself clearly sets forth in the
preamble the objectives and policy considerations which
underlie the restrictions which the State of Maryland
has imposed on the use of private septic systems:
. . . The objective of the county plan is to guide
the development of the ultimate water supply-sewerage
system consistent with population growth and economic
development so that . . . wastewater may be collected
and delivered to points where conditions are best
suited for waste discharge, and treated and disposed
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of to minimize adverse effects on legitimate water
uses. [emphasis added by the court]
Like the commonplace zoning ordinance, Regulation 10.03.26
was designed as a tool to guide growth to the end that
neither environmental quality nor economic efficiency would
be compromised as water and sewer services expanded through-
out the county. The use of water and sewer regulations
as tools to plan for and achieve orderly, rational development
has received approval from the Maryland courts. In an
explicit reference to the statute at issue in the instant case,
Md. Ann. Code art. 43, §387C, the Court of Special Appeals
of Maryland recently noted with approval that "[t]he State,
acting through the Department [of Health and Mental Hygiene],
has elected to control growth, at least to the extent that
such growth adversely affects water and sewage disposal.96/
In the view of this court, policy considerations similar
to those outlined [in Norbeckv. Montgomery 97/] serve
to uphold Regulation 10.03.26 from constitutional attack
under the due process clause of the fifth and fourteenth
amendments. Additionally, it must be noted that if
plaintiffs were to prevail in their attack on the constitutional
validity of Regulation"10.03.26 it would be a pyrrhic victory.
One of the major impediments to the resolution of the
sewer crisis in metropolitan Washington has been the
random geographic location of those watershed basins
receiving the greatest development pressures.
If this Court were to hold that Regulation 10.03.26 restricts
too greatly the kind of land area within which private
septic systems may be utilized, the private development
would be permitted to build new communities at random
throughout the county, irrespective of the engineering,
environmental, and economic inefficiencies occasioned by
haphazard, unplanned growth .... In effect, the planning
component of Regulation 10.03.26 is the safeguard against
the reappearance of new sewage overflows and further sewer-
service moratoria in years to come.98/
But what of a state without the comprehensive sewer planning legislation
and enthusiastic court backing found in Maryland? What can it do to
restrict development to keep pace with the orderly provision of
public facilities under a comprehensive plan? What can a locality do, for
example, under traditional zoning powers? The New York and Virginia
courts illustrate the extremes of the range of opinion on this subject.
In New York, the majority in Golden v. Planning Board of The Town of
Ramapo conceded that the relevant provision of the state zoning enabling
law provided no specific authorization for the "sequential" and "timing"
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controls at issue. The court went on to say, however, that those controls
were the necessary accompaniments to those more familiar zoning powers
expressly set out in the enabling legislation:
The power to restrict and regulate . . . includes
within its grant, by way of necessary implication,
the authority to direct the growth of population
for the purposes indicated, within the confines of
the township. It is the matrix of land use restrictions,
common to each of the enumerated powers and sanctioned
goals, a necessary concomitant to the muncipalities'
recognized authority to determine the lines along which
local development shall proceed, though it may divert it
from its natural course.99/
Having found the general theory of timing growth to be within the
statutory mandate, the court proceeded to test the constitutional
validity of Ramapo's system by examining its underlying purpose
and its impact on both landowners within the community and the
general public interest. Central to the court's approval of the system
was its finding that Ramapo was not seeking to shirk its obligation to
provide for future population growth but only to assure that the town,fs
future population would be served by adequate public facilities.
In a recent Virginia case, Board of Supervisors of Fairfax County v.
Williams, 10O/ the state Supreme Court gave a much less generous
reading to the state's zoning enabling legislation. Interestingly
enough, Virginia's law is, if anything, broader than New York's,
stating, as it does, that one of the purposes of zoning is to ensure
"that the growth of the community be consonant with the efficient and
economical use of public funds" and that zoning ordinances should be
designed to include protection against "overcrowding of land,
[andj undue density of population in relation to the community facilities
existing or available .... "lOl/
In Williams the court upheld a lower court finding that a denial
of two applications for rezoning to a higher density was "unreasonable,
arbitrary and capricious" for several reasons. These included the
facts that public facilities were or soon would be available to
serve the land in question; that nearby similarly situated land had
already been rezoned for higher density use; and that the existing
one-acre zoning of the subject property was unreasonable in light of
these circumstances and of the shortage of small, buildable lots in
the area. The majority gave no real consideration in its opinion
to the timing element of the policy which underlay the board's rezoning
denial. Under that policy, adopted as a resolution by the board and
set forth in accompanying policy statements, the county was to discourage
urban density in the subject Middle Run subwatershed until public
facilities were available, and public facilities were to be programmed
for the area for the 1975 through 1980 period.
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One of the earlier Fairfax County cases on which the majority relied
in reaching its conclusion that "[t]he effect of the application of the
Board's Middle Run policy was to discriminate between similarly situated
property," 102/ was distinguished in the dissent. The portion of the
dissent distinguishing the case, Fairfax County v. Allman, 103/
points up the importance of tying any implementation scheme firmly to a
comprehensive planning effort:
[In Allman there were] ... no guidelines for determining
when the ultimate density should be attained. There was
no provision for phased development within specified
periods of time. In the present case there was such
provision which, though not binding, evidences the best
judgment of the Board as t^ availability of public
facilities and its good faith intention to permit higher
density development within the time limits contemplated
in the Plan, [emphasis ad_ded]
In Allman we affirmed the rule that unequal treatment of
similarly situated landowners is "arbitrary and capricious"
when it lacks a rational basis and bears no substantial
relation to the public health, safety, morals, or general
welfare ....
The classifications established here by the Board
were based on a rational plan for orderly development
of a subwatershed. The Board was justified in pursuing
its policies of encouraging greater density in areas already
zoned for such development by locating public facilities
there before rezoning other lands and incurring the
financial burden of installing additional public facilities.
The Board could reasonably determine that the "efficient
and economical use of public funds" required deferral, for
a reasonable time, of the rezoning of applicants' lands
in order to postpone the cost of improving secondary
highways that higher density development of applicants'
land would require ....
The public facilities which the chancellor found would
be available within the reasonably foreseeable future
depend upon, the appropriation of public funds by the
Board. The construction of all public facilities,
including schools, in the Pohick Watershed has been
programmed in stages in conformity with the schedule of
urban development projected in the Plan.
In using its zoning authority to regulate phased development
of the county, the Board was following the legislative
intent expressed in Code §15.1-427 that community growth
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be "consonant with the efficient and economical use
of public funds." The Board adduced sufficient evidence
of the reasonableness of its actions in denying the applicants1
request for higher density zoning to make the matter at
least fairly debatable. Reasonable men could disagree
as to the advisability of approving the applications at the
time they were considered by the Board.104/
Had Fairfax County's policy for future extension of services been
more firmly tied to a capital improvements program, like the plans
of Ramapo, New York and Montgomery County, Maryland, and had the planned
extensions been less a question of the county's "good faith," perhaps
the majority would have taken the policy more seriously and upheld the
county's action.105/
3.7 Constitutional Questions
3.7.1 Reasonableness
Assuming that a locality has the authority under special enabling authority
like Maryland's 106/ or under a court's liberal construction of existing
authority, as in New York, to stage public investments and development
permissions in accordance with a broad public facilities and land use
plan, that power must be implemented in a reasonable way affording
landowners and developers their due process rights under the Fifth
and Fourteenth Amendments.107/ One of the reasons the Ramapo scheme
survived court challenge, doubtless, is that its drafters were careful to
safeguard property owners' rights to the maximum extent possible.
Thus the Ramapo zoning ordinance provides for the vesting of a present
right to proceed with residential development in such year as the proposed
development will have 15 points as indicated by the scheduled completion
dates of the capital budget and capital plan regardless of the actual
progress made by that date. As a fully vested property right, the
special permit may be freely assigned or sold. In addition developers
may make up the number of points by which they fall short by agreeing
to provide the needed improvements themselves. If, on the other hand, the
developer chooses to await provision of public facilities under the
capital plan, he is authorized to apply for a reduction in assessed
valuation in the meantime. As a final safeguard against irrational
inflexibility, the ordinance provides for variances from or modifications
in the special permit requirement where the Town Board determines pursuant
to its legislative discretion "that such variance or modification
is consistent with comprehensive planning for proper land use including
the master plan, official map, capital budget, and capital plan upon
which this ordinance is based and with the health, safety, and general
welfare of the Town and its inhabitants."
In holding that the system's restrictions on private interests were
neither unreasonable nor an uncompensated taking, the Ramapo
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majority emphasized the temporariness of the restrictions, the town's
commitment to its capital improvement program, the ability of developers
to advance the time of approval by providing their own facilities, and
the mitigating factor of interim reductions in assessed value. The
majority opinion then concluded:
In sum, where it is clear that the existing physical and
financial resources of the community are inadequate to furnish
the essential services and facilities which a substantial
increase in population requires, there is a rational basis
for "phased growth" and hence, the challenged ordinance is
not violative of the Federal and State constitutions.108/
3.7.2 Exemptions and Variances
In Ramapo and in Montgomery County the construction of single-
family homes by individuals is effectively exempt from the staging
limitations. This leaves every landowner with a beneficial use to
which he can put his property immediately. Montgomery County, like
Ramapo, also provides a type of variance procedure from the service
area classification scheme . Under the county Ten-Year Water and Sewerage
Plan it is a landowner's sewer service classification which determines
whether he has a present right to develop or whether he must wait three
to six or seven to ten years to do so.
Most amendments to the county Ten-Year Water and Sewerage Plan
take the form of changes in service areas. Such changes may be
initiated by the county government in order to bring a large
area's designation into conformity with a planning objective, or they
may be initiated by individuals trying to expedite development of their
particular parcel. Amendments of the following types may be considered
by the county council at any time: amendments seeking (1) to modify
service areas to conform to Master Plan staging; (2) to reclassify
a "split parcel" uniformly; (3) to obtain a single-household connection
in areas not presently approved for community service but where water
or sewer lines abut the lot; and (4) to obtain recognition for
extraordinary circumstances as defined by the county executive. All
other applications are accepted annually to coincide with the annual
update of the plan. The county council adopts amendments after consideration
of the county executive's recommendations and comments by the planning
commission and the WSSC. The state Department of Health and Mental Hygiene
must approve all amendments.
In many ways the service area system is not that dissimilar to zoning,
and the question inevitably arises whether the sewer plan will be
undermined by endless exceptions and amendments, as has often been the
case with zoning.109/ Of course, there must be enough flexibility
written into any system to allow the administrator, in his sound discretion,
to smooth out anomalies and to recognize cases of extreme hardship.
The four sets of circumstances justifying applications for amendments.
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at any time fall into this category and are sufficiently well-defined
to avoid abuses of discretion. Changes in servi-ce area not falling
within these categories are governed by the county's "Guidelines
for Changing Service Areas" included in the county plan. These "guidelines"
are simply a more detailed version of the policies enumerated in the
plan and described in section 3.4.2 above. For the present, commitment
to those policies is strong enough on the part of the county executive,
the county council and, most important, the publicwhich makes its presence
felt at hearings on amendmentsthat the plan is in no immediate danger
of subversion through the amendment process. Should the tide of popular
approval turn, however, the state Department of Health, which must
approve all amendments, is expected to be an adequate check against the
politicization of the system.
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CHAPTER FOUR
MUNICIPAL WASTEWATER TREATMENT FACILITIES:
RESTRICTIONS ON TIMING AND LOCATION OF HOOKUPS AND EXTENSIONS
FOOTNOTES*
1. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.
92-500, 8 8 201(g)(2)(A), 301(b)(2)(B), and 302 [hereinafter cited
as FWPCA].
2. As the title of this chapter indicates, the focus here is on municipally
owned treatment plants and collection systems. It should be noted here,
however, that some treatment plants are privately owned. Such plants
are usually small, so-called "package" plants, and they are a major
pollution problem since they are usually constructed without adequate
public supervision and often fail. When package plants fail, moreover,
the local public authority will usually be obliged to step in and
provide service, thereby throwing off all the careful plans for time-
phased distribution of capacity in accordance with land use plans
advocated in this chapter. Everything that is said in this chapter,
therefore, about planning for and regulation of municipal wastewater
treatment facilities applies with equal force to privately-owned package
plants, unless the context clearly indicates otherwise.
3. Section 208(b)(2)(C)(iii) of the FWPCA requires that a'section 208
regulatory program "assure that any industrial or commercial wastes
discharged into any treatment works in such area meet applicable pre-
treatment requirements."
4. U.S. EPA, Draft Pretreatment Guidance Manual for State and Areawide
(208) Water Quality Management Planning Agencies (April 1976) .
5. This ordinance is being developed by a special EPA "Pretreatment Task
Force," which is currently reviewing (1) the manner in which federal
pretreatment standards should be set; (2) enforcement of federal pre-
treatment standards; (3) federal view of intergovernmental relations
regarding pretreatment; and (4) revision of the general pretreatment
regulation, 40 C.F.R. 8 128, to reflect EPA's new position when it is
developed. The Pretreatment Guidance Manual, supra note 4, will be
revised and issued in final form after the pretreatment task force
has completed its work. Information on the task force may be obtained
from Swep Davis in EPA's Office of Water Planning and Standards,
(202) 755-0402. (Since the above was written EPA has published proposed
Pretreatment Standards for Existing Sources and New Sources of Pollution,
42 Fed. Reg. 6476, Feb. 2, 1977.)
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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IV-FN-2
6. "Inflow" is defined at 40 C.F.R. § 35.905-11 as:
the water discharged into a sewer system, including service
connections from such sources as, but not limited to, roof leaders,
cellar, yard, and area drains, foundation drains, cooling water
discharges, drains from springs and swampy areas, manhole covers,
cross connections from storm sewers and combined sewers, catch
basins, storm waters, surface run-off, street wash waters, or
drainage. Inflow does not include, and is distinguished from,
infiltration [defined at 40 C.F.R. 8 35.905-9].
7. Council 6n Environmental Quality, Environmental QualityThe Seventh
Annual Report of the Council on Environmental Quality 256 et seq.
and figure 11-39 (1976).
8. This tendency is summarized in an excellent publication of the New
Jersey Department of Community Affairs entitled Secondary Impact
of Regional Sewerage Systems (1975):
Today, outside of the general economy, sewers are the critical
ingredient and the guiding force for growth in New Jersey. As
the cost of land and construction rises, more townhouses and
multi-family units will be built in proportion to single family
homes. Sewers are essential for this higher density construction.
As a result, the role of sewers as a growth determinant will
become even stronger in the future. JLd.. at 6.
See also Urban Systems Research & Engineering, Inc., The Growth
ShapersThe Land Use Impacts of Infrastructure Investments (1976);
Binkley et aL; Interceptor Sewers and Urban Sprawl (1975).
9. Water Planning Division, U.S. EPA, Guidelines for State and Areawide
Water Quality Management Program Development 8-8 (Nov. 1976) .
10. Id. at 8-7 and 8-8.
11. Descriptions of actual cases appear in the studies referenced at
note 8, supra.
12. See New Jersey Dep't of Community Affairs, supra note 8, at 36:
Rational planning on the part of municipalities which includes,
for example, an analysis of natural resources and a plan
for preserving them, a capacity population figure based on
these resources and a timing of development scheme, would
make the job of protecting population and thus pipe sizing easier.
13. See the discussion in this chapter of Montgomery County, Maryland's
sewer planning program, infra section 3,0.
14. Guidelines, supra note 9, at 8-8.
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IV-FN-3
15. FWPCA, 8 8 201-207; 40 C.F.R. 8 35.800 £t _se£.; and U.S. EPA,
Municipal Wastewater Treatment Works Construction Grant Program,
Guidance for Preparing a Facility Plan (revised May 1975) .
16. R. Farley, "The 208 Agency and the Management Agencies," at 13 and 17,
17. 42 U.S.C. 8 4321 et seq., made applicable to grants for the con-
struction of publicly owned treatment works by 8 511(c)(l) of FWPCA.
18. Guidelines for Compliance with NEPA in the Title II Wastewater
Treatment Works Construction Grants Program and the Areawide Waste
Treatment Management Planning Program, 40 C.F.R. 8 6.500 et seq.
40 C.F.R. 8 6.510 enumerates the circumstances under which an
environmental impact statement will be prepared on a treatment works
facilities plan, 208 plan, or other appropriate water quality
management plan. The list of such triggering circumstances includes
the following situations:
(a) The treatment works or plan will induce significant
changes (either absolute changes or increases in the rate of
change) in industrial, commercial, agricultural, or residental
land use concentrations or distrubutions. Factors that should
be considered in determining if these changes are significant
include but are not limited to; the vacant land subject to
increased development pressure as a result of the treatment
works; the increases in population which may be induced; the
faster rate of change of population; changes in population
density; the potential for overloading sewage treatment works;
the extent to which landowners may benefit from the areas
subject to increased development; the nature of land use
regulations in the affected area and their potential effects
on development; and deleterious changes in the availability
or demand for energy.
(b) A major part of the treatment works will be located
on productive wetlands or will have significant adverse effects
on wetlands, including secondary effects.
*
(f) The works or plan may directly or through induced
development have a significant adverse effect upon local
ambient air quality, local ambient noise levels, surface or
groundwater quantity or quality, fish, wildlife, and their
natural habitats. (emphasis added)
See also Office of Federal Activities, U.S. EPA, Manual for
Preparation of Environmental Impact Statements for Wastewater
Treatment Works, Facilities Plans, and 208 Areawide Waste
Treatment Management Plans (1974); and New Jersey Dep't of
Community Affairs, supra note 8, at appendix I, "Guidelines
for Evaluating Secondary Impacts of Regional Sewerage Systems."
The New Jersey study notes at p. 7 that the state's priority
system for ranking applications for construction grants givp«
preference to projects in high quality watersheds, with th>_ ~_.^-t
that secondary effects are most likely to take place where they
pose the greatest threat to environmental quality.
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IV-FN-4
For sample descriptions of adverse primary and secondary environmental
effects as identified through the environmental impact statement
process, see Interceptor Sewers and Suburban Sprawl, supra note 8,
at 32 and 38 (threatened damage to scenic river corridor and storm-
water runoff problems). See also Fremont County, Idaho, Final
Environmental Impact Statement, North Fremont County, Island
Park Area Wastewater Facilities (Jan. 1976, project no. C-160186
01) (land use issues: pressures for increased recreational develop-
ment and protection of environmentally sensitive areas for fishing
and wildlife management); and Chesterfield County, Virginia, Final
Environmental Impact Statement, Falling Creek Wastewater Treatment
Facility (March 1976, project no. C-510484-01) (land use issues:
the impact of induced secondary effects on the Swift Creek Reservoir).
19. See EPA Policy Statement, "Protection of Nation's Wetlands," 38 Fed.
Reg. 10834-35 (May 2, 1975), which reads in part as follows:
In compliance with the National Environmental Policy
Act of 1969, it shall be the policy of this Agency not to
grant Federal funds for the construction of municipal
waste water treatment facilities or other waste-treatment-
associated appurtenances which may interfere with the
existing wetland ecosystem, except where no other alternative
of lesser environmental damage is found to be feasible. In
the application for such Federal funds where there is reason
to believe that wetlands will be damaged, an assessment will
be requested from the applicant that delineates the various
alternatives that have been investigated for the control or
treatment of the waste water, including the reasons for re-
jecting those alternatives not used. A cost-benefit appraisal
should be included where appropriate.
See also^ Exec. Order no. 11296, "Evaluation of Flood Hazard in
Locating Federally Owned or Financed Buildings, Roads, and other
Facilities, and in Disposing of Federal Lands and Properties,"
reprinted in 33 U.S.C. 8 701, note.
20. A survey of the Regions undertaken in the fall of 1975 by Thomas H.
Pierce of EPA's Office of Land Use Coordination turned up seven
cases of title II grants with land use controls written in as
conditions. Mr. Pierce's cover note of Dec. 1, 1975 to Robert J.
Golten, counsel to the National Wildlife Federation, notes:
It appears that there were relatively few grants conditioned
on the adoption of land use controls, since the imposition
of controls was considered to be a last resort measure. EPA
generally mitigates secondary land use impacts early in the
review process through negotiations with the applicant prior
to any approvals.
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IV-FN-5
The Natural Resources Defense Council, Inc., for one, has requested
that EPA Washington formalize its guidance on land use conditions
in construction grants. See Letter from Khristine L. Hall and Diane
L. Donley, NRDC, to John Rhett, Deputy Assistant Administrator for
Water Programs Operations, EPA (Nov. 17, 1976).
21. In focusing on protection of water quality, this discussion of waste-
water collection and treatment systems will necessarily present only
part of the picture. It is more common to find the techniques dis-
cussed heresewer moratoria, sewer allocation policies, and controls
on the location and timing of sewer servicestreated in a more general
framework of land use and growth regulation. An excellent treatment
of that more general kind can be found, along with valuable discussions
of the physical and economic aspects of sewers, in R. Tabors, M. Shapiro,
and P. Rogers, Land Use and the Pipe (1976).
22. The literature on sewer moratoria is extensive. In addition to the
references included in the footnotes to this section, the reader is
referred to the following recent works: Tabors e_t_ al^., Land Use j.nd
the Pipe, supra note 21; Rivkin/Carson, Inc., The Sewer Moratorium as
a Technique of Growth Control and Environmental Protection (1973) ;
Urban Systems Research & Engineering, Inc., The Relationship Between
Housing and Water Resources Planning and Management (1972) ; and
SCS Engineers, Wastewater Management for New Housing Developments
(forthcoming).
23. In his article "Interim Development Controlsfor Flexible Planning
Zoning," 49 J. Urb. L. 65 (1971) (reproduced in part in 2 R. Scott,
ed., Management and Control of Growth 397 [1975]), Professor Freilich
discusses the past and future of such controls and suggests a model
enabling statute to facilitate their adoption.
24. A nationwide survey of local governments undertaken in 1973 to determine,
inter alia, the environmental management techniques they use provides
an interesting breakdown of municipalities and counties which have
imposed moratoria. Unfortunately, the tables do not indicate the pur-
pose behind moratoria imposed on the issuance of building permits and
on requests for rezoning, so it is impossible to tell how many of the
moratoria reflect inadequate sewers. Of the 1,070 cities responding,
203 indicated that they had imposed moratoria within the previous 2
years: 125 or 62 percent had imposed moratoria on the issuance of
building permits; 73 or 36 percent on requests for rezoning; 84 or 41
percent on water or sewer connections. Of the 159 counties reporting
33 had imposed moratoria: 17 or 52 percent on building permits;
11 or 33 percent on requests for rezoning; and 15 or 45 percent
on water or sewer connections. (The remaining numbers in both
cases fall into an undifferentiated "other" category.) See S. Carter
et al. , Environmental Management and Local Government 48 and tables
55-58 (1974).
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IV-FN-6
25. This was done, for example, in moratoria imposed by Maryland's
State Department of Health and Hygiene, as described in Montgomery
County's FYS 1977-86 Comprehensive'Water Supply and Sewerage System
Plan 4-14. All state moratoria orders provided exceptions to
allow the connection of "public service buildings." In Montgomery
County, the term "public service buildings" has been defined to mean:
(a) publicly owned or operated buildings;
(b) buildings constructed for operation by a public utility
regulated by the State of Maryland;
(c) buildings constucted for an organization which is quali-
fied for an exemption under the provisions of Section
501 of Title 26 of the United States Code (Internal
Revenue Code);
(d) housing receiving subsidies from Federal, State and
local governments; and
(e) hospitals and nursing homes regulated by the State of
Maryland and other buildings used exclusively for
medical and dental clinics.
The Maryland moratoria orders were upheld in Smoke Rise, Inc. v.
Washington Suburban Sanitary Commission, 400 F. Supp. 1369
(D. Md. 1975); see infra note 40 and accompanying text.
26. 353 Mass. 708, 234 N.E.2d 893, 895 (1968).
27. 23 N.Y.2d 424, 244 N.E.2d 700, 701-03 (1969).
28. For an example of a state which expressly includes pollution control
within the legitimate purposes of zoning, see Md. Code Ann. art.
66B, 8 4.03 ("Purposes"): "Such regulations shall be made in
accordance with the plan and designed [inter alia] ... to promote
the conservation of natural resources; to prevent environmental
pollution, [and] to avoid undue concentration of population . . . ."
29. For the classic example of a very liberal interpretation of the
municipal power to tie zoning and subdivision approval to the
adequacy of public facilities, see Golden v.Planning Board of
Ramapo, 285 N.E.2d 291, appeal dismissed, 409 U.S. 1003 (1972),
discussed infra note 99 and accompanying text. A recent decision
by the Supreme Court of Virginia, Board of Supervisors of Fairfax
County v. Home, 215 S.E.2d 453 (1975), stands at the opposite end
of the interpretive spectrum. Indeed, sewer or water moratoria
imposed via refusals to process applications for sub-division
approvalor by disapprovals of individual subdivision plans
seem to fare worst at the hands of the courts, and in this regard
Home seems more typical than Ramapo in interpreting the sub-
division control power very strictly. Daley Construction Co. v.
Planning Board of Randolph, 163 N.E.2d 27, 30 (1959), is illustrative.
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IV-FN-7
In that case, the Massachusetts Supreme Judicial Court held that
the Massachusetts subdivision control law did not authorize a
planning board to deny approval of a subdivision plan solely "on
the ground that its execution may accentuate an existing town water
shortage." The section of the law upon which the Randolph planning
board relied (Mass. Gen. Laws Ann. ch. 41, 8 81M (West)) provided,
in pertinent part, that the "powers of a planning board . . . shall
be exercised with due regard . . . [and] adequate provision for
water, sewerage, drainage and other requirements where necessary
in a subdivision . . . ." In concluding that the words "securing
adequate provision of water" meant "installation of an adequate
system of water pipes rather than an adequate supply of water,"
however, the court was obviously influenced by a report of a special
legislative commission. That report indicated that the new
statutory language of which the above-quoted language formed a
part "was designed to clarify . . . language . . . especially . . .
where overzealous city planners have attempted to extend their
authority beyond the past legislative intention."
30. See chapter 2 section 2.2.3 for a general discussion of home rule.
31. Board of Supervisors of Fairfax County v. Home, 215 S.E.2d 453 (1975)
32. See Irwin et al., Enforcement of Federal and State Water Pollution
Controls (Washington, D.C.: Environmental Law Institute, July 1975;
available from NTIS, PB 246320).
33. Robinson v. City of Boulder, No. 26720 (Sup. Ct. Colo. March 15,
1976); Delmarva Enterprises, Inc. v. Mayor and Council of the City
of Dover, 282 A.2d 601 (1971).
34. Travaini v. Maricopa County, 450 P.2d 1021 (Ariz. Ct. App. 1969);
E. T. Barwick Mills, Inc. v. 0. B. Stevens, 136 S.E.2d 28 (Ga. Ct.
App. 1964).
35. Clark v. Board of Water and Sewer Commissioners of Norwood, 234
N.E.2d 893, 895.
36. Chancery No. 46273 (Cir. Ct. Fairfax Co. Jan 2, 1976). For a list
of these cases, see Hazel, infra note 105, at 14, n. 5.
37. 23 N.Y.2d 424,244 N.E.2d 700 (1969). See supra note 27 and
accompanying text.
38. Chancery No. 43235 (Cir. Ct. Fairfax Co., letter opinion July 2, 1975)
39. 43 N.Y. App. Div. 2d 727, 728 (1973). Compare Lerner, et^ ad. v.
Board of Supervisors, in which the Circuit Court of Fairfax County
awarded a $175,000 tax rebate primarily because of the county's
failure to provide adequate sanitary sewer facilities (Law No.
30429, 1974).
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IV-FN-8
40. 400 F. Supp. 1369 (D. Md. 1975).
41. Id. at 1386.
42. Id. at 1386-90.
43. JEd. at 1383.
44. 436 F.2d 108 (2d Cir. 1970), cert, denied. 91 S. Ct. 1256 (1971).
In that case, the City of Lackawanna first attempted to block a
proposed low-income housing project by adopting a moratorium 'on
subdivisions and by zoning the project site as open space. When
the zoning ordinances were repealed, the mayor refused to approve
the project's sewer application. Faced with a record which showed
that the city had ignored suggestions as to how it might improve its
sewer system, had not attempted to procure any assistance for its
upgrading and, indeed, had "deliberately permitted the problems to
worsen," the court held that"[t]he City must provide sewerage
facilities to the plaintiffs in conformity with the Equal Protection
Clause of the Fourteenth Amendment and provide it as soon as it does
for any other applicant." Id. at 114. For citations to other
utility cases raising equal protection questions and for a general
discussion of the subject, see American Society of Planning Officials,
"Legal Considerations in Growth Management," in Urban Growth Management
Systems 70 and nn.244-48 (1975).
45. Montgomery County Council, Amendment to FY's 1977-86 Comprehensive
Ten-Year Water Supply and Sewerage Systems Plan,section c > "Montgomery
County Interim Sewer Service Policy and Procedures') (Resolution
No. 8-1082, 1976).
46. "Procedure for Allocating Sewer Taps, County Wide, As Revised from
the Original Policy Adopted by Board of Supervisors May 14, 1973, and
Amended September 10, 1973, October 1, 1973 and Recodified and
Amended November 18, 1974."
47. Langley Development Corporation v. Board of Supervisors of Fairfax
County, supra note 36 and accompanying text.
48. For the definition of "public facilities," see supra note 25, except
for subsection (d), which is treated separately under the allocation
system.
49. Interview with Steve Poteat, Environmental Planner, Office of
Environmental Planning, in Rockville, Maryland (May 19, 1976), and
subsequent telephone interview (Dec. 9, 1976).
50. 400 F. Supp. 1369, 1383 (1975). See supra notes 40-43 and accompanying
text.
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IV-FN-9
51. This may not be as easy to do as it sounds, since methods of
determining expected flow rates and estimates of infiltration and
inflow are so variable. While it is not entirely clear from its
opinion in Langley Development Corporation v. Fairfax County Board
of Supervisors why the Circuit Court of Fairfax County struck down
the county's sewer allocation policy as well as its moratorium,
it appears that it found that some capacity had not been allocated,
"that a minimum of .6682 mgd of unallocated capacity would exist
even if there were some validity to the above referenced allocation
policy." Chancery No. 46273 (Cir. Ct. Fairfax Co. Jan. 2, 1976).
52. See supra note 43 and accompanying quote in text.
53. In Clark v. Board of Water and Sewer Commissioners of Norwood, 353
Mass. 708, 234 N.E.2d 893 (1968), the defendant Board had argued
that the connection of an apartment complex to the town's sewer
system would, in conjunction with other building contemplated such
as a junior high school, create an under-capacity in a certain area
of town. The court responded: "The sewer commissioners are not
empowered to postpone presently sought connections to give precedence
to connections contemplated for the future. There was no finding that
the board or the town is legally or equitably committed to other
connections." Id. at 895.
54. Supra note 45, at 11.
55. See Appeal of Kit-Mar Builders, 439 Pa. 466, 268 A.2d 765, 767
(197U); National Land and Investment Co. v. Kohn, 419 Pa. 504, 215
A.2d 597 (1965); Board of Supervisors of Fairfax County v. Williams,
216 Va. 49, 216 S.E.2d 33 (1975); and Board of Supervisors of Fair-
fax County v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959). See
also 2 N. Williams, American Land Planning Law 8 8 38.16, 38.19
(1974).
56. The most famous example of a community which has set an absolute
limit on its rate of growth is Petaluma, California, whose city
ordinance restricting the number of building permits issued in any
one year to subdivisions of more than four lots was upheld in
Construction Industry Ass'n of Sonoma County v. City of Petaluma,
522 F.2d 897 (9th Cir. 1975), cert, denied, 424 U.S. 934 (Feb. 23,
1976) . For a discussion of the history and administration of
Petaluma's scheme, see 2 Management and Control of Growth ch. 9,
supra note 23; Urban Growth Management Systems, supra note 43, at
18-19. The so-called "housing cap" approach to growth control is
illustrated by Boca Raton, Florida, which in 1972 adopted a charter
amendment setting a limit on total housing units of 40,000 (see
Urban Growth Management Systems, supra note 44, at 7, 10). The
Nov. 8, 1976 issue of Land Use Planning Reports reports that Florida's
15th Judicial Circuit Court recently found that Boca Raton's "cap"
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IV-FN-10
and implementing ordinance violated the due process clauses of the
federal and state constitutions. Judge Sholts is reported to have
said in his decision that "if a fixed limit on housing substantially
and rationally promotes welfare, it may well pass constitutional
muster," but that in Boca Raton "the evidence concerning the cap's
emotional and arbitrary birth, its unreasonable effects and lack of
material, factual and substantial relationship to the public welfare
is so compelling that fair debate should not really be expected."
Apparently, Judge Sholts suggested that his decision might have gone
the other way had the "cap" figure been within the 47,000 to 61,000
range recommended by the city's own consultants. The cases decided
were Boca Villas Corp. v. Pence, and Keating-Meredith Properties,
Inc. v. City of Boca Raton, (consolidated C.A. No. 73-106/540,
Palm Beach County Cir. Ct., Sept. 30, 1976).
57. 334 N.Y.S.2d 138, 30 N.Y.2d 359, 385 N.E.2d 291 (1972), appeal dismissed.
409 U.S. 1003 (1973).
58. The 1969 amendment to the Ramapo Zoning Ordinance is reproduced, in
proposed form, in 2 Management and Control of Growth, supra note 23,
at 7. Articles discussing the Ramapo system from many different
perspectives and all shades of enthusiasm are collected in chapter 8
of that volume.
59. See Silverman, "A Return to the Walled Cities: Ramapo as an
Imperium in Imperio," id. at 52.
60. No. 26720 (Sup. Ct. Colo., en bane March 15, 1976). The trial court
opinion is reproduced in 2 Management and Control of Growth, supra
note 23, at 237 et seq.
61. Id. For a discussion of the proprietary duty to provide sewer
service as set out in Robinson, see section 3.6.1 infra.
62. See Southern Burlington County NAACP v. Township of Mount Laurel,
"6T~N.J. 151, 336 A.2d 713, appeal dismissed. 423 U.S. 808 (1975),
and Berenson v. Town of New Castle, 38 N.Y.2d 102, 378 N.Y.S.2d
672 (1975). The former case has been exhaustively dissected in
23 Environmental Comment (Urban Land Institute,, July 1975) and
in 3 American Land Planning Law, addendum to § 66.13, supra note
55. Berenson involved the town of New Castle's exclusion of all
multifamily dwellings under its zoning ordinance. In framing
the issues to be considered on rehearing, the Court of Appeals
cautioned that the trial court, in examining the zoning ordinance in
question, "should take into consideration not only the general welfare
of the residents of the zoning township, but should also consider
the effect of the ordinance on the neighboring communities." The
court went on to say:
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IV-FN-11
[W]hether New Castle should be permitted to exclude high
density residential development depends upon the facts
and circumstances present in the town and community at
large. Until the day comes when regional, rather than
local, governmental units can make such determinations,
the courts must assess the reasonableness of what the
locality has done. That is what remains to be considered
upon the trial in this case. 378 N.Y.S.2d 672, 682.*
63. For three articles suggesting that controlling growth by timing the
provision of sewer and water utilities is unwise, see 2 Management
and Control of Growth, supra note 23, at 458 et seq.
64. See R. Howe and N. White, Problems and Approaches to Areawide Water
Quality Management (EPA 1973).
65. Separation of planning and implementation in sewer services has been
recommended by many commentators. One of the best cases is made by
the New Jersey Department of Community Affairs in its study referenced
note 8 supra, at 4, 22, 43-44, and 59.
66. Md. Ann. Code art. 43, 8 387C. Maryland's act was modeled on legis-
lation developed by the U.S. Public Health Service with the assistance
of a special advisory committee which included representatives of
the Advisory Commission on Intergovernmental Relations, the Housing
and Home Finance Agency, the National League of Cities, the American
Society of Planning Officials, the National Association of Counties,
the National Association of Home Builders, the Water Systems Council,
the Conference of State Sanitary Engineers, and the septic tank
industry. U.S. Public Health Service, Recommended State Legislation
and Regulation; Urban Water Supply and Sewage Systems, Water Well
Construe_tion and Pump Installation, and Individual Sewage
Disposal Systems^ (July 1965). All three model statutes have
been reproduced in Advisory Commission on Intergovernmental Relations,
"Environment, Land Use and Growth Policy," 5 State Legislative
Program (1975).
67. Md. Ann. Code art. 43, % 394.
68. The Metropolitan Council Act is codified at Minn. Stat. § 473B.
There is a wealth of literature on the Twin Cities Metropolitan
Council. The newest and most exhaustive in the area of regional
environmental management is R. Einsweiler, I. Ball, and M. Gleeson,
Case Study of Metropolitan Council as an Environmental Management
Organization (Jan. 1976). Earlier studies include: C. Hein et al.,
Regional Governmental Arrangements in Metropolitan Areas: Nine
Case Studies sec. IV (1974); Advisory Commission on Intergovern-
mental Relations, Regional Governance; Promise and Performance
ch. IV, Substate Regionalism and the Federal System, vol. 2
(1974); R. Freilich and J. Ragsdale, A Legal Study of the Control
of Urban Sprawl in the Minneapolis-St. Paul Region (1974).
*See note 99 infra for a citation to a recent California case dealing
with the obligation of a locality to consider the regional welfare
when it sets out to limit its growth.
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IV-FN-12
69. Minn. Stat. Ann. § 473.145 (West Supp. 1977).
70. Metropolitan Council of the Twin Cities Area, "Waste Management,"
Metropolitan Development Guide 5 (Dec. 1975).
71. Ld. at 61.
72. Minn. Stat. Ann. § 473.161 (West).
73. Id. § 473.501 et
74. Guide, supra note 70, at 67.
75. Rubin v. McAlevey, 282 N.Y.S.2d 564 (1967), aff'd, 288 N.Y.D.2d
519 (1968).
76. These subdivision regulations have been published by the American
Society of Planning Officials. R. Freilich and P. Levi, Model
Subdivision Regulations, Text and Commentary (Chicago: ASPO, 1975)
77. These laws are reproduced in C. Little, The Challenge of the Land
(New York: Open Space Action Institute, 1969).
78. See supra note 25, at 2-47.
79. Metropolitan Council of the Twin Cities Area, "Development Frame-
work," Me_trpj3pjy.tan_J)ej^ 21 (Sept. 1975).
80. Minn. Stat. Ann. 8 473.851 et seq. (West Supp. 1977).
81. Montgomery County, Md., Adequate Public Facilities Ordinance No.
7-41 (June 26, 1973), Montgomery County, Md., Code S 50-35(j)
(Michie Supp.).
82. Md. Ann. Code art. 43, % 387C(d)3(i).
83. Einsweiler and Ball, supra note 68.
84. _Id.
85. Montgomery County Code ch. 86, art. 1, § 7, and art. 7.
86. Early in its history the council found itself in disagreement
with the then Sewer Board and the state Pollution Control Agency
over what to do with the sewage of Forest Lake which was being
discharged with only primary treatment into a chain of lakes
forming part of the St. Paul water supply system. The council
recommended a tertiary treatment plant on a small creek, but
environmentalists opposed the location, fearing adverse effects
on fishing in the creek. Finally, the state Pollution Control
-------
IV-FN-13
Agency required the Sewer Board to run an interceptor line from
Forest Lake to connect with the St. Paul system. The new interceptor
encouraged development in an area which the council felt was not yet
ready for development. Regional Governmental Arrangements in
Metropolitan Areas; Nine Case Studies, supra note 68, at 39.
87. Both the pricing policies considered and the one finally adopted
in the Twin Cities are discussed in Robert C. Einsweiller's issue
paper for the 208 Areawide Water Quality Workshops sponsored by
the National Association of Regional Councils (Washington, B.C.:
1976), "What Is Needed to Implement the Management Plan?" According
to that paper, the initial pricing proposal would have charged
undeveloped land for the amount of sewer capacity reserved for that
land. The history of this proposal and the alternative methods
actually used is described by Einsweiller as follows (at 23-24):
Referring to tax theory, this extra tax placed on
the undeveloped land would prevent its being held for
speculative purposes and diminish the occurrence of leap-
frog development. The concept was never tested. As part
of the final package it was determined to make the alloca-
tions to the local governments and let them decide how to
raise the money. When this was done none of them chose to
put it on undeveloped land. They charged it to current
users either as a hook-up fee, as a user charge or as a
property tax.
The latest amendment has removed the reserve charge
from current users. This came about through the service
availability charge (SAC) which takes the annual increment
of cost for reserve capacity, divides it by the estimated
annual number of building permits and then allocates the
charge to the communities in which building permits were
granted. By so doing the charge achieves one original
purpose in that it goes only on new development. But
it does not act as any restraint on the request for capacity.
If, for example, a community asked for twice as much capacity
as it needed, that capacity would be paid for by development
occurring in other parts of the region. Therefore, although
the SAC charge provides a painless way of paying it has
removed the last vestige of restraint on over sizing, sprawl
and the other aspects of development that the pricing was
initially set up to do. Sprawl in the Twin Cities is now
being handled administratively rather than through pricing.
Pricing is working in one direction, administrative
regulations another. But the new mandatory planning act
[see note 80, supra, and accompanying text] does provide
enough authority to overcome the lack of pricing as a
restraint.
Suggestions for ways in which Montgomery County might restructure
its sewer funding and pricing system to further its growth policy
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IV-FN-14
are made in a paper entitled "Pricing and Investment Policy as a
Growth Policy Tool" presented at the 1974 American Institute of
Planners Conference in Denver by Donald A. Downing, Coordinator,
Environmental Planning Division, The Maryland-National Capital
Park and Planning Commission, Silver Spring, Maryland. Mr.
Downing's concluding summary lists the following recommended
policy changes for Montgomery County and refers to jurisdictions
where they are in use:
1. Benefit assessments should have uniform rates for land,
including agricultural, which has access to sewer service.
Were development to occur on some land, which now has
access to sewers, further sewer extensions could possibly
be postponed and other public facilities provided in a
more efficient manner.
2. User charges should be higher in low priority areas and
lower in high priority areas, as determined by County
Growth Policy. Home buyers would be encouraged to locate
in areas where public services could be provided at the
least cost.
3. The contribution system for sewer extensions should be
replaced by a system of private payment and reimbursement
for major extensions. This could provide an incentive
for developers to build in areas where service is already
provided, and other public facilities are available to
the residents. Id. at 15.
See also Downing, "The Role of Water and Sewer Extension Financing
in Guiding Urban Residential Growth," Water Resources Research
Center Report No. 19 (June 1972), and Downing, "Sewer and Water
Pricing and Investment Policies to Implement Urban Growth Policy,"
Water Resources Bulletin 11, at 345-355 (April 1975). And see
R. Tabors £t sil_., supra note 21, at 126-129.
It has been noted by others that charging future users for their
pro rata share of excess capacity, while making equitable sense,
puts great pressure on the community to in fact grow to the popu-
lation size for which the sewer system was projected. Urban
System's Interceptor Sewers and Surburban Sprawl, supra note 8
and 61, uses as an illustration of this problem the Haikey Creek
Interceptor System in Tulsa, Oklahoma. Tulsa financed that system
by selling debentures to developers which could not be converted
into cash but could only be applied against connection fees.
Clearly, such a system puts tremendous pressure on developers
to begin selling losts as soon as possible.
It has also been charged, in the above cited work by Urban Systems
and elsewhere, that EPA's funding policies stimulate rapid growth
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IV-FN-15
by encouraging the building of excessive capacity. In January 1976
the EPA Administrator submitted a proposal to Congress which would
have put new limitations on the eligibility for and the amount of
federal funding for new treatment works construction, including a
provision "that the amount of reserve capacity for treatment works
eligible for Federal assistance is to be limited to that future
capacity required to serve the users of such treatment works
expected to exist within the service area of the project at the
time it becomes operational." Cover letter from Russell E. Train
to Speaker Carl Albert (Jan. 29, 1976), forwarding a draft bill
"to amend the Federal Water Pollution Control Act." No final
congressional action was taken on this bill in the 1976 legislative
session.
The New Jersey Department of Community Development has suggested
that the typical 15 percent contribution of the state to sewer
construction costs be dropped altogether; that way, the department
maintains, localities would be paying 25 percent of the costs
rather than 10 percent and would take a much closer look at the
question of sizing. New Jersey Dep't of Community Affairs, supra
note 8, at 51. Still another way to eliminate the "free-ride"
aspects of the present funding and pricing systems which may con-
tribute to sewer oversizing and consequent environmental degrada-
tion would be to recapture the unearned increment attributable
to sewering. The New Jersey Report reports that in one township
acreage in a part of town where sewers were available sold for
twice the amount of comparable unsewered acreage. Id. at 24.
See the forthcoming study for the U.S. Dep't of Housing and Urban
Development on ways of equalizing "windfalls for wipeouts" through
benefit and "worsenment" recapture system- This study is being under-
taken by Professor Donald Hagman, University of California at Los Angeles.*
The existing system of sewer financing and pricing is summarized
in R. Tabors ^t_ al_., supra note 21, at ch. 3 and 127-29. Tabors
et aj.. report that the data they used show that 70 percent of the
localities charging connection fees used flat charges for all
single-family homes, while less than 20 percent based their fees
on actual costs or frontage. The authors also reproduce data
compiled by the International City Manager's Association and
included in their Municipal Yearbook 1961, at 325 (Chicago:
International City Managers' Ass'n, 1961) which shows that deve-
lopers generally already do pay for lateral sewers in new sub-
divisions. Of 673 cities studied, developers paid the full costs
in 79 percent of the cases, and shared the cost with the city
in 13 percent.
88. Einsweiler and Ball, supra note 68.
89. Md. Ann. Code art. 43, 8 387C(d)5.
*See D. Hagman, Windfalls for Wipeouts (Monticello, 111.: Council of
Planning Librarian Exchange Bibliography Nos. 618-20, 1975).
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IV-FN-16
90. McQuillan, Municipal Corporations 8 31.17.
91. Ramsay, "Utility Extensions: Timing or Location Control," 28
Stan. L. Rev. 945 (1974), reproduced in its entirety in 2 Management
and Control of Growth, supra note 23, at 442. This note cites,
inter alia, the seminal case in this area, Moore v. City Council,
23 Ky. L. Rptr. 384, 105 S.W. 926 (1907), and Barney's Furn. Ware-
house, Inc. v. City of Newark, 62 N.J. 456, 469, 303 A.2d 76, 83
(1973).
92. In what is perhaps the most famous utility extension case, Reid
Development Corp. v. Parsippany-Troy Hills Township, the court held
that the township's refusal to extend water mains to the
developer's subdivision was not an "arbitrary, unreasonable or
abusive exercise of discretion" in view of the fact that the muni-
cipal water company was operating at a deficit and that there "was
no assurance of a likely customer return in the reasonably proximate
future." 31 N.J. Super. 459, 107 A.2d 20, 23 (App. Div. 1954).
The court distinguished the holding in an earlier case brought by
the same developer against the same township (Reid Development Corp.
v. Parsippany-Troy Hills Township, 10 N.J. 224, 89 A.2d 667 (1952)),
in which the developer prevailed, because it "turned upon the muni-
cipality's withholding of the grant of extension as a means of
coercing the landowner into accepting a suggested change in the
minimum lot size." Id. at 23. While the Reid cases concerned the
provision of public water, not sewer, the cases have made no dis-
tinction between the two kinds of utility. Note that Robinson v.
City of Boulder, No. 26720 (Sup. Ct. Colo., en bane March 15, 1976),
dealt with both sewer and water without differentiating between
them in any way.
93. See supra note 60. The factual details of the case are best gleaned
from the lower court opinion which is reproduced in 2 Management
and Control of Growth, supra note 23, at 237.
94. Delmarva Enterprises, Inc. v. Mayor and Council of the City of
Dover, 282 A.2d 601, 602.
95. 264 A.2d 113 (1970). See also the other Maryland cases cited therein.
96. Citing Commissioners of Poolesville v. County Council of Montgomery
County and the Department of Health and Mental Hygiene, 330 A.2d
711 (Md. App. 1975) and, later, Norbeck Village Joint Venture v.
Montgomery County Council, 254 A.2d 700 (1969). In Norbeck the
Maryland Court of Appeals (the state's highest court) upheld the
zoning plan for the Olney Community which was predicated on the
"wedges and corridors" idea and was designed to implement the joint
purposes of the Master Plan: the preservation of open space and
the protection of the watershed. The court had noted then that
"[t]he plan sought to encourage earlier growth along the interstate
70S corridor than on the Patuxent River Watershed, thereby protecting
-------
IV-FN-17
the basin from pollution." Id. at 704. In ruling that the appel-
lants had failed to overcome the strong presumption in favor of
the validity of legislative action, the court noted that the pre-
sumption was buttressed in this case "by reason of the^ fact that the
plan implemented the General Plan and the Master Plan."
97. 254 A.2d 700 (1960), see supra note 96.
98. 400 F. Supp. 1369, 1391-92 (1975).
99. 334 N.Y.S.2d 138, 30 N.Y.2d 359, 285 N.E.2d 291 (1972), appeal
dismissed, 409 U.S. 1003 (1973).
See also a recent decision of the California Supreme Court upholding
an adequate public facilities ordinance against a challenge that
it was unconstitutional on its face. The court remanded the case
for determination by the trial court whether the ordinance bore a
reasonable relation to the regional welfare. Associated Home Builders
of the Greater Eastbay. Inc. v. City of Liyermore (S.F. 23222, Dec. 17, 1976),
See note 62, supra for other cases concerning a locality's obligation
to consider the general welfare of its region. The Eastbay decision
is reproduced in its entirety at 7 ELR 20155.
100. 216 Va. 49, 216 S.E.2d 33 (1975).
101. Va. Code 88 15.1-427 and 15.1-489. The Virginia state legislature
had, however, rejected a bill designed to give express authority
for the timing approach. (S. 95, 1972). The bill would have
amended Va. Code § 15.1-486 to allow zoning ordinances to "time"
"the development of uses otherwise permitted, when public facili-
ties, including utilities, transportation, education, protective
and recreational facilities, are not deemed by the governing body
to be adequate to support development otherwise permitted in the
district."
102. 216 S.E.2d 33, 41.
103. 215 Va. 434, 211 S.E.2d 48 (1975).
104. 216 S.E.2d 33, 46-47 (Cochran, J., dissenting; T'Anson, C.J.,
joining).
105. According to a Fairfax County lawyer and former county judge,
the timing scheme, under which the Middle Run area was not to be
developed after 1975, "was to be reviewed annually to determine
the progress in the provision of facilities. Despite this pro-
vision for annual review . . . review was never implemented, and
most zoning applications in the Middle Run and adjacent areas
were refused a hearing." J. Hazel, Jr., "Growth Management
Through LitigationA Case Study of Fairfax County, Virginia,"
Urban Land, November 1976, at 6 and 10. This article gives an
excellent history of Fairfax County's experience with mechanisms
to control growth, as do Tabors et_ al_., supra note 21, ch. 5;
G. Dawson, No Little Plan; Fairfax County's PLUS Program for
Managing Growth (1976); and J. Stansbury, "Surburban GrowthA
Case Study," 28 Population Bulletin (February 1972).
107. For a general discussion of the constitutional issues raised
by the regulation of land and other property, see chapter 2.
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IV-FN-18
108. 285 N.E.2d 291, 304-305 (1972).
109. This concern has also been expressed by the courts. In Smoke
Rise v. Washington Suburban Sanitary Commission, 400 F. Supp.
1369 (D. Md. 1975), the court ruled that the plaintiff could not
be required to exhaust its administrative remedies by petitioning
the state Department of Health to reclassify its land, saying:
The ingenuity of this argument is matched only by its
myopia. The comprehensive plan is the tool whereby
design and rationality can replace the chaotic sprawl
which has too often characterized metropolitan develop-
ment. If plaintiffs, and others similarly situated, were
allowed to petition administratively for a reclassifi-
cation of their land, the Montgomery County comprehensive
plan would soon be riddled with the same types of exceptions
and variances which have crippled the efficacy of local
zoning ordinances as salutary tools for the guidance of
development. Id. at 1379.
-------
CHAPTER FOUR
MUNICIPAL WASTEWATER TREATMENT FACILITIES:
RESTRICTIONS ON TIMING AND LOCATION OF HOOKUPS AND EXTENSIONS
SUGGESTED READINGS
Advisory Commission on Intergovernmental Relations. Regipnal_ Governance;
Promise and Performance. Substate Regionalism and the Federal System,
vol. 2. Washington, D.C., 1974.
The Challenge of Local Governmental Reorganization. Substate
Regionalism and the Federal System, vol. 3. Washington, D.C., 1974.
. Environmental Land Use and Growth Policy. State Legislative
Program, vol. 5. Washington, D.C., 1975.
Alan M. Voorhees and Associates; Water Research Engineers, Inc.; and
Environments for Tomorrow. Inter-Relationships of Land Use Planning
and Control to Water Quality Management JPlanninj?. U.S. EPA, April
1973.
American Society of Planning Officials. Urban^Growth Management Systems.
Planning Advisory Service Reports, nos. 309, 310. Chicago, 1975.
Binkley, Clark; Collins, Bert; Kantor, Lois; Alford, Michael; Shapiro,
Michael; and Tabors, Richard. Interceptor Sewer_s_a_n_d Suburban Sprawl.
Lexington, Mass.: D.C. Heath and Co., Lexington Books, 1975.
Bosselman, Fred; Callies, David; and Banta, John. The Taking_ Issue; An
Analysis of the Constitutional Limits of Land Use Controj.. Washington,
D.C.: Council on Environmental Quality, July 1973.
Carter, S., et al. Environmental Management and Local Government. U.S.
EPA, Feb. 1974. (EPA-600/5-73-016)
Dawson, Grace. No Little Plan; Fairfax County's PLUS Program for Man-
aging Growth. Washington, D.C.: The Urban Institute, Dec. 1976.
Downing, Donald A. "The Role of Water and Sewer Extension Financing in
Guiding Urban Residential Growth." Water Resources Research Center
Report No. 19. University of Tennessee, June 1972.
"Sewer and Water Pricing and Investment Policies to Implement
Urban Growth Policy." Water Resources Bulletin No. 11, April 1975.
"Pricing and Investment Policy as a Growth Policy Tool." Paper
presented at the American Institute of Planners Conference, Denver,
1974.
-------
IV-SR-2
Elnsweiller, Robert C. "What Is Needed to Implement the Management
Plan?" Issue Paper prepared for the 208 Areawide Water Quality
Management Workshop sponsored by the National Association of
Regional Councils, Washington, D.C., 1976.
Einsweiller, Robert C.; Ball, Ian T.; and Gleeson, Michael E. Case
Study of the Metropolitan Council As An Environmental-Management
Organization. Washington, D.C.: U.S. EPA, 1976. (prepared
under EPA Grant No. R 803906-01-0; publication by NTIS forth-
coming)
Farley, Robert D. "The 208 Agency and the Management Agencies."
Issue Paper prepared for the 208 Areawide Water Quality Manage-
ment Workshop sponsored by the National Association of Regional
Councils, Washington, B.C., 1976.
Freilich, Robert H. "Interim Development Controls for Flexible Planning,
Zoning." Journal of Urban Law 49 (1971): 65. Reproduced in part
in Scott, Randall W. , ed. Management anci Control_of_ Growth.
Washington, D.C.: The Urban Land Institute, 1975.
Freilich, Robert H., and Levi, Peter S. Model Subdivision Regulations:
Text and Commentary. Chicago: American Society of Planning Offi-
cials, 1975.
Freilich, Robert H. , and Ragsdale, John W. , Jr. A Legal Study o^f the
Control of Urban Sprawl in the Minneapolis - St. Paul Metropolitan
Region. St. Paul: Twin Cities Metropolitan Council, 1974.
Hazel, John T., Jr. "Growth Management Through LitigationA Case
Study of Fairfax County, Virginia." Urban Land, Nov. 1976.
Hein, C.V.; Keys, Joyce M.; and Robbins, G.M. Regional Governmental
Arrangements in Metropolitan Areas: Nine CaseStudies. U.S. EPA,
1975. (EPA-600/5-74-024)
Howe, Richard S., and White, Nicholas L. Problems and Approaches to
Areawide Water Quality, Management. U.S. EPA, Oct. 1973. (NTIS
PB-239-809, 810, 811, 812)
Li, C.Y. "Sewerage Plan Involves Open Space Preservation." Civil
Engineering (Jan. 1973).
Little, Charles. The Challenge of the Land. New York: Open Space
Institute, 1969.
New Jersey Department of Community Affairs. Secondary Impact of Regional
Sewerage Systems. Trenton, N.J.: N.J. Dep't of Community Affairs
(363 West State Street, P.O. Box 2768, Trenton, N.J. 08625), 1975.
Phillips, Michael B. "Developments in Water Quality and Land Use Planning:
Problems in the Application of the Federal Water Pollution Control
Act Amendments of 1972." Urban Law Annual 10 (1975): 43.
-------
IV-SR-3
Ramsay, Barbara A. "Utility Extensions: Timing or Location Control."
Stanford Law Review 26 (1974): 945. Reproduced in its entirety
in Scott, Randall W., ed. Management and Control of Growth.
Washington, D.C.: The Urban Land Institute, 1975.
Reilly, William K., ed. The Use of Land: A Citizen's Policy Guide to
Urban Growth. New York: Thomas Y. Crowell Co., 1973.
Rivkin/Carson, Inc. The Sewer Moratorium as a Technique of Growth
Control and Environmental Protection. U.S. Department of Housing
and Urban Development, July 1973.
Scott, Randall W., ed. Management and Control of Growth. Washington,
D.C.: The Urban Land Institute, 1975.
SCS Engineers. Wastewater Management for New Housing Developments.
U.S. Department of Housing and Urban Development, forthcoming.
(Contract No. H-2288R)
Stansbury, Jeffrey. "Suburban GrowthA Case Study." Population
Bulletin 28 (Feb. 1972).
Tabors, Richard D.; Shapiro, Michael H.; and Rogers, Peter P. Land
Use and the Pipe. Lexington, Mass.: D.C. Heath and Co., Lexington
Books, 1976.
Urban Systems Research and Engineering, Inc. The Growth Shapejrs; The
Land Use Impacts of Infrastructure Investments. Washington, D.C.:
Council on Environmental Quality, 1976.
. The Relationship Between Housing and Water Resources Planning
and Management. U.S. Department of the Interior, 1972.
U.S. Environmental Protection Agency, Municipal Wastewater Treatment
Works Construction Grants Program. Guidance for Preparing a Facil-
ity Plan. Washington, D.C., revised May 1975.
U.S. Public Health Service. Recommended State Legislation and Regula-
tions: Urban Water Supply and Sewage Systems, Water Well Construc-
tion and Pump Installation, and Individual Sewage Disposal Systems.
Washington, D.C., July 1965. Reproduced in Advisory Commission
on Intergovernmental Relations. Environment, Land Use^ and Growth
Policy, State Legislative Program, vol. 5. Washington, D.C., 1975.
Williams, Norman, Jr. American Land Planning Law: Land Use and the
Police Power. 5 vols. Chicago: Callaghan & Co., 1974-75.
-------
CHAPTER FIVE
ONSITE WASTEWATER DISPOSAL SYSTEMS
TABLE OF CONTENTS
1.0 Introduction; The New Interest in
Onsite Wastewater Disposal Systems V-l
2.0 Planning V-2
2.1 General Locational Requirements: Identification of
Areas Unsuitable for Subsurface Disposal V-2
2.2 Sewer Planning and Limitations on
Onsite Wastewater Disposal Systems V-4
3.0 Permits and Standards for Location, Design and
Construction of Onsite Wastewater Disposal Systems V-5
3.1 Failure of Past Approaches V-5
3.2 A New Emphasis on Soils and Individualized Testing V-6
3.3 The System Design Itself: Provisions for and
Limitations on Innovative Individual Systems V-10
3.4 The System Design Itself II: Provisions for and
Limitations on Alternative Community Wastewater
Disposal Systems V-12
3.5 Anticipating and Coping with Failures:
Replacement Areas and Diversion Valves V-17
3.6 Necessary Flexibility in Standards V-18
4.0 Administration V-19
4.1 Administering Standards and Permit Requirements:
Certified Inspectors and Licensed Installers V-19
4. 2 Administering Maintenance Requirements V-23
4.3 The Pumping and Disposal of Septage .V-24
5.0 Enforcement V-26
6.0 Appropriate Level and Agency of Government V-28
6.1 State-Local Relationship V-28
6.2 A Note on Appropriate Agency: Health Departments,
Water Pollution Control Agencies, and Wetlands
Authorities .V-30
6.3 Variances V-31
6.4 Specialized Substate Management Entities V-32
7.0 Legal Issues V-37
8.0 Conclusion: Secondary Effects V-41
Footnotes
Suggested Readings
-------
CHAPTER FIVE
ONSITE WASTEWATER DISPOSAL SYSTEMS
1.0 Introduction: The New Interest in Onsite Wastewater Disposal Systems \J
With Congress seemingly promising a sewer hookup for every home in
the first half of this decade, the lowly septic tank came to be
regarded as something to be replaced at the earliest possible moment
by modern, centralized sewage collection, treatment, and disposal
systems. The breakdown of many onsite waste disposal systems installed
in the subdivision boom years of the fifties and sixties only confirmed
the desire to have done with such "primitive" systems as soon as
possible.
Recently, however, two research efforts have combined to raise doubts
about the practicality and advisability of sewering America and to give
onsite wastewater disposal systems a new future. The first research
effort has been into the true costs and secondary effects of centralized
sewage collection and treatment systems. The findings of this research
have been summarized in the introduction to the previous chapter.^/
The second research effort has been into the cause of subsurface disposal
system failure and into the expected longevity of such systems in the
absence of failure-causing conditions.^/ Recent research has given
cause for qualified optimismthe qualifications having to do mostly
with the major regulatory effort needed to ensure that subsurface
disposal systems are properly designed, installed, and maintained.4/
This chapter is devoted to an analysis of the control techniques and
legal and institutional framework designed to accomplish the required
regulation.
Even if there were no long-term future for onsite wastewater disposal,
government officials at all levels and water quality management planners
would have to grapple with the subject of its regulation since it is
the only system available now to approximately 30 percent of the pop-
ulation (the number is much higher in the Northeast)5/and will continue
to be for the forseeable future since sewering of widely dispersed
populations is simply not economic.6/ Even if the economic costs
were the same, moreover, the social and environmental costs of sewering
would still make onsite wastewater disposal the more attractive alter-
native in many cases. While the kind of comprehensive planning at the
state, regional, and local levels advocated in chapter 4 may go a long
way towards mitigating adverse primary and secondary effects of sewer
development, total avoidance will often not be possible. For example,
there will always be some growth with some increase in stormwater run-
off. In some states, rural areas with high quality waters but scattered,
severe pollution problems from failing septic tanks or many direct dis-
charges to streams may rank high on state priority lists for construction
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V-2
grants, yet it is in these areas where sudden growth is hardest to
plan for and where that growth can have the most devastating effects
on water quality and environmental amenities generally. Community
septic systems and other small-scale wastewater disposal systems
to be discussed may well be the most environmentally sound as well
as the most economical way to abate pollution from sewage in such
areas.
There are, moreover, positive environmental benefits attributable
to the subsurface method of wastewater disposal. One of these is
fertilization of plant growth Tj an^ another is replenishment of
groundwater. Even more important is the fact that proper subsurface
disposal generally keeps pollutants out of surface waters and thus
may, in some instances, be superior to tertiary treatment in a
sewage treatment plant. And while septic systems, like sewage
treatment plants, do generate residual wastes, the material pumped
from septic tanks ("septage") is more amenable to land disposal
since it contains significantly lower concentrations of heavy metals.87
The city of Englewood, Florida offers an example of a community
attempting to continue the use of septic tanks rather than polluting
its prime recreational waters and depleting its groundwater resources
by installing a central sewer system, j)/ Clearly, the use of septic
tanks has enormous economic and environmental advantages over the
alternatives resorted to by some cities: piping their effluent to
distant discharge points or recycling their wastewater<-for a water
supply.
For all the reasons outlined above, states, regions, and localities
may want to take another look at onsite and other small-scale waste
disposal systems, traditional and innovative. Many states and local-
ities have already realized that the environmental and public health
problems often associated with such systems in the past may be min-
imized by the adoption of standards and permit requirements for test-
ing, location, construction, maintenance, and by proper training of
implementing personnel. The following analysis of the necessary
regulatory components of any onsite wastewater disposal program
draws on examples from several states and localities which have
particularly comprehensive regulation.
2.0 Planning
2.1 General Locational Requirements: Identification of Areas
Unsuitable for Subsurface Disposal
Onsite waste disposal's new respectability will be short-lived indeed
if it leads to the cavalier assumption that there are innovative tech-
nological methods for avoiding every problem-site characteristic. There
are many sites which are totally unsuited to onsite waste disposal.
The U.S. Department of Agriculture's Soil Conservation Service (SCS)
estimates that about 32 percent of the land area of the United States
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V-3
has soils suitable for septic systems. Many such areas can be ruled
out by soil type as identified by soils maps and interpreted by SCS
or other trained soil scientists. Because of the invaluable assist-
ance they provide for many environmental control purposes, detailed
soil surveys and interpretation are an important part of every water
quality management planning program.IO/ Another key determinant of
the suitability of land for onsite wastewater disposal is the height
of the seasonal water table. Groundwater analysis is a required
part of water quality management planning in areas with existing
or potential groundwater pollution problems and it too is useful for
many pollution abatement purposes.11/
Once the soils conditions of the state or community which will
not permit successful subsurface wastewater disposal have been
identified (flood plain soils and other poorly drained soils, soils
with inadequate permeability ["tight" soils], soils with excessive
permeability, shallow soils and soils with a high seasonal water-
table), these limiting conditions should be clearly spelled out in
state regulations or the local ordinance governing subsurface dis-
posal. Pennsylvania's regulations, for example, list groups of soils
which are unsuitable for subsurface disposal systems. Such locational
restrictions will take their place alongside restrictions on in-
stalling septic systems within certain distances from water supplies
and surface waters which may be found in most states' regulations.12/
While it may take an individual site inspection to confirm that a
specific site partakes of the limiting characteristic shown, on the
generalized soil survey ,_13/ the limitations themselves should generally
not be subject to variance. And although it is possible to overcome
certain problems posed by marginal sites with new technology, certain
firm limitations will remain. Thus Maine and Pennsylvania, states
which encourage carefully designed innovative systems, have charts
showing which soils may be suitable for what systems and which are
unsuitable for any subsurface disposal systems at all.JLA/ The Maine
chart includes suggested minimum lot sizes although the state leaves
the final decision as to lot size up to local discretion in view of
"the unique situations which most communities have." The Maine Code
says that the suggested minima were prepared "to provide assistance
to planners, planning boards, and others involved in land use."
Local land use planning is an important component of onsite waste
disposal planning not least because it is at the local level,
through zoning, at which density decisions are usually made.
Important as the soils characteristics of an individual site are to
the likely success of an onsite system, density is another key
factor in assessing the possibility of groundwater pollution. In
some situations, each individual system may be working properly
but the cumulative effect of many systems may nevertheless result in
significant pollution.
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2.2 Sewer Planning and Limitations on Onsite Wastewater
Disposal Systems
Certainly, locational restrictions on subsurface wastewater disposal
systems will have broad ramifications for water quality management
planning generally and particularly for sewer planning. Having mapped
and identified geologic, hydrologic, and topographic limitations on
the use of onsite wastewater disposal systems, communities which
are planning or already have central sewer systems will know where
they will have to build or extend those facilities if residential
development is to take place. Of course, some areas which are
unsuitable for subsurface disposal systems may be unsuitable for
sewering as well because of their general inappropriateness for
development of any kind. Flood plains and steep slopes are just
two examples of such areas. While it is important that decisions
on future sewer locations reflect limitations on septic systems,
it is even more important that the converse be true. For the
comprehensive sewer planning of the type outlined in the previous
chapter to be maximally effectiveespecially if it is, as it should
be, part of a broader land use planning programall development
decisions must take the sewer plan into account, including decisions
for development which will not rely on the public sewers for waste
disposal. As noted in the previous chapter, many sewer extensions
of the past have been dictated not by sound planning considerations
but by septic system and package plant failures.
Two states which mandate local sewer planning, Maryland and Pennsylvania,
stipulate that no permits for onsite disposal systems shall be issued
unless such issuance is consistent with the applicable local
sewer plan.LS/ (Pennsylvania used a ban on septic tank construction
for new recreational subdivisions to prod counties into developing
comprehensive plans for sewer and water systems in the first place.)16/
Although consistency is not defined by the regulations of either
state, it is clear that to be consistent with the plan, the onsite
disposal system must not be within an area shown on the plan as
unsuitable for onsite wastewater disposal because of soil or other
limiting factors 17/ or within an area destined by the plan for
sewering within a certain time.J.8/ Unfortunately, practical attempts
to mesh restrictions on septic systems with long-term sewer planning
have turned up unplanned-for side effects calling for unorthodox
remedies, as illustrated,by Montgomery County, Maryland.
Laboring under a state-imposed sewer moratorium which has substan-
tially delayed its planned expansion of sewer facilities, Montgomery
County modified its restrictions on septic systems in areas planned
for sewering both to allow landowners some use of their land in
the face of indefinite delays and to avoid the complete subversion of
a land use policy that calls for combating sprawl by channeling
development in or near those areas already served by adequate
public facilities. As things were, development was being pushed
to rural areas of the county where limitations on onsite wastewater
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disposal were less stringent. The interim "solution" the county
hit upon was to allow temporary onsite wastewater disposal pending
provision of public sewers. Generally, such temporary systems are
to be so located and constructed "as to permit connection to the
[future] public facilities in a most economical and convenient
manner. "_19/
3.0 Permits and Standards for Location, Design and Construction of
Onsite Wastewater Disposal Systems
3.1 Failure of Past Approaches
Requiring permits and setting standards for the installation of
onsite wastewater disposal systems is far from being a new concept.
Many states have sanitary codes or plumbing codes which set stan-
dards for septic systems and require a permit from a state agency
(.typically the state health department) or its delegee (often a local
health board) prior to the installation of any such system.20/
The publication by the U.S. Department of Health, Education and
Welfare (HEW) in 1957 of a Manual of Septic-Tank Practice 21/
(including a suggested local ordinance governing individual sewage
disposal systems) and in 1965 of a model Individual Sewerage System
Act and Regulations _22_/ represents attempts to create a degree of
uniformity among state and local standards, but little uniformity
exists.
Despite the widespread adoption of minimum design standards and the
general enforcement of permit requirements, moreover, governmental
regulation of onsite wastewater disposal systems has been judged
a failure by many authorities. These authorities quarrel not so
much with the substance of the HEW guidance and state and local reg-
ulations as with the way they have been applied. All too often what
were meant as criteria and minima to guide the permit-issuers in
their case-by-case review of applications have become looked on
as hard and fast design standards which, once shown to have been
met, justify a rubberstamp permit issuance. The rare "problem lot"
is dealt with by requiring a licensed engineer to affix his stamp
to the subsurface disposal system plans.
The above-described approach is founded on two major fallacies.
The first is the erroneous assumption that most sites are alike
and are suitable for standardized testing and system design
the so-called "code" approach._23_/ This assumption, aggravated
by lack of bureaucratic manpower and expertise, has led to the
rigid adherence to standards originally meant as "guidelines."
Contractors were discouraged from designing systems to meet
individual site characteristics, since any departure from the
rigidly interpreted standards might entail the time-consuming
pursuit of a variance. As a consequence, many systems were
"designed by the book" and failed because the "book" necessarily
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did not reflect the infinite variability of individual sites.
The second erroneous assumption of most traditional regulatory
approaches has been that where a "problem" site is singled out for
individualized system design, that design should reflect traditional
engineering know-how. In their 1971 paper "Failure of the 'Engineer-
ing Approach1 in Design of Septic-Tank Systems," 24/ Winneberger and
Anderman reported that a survey of 76 "engineered" systems (systems
designed individually by licensed civil engineers) in California
revealed that about one-third of them had failed within approximately
three years.25/
This and other research led the authors to conclude that most
civil engineers do not have the training to design septic systems
properly and that under the present legal and manpower constraints
local permit-issuing authorities are not able to discriminate
between competent and incompetent designs,_26/ Winneberger and Anderman's
recommended solution to the problem they identified is complete
public responsibility for onsite waste disposal design. Since
the pros and cons of this approach are largely institutional, they
will be analyzed from that perspective later in this chapter. This
section will continue to focus on regulatory approaches for achieving
necessary flexibility and professionalism of design.
3.2 A New Emphasis on Soils and Individualized Testing
The most glaring deficiency in the by-the-book or "code" approach
to regulation of onsite wastewater disposal systems which has
prevailed is the past in its insensitivity to the geologic and
hydrologic limitations of individual sites. Indisputably, the
most important determinant of site suitability is the soil.27/
The traditional method for determining soil suitability is the
percolation or "perc." test, a test which was enshrined in state
and local health codes before its inadequacies were known.28/
Among the criticisms percolation tests are subject to are that
(1) their validity depends on soil moisture being at or near
field capacity when the test is made, hence tests made in dry
periods, especially those made without adequate pre-moistening,
are unreliable and (2) they lead to undersized absorption
systems because they tell you only about the initial infiltration
capacity of a particular soil and nothing about "the permeability
of a zone of clogging which may overlay that soil in the future."29/
Dissatisfaction with the perc. test lias led to the development
of alternative approaches to site and design selection which,
while not replacing the perc. test in most cases, provide the
necessary supplemental, detailed information with respect to
soils and water table. The basis of these new approaches is
soil type analysis. Soil surveys carried out by the U.S. Soil
Conservation Service are first interpreted by soil scientists
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experienced in the performance of soils in the area and their
limitations for wastewater disposal. This general information
is then combined with particularized site analysis (percolation
tests, observation pits, and sometimes permeability tests) to
yield a system design responsive to the limitations of a specific
disposal site. While this approach is still being refined, 30/
its superiority to the old health code approach is undoubted, 31/
and a number of states have amended their regulations to provide
for soil suitability tests by soil scientists. Such regulations
must, of course, stipulate that all of the design standards (minima)
may be varied to afford greater protection against failure in
accordance with any information revealed by the soil test and
site evaluation. The following excerpts from the regulations of
progressive states and localities illustrate this regulatory
approach.
The successful experience of Fairfax County with septic tanks
installed under strict siting and design controls has already
been noted. _32/ Fairfax County public health officials are governed
by state regulations which allow for:
. . , consideration of physiographic province, position of
landscape, degree of slope and soil profile (thickness of
horizon, color, texture). Such evaluations shall indicate
whether or not the soil has problems relative to the
position in the landscape, seasonal water table, shallow
depths, rate of absorption, or a combination of any of the
above. If absorption rate problems -are suspected and there
is no indication of a water table, percolation tests should
be made but their results shall not be presumptive, prima
facie or conclusive evidence as to the suitability for
effluent absorption. Such percolation tests may be con-
sidered and analyzed as one of many criteria in determin-
ing soil suitability for absorption of effluent .^3_/
(emphasis added)
Under article V, section 22-38(b) of the Fairfax County Code all
applicants for septic tank permits are required to include in their
application: results of percolation tests (performed according to
prescribed procedures), a soil profile description to a depth of
five feet, and information on the drainage pattern with respect
to reservoirs, springs and wells. While minimum absorption
field sizes are correlated to percolation rates in a table (section 22-41),
the total minimum seepage area of the disposal field may be varied
by the county health department "based upon experience data
or percolation test" (section 22-46). The county employs a full-time
soil scientist whose jobs include advising the county health department
in those problem cases where the county's soil maps and correlations
of percolation tests with different soil types provide insufficient
data upon which to base a decision to grant or deny a permit.
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In Maine the state assumes a stronger role in establishing guidelines
for the issuance of permits at the local level and shifts more
of the expertise burden to the developer'. Thus the state Plumbing
Code requires a special site report to be filed by either a state-
certified soil scientist or geologist, a registered professional
engineer experienced in the field of soils engineering, or other
expert recognized by the department. The soils and site information
to be provided on a special state form is to comply with the following
provision:
The site investigator's report, signed and sealed
by him, shall indicate assessment of the suitability
of the site and site's soils for sewage disposal and
select the type and size of private sewage disposal
system and any special design or construction details
needed to assure that the proposed installations
will meet the criteria of this Code.. . .
The findings shall be supported with:
1. a location plan
2. log of all soil exploration
3. a description .-of the various soils by strata
4. slopes shown by arrows which indicate the downslope
direction and accompanied by percentage
5. depth to bedrock
6. depth to any dense firm sublayer (fragipan, hardpan,
iron pan, etc.)
7. groundwater conditions (including indication of
seasonal groundwater fluctuations, mottling, gley)
8. the maximum depth and type of fill if required
9. type and size of system selected or designed
10. specification for any special equipment which might
be required
11. distances to all surface waters, wells, springs,
swamps, marshes, bogs, etc. as required by [a table].
Soil Scientists shall also describe the site soils in
accordance with the standards of the National Cooperative
Soil Survey.34 /
The Maine Plumbing Code further provides that nothing in it shall
be construed to prevent the Department of Health and Welfare from
requiring compliance with higher requirements than those set out
where deemed essential to maintain a safe and sanitary condition. 3J3/
Needless to say, some sites will require more testing than others,
just as some systems (large institutional ones, for example) will
justify more elaborate design than others. One approach to such
variations is to give the administrative officer broad discretion.
This is the approach taken in Pennsylvania where state-licensed
sewage enforcement officers decide to a large extent what tests
will be required and may well perform them themselves at the applicant's
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expense.36/
In Connecticut, where a state certification program is just getting
underway, the state Department of Environmental Protection has pro-
posed much more elaborate guidelines for testing and data submission.
The degree of information required is made to vary both with the
size and character of the proposed discharge, with the problems
attributable to the site, and with the type of system proposed.
Connecticut's proposed system of categorization is almost a reg-
ulatory scheme in itself, since the information required for some
categories amounts almost to a mini-environmental impact statement.
Thus systems proposed for sites which fall within a high-risk category,
which includes soils with very high percolation rates, high ground-
water, shallow bedrock, and steep slopes, as well as proposed systems
which do not meet the minimum design requirements, would have to
meet the following informational, design, and maintenance requirements
(among others):
1. A detailed engineering report describing the
volume, nature and characteristics of all waste-
water including recommendations for any necessary
treatment or pretreatment shall be submitted.
2. Separating distances
The minimum separating distances [specified elsewhere]
shall not be assumed adequate for the flow volumes
in this category in excess of 1,000 gallons per day.
Separating distances used in design shall be increased
where practicable and a report shall be submitted
describing the effect of the discharge on adjacent
watercourses and wells.
3. If the design flow is greater than 1,000 gallons per
day, provisions for equalization of peak flow
occurrences, pretreatment of wastes, and grease
and scum removal shall be considered in the design.
A maintenance and cleaning schedule of any pretreatment
facilities and the septic tank shall be provided.
4. If the design flow is greater than 1,000 gallons per
day, the use of a dosing system shall be considered.
The means of dosing used shall provide for uniform
distribution throughout the leaching system.
5. If the percolation rate is letes than one half minutes
per inch a report shall be submitted providing an
evaluation of the effect of the rapid movement of
the effluent through the soils upon adjacent ground-
water and surface water.
6. If percolation rate is greater than twenty minutes per
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inch, or if the bottom of the leaching system will
be below the upper surface of a compact layer,
permeability tests shall be performed in each leaching
area to check system sizing and a seepage analysis
shall be submitted.
7. If the groundwater table or seasonal groundwater
table is less than seven feet below the natural
ground surface or final grade if less, a plan
shall be submitted showing the slope and elevation
of the groundwater together with permeability
measurements and a seepage analysis of the site.
8. If the surface disposal system design does not
conform to the minimum design requirements
[specified elsewhere], detailed engineering plans
together with an engineering report shall be submitted
to demonstrate the equivalence or superiority of the
system design as compared to the minimum design
requirements.37/
3.3 The System Design Itself: Provisions for and Limitations
on Innovative Individual Systems.
It is not enough, of course, to write regulations which provide for
detailed case-by-case site testing and evaluation and for locational
controls, such as setbacks from wetlands and watercourses, which may
be made more stringent where individual site characteristics warrant.
The design of the system itself must be fitted to the site and soil
limitations. The standard way this is accomplished is to tie the size
of the subsurface absorption field to the percolation rate of the
soil as revealed by a percolation test.JJS/ For some soils and site
conditions, however, varying the size of the traditionally designed
absorption field will not suffice.
In the past, the attitude was widespread that sites which were not
suitable for traditional septic tanks and traditional absorption
fields should be ruled out altogether for onsite wastewater disposal.
Recently, however, research on so-called "alternative" or "innovative"
systems has demonstrated that several such systems may be environmentally
sound when carefully designed and maintained. _39/ This fact, along
with the realization that without reliance on alternative systems a
great deal of rural land will be totally precluded from development,
has led a number of states to amend their regulations to allow and set
standards for alternative systems. It must be realized, however, that
even with such systems a good portion of the land area of every state
will not be suitable for onsite disposal of wastein Pennsylvania
for example, the amount is estimated to be 50 percent of the total
land area.40/
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The specifics and relative merits of different alternative systems
are, of course, highly technical matters and beyond the scope of a
legal and institutional study. There are many excellent descriptions
and evaluations of the innovative systems to be found in the technical
literature. Descriptions from that literature of the more common alter-
native systems are excerpted briefly in the footnotes simply to give
background for the next section dealing with regulatory approaches to
innovative systems. 41/ Innovative systems have begun to be looked on
with more interest and more favor since 1971 when a survey undertaken for
the University of Wisconsin turned up few examples of state regulations
which made explicit provision for innovative systems (one state, Mississippi,
prohibited them altogether)>_42/ Even those states which gave innovative
systems a certain legitimacy in their regulations may encourage their
use only where conventional systems have failed. This is the approach,
for example, of New York State, which suggests mounds, evapb-transpiration
systems, and aerobic digestion systems for cases where "adverse soil and
site conditions exist . . . [but] ... a house has already been constructed,
sewage is overflowing onto the ground surface and the owner cannot afford
to abandon his home." 43/
In Pennsylvania, the Sewage Facilities Act provides that in adopting
rules and regulations the Environmental Quality Board shall adopt standards
which "... take cognizance of latest technological developments in the
field of individual sewage systems, including adoption of standards
providing for use of alternate individual sewage systems . . . "44/
Pennsylvania's regulations do provide such standards, including~ones for:
aerobic treatment units;4j)/ elevated sand mounds; oversized absorption
areas (for slowly permeable soils); and shallow placement of disposal
lines with additonal soil fill covering.kb] Which alternate subsurface
absorption area system may be used in what soils groups is indicated
in a "Matrix for Adoption of Alternate Subsurface Absorption Areas."47/
Use of alternative subsurface absorption areas must also be consistent
with the municipal Offical Plan (the comprehensive plan for the
provision of adequate sewage systems) .^8/ Any system for which standards
are not set is denominated an "experimental" system under the Pennsylvania
regulations. Such systems are allowed only under very limited
conditionsa more formalized version of the conditions imposed
by New York for all inovative systems. Thus, the Pennsylvania
regulations provide that "experimental individual or community
disposal systems . . . shall not be restricted by [the] regulations
provided that:
(1) The experimental system proposed is attempting
to resolve an existing pollution or environmental health
problem, or when the experimental system proposal is
for new construction where it has been predetermined that
an individual or community sewage disposal system meeting
the requirements of this Chapter or sewerage services
meeting the requirements of Chapter 91 of this Title, may
be installed in event of the failure of the experiment.
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(2) The application for an experimental system
must be in the name of and bear the signature of the
person who will utilize the system.
(3) The person proposing to utilize an experimental
system must be informed by the Department of the nature
of the experiment and his responsibility to maintain,
correct, or replace the system in event of failure of the
experiment.49/
Maine, a state which depends on onsite wastewater disposal systems
to a larger extent than most but which has a large proportion of
land which is poorly suited to conventional systems, has a correspondingly
high stake in alternative onsite wastewater systemsa stake reflected
in its regulations. Thus Maine does not require that a conventional
system have failedor for new lots that a conventional, replacement
be possiblebefore it will approve an "experimental" system. Indeed,
the regulations do not even segregate certain systems as "alternate"
or "experimental"; aerobic tanks, dosing facilities, nondischarge
systems, mounds, and compost toilet units, along with numerous other
nonconventional systems, are simply listed as "approved private sewage
disposal systems." A matrix like that developed in Pennsylvania
indicates what type and size of systems are permitted for what
soil conditions (and, as in Pennsylvania, certain soils are listed
as off-limits for any onsite wastewater disposal system). The systems
themselves are described by diagrams and written standards. 50/
The Maine regulations also include a catchall provision for "other
sewage treatment and disposal systems, devices and techniques."
Approval of such systems (the equivalent of Pennsylvania's "exper-
imental" systems) is not limited to any particular set of conditions
but it must be based on complete plans and specifications and it must
come from the state Department of Health and Welfare (permits for
most other systems come from the local plumbing inspectors).51/
The evidence on the likely success of alternative individual sub-
surface wastewater disposal systems of the types discussed above
is not all in yet and may not be for some time. Accordingly,
states would be wise to take a cautious approach in sanctioning
them. The burden of proof and of data production on the applicant
must be greater than for other systems and the involvement of experts
in governmental review even more substantial than usual. Regulations
should be written as flexibly as possible to so provide.
3.4 The System Design Itself II: Provisions for and Limitations
on Alternative Community Wastewater Disposal Systems.
While alternative individual wastewater disposal systems are of
primary importance to the water cleanup effort because of the
hope they may offer for isolated existing homes with malfunctioning and
hence polluting conventional systems, the development of alternative
community systems is of more importance because of their greater promise
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for the future as an environmentally sound wastewater disposal
method. By alternative community wastewater disposal systems we
mean essentially any system that does not comprise a centralized
gravity sewer collection system and traditional treatment works.
Alternative community systems would include numerous possible
combinations of individual septic tank systems, pressure sewer
connection systems, community absorption fields, and alternative
surface disposal systems such as sand filters. The emphasis
here will be on community subsurface disposal systems.
Innovative individual disposal systems are limitedusually severely,
if a conventional system was not possible in the first placeby the
soils, water table, and geology of the particular site. Also, individual
onsite disposal systemsconventional or innovativeare often precluded
in small towns which now discharge their untreated wastes directly
to surface waters. These towns typically have lot sizes too small
for onsite absorption fields.
Community disposal systems have the advantage of being able to
pick the best disposal site among many. This may be a particularly
significant advantage in lakeshore and riverfront areas where the
immediate shorelands typically slope steeply and have high water
tables. Commonly owned soil absorption fields could be set back as much
as 300-500 feet from the water. Not only would this allow choice of
optimum soil conditions in the area; the land would be cheaper and
the setback would minimize pollution threats to wells and surface
waters should the system fail. The commonly owned parcels could
serve a second function as recreational open space. Despite
the greater distances of collection and distribution pipe involved,
the typical community system should cost less than individual septic
systems, lagoons,_52/ or package plants, not to mention traditional
centralized gravity sewer collection and biological treatment
systems.53/
Many of the other advantages of the community septic system are
really more accurately described as disadvantages of centralized
sewer systems, the main one being their high cost. One authority
has estimated that in hilly or rocky terrain, gravity sewers can
cost as much as $10,000 per house. 5^_/ The capital costs of
centralized sewers are often prohibitive for smaller communities.
In most states, moreover, priority lists for state and federal
construction grants favor larger communities with larger discharges.
Even if a small community can afford a central sewer system with
the aid of state and federal financing, the costs of serving
dispersed, outlying households may still be too high, since there
are few people in the center to offset the high cost of long extensions.
Thus the positive advantages of a noncentral community subsurface
disposal system are summarized by the Wisconsin Small Scale Waste
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Management Project (SSWMP) to include:
1. Existing functional septic tank-soil absorption
systems can be utilized rather than providing
new service.
2. Isolated homes and clusters of homes can be served
individually instead of extending costly sewer lines
out to them.
3. Less costly treatment facilities can usually be con-
structed.
4. A more cost-effective facility may encourage smaller
communities to proceed with construction rather
than waiting for federal construction grants.
5. More rational planning of community growth is
possible since strip growth encouraged by long sewer
extensions is avoided.
6. Non-central facilities are more ecologically sound
since the disperse systems dispose of the wastes
over wider areas.55/
If technical advances make package plants more reliable and tertiary
treatment cheaper, the collection systems built for community
subsurface disposal systems could always be adapted to feed into such
a treatment plant.
Since September 1974, the Wisconsin Small Scale Waste Management
Project has been involved in the development of a noncentral
sewage disposal system for Westboro, Wisconsin, a small community
of 69 occupied buildings. In 1971, 80 percent of the occupied
structures were discharging raw or poorly treated wastewater to a
creek via storm drains and open ditches, and the town is currently
under a state Department of Natural Resources (DNR) order to
provide proper wastewater facilities. A centralized, gravity
sewer system proposed by a consultant would have cost $384,850,
or more than $5,500 per unit served. At the time of that estimate
the Westboro sanitary district's priority for federal funding was
372 out of 395.
In an effort to enable the town to comply with the DNR order at a
feasible cost, the Wisconsin SSWMP surveyed the soils for their
suitability for onsite disposal. The soils in the center of town
were found unsuitable and a sand bench on the edge of town was
selected for a community disposal field. There will actually be
two disposal fields to be used on an alternate basis, allowing one
bed to rest at all times. To reduce the cost of the collection
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systemthe costliest portion of this system as well as of conventional
centralized sewer systemsseptic tanks will be used to settle out
the bulk of the solids so that pressure and small diameter, curved
gravity sewers can be used. Pressure sewer pumps are much cheaper
to buy and maintain than grinder pumps, although the latter would
eliminate the need for septic tanks by grinding up the waste
directly. The remaining homes will have individual septic systems
owned and operated by the sanitary district.
The total cost of the proposed noncentral system for Westboro is
estimated to be $266,420 or less than $3,900 per household. This
represents nearly a 30 percent savings over the conventional alternative.
Operation and maintenance is expected to cost $3,350 per year,
which includes pump-out of all septic tanks.56/
Another demonstration project which combines alternative waste
treatment technology (aerobic treatment systems 57/ and some
recycling systems) with an alternative management system has been
sponsored by the Appalachian Regional Commission in Boyd County,
Kentucky. J58/ Aerobic systems were used because the project serves
existing structures, many of which had too little land or land
unsuitable for a subsurface absorption field. The superior quality
of the effluent from the aerobic system allows discharge to streams
in some cases. The oft-noted drawback to aerobic systems, the main-
tenance required for aeration equipment, was overcome by organizing
a sanitary district to undertake maintenance. The per unit cost
of operating the district is estimated at between five and seven
dollars for a 100-unit system (a fee which compares favorably with
sewer fees). While the units installed so far have cost $4,200
per house, some of that cost reflects the innovative nature of
the project, and future costs per house are estimated at between
$2,500 and $3,000. Engineering studies of the area put the cost of
centralized sewer facilities at $9,000 per house.
Needless to say, such cost-effective alternatives to conventional
central sewer systems are of great interest to the U.S. Environmental
Protection Agency. The agency requires that alternative treatment
systems including decentralized, "cluster" systems of the type
used in Westboro, Wisconsin and Boyd County, Kentucky be considered
in determining the most cost-effective approach to treatment.59/
Moreover, the agency has made the general determination that such
noncentral systens will be eligible for 75 percent construction
grant assistance under Title II of pub. L. No. 92-500 (FWPCA) where
they: (1) are determined to be more cost-effective; (2) serve two or
more homes; and (3) are municipally-owned, operated, and maintained.
The agency is currently working out the details of this policy.60/
Federal sources of funding for wastewater treatment other than EPA
and state sources of funding are enumerated in a 1974 publication
of the Commission on Rural Water entitled Guide to State and Federal
Policies and Practices in Rural Water-Sewer Development.61/
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EPA has already funded a number of alternative community wastewater
disposal systems. Two, those in Albany, New York and Phoenixville,
Pennsylvania, have involved grinder pumps (effluent is collected
in a storage tank and gradually ground and pumped out under pressure
through small diameter sewer lines).j>2/ An EPA report on these and
two subsequent demonstration projectsBend, Oregon (septic tank
and vacuum pump) and Grandview Lake, Indiana (mixed system)is
forthcoming. The author of that report has concluded that based
on the information to date (there is still very little data on
long-term operation and maintenance):
. , . pressure systems are viable alternatives in smaller
communities. Their capital costs are generally signifi-
cantly less than gravity systems for the following reasons:
1. The depth of cut required is determined by frost
penetration alone.
2. Small diameter plastic pipe is used.
3. The sewers are independant of grade.63/
Although at present the primary obstacle to widespread acceptance
of alternative community systems is the need for management
structures to assure the maintenance and continuity a community
system requires, states and localities create an additional
obstacle by not providing legal sanctions for community systems
in their regulations and standards. Worse, some statutes, regulations,
and design standards, as now written, actively discourage community
alternatives. Thus regulations which provide, as some do, that all
subdividisons above a certain size must be served by central sewer
systems, are obviously too inflexible because they fail to take into
account the availability of sewers, soil conditions, cost-effective-
ness, and the possible environmental advantages of onsite wastewater
disposal systems._64/ If, on the other hand, community systems are
allowed but are deemed to be public sewage systemsas they are, for
exaeple, under Connecticut's proposed regulations 65/innovative,
cost-effective systems such as those using pressure sewers, small
diameter pipes, and community absorption fields may not meet what
are often outmoded standards or standards written with only large
urban sewer systems in mind. Thus the so-called "10-State Standards,"
followed by many states for sewer construction, base minimum
pipe sizing on urban per capita flow, which one authority has
estimated as being approximately two and a half times greater than
that in rural areas. 6j>/ Other states may require expensive
cast iron, ductile iron, and concrete pipes rather than plastic
pipe, which is significantly cheaper and has performed successfully
in the EPA demonstration projects noted above.67/
Some statesincluding, surprisingly enough, Maine, a leader in the
encouragement of individual innovative systemsappear to preclude
or at least discourage the possibility of alternative community
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systems altogether by requiring that the drainage systems of every
new building be independent from that of any other building and/or
that every lot be served by a subsurface disposal system on the
same lot.68/ Maine's regulations also provide that "[wjherever practicable
all plumbing fixtures shall be drained to the public sewer or private
sewage disposal system by gravity" (emphasis added).69J Such reg-
ulatory restrictions are misguided, in view of what are often substan-
tial advantages of alternative community systems over both individual
onsite disposal systems, and central sewer systems, as discussed
above.
That is not to say, however, that alternate community systems can
be treated simply as larger versions of conventional onsite waste-
water disposal systems. Certainly the plans for such a system
must be given especially careful scrutiny, preferably at the state
level, by both the state's department of health and its water pollution
control agency. Furthermore, provision must be made for continuous,
responsible ownership and management. These two issues, agency review
of plans and institutional management, are more fruitfully discussed
as part of a broader analysis of administrative and institutional
questions, an analysis to be undertaken later in this chapter.
3.5 Anticipating and Coping with Failures: Replacement Areas
and Diversion Valves
So far nothing has been said about one of the most familiar standards
for onsite wastewater systems, the minimum lot size requirement. The
silence is intentional: large lot sizes by themselves are a poor
guarantee of successful onsite waste disposal. It may be that only a
small part of a large lot has soils and other conditions suitable
for an absorption field; the trick is finding that part and properly
designing and installing the system for it. Lot size does become a
factor, however, when a system fails, whether (1)because of poor
location, design, or installation; (2)because of failure to pump
out the residue which accumulates in all septic tanks (see sections
4.2 and 4.3, infra); or (3)because of old age. There must be
adequate, suitable area for a replacement subsurface disposal
system since a failed system will generally clog the soil and render
it useless for future disposal purposes.
Accordingly, a number of jurisdictions require that developers set
aside adequate land area suitable for a replacement subsurface
disposal area. Thus Maryland's draft regulations require "at
least two recovery areas" to be set aside and provide that "[t]hese
areas shall be exclusive of buildings, easements, rights-of-way,
grades exceeding 15 percent, areas covered by mean high tides,
areas in the one-hundred year flood plain and other permanent or
physical objects. "_7_0_/ The minimum size for the reserved areas
varies with percolation rate within a range of 10,000 to 20,000
square feet. In Santa Cruz County, California, where a public
maintenance district has responsibility for inspection and main-
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tenance of onsite disposal systems, (see discussion in section 6.4
infra), subdivision developers are required to dedicate easements to
each lot for inspection, maintenance, and expansion of the septic
tank systems. (The regulations require reservation of an area for
100 percent expansion of the leaching system. )^7lY Moreover, joined
to the county's requirement of reserved area for a replacement system,
is a requirement which may help prevent failures as well as
helping in the event of failure. This is a requirement that new
septic systems be provided with a diversion valve to allow directing
the effluent flow to one-half of the leaching system at a time. This
dual-bed system is described at footnote 41.
Fairfax County instituted such a requirement that every new septic
tank be provided with an alternative soil absorption system and
a diversion valve allowing the homeowner to alternate the system
himself in 1973. Til Cards are sent out annually reminding the homeowner
to turn his valve, and asking him to check the card and return it
when he has. Initially, county officials made an effort to follow up
on the large numbers of cards that were not returned. They finally
decided that the administrative burden outweighed the benefits to be
gained. If the system failed, they reasoned, the homeowner would
contact the county health department and a health threat could almost
always be avoided, at least in the short term, by putting the system
on the alternate absorption bed. The county expects, moreover, that
properly maintained, the alternating beds would double the expected
life of an onsite wastewater disposal system. TJ>] Other jurisdictions
which require alternating systems include the state of Ohio 74/
and Georgetown, California.^7.5/
3.6 Necessary Flexibility in Standards
It is beyond the scope of this chapter to deal in any greater depth
with design standards for onsite wastewater disposal systems. A
number of general points about such standards, however, remain
to be made. On the question of whether such standards should be
part of the law itself or whether they should be incorporated in
regulations, certainly enough has been said about the fluid state of
research in this area to suggest that what minimum standards are
necessary should be put in regulations where they can be more easily
updated. The volume of ongoing technological research and the infinite
variability of site conditions further suggest that standards be
written as flexibly as possible to allow not only for greater
stringency when desired at the local level and/or when the responsible
state agency deems it necessary to safeguard health and waste
quality, but also for variances from minima where such a variance
would in fact result in an improved system.^76/ Such variances,
however, should come from the responsible state agency (see
section 6.3 on variances, infra).
Some states' regulations are, in places, little more than guidelines,
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generating some confusion in the mind of the reader as to what
is mandatory and what is suggestive. (Such confusion is, of course, to
be avoided by explicit characterization in the document itself.) As
state and local regulations become "looser" to provide for individual-
ized and thus arguably superior design, the greater the need, of
course to ensure: (1) that the ad hoc decisionmakers are qualified to
make the decisions; (2) that they do it with adequate site information;
and (3) that they are responsible should the decision prove wrong.
Methods to insure such reliability are the subject of the next section.
4.0 Administration
4.1 Administering Standards and Permit Requirements: Certified
Inspectors and Licensed Installers
Obviously, even the best, most detailed requirements for soil survey
information, testing, and design standards will not of themselves
assure the proper location and installation of subsurface disposal
systems. There must be some method of assuring that the tests are performed
properly and the standards adhered to in the actual installation. Administrators
trained in soil science must be involved in the testing process. 77 /
The state of Vermont provides what may be an all too typical example of
the gap between regulation on the books and adequate control in
practice.
As described in a preliminary report for an EPA-funded onsite waste-
water disposal research project, Vermont's current program for regulating
onsite wastewater disposal systems for subdivisions and for individual
lots does not assure that the systems will be installed in accordance with
approved plans. _78/ Thus for multi-lot subdivisions the developer need
only provide "conceptual assurance" that each lot can support an onsite
wastewater disposal system. As long as every lot is shown to have
one area with soils suitable for a single lot disposal system and
as long as suitable plans for a "typical" disposal system are
submitted, a permit will be issued. There is no assurance either
that the system will be installed in the suitable part of the lot, that
the individual systems will be designed to meet the particular topo-
graphic, hydrologic and soil conditions of each site, or that the
system will be properly constructed. The subdivision developer is
under a legal obligation to construct a community system according to
approved plans, but, again, there is no formal method of insuring
that the system is actually so constructed. Subsurface wastewater
disposal systems for individual lots which are not regulated as
subdivisions may be regulated by local ordinance or they may not
be regulated at all. The Vermont study reports that only 70 out
of 247 towns regulated onsite waste disposal and that none of these
required an approval of the system as installed. 79 /
Not suprisingly,many of the systems installed in Vermont have failed.
In recognition of the regulatory failure behind these 'System fail-
ures, a regional agency in Vermont, the White River Natural Resources
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Conservation District 80/ (which is similar to, the soil conservation
districts in other states) developed a procedure for ensuring proper installation
of onsite wastewater disposal systems. That system draws on the expertise of
a specialist in soils and onsite wastewater disposal systems design working for
the district, and has been summarized in the above referenced report as follows:
1. Town officials adopt by resolution or public vote, ordinances
or health regulation requiring town approval of sewage
system installation.
2. Towns must request onsite sewage program service from the
district and then sign working agreements with it.
3. Home owner files application and pays fee to town officials
for onsite program services.
4. Town requests specialist to evaluate proposed sewage system site.
5. Specialist evaluates and reports on site conditions and
design recommendations to town officials.
6. Town officials: approve, approve with modification, or reject
home owners or builders permit for onsite sewage installation.
7. Property owner or contractor installs sewage system.
8. Specialists inspect and report completion of sewage system
installation to town officials.
9. Town officials approve or take action to correct any deficiencies
that may have taken place during installation.
Soil data and site evaluation are used as a technical base rather
than the "perk test". As is commonly known the "perk test"
procedure does not recognize many of the soil and site conditions
that affect system functioning. Variability in testing procedure
and seasonal fluctuations make the "perk test" an unsatisfactory
technical base.81/
As of January 1976, 19 of the 23 towns within the White River Natural Resources
Conservation District had adopted health regulations to regulate onsite wastewater
disposal systems. (The district had developed a model ordinance to assist them.)
Specialists work on an open schedule so that they can service as many requests
as possible during the installation season and so that they can provide timely
service (within 48 hours of a request). The specialist's annual workload is
approximately 200 to 250 jobs, and, at a fee of $50 per inspection, the program
is expected to almost pay for itself. Specialists are expected
to monitor installed systems during the noninstallation season as time permits.
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In additior), the district specialist has been authorized by the state to
perform site evaluations for one-lot subdivisions. This
procedure is cheaper and faster than the preexisting requirement
of a. report by a licensed engineer, and the evaluations are
likely to be better, since the specialist is, unlike most engineers,
trained in soils science. The program has been such a success
that it is expanding into other natural resources conservation
districts throughout the state.82/
Pennsylvania has already done what Vermont hopes to do:
involve specially trained soils and sewage disposal experts
in local approval of onsite wastewater disposal systems state-
wide. Under an act passed in 1974, Pennsylvania delegated
permit issuing authority to municipalities which employ
state-certified Sewage Enforcement Officers ("SEO"). 83/
The SEOs are involved in supervising the location and design
of onsite wastewater disposal systems from start to finish. Thus
the SEO may meet with the applicant to go over the application
form to ensure adequacy of all information. Then the applicant,
or the local agency at the applicant's expense, is responsible
for preparing test pits and percolation holes, but the SEO
must observe or himself conduct the actual tests and slope
measurements and complete the appropriate parts of the application
form. The SEO and the applicant also jointly decide on the
most appropriate system design for the site. Copies of the
application form are forwarded to the state Department of
Natural Resources, but it is the local SEO himself who
grants or denies the permit. The SEO inspects the installation
and may revoke the permit if it is unsatisfactory .J54_/ The
state pays half of the cost of the SEO program including
the following:
(1) Expenses for each permit application processed,
issued, or denied, including wages and salaries.
(2) Costs for legal services actually incurred in
prosecuting or restraining violations and defending
against appeals.
(3) Costs for legal services in the preparation of
local ordinances and regulations consistent, and
needed for the enforcement of the provision of
this Act and Chapters 71 and 73 of this Title.
(4) Fees for special consultants retained by the
local agency for technical consultation
on specific permits.
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(5) Mileage expenses incurred by the local agency
in processing, issuing or denying applications
for permits.
(6) Mileage and expenses for sewage enforcement officers
employed by local agencies to and from training
courses manadated by the Department in accordance
with §71.7. (b) (2) of this Chapter.J35/
Clearly such a program will be costly even with healthy permit
fees and even if municipalities team up to run the program jointly
and share administrative costs and the services of an SEO, as they
are encouraged to do. (A joint local agency may be a council of
governments or a specialized agency governed by a committee of
elected officials of the participating municipalities.)86/
One way to cut costs, of course, is to put more of the expertise
burden on the applicant. It will be recalled that in Maine, for example,
the state Department of Health and Welfare requires a complete
site analysis to be reported on a special form completed, signed, and
sealed by a state-certified soil scientist or geologist, by a
registered professional engineer experienced in the field of soils
engineering, or by others recognized by the department.J37_/ While
the local plumbing inspector must still verify the information and
inspect the system before it is covered, 887 he is relieved of the
testing burden imposed in Pennsylvania. At the same time, the
state certification requirement is presumably, some assurance of
the dependability of the third party tests.
Any state or locality which depends on third parties to perform
testing should, however, be careful to provide that no tests be
performed by a person with a financial interest in the outcome.
In other words, care should be taken that the onsite system installers
are not performing the soil tests. Licensing of installers in another
approach to regulation which states might take.
Vermont is one state which, before it developed its Natural Resource
Conservation District program, considered closing the expertise/
inspection gap discussed above by licensing septic tank installers.
One reason given for this approach was that employing state personnel
to inspect all installations would be too costly if there were enough
inspectors and would cause too much delay, inconvenience, and expense
if there were not. It was argued that existing state pollution
control officers could spot check the installers to ensure that
their practice lived up to their qualifications. The proponents
of the installers' licensing bill further reasoned that a higher
quality product might result because homeowners would be less
likely to be able to save money by opting for shoddy systems.
(Although endorsed by the Agency of Environmental Conservation, the
bill failed of passage. )_§_£/ Experts in states which already have
installer certification programs, such as Wisconsin, point out
that such programs are only effective if there are the means
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and the will to decertify or fine installers who do shoddy work.90/
4.2 Administering Maintenance Requirements
The introduction to this chapter noted that what some consider to
be septic systems' poor past performance record is generally conceded
to reflect inadequate maintenance as well as careless or uninformed
siting and design. Maintenance of a conventional septic system
involves periodic pumping out of the septic tank itself. Many home-
owners simply do not realize that this is necessary and that if it is
not done the whole absorption field system may be ruined, necessitating
its complete reconstruction on a new area of the lot. Indeed, many
owners, particularly buyers of "used" homes, do not know where their
septic tanks are. This problem can be avoided in the future by
requiring, as certain states and localities do, that applicants for
onsite waste disposal system permits submit a plot plan showing
the location of the system with distances to buildings, roads,
lot lines, and other markers._91/ Wisconsin and Ohio are examples of
states which have set up filing and retrieval systems for such
plans at the county level.92/
Design standards might also be written to require that the cleanouts
for septic tanks be marked with permanent aboveground markers such
as metal plates flush with the ground.JK3/ States and localities
would also do well to develop, as Maine has done, 94 / a simple
booklet showing how to measure sludge levels. Such booklets should
be distributed to every successful permit applicant.95/
Few states and localities actually require homeowners to determine,
at prescribed intervals, whether their systems need to be pumped,
although there is little reason not to include a requirement to that
effect in individual permits, with the period reflecting expected
use and the size of the septic tank. (Since family use habits and septic
tanks sizes vary, it would not be sensible to prescribe actual
cleanout intervals.) David Stewart, one of the participants in
the Wisconsin project, has suggested that maintenance permit forms
be mailed to homeowners every one, two, or three years requiring a
licensed septage pumper to inspect the septic tank and pump it if
necessary. The completed form, signed by the pumper, would have to
be returned within a given time period. The state statute or local
ordinance would make it unlawful for any owner to use a septic
tank system without a valid permit. JM3/
The difficulty with such a requirement is, of course, policing it,
and communities might want to consider another alternative: that of
requiring owners of onsite disposal systems to enter into contracts with
maintenance companies, as has been done in Ohio for aerobic systems.97/
Still another possible solution, the assumption of maintenance tasks
by organized maintenance districts, is discussed in the section of
this chapter devoted to analysis of specialized substate management
entities, section 6.4 infra.
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4.3 The Pumping and Disposal of Septage
The other side of the maintenance coin has to do with regulating the
pumping and disposal of septage. A comprehensive regulatory program
would include licensing and setting standards for haulers, limiting
disposal to approved sites, and regulating the method of disposal at
those sites. While the last topic, standards for disposal, is
beyond the scope of this chapter, it will be touched on first to
give the reader an idea of the complexity of the problem.
Most states and localities have not yet really come to terms with
the problem of septage disposal, yet it is a problem of sizeable
proportions. One authority has estimated that if every septic tank
were pumped every four years (most authorities consider this a
minimum), the pumping would yield an annual volume of four billion
gallons of septage. J28/ Other authorities have estimated that septic
tanks potentially generate twice as much sludge as all domestic
secondary treatment plants.^/ These same authorities have pointed
out some of the problems involved in simply dumping septage directly
into the nearest sewage treatment plant, a frequent practice now. Most
treatment plants are not designed to handle such highly concentrated
loads in addition to their normal loads. The addition of septage, par-
ticularly in rural areas where septic tanks are most abundant, might
well cause treatment plants to exceed their effluent limitations
and threaten serious degradation of receiving waters.J-00/ The
alternative to disposal at municipal treatment plants, land disposal,
also has serious implications for water quality if not properly
undertaken. High in liquid content, raw septage poses a threat
of surface and groundwater contamination when disposed of directly to
a sanitary landfill. Special septage disposal facilities designed
to treat and stabilize septage so that it can be safely disposed of
in a landfill are eligible for EPA construction grant funding, as
are the septage hauling trucks or "honey wagons."10I/
Disposal of septage directly at sites other than specially designated
landfills is also a fairly common practice equally threatening to
ground and surface water quality if not properly carried out. Land
application must be preceded by a thorough evaluation of soil
characteristics, groundwater levels, surrounding land uses, and septage
loading rates. The septage may first require a de-watering; it
must be de-watered if it is to be buried. Vermont has developed
a method which provides for de-watering in shallow drying beds, removal,
and burial. Design criteria for this system are set out in the
preliminary report for the EPA-funded Vermont project discussed
above. The Vermont project plans to explore in detail septage
treatment and disposal methods which are economically and practically
feasible for a rural environment, including lagooning, rapid burial,
regional treatment facilities, and disposal at existing treatment
facilities.102/
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Still another method of land disposal is, of course, disposal on cropland.
Surface spreading requires still different restrictions and precautions. Thus
spreading should be prohibited during those seasons when the ground is frozen,
snow-covered, or saturated. Maine has developed "Guidelines for Septic Tank
Sludge Disposal on the Land" incorporating these and other restrictions.103/
Portions of the Maine regulationsalong with Connecticut's standards for septage
lagoons, Rhode Island's standards for septage disposal in sanitary landfills and
in trenches, and model standards for holding lagoons, spray irrigation, and disposal
in sewage treatment plantsare reproduced in The New England River Basin Commission's
"Draft Guidelines for Septage Handling and disposal."104/
While a detailed discussion of standards for sludge disposal at particular sites
is beyond the scope of this chapter, regulation of the disposers themselves (the
septage pumpers or so-called "honey-dippers") will be discussed briefly as the
final stage in the maintenance cycle.
Because of the high standards with respect to equipment and actual pumpout
and disposal which must be maintained if environmental degradation from septage
is to be avoided, septage pumpers should be licensed. Connecticut, Maryland, and
Fairfax County, Virginia are examples of jurisdictions which require pumpers to
have permits. Fairfax County provides the necessary assurance that septage hauling
trucks are leak-proof and in a sanitary condition by requiring that they be in-
spected before the septage hauler receives his initial license and before every
annual renewal thereafter.105/ More detailed equipment requirements are included
in The New England River Basin Commission's Draft Guidelines for Septage Handling
and Disposal.106/
Many state and local regulations then provide, as Maryland's do, that septage
only be disposed of at sites which the governing agency has approved in writing.107/
Rather than simply restricting dumping to approved sites and/or prohibiting dumping
in certain areas such as wetlands and watercourses, as many jurisdictions do, states
and localities might want to consider spelling out in the septage hauler's permit
exactly which sites he is authorized to use. The regulations should also make
the septage hauler subject, to the extent applicable, to the standards contained
in the regulation and briefly outlined above for different disposal methods and
different disposal sites. The relevant statute or ordinance should give the
license-issuing agency the authority to revoke any septage hauler's license for
dumping in unapproved sites or in an unapproved manner.
Under Connecticut's new draft regulations, any person or municipality holding
a permit to dispose of septage must file a monthly written report with the
director of Water Compliance and Hazardous Substances "detailing such information
concerning the permittee's operations as the Commissioner [of Environmental
Protection] may reasonably require."108/ That report may be required to include
the address of each system serviced and the location at which the septage was
discharged.109/ In addition to providing a control on where septage is dumped,
such reports could serve as a planning tool to help the state agency estimate
the dimensions of the overall septage disposal problem and where the problem
is most acute. The reports might also be useful indicators of the number of
people who are not having their tanks pumped regularly.
Perhaps the most intractable problem in this area of septage disposal is
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finding enough safe sites. Government officials in Vermont feel, for example,
that "the problem of septage disposal is largely due to noncooperation from
local governments with haulers wishing to establish environmentally sound
septage disposal operations."IIP/ The EPA-funded onsite wastewater disposal
project in Vermont plans to develop model legislation which will require all
municipalities to provide for an acceptable means of disposing of the septage
generated within their boundaries.Ill/ EPA has also let a contract for the
consolidation of the literature and data on septage treatment and disposal
into a report for use by local officials affected by the septage problem.
5.0 Enforcement
As noted earlier, perhaps the principal obstacle to the implementation of
the standards and other control techniques described so far is the diffi-
culty and cost of enforcing them. The administrative burden experienced
by Fairfax County in trying to follow up on its alternative absorption bed
system has already been detailed. One way around this difficulty is to tie
septic tank approval, inspection, and maintenance requirements closely to
the whole development and property transfer process so that developers and
homeowners are clearly apprised of and cannot afford to circumvent regula-
tions concerning onsite wastewater disposal. Linking septage system ap-
provals to the earliest plan approvals will work to the developer's advan-
tage as well, since hardship and delay can be avoided if the developer
plans his subdivision or building around the location of the onsite waste-
water disposal system rather than the reverse.
The most straightfoward and effective way of forging the link between on-
site wastewater disposal approval and the greater development process is,
of course, to condition the final approval of subdivision plans and/or
building permits on the issuance of septic tank permits. This is already
done in a number of states. Thus a Montana statute stipulates:
(1) A person may not file a subdivision plat with a county
clerk and recorder, make disposition of any lot within
a subdivision, erect any building or shelter in a sub-
division which requires facilities for the supply of
water or disposal of sewage or solid waste, or occupy
any permanent building in a subdivision until the depart-
ment [of health and environmental sciences] has indicated
that the subdivision is subject to no sanitary restriction.
(2) A county clerk and recorder may not accept a subdivision
plat for filing until:
(a) the person wishing to file the plat has obtained
approval of the local health officer having jurisdiction
and has filed the approval with the department; and
(b) the department has indicated by stamp or certificate,
that it has approved the plat and plans and specifications
and that the subdivision is subject to no sanitary
restriction.112/
As an additional precaution and for those houses which are not part
of subdivisions, localities should be careful to condition the is-
suance of building permits on the applicant's having a valid sub-
surface wastewater disposal permit. Finally, it would be useful to
provide, as Maine does, that after the local plumbing inspector inspects the
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installation of the wastewater disposal system, he issue a certificate
of compliance if the system is in fact properly installed.113/ Such
a requirement would enlist the enforcment aid of realtors and real
estate attorneys, who would require the production of the certificate
at the closing of new homes.
Similarly, the cause of septic tank maintenance would be furthered and
incipient failing systems would be detected if a septic system inspection
requirement were piggy-backed onto whatever other inspections or certi-
fications a locality requires for the purchase and sale of existing (as
opposed to new) homes. Here, as with new homes, enforcement assistance
can be obtained through the mortgage process. Thus Minnesota is an
example of a state which has persuaded the Federal Housing Administration
and the Veterans Administration not to approve mortgages for existing homes
without the local sanitarian having first certified the onsite disposal
system.114/ Of course, anyone who has had his septic system inspected and
pumped recently (say, within two years) should be able to present evidence
of the fact and have the inspection waived. Where the required inspection
reveals a violation (septage needing pumping or a failing system), an
order to correct the violation would be issued and put on record, thus
encumbering the title and making it difficult to sell the house. If the
owner refused to correct the violation and the state or locality undertook
the work for him (as all states and localities should have the power
to do), statutory provision could be made that the amount owed the
agency would become a lien on the property. Alternatively, the statute
could provide, as one authority has suggested 115/ and as Santa Cruz County,
California has provided, 116/ that the cost of the work be added first as
a tax on the property. As additional insurance, the permitting agency
might want to follow the example of Fairfax County in requiring all
installers and repairers of individual disposal systems to be bonded to
hold the county and all other persons harmless "from all expenses and
damages that may be caused by any neglect, defective or inadequate work"
as deemed by the county health department.117/
It may be argued that maintenance inspectors for homes about to be sold
and corrective work for failing systems will require manpower that the
states and localities do not have. There is no reason, however, why the
inspections should not be done by licensed septage pumpers and why the legis-
lation providing for corrective work should not provide that the state or
local agency may contract out for the work. It may even be that volunteer
labor can be enlisted in the cause of detecting incipient septic system
failure. Techniques developed in Wisconsin for organizing a lake property
survey staffed with students supervised by trained sanitarians are the
subject of a special report funded and published the The Upper Great Lakes
Regional Commission, j.18/
The effectiveness of whatever enforcement personnel are available to
the state or local agency can be increased by simplifying the enforcement
process and by providing detailed guidance on how to go about enforcing onsite
wastewater disposal standards and maintenance requirements. One writer on
the subject has suggested that states and localities adopt the citation
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system for penalizing sanitary ordinance and code violations. Under this
system, used in Maryland, the violator of the regulation in question, be
he the homeowner or the installer, signs the citation and agrees to
appear in court and enter his plea.119/ In the absence of such a simplified
legal process, states and localities would do well to follow the example
of Maine and Pennsylvania in writing detailed instruction manuals for their
sewage enforcement officers.120/ Such manuals, with their detailed descriptions
of step-by-step procedures and their sample warning letters, complaints,
summonses, etc., should increase the efficiency of the enforcers and should
also make enforcement more uniform and fair.
6.0 Appropriate Level and Agency of Government
6.1 State-Local Relationship
While some states have retained all regulatory authority over onsite
wastewater disposal and others have delegated it all, 121/ more and more
states and localities are sharing the standard-setting, administration,
and enforcement responsibilities. In these states, public health laws
or other general enabling authority generally provide that state standards
are minima and that localities are free to adopt more restrictive
regulations not otherwise inconsistent with the state's.122 / Since
"consistency" is an ambiguous term, it would be adivsable for the state
enabling statute to either define the term or, preferably, provide for
state certification of "consistent" local regulations or ordinances. Under
this shared jurisdictional arrangement the state typically delegates
permitting authority for individual systems and retains permitting
authority over innovative systems and large systems (institutional size
systems, industrial and community systems).123/ Some states reserve the
right to approve subsurface wastewater disposal systems for subdivisions.124/
Those who argue for vesting as much approval power as possible at the
state level point to the difficulties local health authorities have ensuring.
strict code enforcement. A survey in Wisconsin of county zoning admin-
istrators and county sanitarians revealed that 77 percent of the respondents
felt that they needed greater job security to hold out against local political
pressure. Respondents commented that innovative systems with their greater
failure rate and need for increased maintenance will make the enforcement
task that much more difficult.125/ With these problems in mind, one
authority has recommended that if states cannot see their way clear to
assuming all permitting authority they at least should review plans
of all onsite systems approved at the local level and retain authority to
override local approval when necessary.126/
While such a system might work well for a slow-growing state, there is
no question but that it would impose an enormous burden on a rapidly
growing one. Furthermore, where regulatory authority over onsite
wastewater disposal systems has traditionally been exercised at the local
level it might be exceedingly difficult and, in many cases, unnecessary,
for the state to reassert its authority across the board. The states
of Pennsylvania and Connecticut illustrate an alternative approach, that of
selective delegation or reassertion of state authority, which might be the
most promising intergovernmental approach of all. In Pennsylvania, it
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will be remembered, the state has delegated approval power over all but
innovative, experimental, and large systems to local agencies (counties,
county and joint county departments of health, municipalities and
municipal delegees). At the same time the state retains the authority to
(1) Set standards for the installation and maintenance of
individual sewage systems;
(2) Require satisfactory local "official plans" which must
delineate
a) four categories of soils:
i. soils that are suitable for on-lot disposal of sewage;
ii. soils that may be suitable providing the subsoil is
permeable;
iii. soils which are not satisfactory for use due to the
presence of impervious water restricting layers,
high water tables, periodic flooding, or other
limiting characteristics;
iv. soils which are not satisfactory for use due to
contamination;
b) areas experiencing problems with sewage disposal including
a description of those problems;
c) all areas where sewers are planned to be available within a
ten year period;
d) all subdivisions existing and approved;
(3) Require satisfactory supplements and revisions to official
plans for new subdivisions which must include soil conditions
and limitations for on-lot sewage disposal if applicable;
(4) Review the performance of local agencies in administering
their permitting functions and to order a local agency
to undertake actions deemed necessary to administer
those functions effectively in conformance with state
rules and regulations;
(5) Enter upon lands ana make inspections; and
(6) Certify sewage enforcement officers (State Certification
Board) and to revoke or suspend the certification of
same for cause (Department of Natural Resources).127/
Pennsylvania's faith in localities' ability to administer the permitting
program has been bolstered by the state certification program for
sewage enforcement officers. States with less faith in the readiness
of their political subdivisions to undertake the job of inspecting
and permitting onsite wastewater disposal systems might want to reserve
the authority to reassume that function when an order to a locality
to bring its program up to standard is not enough. (It must be
remembered that in Pennsylvania the state shares one-half of the
cost of local administration, a source of leverage in itself.)
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Still another approach to the same problemthe appropriate sharing
of responsibility between state and local regulatory agenciesis
currently under consideration in Connecticut. Regulations recently
drafted in that state would allow the Department of Environmental
Protection (DEP) to delegate authority over onsite wastewater disposal
on an almost case-by-case basis, depending on the expertise of the
individual locality. The DEP has developed this system because itt
found that the state Public Health Code, administered at the local
level, is not effective in preventing installation of septic systems
in unsuitable soils. The newly asserted initial jurisdiction over
subsurface disposal systems is premised on the fact that, under the
state's water pollution control law, the Department of Environmental
Protection has jurisdiction over discharges to all waters of the state,
including groundwater.
The four categories of subsurface wastewater disposal systems provided
for in Connecticut's current draft regulations make distinctions in
terms of sensitivity of site as well as size of system. Thus the
fourth category includes poor site conditions as well as innovative
systems, and the state will only delegate complete approval authority
over that category to town engineers it knows to be particularly
qualified. Under the Connecticut regulations potential delegees
include other state agencies, municipal sewer authorities, municipal
building officials, municipal or district directors of health, and
municipal or district sanitarians and sanitary inspectors.128/ As noted above,
Connecticut is just embarking on a state ceritfication program for sanitarians.12£/
6.2 A Note on Appropriate Agency: Health Departments, Water
Pollution Control Agencies, and Wetlands Authorities
Onsite wastewater disposal has traditionally been the exclusive
province of public health authorities, state and/or local. In most
cases, the agency with the most experience in the field and the best
technical resources is the best choice for continued or expanded
regulatory authority. The interests and expertise of other agencies
should not be overlooked, however. Where a proposed system is
particularly large, for example (such as a system designed for an
institution), or where an industry or a business is proposing to
dispose of process wastes in addition to sanitary wastes through
a subsurface disposal system, the experience of the state water
pollution control agency with more sophisticated treatment systems
and with monitoring and reporting requirements will usually make
it the better qualified agency to regulate the system. Thus,
as noted above, in Connecticut the Department of Environmental
Protection, through its division of Water Compliance and Hazardous
Substances, regulates all subsurface systems handling 5,000 gallons or
more per day or any industrial wastes.130/ The Connecticut
Department of Environmental Protection (DEP) and analogous agencies in
other states have regulatory authority over all subsurface disposal
systems under water pollution control statutes which give them
permitting jurisdiction over all "waters of the state," when those
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waters are defined to include groundwater.131/
Whether or not states opt for a system of shared jurisdiction like
Connecticut's, however, all states with statutes which give more than
one agency technical jurisdiction over an area should clarify the
potential overlap by regulation. Another area where possibly trouble-
some overlap might be turned into effective cooperation is that of wetlands
and shoreline areas. Many of the most difficult subsurface disposal
problems will occur in these areas, particularly in recreational
communities built around lakes without adequate attention to the
potential waste disposal problems. The targeting of such areas through
wetland and shoreland protection programs may give subsurface disposal
regulation a valuable boost. In Minnesota, for example, a major
effort to require all homeowners within 1,000 feet of a lake or
300 feet of a river to upgrade their existing onsite disposal systems
has been launched under the mandate of the state's Shoreland Management
Act.132/
The present fragmented development approval systems in most states and
localities pose the risk to landowners of surviving lengthy wetlands
review processes only to find out later that they cannot install sub-
surface disposal systems. Conversely, because of the same fragmentation
of authority, wetlands agencies may find themselves powerless to put
their detailed knowledge of a site and of groundwater patterns
to effective use in restricting or conditioning subsurface
sewage disposal when permission for such disposal comes from another
agency. Any new laws or regulations governing onsite wastewater
disposal should take such interagency questions into account and,
to the extent possible, eliminate conflicting jurisdiction or
provide for joint data gathering, review, hearings and other sharing
of interest and expertise.133/
6.3 Variances
One final word with respect to appropriate agencies and levels of
government is needed. Many localities which have exercised authority over
subsurface wastewater disposal for a long time provide in their
regulations that the local governing body can vote to allow variances
from the applicable standards, where, in common boilerplate parlance,
"owing to special conditions ,a literal enforcement will result in
practical difficulty and unnecessary hardship." Variances are
necessary safety valves for zoning ordinances (although there, too,
they are subject to abuse), but variances awarded by general governmental
authorities are not appropriate in an area calling for highly
specialized technical knowledge if possible severe health hazards
are to be avoided. It is more appropriate to hold local permitting
authorities to minimum state-imposed standards (standards which
should, for that reason, not be too rigid) and to provide that
any exception to those standards should be made by the appropriate
state agency.
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6.4 Specialized Substate Management Entities
While reliance on state-certified specialists to implement rigorous
inspection requirements and design standards may be enough to ensure
the longevity of onsite disposal systems in rural areas, there are
those who question whether it will be enough in densely populated
areas where the demands on a sanitarian's time will be much greater
and the consequences of system failure from poor design or inadequate
maintenance much more dire. Rapidly growing counties like Fairfax
County, Virginia and El Dorado County, California (which includes
southern La'ke Tahoe within its boundaries) have already found
themselves unable to keep up with all the demands for inspection
and monitoring. 134/
Interest in assuring better design and maintenance of individual
onsite systems and the new interest in nontraditional individual
and community systems, systems which require more supervision and
maintenance, have combined to create substantial support for the
idea of special management entities for onsite sewage disposal.
Such entities could be privatefor example, a property owners association
or they could be publicly regulated utilities or rural electric cooper-
atives. The most common nominees, however, are local special districts,
usually pre-existing or at least pre-authorized sanitary districts.135/
Once such an entity exists to ensure continuity of maintenance and,
where necessary, ownership, the community can choose the combination
of individual and centralized systems best suited to it. Other options
are simplified too: a slowly growing community can start with individual
onsite wastewater disposal and graduate to a centralized system
when that becomes necessary. One of the historical reasons for
preferring central sewer systems has been their institutional
solidity; if decentralized wastewater disposal can be put on an
institutional par with central sewering, communities will be
free to make the choice on cost and environmental grounds alone.
Taking the work of two early advocates of the central management
concept, J.T. Winneberger and W.H. Anderman, with renpect to the
necessary responsibilities of the management entity 136/ and
combining it -with the work of two participants in the Wisconsin Small
Scale Waste Management Project, Richard J. Otis and David E. Stewart,
with respect to the authority necessary for a central management entity, 137/
we come up with the following list of a management entity's functions
and requirements:
1. the legal entity should provide services including:
a) design of each individual system;
b) inspection of installations ;
c) maintenance of individual systems ;
d) environmental monitoring services (e.g.,
groundwater pollution checks) ; and
e) problem correction services.
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the legal entity should maintain adequate records
to provide proper guidance to the program;
the legal entity should provide professional skills
needed to improve practices, such as:
a) a full-time environmentalist to perform needed
work; and
b) services of consultants for initial construction and
unusual workloads, special problems and occasional
review. (During slow development, a consultant
might serve until the workload justifies employment
of a full-time sanitarian.)
the legal entity should have the authority and power
to provide community collection systems whenever and
wherever needed. This authority includes:
a) the power to purchase, lease, rent, and own
real and personal property;
b) the authority to plan, design, construct, inspect,
operate and maintain all components of the sewerage
system within its jurisdiction including typical
single-family septic systems;
c) ideally, the capacity to receive loans and grants in
aid from the state and federal government (i.e., the
ideal entity would be a public one);
d) the ability (1) to enter into contracts and to
undertake debt obligations either by borrowing and/
or by issuing stock or bonds; and (2) to sue and be
sued;
e) the ability to fix and collect benefit assessments
and user fees for its services. If the entity has
taxing power it should be able to use that power
to raise funds to administer the noncentral
system;
f) the power to "plan and control how and at what
time sewage service will be extended to those within
its jurisdiction or. . .general land use or zoning
authority." (The key needs here are the power to
compel participation in the system and the ability
to refuse service. These powers are necessary to
assure the most cost-effective, environmentally
sound system);
g) the power "to make rules and regulations regarding
the use of the system and to issue orders against
violators of these rules or regulations";
h) the power "to require the abatement of malfunctioning
systems and to require the replacement of all such
systems, all according to the plans of the entity."
(Otis and Stewart caution that "[t]his power may
only be available to governmental or quasi-governmental
entities.")
the legal entity should carry on a comprehensive
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watershed protection program (where appropriate)
in conjunction with the local health entity, the
state pollu_ion control entities and other pertinent
public entities.
Generally an entity with a broader jurisdictional base than a single
town is to be preferred because of the economies of scale and ability
to achieve more expert operation and maintenance at a tolerable cost.
The National Commission on Rural Water has been involved for many
years in the development of management entities for provision of
sewer and water services to rural communities, and It advocates tne
use of regional management entities to support locally owned
utilities. Under such an arrangement, basic policy would be
formulated at the local level, but administration and maintenance of
all the systems within the region (whether owned by municipalities,
public service districts, or nonprofit corporations) would be
performed, under contract, by a regional, perhaps county-wide,
support group. User control would be maintained by a board of directors
made up of representatives of the contracting entities. Because of
the danger of exploitation, the National Commission on Rural Water's
National Demonstration Water Project also recommends continuing
state oversight of the support groups, including state participation
in and approval of the service contracts, state management training
for directors of the regional group, and state monitoring of the
management operations.138/
It is in California that the concept of special management districts
for noncentral waste disposal systems has been put into practice
most often and with a considerable degree of success. The idea
has been particularly attractive for "transitional" communities
(once rural communities undergoing rapid urbanization) and recreational
communities which want to plan for and even help finance eventual central
sewer systems by allowing controlled, interim use of onsite wastewater
facilities. The institutional arrangements pioneered by these
communities are also useful models, however, for localities which
plan to rely on noncentral sewer systems indefinitely. In some
cases the involvement of expert management entities may mean that
onsite systems which were expected co be only stopgap solutions
will turn out to work well enough to make later replacement with
central sewering unnecessary.
To take one of the earliest and best-known California examples,
the Improvement District of the Georgetown Divide Public Utility
District of El Dorado County was formed to provide for:
1. The aquisition of lands and easements for improvements
and works necessary to provide sanitary sewerage
and sewage disposal service to said improvement
district area;
2. To provide for the planning and designing of
such improvements and works;
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3. To operate and maintain such improvements after
they have been provided; and
4. To pay all costs and expenses incidental thereto.139/
Properties within the Georgetown Divide Improvement District for which
central sewers are not available are required to comply with all the rules,
regulations, and ordinances of the district. This means that the
district will conduct all necessary soil tests and will design the individual
disposal system most appropriate for the lots. The district is also empowered
to inspect and maintain the individual systems. District standards call
for "breezers" (devices providing air to distribution lines and allowing
inspectors to observe the liquid level in disposal trenches) and for alternating
beds and diversion valves. The district is also required to undertake
a watershed monitoring program in conjunction with the County Health
Department, the Regional Water Quality Control Board, and the Bureau
of Reclamation.
The district's functions are supported by a network of agreements. Every
application for an individual waste disposal facility must include a
grant to the district of a right to maintain, operate, and repair the
waste disposal facility, to abide by all district rules, and to pay all
district charges. Upon issuance of the permit, the grant is recorded.
Operating charges ($12 per residential lot per year) and any costs of
extraordinary maintenance or repair by the district may be billed separately,
may be added to other utility charges by agreement with that utility, or may
be added to the district tax roll and may thence become liens. The county
has adopted a resolution that no building permit shall be granted within
the improvement district until the district has issued a permit for a
sewage disposal facility.
The district maintains special agreements with individual subdivisions.
Thus the district has a legal arrangement with the 1,800 unit Auburn
Lake Trails subdivision to provide central sewerage if needed in the
future. In the meantime, the subdivision has agreed to be bound by
the district's regulations respecting design and installation
of individual systems. Developers within the district are required
to dedicate easements for future sewer systems, and on-lot disposal
systems are designed so that as much of the system as possible can
be used if and when a central system is installed.
An order from the California Regional Water Quality Control Board
indicates that the soils in the Auburn Lake Trails subdivision are
"fragile and extremely susceptible to erosion" and that "geological
examination of the area has indicated that a number of lots are presently
unacceptable for subsurface waste disposal due to lack of soil,
excessively steep slope, or high ground water conditions."140/
Nevertheless, because of the involvement of the improvemenT~3istrict,
the Water Quality Control Board issued an order allowing discharges
on most lots provided that adequate drainage facilities be furnished
to avoid high groundwater problems on some lots. In addition, the
order stipulated that the developer, the property owners association,
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and the Georgetown Divide Public Utility District must:
1. assume responsibility for the proper design,
installation, and maintenance of wastewater
treatment and disposal systems;
2. assume responsibility for the immediate correction
of any wastewater treatment and disposal system which
fails to meet the specified waste discharge specifications;
3. monitor the waste discharges from such systems in
accordance with the monitoring and reporting program
specified; and
4. supply the purchaser of any lot with a copy of the
order.
A less ambitious special district established recently in California
is the "Septic Tank Maintenance District" attached to a County Service Are?
in Santa Cruz County. The section of the county code providing for such
district includes a finding that the "use of septic tank systems on
an interim basis should be carefully controlled to preclude system failure
prior to the availability of sanitary sewer services" and that "[t]he
establishment of a septic tank system maintenance district will provide
for septic tank system inspection and maintenance procedures to better
assure proper functioning of such systems."141/ Under regulations
adopted by the Santa Cruz County Health Services Agency, subdivision
developers must dedicate easements to each lot for inspection,
maintenance, and expansion (a 100 percent expansion area must
be set aside) of the septic tank system. The regulations require that
the contents of septic tanks be pumped out at least once every
three years.142/ This is done by a septic tank company registered
by the Environmental Health Service and under contract to the
county Board of Supervisors. In the period 1975 through 1976,
monthly charges for inspection, pump-out and administration totalled
$3.40. This charge can be added to the county property tax.
To date, the experience with special management districts in
California has been more or less experimental in nature and the
state's role has been limited. An advisory council to Governor Jerry
Browr, working out of the Office of the State Architect, is studying
the whole area of alternate systems for sewage disposal. 143/
Washington State, on the other hand, is directly involved in
encouraging what it calls "on-site waste management systems"
since it requires them for subdivisions dependent on onsite systems
and designed to have gross densities that exceed 3.5 housing
units or 12 people/acre or waste flows of 1,200 gallons/acre/day. 144/
If such a subdivision is located within the boundaries of "an
operating public sewer utility," that utility must approve it and
must assume responsibility for maintenance of the onsite systems. If
the subdivision is outside the jurisdiction of an existing utility
district it must have an approved onsite waste management system
consistent with state "Guidelines for the Formation and Operation of
On-site Waste Management Systems."145/ While the proposed
guidelines favor management systems formed by metropolitan or
municipal sewer agencies, county governments or their appropriate
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departments, sewer districts or utilities operating sewer districts,
they do provide that where "no municipal agency is able or willing
to operate such a management corporation, a special management corporation
may be organized to serve as a management system. ..." The draft
guidelines set out detailed requirements which such special management
corporations must meet.
The California experience suggests that any enabling legislation and
regulations governing special management districts should clarify
any possible conflicts of authority between the districts and other
agencies and levels of government. In California, counties have
traditionally inspected and permitted onsite disposal systems and
they are reluctant to give up these revenue-generating activities.
The whole idea of special management entities is to fill a regulatory
gap, preferably by the creative use of existing institutions.
To avoid waste of precious inspection time and expertise in
interjurisdictional squabbles, relationships between agencies should
be ironed out at the outset, either in enabling legislation or
through interagency agreements. A new management district may
even want to contract for expertise from an existing agency,
although it will usually be the case, as the Georgetown Divide Public
Utility District found when it relied on the El Dorado County
Health Department for technical assistance, that there is not enough
expertise to go around.
One final word with respect to the usefulness of management
entities for onsite wastewater disposal. It has been observed
that however strict testing, design, and inspection requirements
for new onsite wastewaster disposal systems may become, much of the
threat to public health and water quality is from existing mal-
functioning systems. Even if they are armed with the necessary
authority to enter onto private land, repair or replace a failing
system, and impose a lien against the property for the cost of the
work performed, 146/ state or local officials may be reluctant
to do so where the landowner simply does not have the $1,500 to
$3,500 which it costs to replace a failing system. It is therefore
necessary that along with the power to borrow and receive grants and
thereby accumulate a capital fund, the management entity have
authority to charge for work on an installment basis.147/
Issues
While it has been held that regulation of sewage disposal, being a
matter of health and sanitation, is an issue of state concern as
to which the state may decide to preempt local regulation,l48/
some states have given their political subdivisions the power
to enact ordinances regulating onsite waste disposal consistent with
state regulation.1497 In most states the matter of state versus
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local authority will be clearly decided by the statutory law.
As has been noted before, _moxe and more states have been taking
an active role in onsite sewage disposal regulation with the result
that the local role is being confined increasingly to enforcement,
supplementary procedures,JL50/ and indirect regulations via the municipal
zoning power.
Historically, however, the best-known method of regulating onsite
waste disposal has been for localities to tailor minimum lot size
requirements to what they considered to be the sewage "carrying
capacity" of the land. As discussed earlier in section 3.5 we
have ignored this traditional control technique because it is
so obviously inadequate to the task of proper septic system
regulation; it little matters whether the minimum lot size is two
acres or three if the homeowner is free to install his system on the
most unsuitable part of his acreage and to install it without
regard to any technical standards. Nevertheless, the litigation
over minimum lot size is of interest since it reveals the courts'
attitude towards regulation of onsite sewage disposal systems in
general.
Traditionally, courts have looked favorably on lot size restrictions
which reflect a genuine concern for the potential health hazards
of onsite sewage disposal. The richest vein of decisional law is to
be found in Connecticut, where the state Supreme Court has
upheld rezonings on the basis of sewage disposal considerations.
Thus in De Mars v. Zoning Commission, 151/ the court upheld a zoning
amendment which enlarged minimum lot areas in a substantial part of
the town of Bolton, finding an adequate rationale in the fact that
residential growth was expected and that "larger lot sizes would
provide greater area for the disposal of sewage and would increase
the distances between sewage disposal areas and the residential
water supply."152/ In a subsequent case, Zygmontv. Planning and
Zoning Commission of Greenwich, 153/ the Connecticut court upheld
the denial of an application for a rezoning from a four acre zone to
a 20,000 square foot zone.. The court found that the zoning
commission was properly concerned about the "water supply prospects
and the sewage disposal qualities of the plantiff's land" where
"one-third of the lots would be lying in land, presently swamp, which
could be rendered usable only by an extensive filling operation"
and where there would be only one possible site for a well on
each lot which met the requirement of the Greenwich Sanitary Code
that no well be within 75 feet of a sewage drainage field.154/
Zygmont and similar cases from other jurisdictions, including Ohio,
New Jersey, Iowa, and New York,155/ suggest that more particularized
regulations relating to size of absorption fields (including
requirements that adequate area for a replacement field be set aside),
minimum distances from wells, and restrictions on using unsuitable soils for
subsurface disposal should have little difficulty attaining court sanction.
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The few cases dealing directly with standards for subsurface
wastewater disposal bear this out. One of these is a Pennsylvania
case, Appeals of Palumbo, 156/ which upheld the reasonableness of
a local ordinance containing subsurface disposal standards relating
to minimum septic tank and absorption field size, among other things,
as those standards were applied to a trailer camp. The owner of the
camp was concededly unable to comply with the standards because of
the size of his lot and the nature of his soil. He claimed, however,
that he should not be bound by the standards in the ordinance because
he had devised a method of sewage disposal (a holding tank pumped out
by a scavenger twice a day) which was equally effective. The court
responded:
It is clear that the ordinances cannot be evaded
for these reasons. Specific sewage disposal ordinances
enacted under qualifying legislation are not to be
set aside and held inoperative as to one who under
exceptional circumstances is able by other means to
dispose of the sewage discharged on his property.157/
In a recent Massachusetts case, the Commonwealth's Supreme Judicial
Court was as respectful of limitations on onsite wastewater disposal
based on soils tests as the Pennsylvania Supreme Court was of the
more general standards challenged in Appeals of Palumbo. At issue
in Glen Avenue v. Director 158/ was the refusal of the Massachusetts
Department of Public Health, through a local public health director,
to issue permits for subsurface disposal systems on two lots which
percolation and deep pit tests had revealed to be unsuitable for
subsurface wastewater disposal under the general standards set forth
in the state Sanitary Code. The court upheld the trial court's
judgement that the public health officials did not act unreasonably in
denying the application, despite the plaintiff's contention
that some of the tests showed a satisfactory percolation rate and
that the high groundwater condition could be met by excavation and
placement of fill.
What case law exists is clear, then, that locational and design
standards rationally related to public health objectives will be
upheld as reasonable, even though in seme cases uniform application
of the standards will result in hardship to the point of precluding
development if a central sewer is not accessible. Indeed, the paucity
of case law dealing with actual soils limitations and design standards
itself suggests the unassailability of such restrictions, provided
they are based on sound technical data.
Turning to the subject of maintenance requirements, the scarcity of
case law is even more strikingreflecting, of course, the fact
that such requirements have been, until lately, a rarity. This has
not always been the case, however, and the substantial body of early
twentieth century case law upholding requirements for privy and cesspool
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cleaning and inspection is surely good authority now for septic
system inspection, pumping, and alternating requirements. Before
the advent of central sewering, it was common for cities to enact
ordinances requiring that privies and cesspools be cleaned and
inspected. Faced with challenges to the validity of such ordinances,
courts were quick to find them reasonable exercises of delegated
powers to protect the public health and safety. The following
language is typical:
We entertain no doubt that a city has the power to
provide by proper ordinance, regulations requiring the
removal at suitable intervals of the deposits from
unsewered privies, and to grant the exclusive right
to one or any limited number of persons to do the
work for a rate of compensation to be fixed by the
city and to be paid by the owner or occupant of the
premises. The statutes of the state confer upon
municipal corporations the power thus to provide
for the safety, health, and welfare of the inhabitants
thereof.159 /
Furthermore, as the above quote illustrates, the early cases make
it clear that when the public health is involved, the government
may choose to ensure sanitary practices by taking maintenance out
of the untrustworthy hands of the individual and assuming the
function itself or contracting out for its performance. Ordinances
which provided for employees of the local government to do the
work and for unpaid charges to become a lien upon the property
were upheld, 160/ as were ordinances providing for the work to be
done by an outside contractor at a fixed rate.161/ While an uncleaned
septic tank may not present quite the health threat of an uncleaned
cesspool in a center city, the two requirements stem from the
same need to protect the public health, and maintenance districts and
charges can certainly be justified on the same grounds which
persuaded an earlier generation of courts. Maintenance requirements
for onsite disposal systems derive additional support from the
fact that they protect the public fisc, since once a number of
septic systems on small lots fail, the community may have no
choice but to invest in a central sewer system.
A final legal question has to do with the authority of the state
or localities to compel the formation of management entities for
individual or community onsite sewage disposal systems and to further
compel private participation in those entities to the point of
requiring hookup to, say, a community absorption field. Here
again, reference must be had to an analogous line of case law, since
the concept of community onsite disposal systems and management
districts is a relatively new and untried one. Unfortunately,
reliance must be placed on a line of cases which uphold requirements
that properties within X number of feet of a sewer or subdivisions
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of more than Y number of lots connect to or provide centralized
sewer facilities. Government agencies should, we repeat, retain
discretion to determine what the best available wastewater disposal
alternative is in view of all data with respect to growth projections
over time, soils, cost-effectiveness, receiving water''quality, etc.
When that decision is made, however, in favor of a community system
whether a conventional centralized system or an innovative system
of the type described earlier in this chapterthe governmental
agency will need to have the statutory authority to compel connection
to that community system and participation in its management organization.
In some cases, for reasons of fiscal integrity, property owners with
existing, functioning onsite systems may be required to modify
or abandon those systems.
Such requirements have been upheld in the past with respect to
required connections to central sewer systems, 162/ and there is
no persuasive reason why the courts should reach a different result
when community subsurface disposal systems are at issue, as long as
the requirement relates to the health and welfare of the larger
community and does not impose an unreasonable hardship.163/
Although the preservation of flexibility is to be desired, a
requirement such as the State of Washington's that all subdivisions
above a certain size have septic tank management districts 164/
would probably be upheld against challenge that it was arbitrary or
unreasonable, just as similar requirements that subdivisions
above a certain size be serviced by central sewers and sanitary
districts have been upheld.165/
8-0 Conclusion; Secondary Effects
The introduction to the previous chapter dealing with municipal
wastewater treatment facilities referred to the concept of "secondary
effects." As was noted at the beginning of this chapter, one of the
reasons for the renewed interest in onsite wastewater disposal
is the growing realization of the growth-indueing effects of centralized
sewage treatment facilities and of the general environmental
degradation which accompanies unplanned growth. Such adverse
secondary environmental effects may include degradation or destruction
of wetlands and other environmentally sensitive areas, accelerated
stormwater runoff, and erosion and sedimentation.
It should be emphasized, therefore, that the development and promotion
of alternative forms of wastewater disposal pose many of the same
environmental dangers. Widespread use of the innovative individual
systems and community systems described in this chapter will open
large areas of rural land previously protected from development
because of its unsuitability to conventional subsurface disposal
systems.
Fear of such sudden, unplanned growth and its accompanying adverse
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environmental impacts was part of the justification behind the Wisconsin
Center for Public Representation's recent suit against the Wisconsin
Department of Health and Social Services.166/ The center argued
that the department violated the Wisconsin Environmental Policy
Act when it failed to prepare an environmental impact statement
before it adopted a policy permitting installation and use of
onsite wastewater treatment and disposal systems other than conventional
septic systems.
While beyond the scope of this chapter to discuss, it is important
to note that alternative wastewaster disposal systems have the
potential for significant secondary environmental impact, that that
potential should be evaluated through the environmental impact
statement or other available process, and that measures to mitigate
adverse secondary effects should be taken. Those measures might include
protection of critical areas such as wetlands, discussed in chapter 3,
and integrated water; sewer, and onsite disposal system planning as
discussed in chapter 4. Potential adverse secondary environmental
effects from rapid unplanned growth include accelerated stormwater
runoff and erosion and sedimentation. Control techniques for these
nonpoint sources of water pollution are the subject of the next chapter.
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CHAPTER FIVE
ONSITE WASTEWATER DISPOSAL SYSTEMS
FOOTNOTES*
Hereinafter the terms "onsite wastewater (or waste) disposal system"
and "subsurface wastewater (or waste) disposal system" will be used
interchangeably with the -more familiar term "septic system" even
though some of the systems discussed in this chapter (loosely termed
"innovative systems") are not in fact "septic" in their operation.
"Septic" describes a process of bacterial action within a tank which
takes place in the absence of oxygen. One of the more common "inno-
vative" systems, the aerobic system, depends on oxidation for decom-
position of sewage. The term "septic system" is used in preference
to "septic tank" since the latter term describes only half of the
system, the tank which settles out most of the solids and the scum.
The other half of the system normally consists of a subsurface
absorption field through which perforated pipes leading from the
tank discharge the liquid effluent released from the tank.
supra chapter 4 , note 8 and accompanying text.
3. Usually septic system "failure" is signaled by sewage backing up in
plumbing fixtures or contaminated effluent rising to the surface of
the ground over the soil absorption system. Other times, pollution
of well water reveals a malfunctioning system. Often these conditions
result from the accumulation of so much sludge or scum in the septic
tank that solids escape through the outlet device and clog the absorp-
tion field. Absorption fields may fail independently when they have
been constructed in poorly drained soils or in overly compact (or
"tight") soils with either very slow or too rapid absorption rates,
or when the slope of the land is too steep, its seasonal water table
too high, or its layer of soil over bedrock too shallow. A malfunc-
tioning subsurface absorption system may lead to the pollution of
both underground and surface water. For excellent descriptions of all
subsurface disposal systems, see S. Goldstein and W. Moberg, Jr.,
Wastewater Treatment Systems for Rural Communities (1973) [hereinafter
cited as Goldstein and Moberg]; W. Jewell and R. Swan, eds., Water
Pollution Control in Low Density Areas (1975) [hereinafter cited as
Jewell and Swan]; and J. Harkin et_ al_. , "Causes and Remedy of Failure
of Septic Tank Seepage Systems," in Second National Conference on
Individual Onsite Wastewater Systems 119 (1975) .
4. A recent statistical study in Fairfax County, Virginia has demonstrated
that the expected lifespan of sewage treatment plants and that of
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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V-FN-2
properly designed, installed, and maintained septic systems may be
very close. In the early 1950's, Fairfax County experienced many
septic tank failures; at that time the only testing performed was
the standard percolation test, now acknowledged to be an inadequate
test if relied on alone. In an attempt to avoid future failures,
the county had its soils mapped in 1954-55, correlated percolation
rates with certain soils, and identified those areas with high water
tables which should be eliminated from future consideration for indi-
vidual subsurface disposal systems. Surveying their records over
30 years of application for permits to rebuild septic systems in
1972, Fairfax County officials found that septic tanks were surviving
20 to 30 years. (For those systems which failed, the average life
was 10 to 15 years.) The County Director of Environmental Health
who wrote up the data expects that with the county's new requirement
for alternating absorption fields and "with continued control and
care over the installation of new systems, including regular clean-
ings and alteration of diversion valves, systems should function for
30-50 years or even indefinitely." J. Clayton, "An Analysis of Septic
Tank Survival Data from 1952 to 1972 in Fairfax County, Virginia,"
1975 J. Envt'l Health 562, 566. For a detailed discussion of Fairfax
County's system of'alternating absorption fields and diversion valves,
see section 3.5 infra.
5. One authority reports that the proportion of people served by onsite
systems in New England is estimated at close to 50 percent, with Long
Island perhaps as great as 96 percent. J. Kreissl, "Rural Wastewater
Research," in Second National Conference on Individual Onsite Waste-
water Systems 145 (1975). Another authority wrote in 1973 that
despite the conversion to sewers of some 10 million homes in the U.S.
and Canada over the previous two decades, "the number of on-site
disposal systems rose from about 15 million in 1950 to 19 million in
1960 and 22 million in 1970. In 1967 an estimated 25% of the 1.2 mil-
lion new homes built in that year had on-site wastewater disposal
systems installed." This same writer says that predictions for 1970
to 1990 also estimate the percentage of onsite systems for new homes
at around 25 percent. 1 A. Bernhart, Treatment and Disposal of Waste
Water from Homes by Soil Infiltration and Evapo-transpiration 10 (2d
ed. (1973)) [hereinafter cited as Bernhart],
6. It is difficult to generalize about the comparative dollar costs of
onsite versus centralized wastewater disposal systems and any detailed
presentation of the results of economic analyses performed in this area
would be outside the scope of this study. The limitations on general-
ized comparisons include topographic and soil conditions which greatly
affect the costs of digging for sewers as well as the cost of individual
absorption fields. The cost of sewer collection systems is also, of
course, a direct function of density and distance. Putting the two
alternatives on as close to an equal footing as possible, however,
(and this means ignoring the availability of governmental subsidy),
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V-FN-3
the studies leave little question that in sparsely populated and new,
slowly developing communities such as recreational communities, the
costs of installing centralized facilities may be prohibitive. Per-
tinent cost-comparison studies are referenced and analyzed in S.
Goldstein, "Community Sewerage Systems vs. On-Site Sewage Treatment
Systems," in 1 On-Site Waste Management (Hancor, Inc. 1973) [herein-
after cited as Hancor]. It has been found that in rural and second-
home subdivisions in California the build-out rate is typically too
slowoften as little as 3 percent a yearto allow for sewering at
the outset. W. Anderman, "Economic Feasibility of Rural Sewage
Management," at 3 (1975). See also the discussion of "community"
wastewater disposal systems inf r a, and material on the Boyd County,
Kentucky demonstration project (aerobic systems) reproduced in the
Congressional Record of October 26, 1976 at S 18160 and discussed
infra note 58.
7. See Bernhart, supra note 5, at 10.
8. Memorandum from James F. Kreissl, National Environmental Research
Center, U.S. EPA, Cincinnati, Ohio to John M. Smith (Feb. 2, 1976).
9. T. Martin, "Septic Tank SystemsThe Need for Research," at 14-15,
in Hancor, supra note 6.
10. Sources of technical information in addition to the Soil Conservation
Service are the U.S. Geological Survey and the Water Resources Council,
two federal agencies which perform research on soil conditions and
hydrology. The U.S. Forest Service does soil analyses.
11. See chapters 8 and 11 on saltwater intrusion and well disposal.
12. Compare the general prohibitions contained in the Maine State Plumbing
Code (part II, June 1, 1975) with those from the Rules and Regulations
of the Pa. Dep't of Environmental Resources (ch. 73, effective Sept. 16,
1974) . For a comparison of minimum requirements nationally, see
G. Plews, "The Adequacy and Uniformity of Regulations for Onsite Waste-
Water DisposalA State Viewpoint," in Second National Conference on
Individual Onsite Wastewater Systems 139ff. (1975). Plews presents
in tabular form: (1) minimum setbacks from (a) wells, (b) surface water;
(2) minima for absorption field design; (3) minimum tank sizes by
number of bedrooms; and (4) minimum depth to groundwater.
13. Individual site inspections and soil tests are treated in section
3.2 infra.
14. Innovative systems are discussed in section 3.3 infra.
15. Md. State Dep't of Health and Mental Hygiene Regulation No. 10.03.26
and Regulation No. 10.03.27 ("Regulations Governing Water Supply and
Sewage Disposal Systems for Homes and Other Establishments in the
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V-FN-4
Counties of Maryland Where On-Site Systems are Utilized"), § .03.E
and Regulation No. 10.03.28 ("Regulations Governing Water Supply
and Sewerage Systems in the Subdivision of Land of Maryland"),
§ .04.A.I. Pa. Dep't of Environmental Resources Regulations ch. 71,
§ 71.32(a). (At the time of this writing, both sets of Maryland regu-
lations were being revised; the drafts referred to in this chapter
are dated March 12, 1976.)
16. W. Reilly, ed., The Use of Land; A Citizen's Policy Guide to Urban
Growth 282 (1973).
17. Official plans (for the provision of adequate sewage facilities) are
mandated for all municipalities in Pennsylvania under the 1965
Pennsylvania Sewage Facilities Act. The information relevant to onsite
wastewater disposal systems which is required to be a part of those plans
is summarized infra, note 127 and accompanying text. Pa. Stat. Ann tit.
35, § 750.1 et _se£. (Purdon).
18. Md. State Dep't of Health and Mental Hygiene Draft Regulation No.
10.03.26 ("Planning Water Supply and Sewerage Systems"), supra note 15.
19. Montgomery County, Md., "Comprehensive Ten-Year Water Supply and
Sewerage Systems Plan, FYS 1977-1986," at 5-3 (adopted July 16,
1976).
20. Information on the standards and requirements of the 50 states is
collected in J. Patterson, R. Minear, and T. Nedved Septic Tanks
and the Environment (June 1971).
21. Developed in cooperation with the Joint Committee on Rural Sanitation
and revised in 1967. Public Health Service Pub. No. 526, now avail-
able through the U.S. EPA.
22. U.S. Dep't of Health, Education and Welfare, "Recommended State
Legislation and Regulations" (1) Urban Water Supply and Sewerage
Systems Act and Regulations; (2) Water Well Construction and Pump
Installation Act and Regulations; and (3) Individual Sewage Disposal
Systems Act and Regulations (1965). See also P. McGauhey and J.
Winneberger, A Study of Methods of Preventing Failure of Septic-
Tank Percolation Systems (1967).
23. See P. Page, "Adequacy and Uniformity of Regulations for Onsite
Wastewater Disposal'Local Concern'," in Second National Conference
on Individual Onsite Wastewater Systems 135 (1975).
24. J. Winneberger and W. Anderman, Jr., "Failure of the 'Engineering
Approach' in Design of Septic-Tank Systems and the Development of
Septic-Tank Districts" (1971) (unpublished paper).
25. Id. at 7-8.
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V-FN-5
26. JEd. at 4-5.
27. See supra notes 10-14 and accompanying text.
28. The standard method for performing a perc. test has been described
and diagrammed in Goldstein and Moberg, supra note 3, at 16-18. An
improved method recommended by J. Winneberger is included in 3 Hancor,
supra note 6 (1974).
29. P. McGauhey, "Septic Tanks and Their Effects on the Environment," in
Jewell and Swan, supra note 3, at 49. For a technical description of
clogging, see infra note 41, section B(2). See also Goldstein and
Moberg, supra note 3, at 16 ff. J. Winneberger suggests that a good
portion of the unreliability of perc. tests is attributable to the
often sloppy and uninformed way in which they are performed; see
"Correlation of Three Techniques for Determining Soil Permeability,"
in 3 Hancor, supra note 6 (1974). See also J. Bouma, "Improved
Field Techniques for Measurement of Hydraulic Properties of Soils,"
in Jewell and Swan, supra note 3, at 181; and J. Bouma, "Evaluation
of the Field Percolation Test and an Alternative Procedure to Test
Soil Potential for Disposal of Septic Tank Effluent," 35 Soil Society
of America Proceedings 871-75 (1971).
30. The Small Scale Waste Management Project at the University of Wisconsin
is particularly active in this research. j>ee J. Bouma, "Unsaturated
Flow Phenomena During Subsurface Disposal of Septic Tank Effluent,"
101 J. Am. Soc'y Civ. Engineers (Env'tl Engineering Division) 967-83
(Dec. 1975). For more information on the study of soils' suitability
by the Wisconsin Project, see Small Scale Waste Management Project,
"On-Site Disposal of Small Wastewater Flows" (Small Scale Waste Manage-
ment Project, 1 Agriculture Hall, University of Wisconsin, Madison
Wisconsin 53706); and J. Quigley, R. Otis, and E. Tyler, "On-Site
Wastewater Disposal for Low Density Housing," Envt'J^Cotn., April
1976, at 9.
31. See Goldstein and Moberg, supra note 3, at 19; McGauhey, supra note 9,
at 52-53; and J. Kreissl, supra note 5, at 145.
32. See note
33. Va. State Board of Health, "Regulations Governing the Disposal of
Sewage" (effective July 1, 1971).
34. Maine State Dep't of Health and Welfare, State Plumbing Code part II,
§ 4.1 (June 1, 1975) [hereinafter cited as Maine Regulations].
35. Id. § 3.10. One might think that all regulations would contain such
a clause, but some leave it up to inference by phrasing standards as
"minima." Other regulations provide for stricter requirements only
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V-FN-6
in certain cases, as, for example, Pennsylvania's, which set out
minimum isolation distances (minimum distances between septic
systems and wells, water supplies, watercourses, etc.) with the
caveat, "Where conditions warrant, greater isolation distances
may be required." Pa. Dep't of Environmental Resources, "Stan-
dards for Sewage Disposal Facilities," ch. 73, § 73.12 [herein-
after cited as Pennsylvania Regulations].
36. Id. § 73.61.
37. Conn. Dep't of Environmental Protection, Proposed Rules and Regula-
tions Concerning Water Pollution Control §§ 25-54i-1.0 through
25-54i-6.0 [hereinafter cited as Connecticut Draft Regulations].
38. See note 28 supra for references to descriptions of procedures for
performing percolation tests. The Pennsylvania Regulations, supra
note 35, ch. 73, offer a good example of this tying of absorption
area requirements to percolation rates. Id. §§ 73.62-73.64.
39. Perhaps the most extensive research into alternate systems and new
methods of testing (as well as community systemssee section 3.4
infra) is being carried out at the University of Wisconsin under a
program called the Small Scale Waste Management Project which began
in 1969 and which is supported by funds from the U.S. Environmental
Protection Agency, the Upper Great Lakes Regional Commission, the
state of Wisconsin, and the Wisconsin Department of Natural Resources.
The following description of the SSWMP's research into alternative
systems is from an article in Environmental Comment (Urban Land
Institute, April 1976) by project members J. Quigley, R. Otis, and
E. Tyler.
The objectives of the project are (1) to determine and
understand the causes of septic tank system failure,
(2) to improve methods of site characterization, sys-
tem design, and system construction, (3) to develop
more effective management techniques, and (4) to
assess the implications of new wastewater disposal
technologies for land use planning. Substantial
progress has been made toward each of these objec-
tives; already the results of the Small Scale Waste
Management Project have had significant impact on
on-site wastewater disposal practices throughout
the country.
An excellent overview of recent research into alternate systems, in-
cluding the SSWMP research and EPA-sponsored research, is provided
by J. Kreissl, supra note 5. Mr. Kreissl is a sanitary engineer
with EPA's Municipal Treatment and Reuse Section, Systems and Engineer-
ing Branch, Wastewater Research Division, Cincinnati, Ohio.
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V-FN-7
40. Bureau of Community Environmental Control, Pa. Dep't of Environmental
Resources, "Helpful Hints on On-Site Sewage Disposal System Construc-
tion, Operation and Maintenance."
41. A. An Alternative to the Septic TankThe Aerobic Tank
A typical household aerobic treatment unit . . . con-
sists of two chambers. Raw or septic tank effluent enters
the first chamber and is quickly mixed with the aerobic
micro-organisms by the air flow from the blower. The mix-
ing brings the microbes into contact with both the dissolved
and undissolved waste matter. The nutrient material is
rapidly absorbed by the organisms which utilize it for
energy and cell growth converting the majority of the or-
ganics in the waste to carbon dioxide, water and settleable
sludge solids .... In the second chamber, the sludge
which contains the microorganisms settles out and is re-
turned to the aeration chamber to continue the treatment
process. The clarified effluent leaves the unit low in
organic matter, suspended solids, and considerably reduced
in indicator organisms.
While these units can produce a much higher quality
of effluent without odors, they require regular maintenance
and servicing. The treatment process is easily upset
causing discharge of solids to the disposal field. House-
hold aerobic treatment units are considerably more expen-
sive to install and operate than the septic tank.
Excerpted from Small Scale Waste Management Project, "On
Site Waste Water Disposal for Homes in Unsewered Areas"
(Sept. 1973).
For other descriptions and evaluations of aerobic units, see
Goldstein and Moberg, supra note 5, at 150; R. Otis and W. Boyle,
"Performance of Single Household Treatment Units," 102 J. Am. Soc'y
Civ. Engineers (Envt'l Engineering Division) 175-89 (Feb. 1976);
R. Otis, "The Performance of Septic Tanks and Aerobic Treatment
Units Under Field Conditions," in 4 Rancor, supra note 6; J. Bailey
et al., A Study of Flow Reduction and Treatment of Waste Water From
Households 37-38, 48, 99 (1969); and National Research Council,
National Academy of Sciences, Report on Individual Household Aerobic
Sewage Treatment Systems (Pub. No. 386, Feb. 1958).
A nonconventional, community wastewater disposal demonstration project
involving aerobic systems in Boyd County, Kentucky is discussed infra
note 58 and accompanying text.
B. Alternative Soil Absorption Systems
1. Dual Bed System
The dual bed system is composed of two seepage beds, each one large
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V-FN-8
enough to accept the effluent produced< This will mean, of course,
that twice as much of the house lot as usual will have to be set
aside for the onsite disposal system. This may require an increase
in minimum lot size.
Loading is periodically shifted from one seepage bed to the other to
allow decomposition by oxidation of clogging compounds that accumulated
in the "resting" seepage bed during the previous loading cycle. See
J. Bouma, "Use of Soil for Disposal and Treatment of Septic Tank
Effluent," in Jewell and Swan, supra note 3.
2. Dosing Systems
Conventional seepage beds receiving septic tank
effluent usually have a crusted or clogged layer
where infiltration occurs at the bottom and side-
walls. The traditional mechanism of intermittent
gravity flow by which effluent is applied to the
seepage bed enhances progressive crust formation
starting near the point of inlet and proceeding
until the total bottom area of the bed and some of
the sidewalls are crusted. The 4-inch pipe with
many perforations distributes effluent poorly, by
depositing the effluent through the first holes in
the pipe. The soil underlying the bed at that
point receives a high load of effluent. Crust
formation occurs because of bacterial action in
the soil and an accumulation of solids on top of
the infiltrative surface. As the clogging develops,
the whole bed is crusted as the septic tank effluent
must move farther and farther into the seepage bed
to reach uncrusted soil .... Crusting can be
controlled by applying the effluent intermittently
and evenly over the seepage bed area. This proce-
dure uses the soil more effectively than the
traditional system. The effluent can be evenly
distributed by pumping through small diameter pipes
with relatively small holes ....
Excerpted from Small Scale Waste Management Project,
On Site Waste Water Disposal for Homes in Unsewered
Areas 11, 13 (Sept. 1973).
3. Above Ground Mounds for the Disposal of Effluent
Alternative systems have been developed which will
overcome some site limitations of the conventional
septic tank systems. They are mounds or fills which
provide satisfactory disposal of wastewater in some
slowly permeable soils, some shallow permeable soils
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V-FN-9
over creviced or porous bedrock, or some soils with
high groundwater.
The alternate systems overcome these limitations
by raising the absorption system of the conventional
system above the natural soil. Clean, medium sand is
mounded over the original topsoil and the seepage
trench or bed is constructed within .... The mounded
design improves infiltration of the septic tank waste
into the natural soil and the sand fill insures purifi-
cation is achieved before the waste reaches the ground-
water. The pumping chamber is an additional component
of the mound or fill system which most conventional
systems don't need. The septic tank is the same for
both. Costs of construction range from $3000 to $6000
as compared to $1500 for a conventional septic tank
system.
Excerpted from J. Converse and R. Otis, The Mound or
Fill System for On-Site Wastewater Disposal for Rural
Homes in Wisconsin (available from the SSWMP, supra
note 30).
See also Goldstein and Moberg, supra note 3, at 57-58. Goldstein
reproduces the design standards for mound systems established by
the Monroe County, New York Department of Health.
C. Left out of the above list because of their rare use are the
following systems:
1. Evapotranspiration Systems
These systems, of which the major champion is A. P. Bernhart of the
University of Toronto, depend on combining the process of evaporation
with that of transpirationthe movement of water from the soil
through plants and thence into the air. Bernhart recommends them
for areas in which infiltration of wastewater is limited because of
tight soils or where infiltration should be discouraged, as where
the percolation rate is very fast or where there is a high ground-
water table. In the latter two cases, infiltration is to be prevented
by a plastic sheet covering the bottom and sides of an evapotranspira-
tion bed. The bed is shallow and transpiration is accomplished by
planting it with shrubs and other plants. See A. Bernhart, Treat-
ment and Disposal of Waste Water from Homes by Soil Infiltration and
Evapo-transpiration (1973). Kreissl is of the opinion that evapo-
transpiration beds are of "questionable applicability ... to the
majority of the rural population of the U.S." (presumably because of
climatic and growing season limitations) and suggests that EPA-
sponsored research now underway at the University of Colorado looking
into the use of mechanical evaporation devices offers "potential for
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V-FN-10
much wider applicability." "Rural Wastewater Research," supra note 5,
at 154.
2. Composting Systems
These systems, of which the best known is the Swedish Clivus-Multrum,
have been developed on the premise that "the logical and most effective
way to decrease water pollution from households is to develop and use
technologies that elimate water transports . . . ." Clivus-Multrum
accomplishes this by keeping the heavy pollutantsthe toilet and food
wastesout of the household wastewater. The solid wastes are turned
into soil through a gradual composting process, and the bathwater,
laundry water, etc. is disposed of through a subsurface infiltration
system. C. Lindstrom, "The Clivus-Multrum System: Composting of
Toilet Waste, Food Waste, and Sludge Within the Household," in Jewell
and Swan, supra note 3, at 429.
3. Decreasing Volume of Water Transport
Another alternative, of course, is to decrease the volume of water
transport as with water-saving faucets, showerheads, and toilets;
recycle toilets; and reuse of waste washwaters. The pros and cons
of these and other water-saving devices are discussed in J. Bailey et
al., A Study of Flow Reduction and Treatment of Waste Water from
Households, supra this note, discussion of aerobic systems, part A.
42, J. Kusler, Regulations for Disposal of Rural Domestic Liquid Wastes
in Wisconsin, A Review (Nov. 1971). Kusler sent out a questionnaire
to all 50 states and received replies from 34. Of those only a few
had special standards for innovative systems, as follows: Alaska
(special guidelines for waste disposal in cold areas); Delaware
(requires aerobic treatment units plus chlorination in areas of high
groundwater); Indiana (special provisions for reservoir areas and
aeration-type sewage treatment systems); Pennsylvania (special stan-
dards for aerobic systemssee infra for update); Missouri (substitu-
tion of aerobic sewage treatment plants for septic tanks permitted,
but effluent must not be discharged into lakes or streams).
43. New York State Dep't of Health, "Waste Treatment HandbookIndividual
Household Systems," which the New York State Code of Rules and Regula-
tions, 10 NYCRR 75.5, identifies as the basis for individual sewage
disposal systems standards, at 27.
44. Pennsylvania Sewage Facilities Act, supra note 17, § 750.09.
45. Pennsylvania Regulations, supra note 35, ch. 73, §§ 73.41-73.47. In
common with other states (Maine, for example), Pennsylvania only
allows aerobic sewage treatment tanks which have been tested and ap-
proved by the National Sanitation Foundation and therefore bear its
seal.
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V-FN-11
46. Id. §§ 73.101-73.141. These regulatory standards are fleshed out
and illustrated in a booklet prepared for the Department of Environ-
mental Resources by the Pennsylvania State University College of
Agriculture, Cooperative Extension Service, entitled "Alternative
Methods of Effluent Disposal for On-Lot Home Sewage Systems."
47. Id. at appendix A.
48. See infra note 127 and accompanying text.
49. Pennsylvania Regulations, supra note 35, ch. 73, § 73.3.
50. Maine Regulations, supra note 34, cb. 9 and appendix I.
51. Id. § 10.3.
52. Still another community sewage disposal system is the sewage lagoon
"a shallow lake used to hold sewage for the time required for bacterial
decomposition." Goldstein and Moberg, supra note 3, at 26 ff- The
lagoon may be mechanically aerated to hasten decomposition. Sometimes,
the residual waste is applied to the land through spray irrigation.
See the first section of Jewell and Swan, _sujmi note 3, on "Land
Treatment of Wastewaters," and references cited therein; and S. Zimmerman
and M. Morgan, Toward a Model State Program for Rural Water-Sewer
Development 50 (1975). Maine is an example of a state whose regula-
tions provide for sewage lagoons and spray irrigationsee Maine
Regulations, supjrji note 34, § 10.1.
53. Kusler, supra note 42, at 6-11. R. Otis and D. Stewart, "Alternate
Wastewater Facilities for Small Unsewered Communities in Rural
America" (July 1976) (available from SSWMP, supra note 30).
54. Kreissl, private communication, supra note 39.
55. Otis and Stewart, supra note 53, at 8-9.
56. IcL at 29-48.
57. For a description of aerobic treatment systems, see supra note 41,
section A.
58. An extensive description of the Boyd County, Kentucky demonstration
project was inserted by Senator Jennings Randolph into the Congres-
sional Record of October 26, 1976 beginning at S 18160. In addition,
a paper by Larry Waldorf of the Appalachian Regional Commission, the
sponsoring organization, will appear in the soon-to-be-published
proceedings of the Third Annual Conference of the National Sanitation
Foundation, Ann Arbor, Michigan.
59. See letter from John Rhett, Deputy Assistant Administrator for Water
Programs, U.S. EPA to regional administrators (Aug. 18, 1976).
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V-FN-12
60. As of this writing, the policy was in draft form, awaiting final
approval. A preliminary policy statement is contained in Russell
E. Train's letter to Senator Jennings Randolph dated April 9, 1976,
reprinted in the October 26, 1976 Congressional Record, supra note
58.
61. See suggested readings.
62. Two reports done for the U.S. EPA, Office of Research and Monitoring:
see I. Carcich eit. al., A Pressure Sewer System Demonstration (Nov. 1972);
and G. Mekosh and D. Ramos, Pressure Sewer Demonstration at the
Borough of Phoenixville, Pennsylvania (July 1973).
63. Kreissl, supra note 5; and Kreissl, Status of Pressure Sewer Tech-
nology (in press).
64. Kusler, supra note 42, at 31.
65. Connecticut Draft Regulations, supra note 37, at § 25.541-5.0(e)(1)(B) :
"Each residential building shall be served by a separate sub-surface
sewage disposal system and each such system shall be located on the
same lot as the building served unless approved as a public sewerage
system by the Commissioner [of the Department of Environmental Pro-
tection! ."
66. Zimmerman and Morgan, supra note 52, at 47-51. The authors also note
that many states prohibit the use of waste stabilization ponds through
their standards.
67. _Id. at 50.
68. Maine Regulations, supra note 34, at § 313. _S_ee_ also Missouri Clean
Water Commission, Regulation for the Disposal of Wastewater in Sub-
divisions § 3.01(c) (June 27, 1975), which allows systems in sub-
divisions other than "centralized sewage collection and treatment
systems" under certain conditions, including one "that the effluent
shall be contained on the [individualj .ot."
69. Maine Regulations, supra note 34.
70. Maryland Regulations, supra note 15, § 10.03.28.04(6) (1) .
71. Santa Cruz County Code part 11, "Septic Tank Maintenance District,"
infra note 142.
72. The theory behind such systems is explained supra note 41, in the
discussion of innovative systems. See Fairfax County Code §§ 22-42,
22-44.1, 22-46, and 22-48 as amended. See also Goldstein and Moberg,
supra note 3, at 51; and J. Winneberger, "The Principle of Alterna-
tion of Subsurface Wastewater Disposal Fields," in 5 Hancor, supra
note 6 (Jan. 1976).
73. Telephone interview with Fairfax County Sanitarian (Aug. 5, 1976).
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V-FN-13
74. R. Martin, "Subsurface Disposal Methods," in Second National Conference
on Individual Onsite Wastewater Systems 50 (1975).
75. See note 139 infra.
76. See P. Pate, "Adequacy and Uniformity of Regulations for Onsite
Wastewater Disposal'Local Concern'," in Second National Conference
on Individual Onsite Wastewater Systems 135 (1975). Mr. Pate points
out the pitfalls of prescribing hard and fast standards at the state
level of generality.
77- See supra notes 27-37 and accompanying text.
78. Pilot Control Program, Vermont Agency of Environmental Conservation,
Phase I and Analytic Report 7-12, 26-30 (1976) (EPA Contract No.
68-01-3183; W. Siok, Division of Environmental Engineering, project
director; B. Hague, EPA Region I [Boston], contract officer).
79. Id. at 33.
80. In Vermont, 14 Natural Resources Conservation Districts are the
successors to the original Soil Conservation Districts.
81. B. Stryker and W. Steele, "Community Management of Individual Home
Sewage Disposal Systems Through District Specialist Program" (Jan.
1976). This paper forms appendix H to the Vermont study referenced
supra note 78.
82. Id..
83. Pennsylvania Sewage Facilities Act, supra note 17, § 750.8 as amended.
Sewage Enforcement (Jtticers must pass a written exam before being certified
by the Pennsylvania Environmental Quality Board. The Department of
Natural Resources conducts training courses for SEO's. Most of the
information about the Pennsylvania program imparted here is derived
from an excellent handbook entitled "Technical Manual for Sewage
Enforcement Officers: prepared by the Division of Community Environmental
Services, Bureau of Community Environmental Control, Pennsylvania Department
of Environmental Resources (P.O. Box 2063, Harrisburg, Pa. 17120).
84. Pa. Dep't of Environmental Resources, "Administration of Sewage
Facilities Program," ch. 71, § 71.41 et s&±. [hereinafter cited
as Pennsylvania Regulations]. Section 71.48 provides:
When the inspection reveals that the installation of
the system, water supply location or the underlying
soil or geologic conditions differ from those stated
in the application, the permit shall be revoked and
no further construction of either the system or the
building for which it is intended may take place
until the permit has been reinstated.
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V-FN-14
85. Id. § 71.63.
86. Pennsylvania Sewage Facilities Act, supra note 17, § 750.8.
87. Maine Regulations, supra note 34, § 4.1.
88. Id. §§ 2.4, 2.7.
89. Vermont, EPA report, supra note 67, at 52. A new bill now being
proposed for Licensing of Septic Tank Installers and Servicers is
reproduced in Appendix L to that report.
90. Wisconsin certifies master plumbers and requires that onsite systems
be installed by or under the supervision of a master plumber. Wis.
Stat. Ann. § 145.06 (West). Since over half of the states already
license plumbers, this might be one easily accessible approach to
regulation of onsite disposal system installation. Telephone inter-
view with David E. Stewart, Dane County Regional Planning Commission
and Wisconsin Small Scale Waste Management Program (supra note 30)
(Dec. 11, 1976).
91. .See, for example, Fairfax County, Virginia, County Code § 22-39.
92. Telephone interview with David E. Stewart, supra note 90. See
Wis. Admin. Code § H62-20 (effective July 1976).
93. The septic system regulations of Santa Cruz County, referenced infra
note 142, include such a requirement.
94. Division of Health Engineering, Maine Dep't of Health and Welfare
(State House, Augusta, Maine 04330), "Septic Tank Maintenance."
95. Fairfax County, Virginia is an example of a locality that does this.
County officials there distribute the booklets to the contractors and
have no way of knowing whether they are passed on to the individual
homeowners, however. One would think that the assistance of licensed
septage pumpers might be procured in an attempt to reach homeowners
served by onsite wastewater systems directly.
96. D. Stewart, "Legal and Economic Considerations of On-Site Sewerage
Systems" (available through SSWMP, supra note 30). See also D.
Stewart, "Regulatory Methods to Assure the Maintenance of On-Site
Sewerage Disposal Systems" (1976) (available through SSWMP, supra
note 30).
97. Telephone interview with David E. Stewart, supra note 90. Apparently
one means Ohio has used to check up on whether required maintenance
contracts are being renewed is to have the maintenance companies
send the county notice of nonrenewals.
98. Kreissl, supra note 5, at 145.
99. W. Jewell, J. Howley, and D. Perrin, "Treatability of Septic Tank
Sludge," in Jewell and Swan, supra note 3, at 445.
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V-FN-15
100. Id. at 474. See also Kreissl, supra note 5, at 154.
101. Rhett letter to regional administrators, supra, note 59. See al_so
New England Interstate Water Pollution Control Commission, Draft
Guidelines for Septage Handling and Disposal (Dec. 1975). For a
description of one method which has been used successfully to
treat septage alone, see W. Feige, E. Oppalt, and J. Kreissl, An
Alternative Septage Treatment Method: Lime Stabilization/Sand
Bed Dewatering (Sept. 1975) (U.S. EPA Environmental Protection
Technology Series Report No. EPA 600/2-75-036).
102. Vermont Report, supra note 78, at 59-64 and part II, 14.
103. Life Sciences and Agriculture Experiment Station, Cooperative Ex-
tension Service of the University of Maine and the Maine Soil and
Water Conservation Comm. , Misc. Report 155 (April ]974).
104 ±L££. note 101 supra.
105. Fairfax County Code § 22-52.
106. See note 101 supra.
107. Md. State Dep't of Health and Mental Hygiene Draft Regulation No,
10.03.27 ("Regulations Governing Water Supply and Sewage Disposal
Systems for Homes and Other Establishments in the Counties of
Maryland Where On-Site Systems are Utilized"), § .07(A)(7), supra
note 15.
108. Connecticut Draft Regulations, supra note 37, § 25-54i-6.0a(3).
109. Id.
110. Vermont Report, supra note 78, at 53.
111. JLd. at part II, 14.
112. Mont. Rev. Codes Ann. § 69-5003.
113. Maine Regulations, supra note 33, § 2.7.
114. Statement of Michael Hansel, Minnesota Pollution Control Agency,
in Second National Conference on Individual Onsite Wastewater
Systems 37 (1975) (National Sanitation Foundation, Ann Arbor,
Michigan).
115. Stewart, supra note 96, at 12.
116. See regulations cited infra note 142.
117. Fairfax County Code §§ 22-39.
118. J. Kusler and R. Owen, Lake Property Sanitation Surveys (1972).
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V-FN-16
119. Stewart, supra note 96, at 10; and Md. Nat. Res. Code Ann. § 1-205.
120. Maine: Division of Health Engineering, Dep't of Health and Welfare,
"Enforcement Packet: Procedures for Correcting Plumbing Violations1'
(final review draft prepared by Alan S. Polackwich). Pennsylvania:
Dep't of Environmental Resources, "Technical Manual for Sewage En-
forcement Officers"; -and supra note 83.
121. See J. Patterson, R. Minear and T. Nedved, Septic Tanks and the
Environment (1971) for a breakdown as of 1971.
122. Id.
123. Thus Maine, for example, requires written approval from the state
Department of Health and Welfare before the local plumbing inspector
may issue a permit for a system designed to treat 2,000 or more GPD
(State Plumbing Code part II, § 2.3(b)(8)). In Pennsylvania, state
approval is required for alternative and experimental systems (Dep't
of Environmental Resources, Rules and Regulations ch. 71) and for
systems serving institutions, mobile home parks, restaurants, motels,
other facilities for public use, etc. (See "Technical Manual for
Sewage Enforcement Officers," supjra note 83, at IV-3.)
124. See, _§_.£., Wis. Admin. Code ch. 865.
125. J. Zilber, "Survey of Attitudes of County Sanitarians," Appendix J
to SSWMP Progress Report, Oct. 1 - Dec. 31, 1972 (available through
SSWMP, supra note 30).
126. Stewart, supra note 96, at 9.
127. Pennsylvania Sewage Facilities Act, supra note 17, §§ 750.08(a),
750.09, and 750.10; and Dep't of Environmental Resources, Rules
and Regulations ch. 71 ("Administration of Sewage Facilities
Program").
128. Connecticut Draft Regulations, supra note 37.
129. Under the proposed Connecticut system, the state would certify
sanitarians to assure their competence in onsite wastewater disposal.
State-certified sanitarians will be employed by towns, by multi-town
health districts, and by the state. The construction industry sup-
ports this program because the inspectors will have expertise they
have often lacked in the past and because availability of local in-
spectors will reduce delays. See W. Jakubowski, R. May et^ al^. , "Field
Experiences With On-Site Sewage Disposal Systems," at 8-9 (June 1976).
130. Id.
131. See Conn. Gen. Stat. Ann. § 25-54b (West) and, for an example of
another law giving a water pollution control agency permitting
authority over groundwater, Mass. Gen. Laws Ann. ch. 21, § 26A (West).
-------
V-FN-17
132. Minn. Stat. Ann. § 105.485 et seq. (West); and se_e statement of
Michael Hansel, supra note 114, at 37.
133. See F. Bosselman, D. Feurer and C. Siemon, The Permit Explosion:
Coordination of the Proliferation (1977).
134. See reference to Fairfax County in section 3.5 supra; and see^
Winneberger and Anderman, supra note 24, at 13.
135. See Commission on Rural Water, Guide to State and Federal Policies
and Practices in Rural Water-Sewer Development 16-29 (1974) for an
evaluation of the relative merits of these different institutional
approaches.
136. Everything in the outline in the text except for l(d) and (e) and
4(a)-(h) is taken directly from Winneberger and Anderman, supra
note 24, at 11. The responsibilities listed in l(d) and (e) were
suggested by Wade Rose, infra note 143.
137. The enumeration of necessary powers reproduced in the outline in the
text as subsections 4(a)-(h) is taken directly from R. Otis and I).
Stewart, supra note 53, at 11-13. The authors list six powers; the
list in the text subdivides those same six powers into ei«ht,
138. S. Zimmerman and M. Morgan, Toward a Model State Program for Rural
Water-Sewer Development ch. 4, at 61 ff. (1.915).
139. The information on the Georgetown Divide Public Utility District was
derived principally from a compilation of materials entitled "Septic
Tank Maintenance District Implementation" developed by the El Dorado
County Health Department, the El Dorado Irrigation District, and the
Georgetown Divide Public Utility District (Jan. 3, 1972). These
materials contain sample resolutions, ordinances, regulations, agree-
ments, monitoring programs, etc. needed to form and administer such
a district. For this and other general information, cor. tact the
Georgetown Divide Public Utility District, P.O. Box 338, Georgetown,
California. See also Winneberger and Anderman, supjra note 24, at
12-17.
140. Id., included in "Septic Tank Maintenance District Implementation."
141. Santa Cruz County Code § 11.74.200 (recodifled 1975).
142. Id. part 11 ("Regulations for Septic Tank Maintenance Districts").
(All the information referred to in the text can be obtained from
the Santa Cruz County Health Services Agency, 701 Ocean Street,
Room 400, Santa Cruz, California 95060).
143. For information on this study, contact Wade Rose, California State
Department of Health, 2151 Berkeley Way, Room 800, Berkeley, Cali-
fornia 94704.
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V-FN-18
144. State of Washington, Health Services Division, Office of Environ-
mental Health Programs, Dep't of Social and Health Services (Mail
Stop 4-1, Olympia, Washington 98504), "Rules and Regulations of
the State Board of Health on On-Site Sewage Disposal Systeirs."
WAC 248-96-070, subsec. (1).
145. These guidelines were still in draft form at the time of this
writing. They are obtainable from the address in note 144 supra.
146. An example of enabling authority giving such powers to a locality
may be found in the proposed legislation for Stinson Beach, Cali-
fornia noted infra note 147.
147. Such a provision may be found in proposed enabling legislation for
the Stinson Beach, California, County Water District, legislation
which would give that locality a broad range of management and pol-
lution control and water conservation powers. Cal. Senate Bill
1902, Stinson County Water District (Sen. Peter H. Behr, California
Legislature, State Capitol, Sacramento, California 95814).
148. See 56 Am. Jur.2d Municipal Corporations § 134 and cases cited,
especially State ex rel. Southard v. Van Wert, 126 Ohio St. 78,
184 N.E. 12 (1932). See also chapter 2, section 2.5.
149. See note 121 supra.
150. EI..S.. , requirements that a site be approved for sewage disposal be-
fore subdivision approval or a building permit is granted.
151. 142 Conn. 580, 115 A.2d 653 (1955).
152. Ld. at 654.
153. 152 Conn. 550, 210 A.2d 172 (1965).
154. Ld. at 173.
155. State ex rel. Mar-Well, Inc. v. Dodge, 113 Ohio App. 118, 177 N.E.2d
515, 518 (1960) (43,500 sq. ft. minimum lot size justified where area
"due to type of soil conditions, has poor leaching ability to absorb
the water being discharged from septic tanks"); Bogert v. Washington
Twp., 25 N.J. 57, 135 A.2d 1 (1957) (one-acre zoning justified, in
part, because of steep slope and probable sewage dissemination and
runoff problems); State v. Iowa Falls, 247 Iowa 558, 74 N.W.2d 594
(1956) (municipal septic tank ordinance [not zoning ordinance] allow-
ing septic systems only on lots 17,404 sq. ft. or larger and only
when further than 300 feet from sanitary sewers held reasonable
regulation); Salamar Builders Corp. v. Tuttle, 29 N.Y.2d 221, 325
N.Y.S.2d 933, 938 (1971) (rezoning of area from 40,000 sq. ft.
minimum lot size zone to 60,000 sq. ft. zone, increasing lot cost
approximately $3,650 per lot, upheld in view of uncontradicted tes-
timony concerning "the prospect of water pollution from the inadequate
spacing of septic tanks in such rocky and hilly terrain . . .").
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V-FN-19
See also 2 N. Williams, Jr., American Land Planning Law § 38.16 (1974),
and lU.S. Water Resources Council, Regulation of Flood Hazard Areas
to Reduce Flood Losses 426-30 (1972). But compare National Land
Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965) and Appeal
of Kit-Mar Builders, Inc., 439 Pa. 466, 268 A.2d 765 (1970), two
Pennsylvania cases which held that sewerage problems could not ex-
cuse exclusionary zoning (zoning tending to discriminate on economic
grounds) where there were alternative methods for dealing with those
problems. At issue in National Land was a four-acre minimum lot
size; the alternate methods for dealing with the sewage problem in-
cluded local sanitary regulations, requiring a larger lot than the
permissible area if percolation tests showed rore land was needed,
and public sewering. The testimony as to the pollution hazard of
lots smaller than four acres was "vague and unconvincing" at best.
In Kit-Mar, which involved two and three-acre minima, the court
relied on its earlier reasoning in National Land, saying that the
same "alternative methods" were still available. These cases suggest,
as we have, that the way to avoid pollution problems from subsurface
wastewater disposal is to attack them directly through health regula-
tions and not indirectly through zoning restrictions. For more on the
Pennsylvania cases and on exclusionary zoning, see 2 N. Williams
§ 38.16 and ch. 65, J>up_ra_ this note, and 3 N. Williams ch. 66, id.
156. Appeals of Palumbo, 72 A.2d 789 (1950).
157. Ld. at 793.
158. 2 Envir. Rep. .Cases 1110 (Dec. 2, 1970).
159. Dreyfus v. Boone, 114 S.W. 718, 721 (Ark. 1908). See also McQuillin,
Municipal Corporations § 24.263 and citations therein. And see note
162 infra.
160. Ratchford v. City of Gastonia, 99 S.E. 21 (N.C. 1919).
161. City of Gulfport v. Shepperd, 77 So. 193 (Miss. 1918); see also
Dreyfus v. Boone, supra note 159, which struck down such an ordinance
not because of the monopoly created but because the contract was
awarded to the highest bidder,in order, the court inferred, to raise
revenue for the city.
162. See People v. Butcher, 209 N.Y.S.2d 723 (1960) (New York City Board
of Health had power to require defendant to connect his home to an
existing municipal sewer even though defendant's septic tank had not
yet become a nuisance because Board had power "to anticipate that
possible evil [and] legislate to prevent it." [id. at 726]);
Peoples Water Service v. Adkinson, 184 So.2d 707 (Fla. App. 1966)
(city had power to require all homeowners to connect to available
municipal sewerage system and to pay all sewerage fees, even owners,
like defendant, of cesspools "in good working order." "A city
sewerage system cannot effectively function upon a 'tic tac toe'
-------
V-FN-20
system, that is connect one dwelling, skip a dwelling, and connect
the next one. Where one septic tank'might not be injurious to a
neighbor, two septic tanks could well be injurious to the health of
the community." [id. at 709]); Nourse v. City of Russelville, 257
Ky. 525, 78 S.W.2d 761 (1935) ("The courts pretty generally hold
that a legislative body may declare privy vaults ... in thickly
settled communities to be nuisances and require their abatement
without challenging each one or giving the owner notice and an op-
portunity to show that it is not in fact a nuisance." [id. at 765]);
Spear v. Ward, 199 Ala. 105, 74 So. 27, 29 (1917); Fenton v. Atlantic
City, 90 N.J.L. 403, 103 A. 695 (1917). See also McQuillin, Municipal
Corporations § 24.264 and cases cited therein. All the afore-cited
cases are also good authority, arguably, for general maintenance and
inspection requirements and charges being valid exercises of govern-
mental power to anticipate future nuisances as well as abate existing
ones.
163. A requirement to abandon an existing functioning individual septic
system and tie into an abutting sewer has been found not to be an
unreasonable hardship. People v. Butcher, supra note 162 (first
case), at 727-28. One might anticipate a different result if the
homeowner were required, in addition, to pay for a sewer extension.
164. See note 144 supra.
165. See Cypress Estates, Inc. v. Moore, 273 N.Y.S.2d 509 (Sp. Ct. Suff.
County 1966).
166. See Beck v. Wisconsin Dep't of Health and Social Services (Dane County,
Wis. Cir. Ct., filed Feb. 12, 1976), digested in 6 ELR 65332 (June 1976)
-------
CHAPTER FIVE
ONSITE WASTEWATER DISPOSAL SYSTEMS
SUGGESTED READINGS
Alford, M.R., and Hudson, J.H. "On-Site Wastewater Disposal." In
Improving Environmental Quality Through the Use of Local Ordi-
nances ' and Regulations . Cambridge, Mass.: Urban Systems Re-
search & Engineering, Inc., Sept. 1976 final draft. (prepared
for the Office of Research & Development, U.S. EPA, Contract No.
68-01-3231)
Anderman, W.H. "Economic Feasibility of Rural Sewage Management."
Paper presented at the 1975 Annual Conference of the National
Environmental Health Association. Mimeographed.
Bailey, J. et al. A Study of Flow Reduction and Treatment of Waste
Water from Households. Washington, D.C.; Federal Water Quality
Administration, Dep't of the Interior, 1969.
Bernhart, A. P. Treatment and Disposal of Wast e^Wa^er^ from Homes by
Soil Infiltration and Evapo-transpiration. Vol. 1, 2d ed.
Toronto: University of Toronto Press, 1973.
Bosselman, F. ; Feurer, D. ; and Siemon, C. The Permit Explosion :
Coordination of the Proliferation. Washington, B.C.: Urban
Land Institute, 1977.
Bouma,J. "Unsaturated Flow Phenomena During Subsurface Disposal of
Septic Tank Effluent." Journal of the American Society of Civil
Engineers (Envt'l Engineering Division) 101 (1975): 967-83.
_ . "Evaluation of the Field Percolation Test and an Alternative
Procedure to Test Soil Potential for Disposal of Septic Tank
Effluent." Soil Society of America Proce£dings 35 (1971):
871-75.
Carcich, I. et al. A Pressure Sewer System Demonstration. Washington,
D.C.: U.S. EPA, Office of Research and Monitoring, Nov. 1972.
(EPA-R2-72-091)
Commission on Rural Water. Guide to State and Federal Policies and
Practices in Rural Water-Sewer Development. Washington, D.C.,
1974.
Converse, J.C., and Otis, R.J. "The Mound or Fill System for On-Site
Wastewater Disposal for Rural Homes in Wisconsin." Madison:
University of Wisconsin, (available from Small Scale Waste Man-
agement Project, address below)
-------
V-SR-2
Goldstein, S. "Community Sewerage Systems vs. On-Site Sewage Treat-
ment Systems." In On-Site Waste Management, vol. 1. Findlay,
Ohio: Hancor, Inc., 1973.
Goldstein, S., and Moberg, W. Wastewater Treatment Systems^for
Rural Communities. Washington, D.C.: Commission on Rural
Water, 1973.
Harkin, John M. et al. "Causes and Remedy of Failure of Septic Tank
Seepage Systems." In Second National Conference on Individual
Onsite Wastewater Systems. Ann Arbor, Mich.: National Sanita-
tion Foundation, 1975.
Jakubowski, W. et al. "Field Experiences With On-Site Sewage Dis-
posal Systems." Paper presented at the American Society of
Agricultural Engineers Conference, summer 1976, in Lincoln,
Nebraska. Mimeographed.
Jewell, W., and Swan, R., eds. Water Pollution Control in Low Density
Areas. Hanover, N.H.: University Press of New England, 1975.
Kreissl, J.F. "Rural Wastewater Research." In Second National Con-
ference on Individual Onsite Wastewater Systems. Ann Arbor,
Mich.: National Sanitation Foundation, 1975.
Kusler, J. Regulations for Disposal of Rural Domestic^ Liquid Wastes
in Wisconsin, A Review. An Inland Lake Renewal and Shoreland
Demonstration Project Report. Madison, Wis.: University of
Wisconsin, Nov. 1971.
Kusler, J., and Owen, Robert. Lake Property Sanitary Surveys. An
Inland Lake Renewal and Shoreland Management Demonstration Project
Report. Madison, Wis.: University of Wisconsin, 1972.
Martin, Richard M. "Subsurface Disposal Methods." In Second National
Conference on Individual Onsite Wastewater Systems. Ann Arbor,
Mich.: National Sanitation Foundation, 1975.
Martin, T.E. "Septic Tank Systems: The Need for Research." In On-
Site Waste Management, vol. 1. Findlay, Ohio: Hancor, Inc., 1973.
McGauhey, P.H., and Winneberger, J.T. A Study of Methods of Preventing
Failure of Septic-Tank Percolation Systems. Washington, D.C.: U.S.
Dep't of Housing and Urban Development, Oct. 1967.
Mekosh, G., and Ramos, D. Pressure Sewer Demonstration at the Borough
of Phoenixville, Pennsylvania. Washington, D.C.: U.S. EPA, Office
of Research and Monitoring, July 1973. (EPA-R2-73-270)
National Research Council, National Academy of Sciences. Report on
Individual Household Aerobic Sewage Treatment Systems^. Publica-
tion No. 386, Feb. 1958.
-------
V-SR-3
'Otis, R.J., and Boyle, W.C. "Performance of Single Household
Treatment Units." Journal of the American Society of Civil
Engineers (Envt'l Engineering Division) 102 (1976): 175-89.
Otis, R., and Stewart, D. "Alternative Wastewater Facilities for
Small Unsewered Communities in Rural America." Madison, Wis.:
University of Wisconsin, July 1976. (available from Small
Scale Waste Management Project, address below)
Pate, Paul. "Adequacy and Uniformity of Regulations for Onsite
Waste-Water Disposal'Local Concern'." In Second National
Conference on Individual Onsite Wastewater Systems. Ann Arbor,
Mich.: National Sanitation Foundation, 1976.
Patterson, J.W. ; Minear, R.A.,; and Nedved, T.K. Septic Tanks and
the Environment. Chicago: Illinois Institute for Environmental
Quality, June 1971. (NTIS PB-204 519)
Plews, G. "The Adequacy and Uniformity of Regulations for Onsite
Wastewater Disposal: A State Viewpoint." In S e c ond_N_ati on a 1
Conference on Individual Onsite Wastewater Systems. Ann Arbor,
Mich.: National Sanitation Foundation, 1975.
Quigley, J.T.; Otis, R.J.; and Tyler, E.J. "On-Site Wastewater
Disposal for Low Density Housing." Environmental_Comment (Urban
Land Institute), April 1976, p. 9.
Reilly, William K., ed. The Use of Land: A Citizen's_Policy Guide
to Urban Growth. New York: Thomas V. Crowell Co., 1973.
Small Scale Waste Management Project. "On-Site Disposal of Small
Wastewater Flows." Madison, Wis.: University of Wisconsin-
(available from Small Scale Waste Management Project, 1 Agri-
culture Hall, University of Wisconsin, Madison, Wisconsin 53706).
. "On-Site Waste Water Disposal for Homes in Unsewered Areas."
Madison, Wis.: University of Wisconsin, Sept. 1973. (available
from Small Scale Waste Management Project, address above)
Stewart, David E. "Legal and Economic Considerations of On-Site
Sewerage Systems." Madison, Wis.: University of Wisconsin.
(available from Small Scale Waste Management Project, address
above)
__ . "Regulatory Methods to Assure the Maintenance of On-Site Sew-
erage Disposal Systems." Paper presented at the American Society
of Agricultural Engineers Conference, summer 1976, in Lincoln,
Nebraska. (available from Small Scale Waste Management Project,
address above)
Stryker, B., and Steele, W. "Community Management of Individual
Home Sewage Disposal Systems Through District Specialist Program."
Paper presented at the 1976 Ohio Conference on Home Water Supply
-------
V-SR-4
and Sewage Disposal, Jan. 1976. Mimeographed. (see footnotes
81 and 78 in the text)
U.S. Water Resources Council. Regulation of Flood Hazard Areas to
Reduce Flood Losses, vol. 1. Washington, D.C.: Government
Printing Office, 1972.
Winneberger, J.T. "The Principle of Alternation of Subsurface Waste-
water Disposal Fields." In On-Site Waste Management, vol. 5.
Findlay, Ohio: Hancor, Inc., Jan. 1976.
Winneberger, J.T., and Anderman, W.H. "Failure of the 'Engineering
Approach1 in Design of Septic-Tank Systems and the Development
of Septic-Tank Districts." Mimeographed, 1971. (available from
W.H. Anderman, Director, Environmental Health, Environmental
Resource Agency, County of Ventura, 625 East Santa Clara Street,
Ventura, California 93001)
Zimmerman, S., and Morgan, M. Toward A Model State Program for Rural
Water-Sewer Development. Washington, D.C.: Commission on Rural
Water, 1975.
-------
CHAPTER SIX
MANAGEMENT OF STORMWATER AS A NONPOINT SOURCE IN
URBAN AND URBANIZING AREAS
TABLE OF CONTENTS
1.0 Introduction VI-1
2.0 Overall Planning; Defining the Problem and Selecting
Solutions VI-3
2.1 The BMP Concept VI-3
2.2 Data Collection and Analysis VI-4
2. 3 Technical Approaches to Stormwater Management VI-8
2.3.1. Solutions for Developing Areas VI-9
2.3.2 Solutions for Developed Areas VI-14
3.0 Institutional Framework: Government Level and
Agency Type VI-16
3.1 Federal Government VI-16
3.2 State Government and State-Local Relationships VI-20
3.3 Substate Agencies VI-24
3.3.1 Areawide Planning Agencies, Special
Purpose Districts, and Authorities VI-24
3.3.2 Local Governments ...VI-26
3.3.3 Private Sector VI-28
4.0 Formulation of Standards VI-30
4.1 Varieties of Standard VI-30
4.2 Expression of Standards - The Regulatory
Framework VI-37
5.0 Implement at ion and Enforcement. . VI-39
5.1 Compliance Monitoring During Development VI-40
5.2 Enforcement of Maintenance Obligations VI-43
6.0 Legal Issues VI-46
7.0 Effectiveness of Existing Stormwater Management
Programs VI-49
Footnotes
Suggested Readings
-------
CHAPTER SIX
MANAGEMENT OF STORMWATER AS A NONPOINT SOURCE IN
URBAN AND URBANIZING AREAS
1.0 Introduction
One major purpose of the 1972 amendments to the FWPCA is to impose
systematic controls on nonpoint sources of pollution within the frame-
work of water quality management progreims. Stormwater runoff is a major
nonpoint source. In urbanizing areas, where land-disturbing activities
are numerous, stormwater washes soil and sediment into surface waters,
causing increased levels of turbidity and eutrophication, threatening
fish and wildlife, and blocking drainage.' In developed areas, runoff
carries with it the pollutants from surfaces over which it runs,
including oil, litter, chemicals, nutrients and biological wastes,
together with soils eroded from the downstream channels of the flow.
Where both sanitary wastes and stormwater are carried in combined sewers,
their overflow grossly pollutes receiving water.
Water quality control need not always be the primary motivation for
controlling stormwater runoff. Regulations specifically addressing
runoff and erosion may well be developed in pursuit of other major
objectives, especially flood control and water conservation. Indeed,
state and local governments will frequently find that existing runoff
management plans yield unforeseen water quality benefits. Effective
flood prevention policies, for example, will also deter combined sewer
overflows in combined sewer areas, control erosion, and inhibit seepage
from septic tanks into receiving waterways. At the same time, the local
or regional planner must recognize that nonpoint source pollution is an
independent problem with its own defining characteristics. So, for
example, rainfalls of relatively short duration and low intensity
may result in highly polluted urban runoff without causing any appreciable
danger of flooding.' A flood control program will clearly fail to
reduce the pollution from rainfall events of this type.
Conventional, capital-intensive methods for dealing with stormwater have
been primarily concerned with collection and centralized treatment, often
in combination with systems for the treatment of sanitary wastes. In
that context, stormwater is a point source of pollution to be treated (if
at all) just before it enters a receiving waterway. Recently, however,
instead of sewering and treatment, measures integrated with a community's
system for land use management have been used effectively in some places
to control pollution from stormwater runoff.
In fact, agencies seeking to establish stormwater management programs may
now select from four distinct approaches to runoff control:
1. Direct regulation is most frequently employed, especially for
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control of erosion and sedimentation. Under this approach, developers
or subdividers are typically required to submit plans for minimizing
runoff from their sites through acceptable control practices, which may
be specified in regulations or in engineering guidelines. Or the
developer may have to present a plan that meets certain environmental
performance standards, limiting, e.g., the rate of runoff or erosion from
the developed site. In either case, the control plans must be approved
and .. {...s roit- EKIPV. be issued by a zoning or subdivision review agency
b . .". -1 -Vi"'] <">p;,<£:!. ca.,- i^r^ceed .
2. A second technique, often used in conjunction with direct
regulation, is public management of nonpoint source controls. A munici-
pal street-sweeping program, for example, will serve to reduce the
pollution level on surfaces over which stormwaters run. Or a local
government may construct and maintain stormwater retention facilities for
some part of a community.
3. A third alternative, also designed to check stormwater pollution
at an early, nonpoint phase, is to hold forth incentives of altered costs
or benefits for including retention and controlled release of stormwater
in development plans. For example, a developer might be permitted to
exceed normal zoning dens tries on some parts of his site if he dedicates
other parts as open space for stormwater retention. Or effluent charges
might be imposed on developments in proportion to the rates of runoff
from their sites.
4. Lastly, stormwater management agencies can fall back on the
technique of government subsidy for construction of public facilities to
collect and treat the polluted^_ranof_f. This fourth approach, of course,
looks on stormwater as just another point source, and hence lies largely
beyond the scope of the present chapter.
For the first three approaches identified above, state and local governments
are Increasingly recognizing that they can employ their traditional police
powers, especially over land use, to manage nonpoint sources of water
pollution. With respect to stormwater runoff, the most relevant if
these powers are the ones typically expressed in local ordinances on the
subjects of zoning and subdivision of property, construction, plumbing,
sewerage, drainage, and flood control.
Section 208 of the FWPCA places the responsibility for stormwater
management on states and on suitably designated substate agencies.
Consistently with its overall water quality objectives, the section 208
agency should develop a comprehensive plan for nonpoint source control, a
plan that represents a cost-effective mix of direct regulation, govern-
mental activity of a preventive nature, economic incentives to the
private sector, and outright government subsidy. This chapter will set
out in detail some critical factors that should influence an agency's
thinking in its choice of strategies and programs for controlling storm-
water runoff. It will be most instructive to focus on controlling runoff,
erosion, and sedimentation not primarily through major works of capital
improvement, but through preventive approaches that rely to a greater degree
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on land use planning and regulation. These may include, for example,
facilities for detaining rainwater in ponds, on roofs, or in parking
lots; permanent retention in reservoirs; debris and sedimentation basins
to reduce runoff velocities; contour or ridge diversions; grade stabili-
zation structures, permeable surfaces, and vegetative recovering. Legal
issues and institutional options in stormwater control will be studied
with the aid of specific examples which may also aid in evaluating the
relative strengths and weaknesses of various approaches.
2.0 Overall Planning: Defining the Problem and Selecting Solutions
Programs to prevent and control stormwater runoff should be based on
sound planning, which supplies the justification for regulating land
use at later stages. Stormwater management planning is the process by
which information on hydrology, soils, geology, and land use is collected
and analyzed, and conclusions are drawn about how best to inhibit
runoff and erosion damage from existing and future development. The
scope of such planning may be comprehensive or limited to a single
function, local or areawide.
Functional planning addresses a single category of resources (e.g., land,
water, air) or a single social objective such as flood control, water
quality control, or regulation of water supply. This restricted type of
planning permits a clear statement of objectives and a focused approach
to information gathering and regulatory control, but often misses
significant interrelationships with other environmental, economic, and
social considerations. Comprehensive or multifunctional planning, on
the other hand, integrates the protection of water quality with other
values and objectives and reconciles development with environmental
goals. Once prepared, the comprehensive plan (within which single-purpose
interests are reconciled) indicates what development patterns will
minimize stormwater runoff and serves as a framework for specific site
or project planning.
WhereVer possible, stormwater management should be approached on an
areawide basis, so that the drainage and pollution problems of an entire
watershed can be addressed at once. Runoff control on a site-by-site
basis leads to proliferation of small detention facilities which may be
dangerous in a heavy storm, inasmuch as stormwater is likely to be
released from them in greater total volume over a short space of time
than from a well-planned larger: facility. To the extent this is true,
it would follow that watershed detention facilities are more desirable,
except perhaps in the case of large-scale commercial or industrial
developments.
2.1 The BMP_Concept
To assist the section 208 agency in carrying out its planning function with
respect to nonpoint sources, EPA has developed the concept of Best
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Management Practice (BMP), as detailed in Supplement No. 1 to the
Guidelines for State and Areawide Water Quality Management Program
Development.^EPA's regulations and guidelines call upon states and
designated agencies to establish appropriate BMPs for controlling
water quality problems within their jurisdictions. Section 208 agencies
should find the BMP approach helpful in developing their stormwater
management programs,
A Best Management Practice is defined as follows:
't'he term Best Management Practice (BMP) means a practice, or
combination of practices, that is determined by a State
(or designated areawide planning agency) after problem
assessment, examination of alternative practices, and
appropriate public participation, to be the most effective,
practicable (including technological, economic, and
institutional considerations) means of preventing or
reducing the amount of pollution generated by nonpoint
sources to a level compatible with water quality goals.
In choosing the most suitable BMP, the agency should keep four key criteria
in mind:
1. a BMP should manage "pollution generated by nonpoint sources";
2. a BMP should achieve water quality "compatible with water
quality goals";
3. a BMP should be "most effective in preventing or reducing the
amount of pollution generated"; and
4. a BMP should be "practicable."
Very early in the planning stage, therefore, planning agencies should define
their overall water quality goals (which cannot be less stringent than
those prescribed in the state's federally approved water quality standards),
and determine which control devices will most effectively reduce pollution
from runoff and erosion to the desired level. In the course of this
exercise, the planning agency may well conclude that controls over the
generation of runoff at the source are the best way of avoiding conse-
quent erosion, sedimentation, transport of surface pollutants, or overload
of storm drainage systems. For example, in site planning for subdivisions,
BMPs may call for limiting the gradient of driveways and for using porous
materials as driveway surfaces.
2. 2 Data Collection and Analysijs
Essentially, the planning process for stormwater management attempts to
accommodate development consistently with protection of the water resource.
To accomplish this objective and to furnish guidance for future develop-
ment, it is necessary to gather data on both natural and manmade environ-
ments. For example, if a particular development is to occur on a site
which has erodable soils, project plans should call for appropriate
preventive measures, such as sediment basins, grading, seeding, and
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minimizing the duration of soil exposure. Access to an accurately
compiled data base gives a control program the confidence to require and
the capability of assessing preventive measures at the stage of site-
planning review in the zoning or subdivision process.
One widely accepted method of organizing the data needed for effective
stormwater management is to construct an environmental inventory; the
local or regional authority analyzes the key elements of its ecological
system and compiles comprehensive data on each element. At the core
of any such study are data concerning the area's physiography, climate,
geology, soils, hydrology, population, and expected land use.
A classic example of the environmental inventory approach to data
collection was the Ecological Planning Study commissioned by Medford
Township, New Jersey. Located east of Camden and Philadelphia, Medford
was threatened by the usual suburban sprawl that accompanies the growth
of a metropolitan area. In 1971 the township commissioned a comprehen-
sive study of the area's ecological system from the Center for Ecological
Research in Planning and Design of the University of Pennsylvania.
Proceeding from these data, Medford Township expected to develop a
system of rational land use regulations, providing for both ecological
and fiscal consequences of future land use.
In its report,' the center mapped the geology, topography, physio-
graphy, hydrology, soils, and vegetation of the township, identifying
areas of poor drainage, highly permeable soils, or susceptibility to
flooding. Water quality studies were conducted, and information on
water tables and groundwater availability was assembled. The report
traced a number of ecological interrelationships. It included wildlife
observations and climatological data, and identified areas of historic
significance.
Once the initial inventory phase was completed, the center undertook to
characterize particular natural areas or resources in terms of community
values. It identified, for example, areas "inherently hazardous to human
life and property" or made hazardous by specific human action; areas
containing "irreplaceably unique and scarce resources" or "vulnerable
resources" whose unwise use will "result in social costs"; areas of
"high productivity for extraction, agriculture or forestry"; areas
where "onsite costs for foundation, maintenance and water supply" would
be minimal; and areas of "maximum desirability" for location of various
kinds of activity. Standards for development were then established
with reference to flood and fire hazards; surface and groundwaters;
absorptive capacities of soils; historic, wildlife, and scenic resources;
physical contours; and runoff management. The study went on to identify
suitable areas for forest and farm production, recreation, and urbaniza-
tion.
The township is preparing an environmental master plan which will integrate
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the environmental inventory with data on transportation, population,
community facilities, commerce, and housing, and which will assist in
fashioning policies on location of future development. From the
standpoint of water quality, the significance of these planning exercises
is that they should serve, at the earliest possible stage, to prevent adverse
impacts on water resources by channeling development to minimize
runoff, erosion, sedimentation, and excessive demands on water supplies.
At the same time, they should protect the absorptive, purifying, and
retentive functions of critical water-related lands (aquifers, wetlands,
steep slopes, riparian, and wooded properties).
Completed at a cost of $150,000, the Medford Ecological Planning Study
may well be too expensive and sophisticated for most communities to
emulate in every detail, but the environmental inventory approach can
easily be tailored to fit more modest objectives as well. The number of
factors that can be studied and mapped in a natural resources inventory
may be virtually unlimited in theory, but only a few are indispensable
for identifying areas subject to major environmental disturbance. Thus,
maps of soil types may provide an adequate basis for determining where
surface runoff is most likely to cause erosion and sedimentation. In
this connection, it should be noted that a community can obtain substantial
assistance in mapping and analyzing its soils, topography, geological
and water resources from the U.S. Soil Conservation Service (SCS) and
the U.S. Geological Survey (USGS) .U
A fundamentally different way of using data in stormwater management
planning is exemplified by the computer simulation models developed for
Pennsylvania's Wissahickon Watershed^/ and for the Echo Branch Sub-basin
Study in DeKalb County, Georgia. In the Echo project, the Georgia
Institute of Technology developed an urban runoff simulation model
(UROS-4) specifically for DeKalb County as part of a pilot sub-basin
drainage program. Computer simulation planning was used in this case
to evaluate alternative methods of controlling runoff from design storms
of two, five, ten, and twenty-year frequencies. Echo project planners
concluded on the basis of this study that the sub-basin's drainage
problems could be solved best by means of increased storage in. large,
publicly owned and managed detention facilities, rather than through
smaller scale, site-by-site detention.-
Computer simulation has clear advantages as a planning tool for stormwater
management. The technique is now widely used to evaluate different-
approaches to runoff control for an entire watershed. It also offers
a way of identifying the capital requirements and costs of a comprehensive
drainage plan. Estimates for correcting the drainage problems of
DeKalb County, for example, had ranged from $10 million to $500 million
before the county initiated its Pilot Basin Program.iP_/
No matter what techniques are ultimately selected for gathering and
analyzing data on nonpoint sources, this,phase of the planning process
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is of critical importance because it permits the formulation of
rational regulatory schemes to control runoff and erosion. A related
benefit of developing a body of facts in support of future land use
regulations is that the general public and the courts will more
readily accept regulations based on adequate supporting data. Although
experts now recognize stormwater as a major source of pollution, the
public at large remains unaware of the variety and level of pollutants
carried in urban and rural runoff. Most builders and developers do
not at present perceive a clear connection between runoff and damage to
public health, property, or welfare. As a result, an ordinance imposing
requirements for onsite detention is more likely to be challenged than
a regulation that controls the construction and placement of septic
tanks. But if the requirements imposed by law follow reasonably
from data documenting the nature and magnitude of the problem, legal
challenges will be less likely, or, if they are posed, the ordinance
will have a much better chance of being sustained as a Y9-lid exercise
of the police power consistent with due process of lav.--
This last point deserves special emphasis, A stormwater management
program may come under attack on constitutional grounds either because
the regulatory scheme is seen as an unreasonable one, or because the
extra financial burden placed on the developer, who must at his own
expense install detention facilities for runoff from his development,
is seen as a taking without compensation. The case law on the legitimacy
of runoff control regulations is not yet highly developed, but there
is ample evidence from other domains of land use controls to suggest
that the courts will view runoff controls as legitimate regulations
when they are backed by a factually rich and complete record. From
a purely practical viewpoint, therefore, a section 208 agency would
do well to incorporate into its stormwater management ordinance "a full
set of legislative purposes describing the nature of the hazards to
be controlled and the purposes in view in controlling them. In other
words, it should be the function of performance standards ordinances
to contain, as it were, their own legislative history.U^~L'
Even outside the context of litigation, the benefits to be gained from
careful data-gathering may be sizeable. Planning exercises such as
DeKalb County's UROS-4 analysis enable officials to estimate with some
accuracy the financial costs of a projected stormwater management
program. A figure backed up by a study will often be acceptable to
the public where a raw estimate would not.jLz/ Tn a number of cases,
widely disseminated information might: have helped to overcome private.
resistance to new ideas, such as the plan to acquire public conservation
easements over private property in the Brandywine ProjectiZ undertaken
by Chester County, Pennsylvania, The acquisition plan failed in that
case, partly because insufficient effort was made to educate private
landowner13 to the benefits that would accrue to them under the project.
An awareness of the communitywide benefits of a large, permanent
retention basin could spur interest in creating a voluntary homeowners'
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association to maintain such a facility as a multipurpose resource. Some
of these possibilities will receive fuller discussion below. They
are touched on here to show the wide implications of the data-collection
phase in planning for stormwater management.
2.3 Technical Approaches to Stormwater Management
In order to evaluate technical solutions to the runoff problem, it is
useful to break stormwater management into two phases: source management
and collection system management.-!' Under the former heading may be
included such early preventive techniques as improved site planning,
antispill and antilitter ordinances, and more effective street-sweeping
practices. Management of collection systems, on the other hand,
encompasses such techniques as onsite detention of stormwater (rooftop
detention, ponding on paved surfaces, detention reservoirs) and special
solutions to combined sewer problems, from drainpipe disconnection to
upgrading centralized collection and treatment facilities.
To make an intelligent selection from these varied control techniques,
a section 208 agency must take into account a number of unrelated
factors. One early, and often decisive, consideration is the state of
development of the area for which runoff controls are to be designed.
Opportunities for ecologically sound site-planning, for example, are
virtually nonexistent in a highly urbanized environment. Such areas
also offer little space for the planned construction of large detention
reservoirs. A newly developing area, on the other hand, permits a more
flexible approach to runoff control. It is in such settings that
innovative techniques such as rooftop detention are commonly encountered
today.
The problem of erosion and sedimentation occurs most acutely, but can
also be most effectively controlled, during the development stage. In
the process of urbanization, erosion is increased as a result of runoff.
Since most urban development projects, construction sites, and highway
projects involve disturbance of soils and their exposure to the elements
for varying lengths of time during construction, there is greater,
likelihood at such time of increased erosion and sedimentation. These
damaging effects can also occur, of course, from completed developments
that were not planned with sufficient sensitivity to the natural
features of the site and that do not incorporate continuing functional
controls on runoff.
In addition to appraising a runoff management technique in light of local
development patterns, the section 208 agency must assess the costs,
benefits, and feasibility of a proposed set of controls. "Cost" includes
the financial burden both of construction or land acquisition, and of
an effective ongoing enforcement and maintenance program. On the benefit
side, the value of a proposed runoff control technique may be enhanced by
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the possibility of using the same set of regulations to achieve other
objectives as well. Thus, street sweeping has an aesthetic function in
addition to its impact on water quality, and a permanent detention basin
may be adapted to recreational uses. Climatic and topographical
features will often influence the selection of one retention technique
over another. The foregoing factors will all enter into the agency's
judgment whether a proposed regulatory scheme isor can be sold to the
concerned public as beinga politically feasible one.
The principal preventive and corrective approaches to runoff and erosion
control are described and evaluated in some detail below. To give some
structure to this survey, the approaches are presented in two groupings:
(1) techniques designed primarily for newly developing jurisdictions;
and (2) techniques whose principal utility is in highly developed urban
areas.
2.3.1 Solutions for Developing Areas
One extreme of the preventive approach to stormwater management is
represented by regulations designed to keep the land in as undeveloped
a condition as possible. Obviously, there would be no increase in runoff
from an undeveloped site if there were no man-made interference with
the natural permeability of the soil. Any attempt to prohibit develop-
ment, short of purchasing open space for public use, would give rise to
serious constitutional questions.i2/ Quite apart from these, strict
growth controls are simply not a realistic alternative for most juris-
dictions. The need to balance benefits conferred by development against
possibly harmful consequences to the environment has been explicitly
or implicitly recognized by many communities. The stated purpose of
North Carolina's Sediment Pollution Control Act, for example, is to
"permit development ... to continue with the least detrimental effects
from pollution by sedimentation."\9/
A practical alternative to extreme restrictions on future development is
site planning based on ecological considerations. The essence of this
approach is not to prohibit development completely, but to direct it so
that the strains it imposes on the entire ecological system are minimized.
Examples of this class of regulation are the flood plain zoning ordinances
adopted in many communities under impetus of the National Flood Insurance
Act of 1968 ._±H/ While such regulations are primarily designed to avoid
direct flood damage to life and property, they yield clear benefits in
the context of water quality maintenance as well. Overflows from septic
tanks and combined sewers, for example, may be closely linked with
improperly designed sewerage and drainage systems within the flood plain.
By preventing excessive encroachment of developments upon the flood plain,
these special zoning laws also serve to retard rates of runoff and
consequent water pollution from streambank erosion and adjacent land
surfaces. Other examples of development controls on critical water-related
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lands are North Carolina's requirements that riparian buffer zones be
provided between natural water bodies and proximate land developments,
and that "[t]he angle for graded slopes and fills shall be no greater
than the angle which can be retained by vegetative cover or other
adequate erosion control devices or structures."^'
A recent and more comprehensive approach to ecologically inspired
site planning is exemplified by the set of land use ordinances adopted
by Medford Township in conjunction with its Ecological Planning Study
(EPS). Medford's subdivision control ordinance (No. 1974-11) incorporates
by reference a number of regulations, developed by the EPS, that are
designed "to minimize loss of unique, scarce and valuable resources"
such as vegetation, wildlife, and water recharge areas, and "to
minimize social costs by proper management of" aquifers, soil loss,
vegetation, wildlife habitats, and land use in general. The developer
has the initial responsibility for determining which of these regulations
are applicable to his site and what actions will be taken or avoided
in order "to minimize any adverse effect on environment or ecology, or
to benefit the environment or ecology." (This will be discussed further
in section 4.1 of this chapter.) Such an approach entails the signifi-
cant public cost of constructing a comprehensive environmental inventory
to guide and assist developers in preparing their plans. It should
be emphasized, however, that this initial outlay may reduce or eliminate
the potentially far greater expense of corrective measures, to compensate
for inadequate planning, in the site-development phase.
Whether or not a comprehensive planning approach is adopted, there are
also more direct, narrowly focused ways of preventing pollution at its
source. One of these is simply to clear away the debris from surfaces
TO /
over which stormwater travels..xr/ Polluted surfaces are not limited to
urban areas; contamination of runoff in rural and semirural areas also
results from entrainment of organic wastes, fertilizers, pesticides,
insecticides, and chemicals. The setting for this chapter, however, is
the urban and rapidly urbanizing environment, in which regulatory
approaches may be needed for preventing contamination of stormwater
runoff by street-surface pollutants. It is appropriate to consider such
regulation for both developing and developed areas.
Many localities have adopted ordinances that prohibit littering. While
it may be easier in many cases to clean up after litterers than to
prevent litter in the first place, it would be unwise to neglect this
phase of controls in dealing with stormvater pollution and related
nuisances. The objects of such regulation may be quite specifically
defined: common street litter, debris in vacant lots or produce markets,
weeds and overgrowth, domestic animals (curb and leash laws), storage
of loose bulk material used in construction, garbage collection practices,
incineration, and abandoned vehicles. Typically, ordinances of this sort
proscribe private behavior (e.g., "no person shall throw or deposit
litter in any place . . .") and regulate the manner in which litter
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receptacles are used (e.g., "persons placing litter in receptacles shall
do so in a manner to prevent it from being carried by the elements upon
any street . . .").
Antispill ordinances customarily make it unlawful to operate vehicles in
such a manner as to allow the spilling or dropping of any liquids or
solids on public ways.23/ The construction and loading of vehicles that
carry such materials can also be regulated to prevent their contents from
dropping ._24/ Specifically, spillage of oil and petrochemical products
should be expressly prohibited^/ On pain of stiff penalties and reim-
bursement of cleanup costs. Responsibility for rubbish or litter removal
can be placed on the landowners. In San Francisco, for example, a local
ordinancerequires owners of vacant lots to remove rubbish and debris
within a fixed period of time after notice to remove the same is given
by the police or posted on the property. Newport News, Virginia^-' charges
the owner for the cost of cleaning up if the city is forced to do so by
the owner's failure.
Moving further along the hydrological cycle in an effort to contain the
polluting effects of runoff, section 208 agencies in urbanizing areas
should consider the merits of stormwater detention. The principal function
of detaining stormwater is to reduce the rate of runoff from impervious
surfaces. Detention automatically reduces the potential for erosion by
decreasing the rate of flow. In site development, as already noted,
gentle gradients and porous paving materials that permit infiltrations
can serve to detain stormwater where it falls. Detention facilities for
confinement and storage of stormwater also contribute to improved water
quality by allowing onsite precipitation and oxidation of pollutants.
Among the more common facilities of this type, perhaps the most controversial
are those for rooftop detention. Architects and builders in some areas of
the country are unwilling to design roofs that will permit storage of
stormwater. The technique has been adopted with success, however, in
areas with a relatively dry climate, where the danger of roof deteriora-
tion from stormwater ponding is comparatively slight. The Denver Urban
Renewal Authority (DURA), which directs the ambitious Skyline Renewal
Project in downtown Denver, requires private developers to employ rooftop
detention on new structures. This requirement is incorporated in a set
of building criteria developed by DURA's staff of engineers. Since the
Skyline Project involves the almost complete restoration of a 115-acre area,
this requirement means that almost all structures in the completed project
will have built-in rooftop detention facilities. In principle, DURA's
building criteria apply only to new construction,^' and generally, it
is only in areas undergoing extensive new construction that this technique
can be seriously considered. It would be politically unrealistic as well
as financially impractical, in most cases, to press for modification of
existing structures in order to provide rooftop storage.
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Ponding on plazas, parking lots, and other open, paved surfaces is another
technique that achieves results similar to rooftop storage. Regulations
to implement ponding have been adopted by DURA in the Skyline Project,
as well as by many other jurisdictions, among them the Metropolitan Sanitary
District (MSD) of Greater Chicago,±x/ Detention on paved surfaces
presents fewer maintenance problems than detention on rooftops, where
inadequate maintenance can result in serious structural damage. For
these reasons, ponding in plazas and parking lots is less controversial
than rooftop storage, so long as it causes no inconvenience to pedestrian
and vehicular traffic.
Although there are few (if any) structural constraints against requiring
the owner of an existing parking lot to drain or to regrade his property
so as to achieve a desired release rate for runoff, few if any jurisdictions
have adopted this type of measure. At least where there is a potential
danger to public health or safety, local authorities can require a
landowner to modify his property at his own expense so as to eliminate
the risk. Thus, a 1944 amendment to a multiple dwelling law requiring
installation of automatic sprinklers in lodging houses of nonfireproof
construction was held applicable to a lodging house constructed in 1940
in conformity with the law in force at that time, even though compliance
with the amendment entailed an expenditure of $7,500 on a property worth
only $25,000.30'
In the field of runoff management, however, requiring structural
changes in existing developments appears to be a technique whose time
has not yet come. It remains to be seen whether the public interest in
runoff control can be shown to be of sufficient magnitude to justify
imposition of significant private expenditures for "retrofit" of existing
developments. It is a task for water quality planners and their con-
sultants to spell out the necessary justification in terms not merely
of added public benefit, but also of avoiding injury to public welfare
from soil loss, degradation of /water resources, and other adverse
effects that will surely follow from absence of runoff controls.
In a limited attempt to enforce its erosion control standards retroactively,
North Carolina's Sedimentation Control Commission (SCC) holds developers
responsible for faulty maintenance of construction sites, even though
construction was initiated before the commission's rules and regulations
went into effect. The requirement reads as follows:
All uncovered areas existing on the effective date of these
Rules and Regulations which resulted from land-disturbing
activities . . . and are subject to continued accelerated
erosion, and are causing off-site damage from sedimentation
shall be provided with . . . protective measures . . .
sufficient to restrain accelerated erosion and control
off-site sedimentation.
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In determining the proper corrective measures, the relevant authority
must consider "the economic feasibility', technology, and quantity of
work required" and must set "reasonable and attainable time limits
for compliance." This language clearly invites bargaining by the party
against whom the measure is sought to be enforced, but also makes it
more probable that any expense ultimately imposed on him will be
upheld as a reasonable exercise of regulatory power. The commission's
success or failure in implementing the regulation will provide valuable
guidance to other agencies charged with controlling pollution from
nonpoint sources.
Detention of stormwater in temporary or permanent basins is another
approach that has received wide acceptance. Small, dry basins are
best suited to dry climates where the nuisance of soggy bottoms is
least likely to arise. Such temporary basins have been constructed in
the Skyline Project. In fact, the program of building stormwater
detention facilities on individual developments has been supplemented
there by construction of a depressed park, three blocks long and one-half
block wide, which is designed to serve as a temporary storage basin for
stormwater.
Permanent reservoirs are one of the most promising solutions to the ^i
runoff problem where sufficient land for a reservoir can be obtained.
The land might be bought outright by a regional or local authority that
will construct the facility, but this is a costly alternative. Storm-
water management agencies have attempted to get around the considerable
expense of land acquisition in a variety of ways. Where no public land
is available for constructing a reservoir, the most desirable route is
to require the developer to dedicate land for this purpose, provided
that the tract required is relatively small and places no unreasonable
financial burden on the developer. But even where compulsory dedication
is otherwise feasible, it may be barred on constitutional grounds as a
taking for public use without compensation.---/
Consequently, water quality management agencies should be alert to the
possibility of working out agreements short of purchase with prospective
developers. The village of Mt. Prospect, Illinois, for example, enters
into agreements stipulating that lands used for stormwater storage will
be released back to developers for their own use when storage is no
longer required. The agreements rest on the assumption that some of these
onsite detention facilities will be rendered obsolete when the Chicago
Metropolitan Sanitary District constructs a multijurisdictional reservoir
to accept drainage from Mt. Prospect and Arlington Heights. The Mt.
Prospect experience, then, cannot readily be generalized to other settings.
In addition to the cost of land, detention reservoirs require considerable
expenditures for construction and for maintenance over time, and where
a reservoir serves the needs of several jurisdictions, complicated cost
-------
VI-14
357
allocation problems may arise. Financial resources must be adequate
not only to provide labor and cleaning equipment, but also to assure,
through periodic inspection and enforcement, that private owners of
permanent basins are performing their maintenance responsibilities
properly. Unless properly maintained, detention basins will cease to
serve their purpose and may become a source of dnager to small children.
Among the varied techniques for controlling runoff, permanent detention
basins offer the greatest potential for adaptation to secondary uses.
A large storage facility may serve to control floods as well as to
reduce stormwater pollution. Properly maintained, the basin can become
a valuable community resource because it is aesthetically pleasing and
can be used for recreational purposes such as swimming or fishing.
Finally, building a reservoir to receive runoff from all or part of a
drainage basin may prove to be the only practicable technique for managing
runoff on an areawide basis.
It has already been noted that permanent reservoirs perform a useful
function in sediment control by permitting soil particles to settle out
instead of being washed into receiving waters. Erosion can also be
reduced by temporary measures which limit the removal of existing
vegetation and minimize the extent and duration of soil loss. Vegetative
cover can be installed as an aesthetically pleasing control device to
hold soil in place, slow the velocity of runoff and maintain the
soil's capacity to absorb water. The use of vegetation can be supplemented
by structural improvements, such as check dams, sediment basins, and
temporary diversions, which also serve to contain and prevent sedimentation.
These measures are all relatively inexpensive and easy to incorporate
into the overall project design. They are best applied, for the most
part, during construction, and can be required under state or local
regulations.
2.3.2 Solutions for Developed Areas
Antilitter and antispill ordinances can effectively reduce surface
pollution in highly urbanized settings, as well as in areas undergoing
the pressures of urbanization. In metropolitan areas, however, it will
frequently be necessary to supplement regulation of private behavior with
direct municipal activity, such as street cleaning, garbage removal,
street maintenance, snow and ice removal, and sewer and catch basin
cleaning.Jj§/
Current street-sweeping practices in most cities are designed primarily
to achieve aesthetic appeal. As a result, conventional street sweepers,
which are quite effective in removing litter and large particulate matter,
leave behind up to 85 percent of the finer solids in which is found the
greatest concentration of water pollutants.In designing street-cleaning
-------
VI-15
programs from the standpoint of water quality control, greater thought
must be devoted to new techniques such as flushing or use of vacuum
sweepers. Local authorities should also consider that street cleaning
is only one approach, however important, to reducing the contaminant
level of urban street surfaces. A street-sweeping ordinance can achieve
the greatest impact if it is part of a comprehensive regulatory scheme
that also includes such measures as fines for littering and proper
regulation of construction sites and onstreet parking.
Stormwater presents special problems in jurisdictions served by combined
sanitary and storm sewers. Overflows from combined sewers obviously
degrade water quality, but this problem can be approached in only a
limited number of ways. Most commonly accepted techniques of stormwater
detention cannot be applied in the older, densely built-up urban districts
where combined sewers are typically found. Such highly urbanized areas
will often lack space for large, permanent detention basins, or even
for temporary storage facilities of adequate capacity (like the sunken
park in DURA's Skyline Project). It would likewise be infeasible in
most combined sewer districts to require that existing structures be
modified in order to supply stormwater storage. Replacing combined
sewer systems with separate sewers is one possible solution, but this
approach can be prohibitively expensive.- Separation of storm and
sanitary sewers, moreover, only partially corrects the detrimental effect
of stormwater runoff on water quality. While inhibiting the overflow
of sanitary sewage into local waterways, separate sewers in no way
reduce the pollutant level of stormwater itself.
Searching for a more economical alternative to alleviate the problem of
combined sewer overflows, several communities have successfully turned
to a program of downspout disconnection in order to remove existing
attachments joining roof drains directly to the sewer system. The
function of such a program is to allow stormwater from rooftops to run
out onto residential property and adjacent street surfaces before it makes
its way into the sewer system. Consequent reduction in the rate of flow
into the combined sewer decreases the risk of sewer overload during
peak rainfalls. One such downspout disconnection program was recently
carried out in Springfield, Illinois with the aid of successive rounds
of letters to property owners followed by inspections of their
properties to learn if they had complied. By the end of the.campaign,
upwards of 85 percent of the connections had been removed. -
It must be recognized, however, that there may be no attractive way to
resolve the runoff problems of some older metropolitan areas. Boston,
Massachusetts, for example, has about 7,000 acres served by combined
sewers, plus another 10,000 acres served by separate sewers that connect
to the combined sewer system. In addition, some 6,700 acres in neighboring
communities are tributary to the combined sewer system. Conventional
stormwater management techniques such as open-space ponding, rooftop
storage, and detention in reservoirs are obviously out of the question in
-------
VI-16
a city like Boston. So is downspout disconnection, which would result
in unacceptable flooding in heavily traveled areas that lack porous
surfaces to absorb some part of the flow. Replacement of the combined
sewer system with separate sewers was found to be more expensive than
the deep tunnel storage plan now being considered by Boston and the
Commonwealth of Massachusetts, but even the deep tunnel plan was estimated
to cost a staggering $496 million based on 1967 prices.'
The tables on the following page summarize the preceding discussion.
Each major technical approach to runoff or erosion control is shown along
with its principal costs and benefits. The tables also indicate the
type of setting in which a given control measure can most effectively
be implemented.
3.0 Institutional Framework: Government Level and Agency Type
3.1 Federal Government
On non-federal lands the federal government has a small direct role in
the management of nonpoint sources, but several federal agencies can
aid in project planning and development by providing technical and
financial assistance' to state and local authorities. Stormwater
management agencies may frequently find their programs overlapping
with areas of primary federal concern, such as soil and water conser-
vation, flood control, point source control, and resource management
information. Some examples of potentially relevant federal programs
are included below. _'
Where stormwater management is closely linked to flood control or
drainage problems, the 208 water quality management agency may turn to
the U.S. Corps of Engineers for consultation and technical assistance.
The Corps provides a number of management services, including develop-
ment of flood plain data, reports on flood hazards, and technical
services aimed at decreasing the potential for flood damage.
Through its Conservation Operations program, the U.S. Department of
Agriculture's Soil Conservation Service (SCS) provides technical assis-
tance, soil survey information, and advice on sediment control planning
to state and local agencies, including soil conservation districts.
Under its Resource Conservation and Development Program, SCS cooperates
with other public agencies and nonprofit organizations in preparing
plans for land conservation and use. In addition to technical assistance,
cost sharing for works designed to reduce sedimentation is available
under this program. Finally, SCS directs a cooperative program of
watershed protection and flood prevention whose purposes include control
of sediment pollution in watersheds.'
The U.S. Geological Survey (USGS) of the Department of the Interior also
carries out programs that have some relevance to stormwater management
-------
VI-16A
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VI-17
practices. These include geological mapping and water resource
investigations, which may be undertaken at the request of state or local
agencies. The USGS and the cooperating agency share costs. The surveys
may then be used for analyzing flood hazards, locating sites for public
facilities, and determining land uses consistent with the objective
of controlling erosion and sedimentation.
The U.S. Environmental Protection Agency (EPA) plays an important role
in stormwater management at the federal level by providing grants
under section 208 for areawide waste treatment management planning.
EPA has also taken an active role in publishing and distributing
information on the nature and causes of nonpoint source pollution and
on best management practices for nonpoint source control.
3.2 State Government and State-Local Relationships
At the state level, authority to regulate stormwater may be vested in
one or more divisions of a department of natural resources or of
environmental protection. In general, however, stormwater is not yet
regulated as pervasively at the state level as point source discharge
of sanitary or industrial wastes. The principal state involvement in
stormwater management to date has been in flood control projects
carried out in cooperation with federal agencies. The regulations of
a few states go so far as to require storage and controlled release
of stormwater for purposes of erosion and sedimentation control.
One major effect of the FWPCA as amended will be to encourage far
greater direct participation by the states in stormwater management.
Section 208 places primary responsibility on the states to assure planning
and implementation of programs for nonpoint source control. As inter-
preted in NRDC v. Train,AZ/ the act requires the states to do for
areas not specifically designated exactly what the planning agency must
do under subsections (a)(2)-(4) for designated substate areas. Where
an entire state has been nondesignated,' the full responsibility for
developing a plan to control point and nonpoint sources will accordingly
devolve upon one or another state-level agency.
The states also carry a substantial secondary responsibility for programs
developed by designated substate agencies. The thrust of section 208(b)(3),
(b) (4) and (c)(1) is that the governors, speaking for their states, are
to play key roles in assuring both development and execution of
adequate control plans for designated areas with water quality problems.
Apart from obligations incurred under section 208, state agencies can
contribute in large measure to successful implementation of stormwater
management programs. The possibility of state and local cost-sharing
has been alluded to above and should be explored in detail. State
-------
VI-18
agencies can also provide technical assistance, applying expertise that
may not be available in most localities. A good example of this kind
of constructive involvement by the state is the Sediment Control
Inspectors Handbook published by the Maryland Department of Natural
Resources. The handbook prepares inspectors throughout the state to
perform their task intelligently.
The section 208 planner would be well advised to search the laws of
his state early on, in order to discover whether they authorize state
or local agencies to control nonpoint sources of pollution. Such
authority may be included by implication in a broadly worded enabling
law. In Massachusetts, for example, no person may discharge pollutants
or "engage in any other activity that may reasonably be expected to
result, directly or indirectly, in discharges of pollutants" without a
permit issued by the director of the state's Division of Water Pollution
Control (DWPC). 49/ He is authorized, moreover, to "[p]rescribe effluent
limitations, permit programs and procedures applicable to the management
and disposal of pollutants,"' and "effluent limitation" is not
restricted to point sources but is more broadly defined as "a require-
ment . . . specifying the maximum permissible quantity or concentration
of any pollutant that may be present in discharges, or their maximum
permissible hydraulic flow, over designated periods of time . . . .
Thus, the DWPC may establish performance standards for runoff, erosion,
and sedimentation, to be administered either by a permit program at
the state level or by permit programs that DWPC "prescribes" for local
governments. Under the "Home Rule" Amendment to the Massachusetts
Constitution, municipalities also have the power to regulate storm-
water runoff upon their own initiative. The amendment provides, in
essence, that cities and towns may exercise whatever powers or functions
the legislature might have granted to them, whether or not it has done
so in fact, so long as the local action is not in conflict with
provisions of constitutional or statutory law. Massachusetts, then,
is an example of a state whose laws provide, in an indirect and general
way, for regulatory control of stormwater pollution. In this as in
other cases, however, the conclusion may emerge only from a careful
reading 01 the law by competent counsel. It is another question, of
course, whether a state agency will exercise the authority it has on
the books. In Massachusetts, the foregoing provisions of law have
not been used to regulate stormwater runoff, because the DWPC has
neither sufficient administrative resources nor sufficient political
backing to take on that responsibility at the present time.
Some states take the more direct approach of enacting legislation designed
expressly to deal with runoff, erosion, and sedimentation. The Maryland
Sediment Control Law of 1970A1' is a prime example of this approach. It
represents the culmination of Maryland's long history of involvement with
erosion and sedimentation controls. The act requires the developer to
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VI-19
have an erosion and sediment control plan that meets the approval of
the appropriate soil conservation district before he may proceed to
clear, grade, transport, or disturb the land. Each county is required,
under the law, to adopt grading and building ordinances to carry out
the purposes of the act. No grading or building permit can be issued
by a county until the sediment control plan has been approved by the
soil conservation district and the developer has certified that he
will implement the plan.
Under its Sediment Pollution Control Act of 1973, North Carolina has
established within its Department of Natural and Economic Resources a
separate Sedimentation Control Commission (SCC) which is responsible
for developing and administering a statewide program.-^-L Members of
the commission are appointed by the governor and represent a wide
variety of interests: local governments, builders, contractors, utility
companies, experts, governmental and nongovernmental conservation groups.
Commission members may concurrently hold other elective or appointive
offices. Compensation for service on the commission is limited to
the customary per diem plus subsistence and travel expenses. The SCC
is empowered:!!/ to adopt rules and regulations applicable to most
land-disturbing activities undertaken in the state. Rules and regu-
lations must be based on relevant data, and their adoption or revision
must be preceded by one or more public hearings. In conjunction with
its own regulatory activities, the commission also assists other state
agencies and local governments in developing their own programs for
sedimentation control. Each local program is reviewed by the commission
and approved if its standards match or exceed those of the model or-
dinance developed by the commission. An approved program is administered
locally, but the commission is required to step in and assume the task
of enforcement in case of breakdowns at the local level.
Direct regulation of land use affecting water quality has traditionally
been a prerogative of local governments, but such regulation could be
supplemented, or even preempted, by the state. Building codes are one
type of regulatory device over which the states have often retained some
control. Thus, about 40 states have special codes relating to plumbing
and fire prevention, while several statesConnecticut and Minnesota,
for examplehave general building codes that localities are free to
adopt if they wish. A handful of states have mandatory building codes.'
Provisions calling for rooftop storage or other structural solutions
to runoff control could be incorporated into a specialized or general
building code of statewide application. In this way, new structures
throughout the state could be made to conform to a particular set of
design criteria.
Recently, a number of states have gone further toward recapturing powers
over water-related land uses which had been delegated to local govern-
ments. Act 250 of the State of Vermont makes the prospective developer
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directly answerable to the state when he wishes to commence construction
on a development of more than 10 acres. Before beginning work, he must
satisfy the appropriate state agency that the proposed subdivision or
development will not result in "undue water or air pollution." A
permit will be granted only when the applicant can demonstrate that
the development will preserve a series of environmental values, which
include the maintenance of water quality.'
Involving the state in land use control as the primary permit-issuing
authority may not always prove administratively feasible. But the
impetus for devising workable and imaginative state-regional or
state-local relationships must still come from the state government. One
approach to regulating water resources through state and regional
agencies is exemplified by the California Coastal Zone Conservation
Act.The law creates six regional coastal zone conservation
commissions whose principal function is to preserve, protect, and restore
California's coastal zone environment.-^' In pursuit of this objective,
the regional commissions may deny a permit to any development that
would "adversely affect water quality."_' Denial by a regional commission
can be appealed to the California Coastal Zone Conservation Commission,
the state-level agency empowered to carry out the provisions of the act.
It is possible for the state to assume a backstop enforcement role in
land use control, and especially in water quality maintenance, without
creating any regional entities. The Wisconsin Water Resources Act of
1966, for example, requires counties to enact and administer special
shoreland zoning ordinances and empowers the state Department of
Natural Resources to adopt such an ordinance for any county that fails
to do so in compliance with the act. A similar institutional pattern
could be employed for regulating any land use that gives rise to storm-
water runoff or other nonpoint forms of pollution. Pennsylvania's
Department of Environmental Resources, for example, appears to delegate
enforcement of earth-moving regulations to local units of government
that have department-approved programs for controlling erosion.2-L' The
department enforces its own regulations in localities that have no
independent program.
Whenever regulatory authority is shared by entities at different levels
of government, preemption problems may arise. These can be minimized
by including within each regulatory scheme a provision like the following:
Whenever there is a conflict between Federal, State, or local
Laws, Ordinances, Rules and Regulations, Orders, and Decrees
the more restrictive provision shall apply.^r.'
It may be noted in this connection that land-disturbing activities of
the United States acting in its proprietary capacity are subject to
state and local regulation. The North Carolina Sedimentation Control
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Commission's rules and regulations make specific provision for control
of such federal activities by the commission.-12/
3.3 Substate Agencies
3.3.1 Areawide Planning Agencies, Special Purpose Districts,
and Authorities
Planning for stormwater management is among the major functions to be
carried out with section 208 funds by councils of governments (COGs)
and regional planning agencies (RPAs) and other agencies that have been
designated under section 208 as areawide planning agencies. What part
these associations of local governments will play in implementing
section 208 plans is not yet clear, but it should at least include
coordination of intergovernmental activities in controlling pollution
from stormwater runoff and other nonpoint sources. Except for helping
to secure federal grants in aid, the planning agencies have so far
operated with very limited success because they generally lack the
power to implement their plans and recommendations.
Under a section 208 plan, operational and administrative responsibilities
for storm drainage and sedimentation,control might be vested in a special
district with areawide jurisdiction. Enabled under state statute
and organized with an emphasis on technical specialization, districts
usually are corporate bodies established by an area's residents to
perform a particular set of functions. Their jurisdiction may be
local, regional, or interstate. Since they have fiscal and administra-
tive independence from general purpose governments, they may be able
to provide services more efficiently than the latter. Within its
highly specialized area of activity, a district is often in a better
position to apply technical expertise and to do so with somewhat
greater freedom from political constraints than a general purpose govern-
ment. For example, the Denver Urban Renewal Authority, a local district
with independent administrative powers, has carried out a program of
onsite stormwater detention that probably could not have been adopted
directly by the city of Denver.
Although special purpose districts are a businesslike vehicle for dealing
with regional problems, they may be unsatisfactory in several respects.
Special districts with appointed boards tend not to be accountable to
the public. They may suffer from tunnel vision growing out of too
great a degree of technical specialization. Finally, they represent
a further multiplication and fragmentation of administrative authority,
and hence occasions for intergovernmental conflict.'
In spite of these important drawbacks, the areawide district may be
a preferred form of management agency in the field of stormwater
management because its jurisdiction can cut across established political
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boundaries. Ideally, the special district's boundaries should include
an entire watershed. The Minnesota Watershed Act,' for example,
authorizes creation of watershed districts whose functions include
drainage, conservation and pollution control. The Brandywine Plan
for Chester County, Pennsylvania called for the establishment of a
Water Resources Protection District and a District Water Resources
Authority to assist in carrying out the basic purposes of the plan.
These were (1) to keep further development out of flood plains;
(2) tc begin long-range planning for local construction of sewerage
and water supply systems; and (3) to enact appropriate land use
regulations, in part for protection of water quality within the watershed
as a whole. '
Soil and water conservation districts (SWCDs) are another form of
special district well suited to take an active role in stormwater
management. These may vary widely in their authority to regulate
water-related land use and to build, acquire, and operate works for
controlling surface runoff and sedimentation. Only a minority of
SWCDs, for example, are authorized to levy taxes, borrow money, and
issue bonds.
Approximately half the states have granted conservation districts the
power to participate in regulating land use, but until recently that
authority was largely unexercised. Today, a number of states recognize
the desirability of having their conservation districts play an
active regulatory role. Under 1972 amendments to Iowa's law, districts
in that state were required to adopt rules and regulations establishing
soil loss limits that must be observed by land developers. Maryland
amended its Water Resources Law in I970l2i' to require that development
plans involving significant disturbances of land be submitted to and
approved by the appropriate soil conservation district. Amendments
to the Massachusetts Wetlands Protection Acthave greatly increased
the power of local conservation commissions in that state to regulate
development affecting wetlands. Regulations promulgated by the
Massachusetts Department of Environmental Quality Engineering specifically
authorize conservation commissions to control activities that cause
changes in drainage or sedimentation in areas qualifying for protection
under the act.
The special purpose district most commonly exercises its regulatory
authority through a permit system. As long as flood control, water
pollution control, or drainage are within the scope of the district's
enabling legislation, the district can assume a leading role in encouraging
stormwater management. By amending its Sewer Permit Ordinance, the MSD
of Greater Chicago, a special purpose municipal corporation with
jurisdiction over sewerage throughout Cook County, has put into operation
a countywide scheme to secure onsite detention of stormwater. The
amended ordinance requires all developers in separately sewered areas
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VI-23
controlled by the MSB to provide stortnwater detention facilities for
their projected developments as a prerequisite to obtaining sewer
connection permits. The MSB's ordinance has prompted construction of
numerous detention facilities throughout the Greater Chicago area.
Betention on private developments has been supplemented by publicly
owned, multijurisdictional reservoirs constructed by MSB itself.
The main beneficial effect of this detention program has been to
reduce flooding during periods of high rainfall, but MSB officials
are confident that onsite detention will also reduce rainwater seepage
into sanitary sewers and septic tanks, thereby inhibiting overflow of
sewage into the district's waterways .1LJ It seems reasonable to
conclude that detention will also retard erosion and reduce siltation
of waterways.
Another possible organizational form for areawide water quality management
is the river basin authority or commission, established by state
legislature or by interstate compact. The Trinity River Authority
in Texas and the Belaware River Basin Commission are examples of this
type of institution. It may be empowered to accept grants and loans,
issue revenue bonds, charge fees, and acquire land, all in accordance
with the terms of its charter. River Basin Commissions created under
the Water Resources Planning Act of 1965,' such as the New England
River Basins Commission, are designed to carry out basinwide water
and related land resource planning.
In order to be effective, however, basinwide institutions must have
ability to influence development patterns. State and local governments
have rarely been willing to yield any part of their authority over
that subject, and there is little reason to expect that they will do
so in the foreseeable future. Moreover, basin authorities and commissions
would have drawbacks similar to those noted above in connection with
special-purpose districts, unless political accountability and coor-
dination with other governmental functions were assured through careful
institutional craftsmanship.'
3.3.2 Local Governments
Local governments (town, city, county) exercise primary authority,
through their police powers, to regulate activities causing pollution
from stormwater. General-purpose local governments, such as cities and
counties, usually have authority to construct and maintain sewers,
drainage ways, and treatment facilities. Above all, local governments
in many states enjoy a near monopoly over land use control, through
their powers to administer zoning, subdivision, drainage, health,
grading, and building codes. It is in the exercise of this authority
that localities can control stormwater pollution at its source.
The town of Medford, New Jersey implements its program of erosion control
primarily through its subdivision ordinance./ (Other components of
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the land use control system, such as the master plan, official map,
and ordinances on zoning, soil erosion control, noise control, and air
pollution control, are now being revised to conform to the findings and
implications of the Ecological Planning Study discussed earlier in
section 2.2.) Adopted in 1974, the operative provisions of the sub-
division ordinance specifically refer to the standards for environmental
protection contained in the study. They require that, prior to
subdividing land, the developer must supply detailed information
explaining how he will meet those standards, what impacts his project
will have on ecological systems and municipal services, and what
measures he will take to avoid adverse impacts.The subdivider
is required to install, or to furnish performance guarantees for the
installation of, whatever measures may be necessary "to prevent erosion
and siltation during and after construction."Z^/ Permission to
subdivide is preconditioned on meeting the foregoing requirements
to the satisfaction of the planning board. Developers in Medford must
pay application fees into a special fund which is used to defray the
costs of reviewing their plans.
Planning boards seeking to impose runoff and erosion controls on
subdividers should check the relevant enabling legislation to make
sure they have the authority to do so. The stated purposes of sub-
division control are frequently included in the enabling law
itself"protecting the health, safety or welfare of the inhabitants,"
"securing safety in the case of fire, flood, panic and other emergencies",
"securing adequate provision for water, sewage and drainage"and can
perhaps be construed broadly enough to permit regulation of runoff.
In the context of public welfare, "adequate provision for . . . drainage"
may mean facilities not only for promoting runoff, but for controlling
its rate so as to ensure minimum erosion and siltation during and
after construction. Even so, the utility of subdivision control
ordinances will be limited by (1) their failure to cover developments
that are too small to qualify as subdivisions but which, in cumulative
effect, may cause serious runoff problems; and (2) their failure to
cover subsequent individual developments within a previously approved
subdivision. A developer's erosion and sedimentation plan may control
runoff from the roads he constructs through his subdivision, but not
necessarily runoff from later site excavations, gradients, and driveways
on lots he has sold for residences. Accordingly, subdivision control
ordinances need to be supplemented by building permits that are
conditioned in part upon acceptable erosion and sedimentation controls
for individual sites, wherever these may be located.
Set in the foothills of the Rocky Mountains, the city of Boulder,
Colorado experienced severe flooding and pollution from stormwater
runoff because of its hilly terrain and increased urban growth. To
manage these problems, the city adopted minimum requirements for onsite
stormwater detention to which it added an incentive fee system.
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In the first phase of the Boulder program,, the city divided its
drainage system into two distinct parts: (1) the major drainage
system consisting of all natural channels, paths and outfalls; and
(2) the secondary or collection system which carries runoff to the
major system. Design criteria were then adopted by the city for the
flood-handling characteristics of both parts of the system. The major
system is designed to handle the 100-year rainfall, while the secondary
system's components are designed for rainfall requirements according
to land use and property value. The higher the value or the more
sensitive the land use, the greater the frequency of the design storm
that is selected as the standard. Next, the maximum allowable release
rate of stormwater from temporary storage in detention facilities is
computed by either the predevelopment runoff rate or the percentage of
various types of land use areas planned within the proposed development.
Design criteria for detention storage methods are then promulgated,
including rooftop storage, detention in depressed areas of parking lots,
and collection in wet wells and recharge areas.
These standards are implemented in part through subdivision and building
code regulations. Subdivision plat approval in new developments is
made contingent upon onsite stormwater detention facilities. Even
if only a single building is being constructed, the developer must
include such a facility in his plan before he can secure a building
permit. Drainage design must be done by a registered engineer and
plans are checked with the city engineer. Boulder has also adopted
flood plain regulations limiting development in the 100-year flood
plain to low-intensity uses.
Where a regional agency, such as the Chicago MSD, implements an areawide
stormwater management program, it may still be possible for local
governments within the area to supplement or stiffen the regional
standards to fit particular local needs. The village of Mt. Prospect,
Illinois, for example, has adopted a stormwater detention ordinance
which for the most part copies requirements imposed by the MSD, but
extends them to residential developments of five to ten acres as
well. The Naperville, Illinois ordinance goes even further in requiring
storage and controlled release for all developments of more than two
and one-half acres.
3.3.3 Private Sector
Regulatory programs to control runoff frequently require private
developers to pay for constructing such facilities as detention basins,
bypasses, and sediment basins. Compliance with these regulations is
secured by a number of methods, including subdivision and building
permits, penalties, and court orders.'
Apart from securing compulsory involvement of the private sector in
stormwater management, localities might explore, to a greater extent
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than many have done so far, the possibility of promoting voluntary
cooperation from developers and landowners, especially in connection
with the perennially difficult problem of maintaining permanent
reservoirs.
A model for developing private institutional arrangements capable of
protecting a valuable resource like a multifunctional reservoir may
be found in the Wisconsin lake protection and rehabilitation law. 81 /
This authorizes riparian landowners to form special districts with
powers to gather data and to fund and implement a wide variety of
protective and rehabilitative measures. Similar powers could be
delegated to organizations like voluntary homeowners' associations
entrusted with maintaining detention basins that offer communitywide
benefits.
But where no specific resource or tangible benefit is offered to a
community, and stormwater runoff is not generally perceived as a problem,
it may be unrealistic to hope for substantial private commitment to
controlling pollution from this source. The Brandywine Plan in
Pennsylvania, for example, included an unworkable component of voluntary
participation by private property-owners. To implement the plan, it
was proposed that the District Water Resources Authority purchase
easements from landowners, thereby restricting future development of
their lands. While formal ratification by a number of participating
townships would have been necessary to put the Brandywine Plan into
operation, municipal consent could have been gained only if a substantial
number of landowners in each sub-basin of the watershed had agreed
voluntarily to sell easements.
The plan relied primarily on acquisition of easements, rather than on
land use regulations, because it was thought that courts might not
support curtailment of development rights and that zoning was too
changeable and hence unreliable a tool. Also, in point of equity, the
plan recognized that owners should be compensated for stringent restric-
tions placed on the use of their property for watershed or public
protection. Outright public ownership, on the other hand, was deemed
undesirable because it would lose tax revenues and increase administrative
costs..££:' But opposition from landowners in the district ultimately led
four of the cooperating townships to reject the plan entirely and two
more to seek substantial modifications. The opponents, mainly rural
landowners, felt that "the private costs of the land use controls
outweighed the public and private benefits . . . [specifically] . . .
sharing ownership of the land with government, foregoing the chance to
speculate in the land market, and foregoing the chance to seek rezoning
of their land for more lucrative uses."83/
It is worth noting, however, that the Pennsylvania law enabling
less-than-fee acquisitions, drafted as part of the Brandywine Plan, was
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used with some success in Bucks County, Pennsylvania to acquire easements
around one of the reservoirs being built under the Small Watershed
Protection Programs. Municipal opposition to these acquisitions was
stemmed by the county's willingness to pay taxes on all properties
it acquired until construction began or the lands were resold to
private developers. The success of the Bucks County program must be
attributed to the county's enlightened attitude towards environmental
protection and to the competence and energy of participating planning
agencies .02-'
Cooperation from the private sector also enabled the city of Glen Ullin,
North Dakota to complete an ambitious erosion control system, including
terraces, diversions, a sediment pond, and extensive grassed areas.
Owners of land in the drainage area agreed to donate all necessary
easements because they recognized that the system would benefit their
cropland as well as the c±ty.°2.'
4.0 Formulation of Standards
4.1 Varieties of Standard
Fundamentally, pollution from stormwater runoff is a function of the
degree and intensity of human development. To the extent that develop-
ment itself can be restricted, especially on critical water-related
landsriparian zones, aquifers, wetlands, woodlands, steep slopespollu-
tion of all kinds can be avoided at the outset. (See chapters on
Locational Controls for Water Quality.) More commonly, development,
affecting critical natural resources is made subject to regulatory
guidance and control, not prohibited altogether. For example, under
North Carolina law, "[n]o land-disturbing activity shall be permitted
in proximity to a lake or natural watercourse unless a buffer zone is
provided along the margin of the watercourse of sufficient width to
confine visible siltation within the 25% of the buffer zone nearer the
land-disturbing activity."' This regulation specifies a site-develop-
ment standard to be implemented through environmentally sensitive
engineering, in order to assure that watercourses receive no more
sediment than if bordering lands had remained undisturbed. The regu-
lation thus exemplifies the two major types of standard to be explored
in this subchapter: (1) specification or engineering standards; and
(2) natural or environmental performance standards.
To the extent that ordinances regulating land use are cognizant of
the need for stormwater management, they typically specify control
techniques to be engineered into development plans. Basins for stormwater
detention, surfaces of porous materials, buffer zones, and restoration
of vegetative cover are examples of such techniques. These can be
required, in more or less detail, without necessarily defining the
results their employment is supposed to achieve in terms of environmental
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functions or processes. Rather, it is assumed that if the designated
techniques are employed, a satisfactory degree of environmental protec-
tion will consequently be achieved.
There is a trend in stormwater management away from specifying rigid
engineering standards, but these are still encountered in certain
settings. DURA, for example, has prescribed limits of one-half and
of one inch per hour for drainage from plaza decks and rooftops,
respectively. To enable developers to meet these limits, DURA recommends
the use of a specially designed detention ring in conjunction with
standard design drains and downspouts. Since all development subject
to regulation by DURA occurs under essentially uniform conditions within
a single downtown area, this type of regulatory approach operates both
fairly and efficiently toward the limited objective of avoiding overload
of the Skyline storm sewer system. A similar approach has been adopted
under somewhat similar conditions in the Atlanta metropolitan area.
As a rule, specific engineering and design standards discourage innovation
and may, if rigidly conceived, fail to permit sensible variations from
one development to another. From the builder's or developer's view-
point, however, such standards may present distinct advantages. Conforming
to an exact set of standards makes approval by the supervising agency a
near certainty. Private developers in the Skyline Project, for example,
can easily satisfy DURA's detention criteria by incorporating the
recommended detention ring into their rooftop design. Moreover, when
all builders or developers must abide by the same design standards,
the risk of arbitrary or unfair review by the evaluationg agency is
vastly reduced. The administering agency, too, will find such standards
easier to implement, with fewer and less-skilled personnel, than where
the criteria to be applied call for expert judgment case-by-case.
Specification standards are particularly appropriate when the problem
to be solved is relatively homogeneous, when the technical solution
is clearly indicated, and when the state of the art presents few
alternatives.
Absent these special conditions, the governing laws and regulations may
attempt to fall back on generalized criteria, such as requirements that
"the disturbed area be kept to a minimum" in the process of development
or that "sediment in the runoff water be trapped and retained on the
project area."JLZ/ Such criteria, however, are too vague to qualify as
best management practices, and their vagueness makes them difficult to
apply and enforce in particular cases. Usually, criteria of this sort
are intended to guide the subdivision control agency in case-by-case
review of plans submitted by developers. But to perform the necessary
review effectively and evenhandedly across a range of cases calls for
degrees of expertise, resources, and procedural due process that may
well lie beyond the reach of many agencies. Without definitive standards
to apply, an agency is in danger of making serious technical errors or
of abusing its discretion, and may accordingly find itself embroiled in
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repeated litigation. Vague criteria, then, are not enough. They should
be supplemented by natural performance standardsto which we turn
nextat least in settings where specification standards are infeasible,
inappropriate, or unequal to the task.
In the context of site planning for development, performance standards
can be articulated in terms of the natural functions of the land, such as
its ability to retain or release runoff or to lose topsoil through
erosion. These standards then form the foundation for the regulatory
scheme.
To develop this system of regulation, a community
identifies the natural processes that are closely asso-
ciated with public health, safety and welfare; that provide
the community important benefits that are ignored through
the private market mechanism. Specifically these are pro-
cesses such as runoff, erosion and groundwater infiltra-
tion which are closely linked to maintaining public water
supplies, preventing hazards from floods and droughts,
preserving water quality in lakes and rivers and main-
taining the natural resource of the soils themselves.
The community then establishes a specific (preferably
numerical) level at which the natural process should
operate, and any development of the land must be done in
such a way that the natural process continues to function
at this level. In contrast to a specification approach,
this kind of regulation does not require designated con-
struction techniques or site planning, but allows the
developer to choose his own system of guaranteeing
that the natural processes continue to operate.£3.'
Incorporation of environmental performance standards into land use regula-
tions can afford considerable freedom to a developer to employ
whatever control measures he wishes, so long as his siting and construc-
tion practices meet the prescribed standards. At the same time, use
of these standards shifts the burden of persuasion from the regulator
to the developer who proposes new techniques for maintaining natural
functions at an acceptable level.
Regulations based on the natural performance approach have been used with
varying degrees of success to control runoff and erosion, two natural
processes of crucial import in stormwater management. As we have
already noted above in section 1.0, runoff is a significant nonpoint source
because it erodes exposed land surfaces and scours other pollutants into
waterways unless its flow can be checked by appropriate control measures.
The measurable features of runoff are volume (varying with previous
moisture conditions, the hydrologic character of the soil, and local
conservation practices) and rate (primarily a function of rainfall
intensity) .J9/ Nearly three decades of research have yielded quite
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reliable formulae for estimating both rate and runoff. Six or seven
different methods have been developed for determining the rate of
runoff, ranging from the basic "Rational Formula" to newer methods,
such as Beasely's,_' which are more successfully applied to small
geographic units.
The most satisfactory formula for estimating soil loss through erosion is
the Universal Soil Loss Equation?!/ developed by the USDA. It is used
to predict the average annual soil loss that can be expected from a
certain soil over a number of years. The equation has its limitations:
for example, it relates erodability and soil loss only to topsoil,
though much urban erosion is a function of subsoil.
Performance standards for runoff and erosion should be built upon an
adequate data base that describes the natural features of the site,
including soils, hydrology, geology, topography, and biota. Once
baseline conditions are known, standards can be designed to allow
development that preserves the natural functions of the area in which
it occurs. The experience of Medford Township again illustrates this
procedure in its most complete form.
Proceeding on the basis of conclusions reached in its Ecological Planning
Study, Medford Township has incorporated a natural performance standard
into its runoff control regulations. The Medford regulations with
respect to runoff specify that no alteration is to be permitted of
"the amount of surface runoff presently occurring, both under normal
precipitation as well as under intense storm conditions, as identified
in the Runoff Management Chart . . . excess runoff to be recharged
locally into the ground through the use of recharge ponds or injection
wells."Z±/ The Runoff Management Chart correlates vegetative cover
type, soil type (in terms of runoff and infiltrative capacity), and
relevant land use categories (e.g., one-acre residential, one-qtiarter-acre
residential, intensive urban), with excess runoff in inches produced
during the most intense hour of a 10-year recurrent 24-hour storm, and
with percentage of site area required for withholding that excess in
order to allow its infiltration locally within three hours. The three-hour
limit is deemed practicable in terms of the space required for rainwater
detention in suburban development. A separate hydrological map shows
current and permitted runoff for each area of the town, as well as
outcrops of important aquifers to be protected by prescription of low
runoff rates.
Medford's Ecological Planning Study involved a costly degree of detail
and calibration. But the existence of several reliable methods for
calculating runoff rate and volume makes it possible to use the natural
performance standard in runoff control without developing as extensive
a data base as was compiled for Medford Township. The Chicago MSD,
for example, frames its detention requirement in terms of a natural
performance standard, even though there exists no districtwide equivalent
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of the Medford Runoff Management Chart. MSB's sewer permit ordinance
simply requires that:
Effective January 1, 1972, no permits shall be issued
for sewer construction in unsewered or separately
sewered areas when construction of the facilities to be
served by the proposed sewer would result in runoff
[from the site] in excess of that from its natural
or undeveloped state.
The Rational Formula is then used to compute the allowable release rate
from the proposed development site and the appropriate volume of onsite
storage.
The performance standard for runoff may be linked to features other
than the predevelopment runoff from a given site. Thus, the Naperville,
Illinois ordinance (developed consistently with the MSD ordinance) ties
the release rate of runoff to the capacity of the watershed drainage
system:
The controlled release, rate of stormwater runoff from . . .
developments . . . shall not exceed the existing "safe"
storm drainage capacity of the natural downstream outlet
channel or storm sewer system. The release rate shall
be an average value computed as a direct ratio of the
tributary watershed area. This value shall not exceed
an average runoff rate of 0.15 inches per hour which is
compatible with the "safe" capacity of the West Branch
of the DuPage River and the Des Plaines River. The rate
at which storm water runoff is delivered to a designated
storm water storage area shall be unrestricted.
In the Wissahickon Watershed of Philadelphia, on the other hand, new
development is controlled as of 1975 under an ordinance that limits
allowable impervious ground cover. The restriction varies in different
areas of the watershed depending upon the specified potential impact of
site development on nearby streams. If a site is located in a 20 percent
allowed coverage zone, and more coverage is called for in a developer's
plans, he will not receive permission to develop unless his plan shows
that he will install countermeasures to control runoff from the excess
impervious area.
Unlike standards for runoff control, allowable rates of soil loss, though
exemplifying the concept of natural performance in general, do not
usually vary according to the natural features of particular sites.
Medford Township, for example, has a regulation uniformly restricting
allowable soil loss to three tons per acre per year at all times including
all stages of development. This is by reference to indicators of mapped
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potential soil loss, which is a function of soil texture, moisture
conditions, and steepness and length of slopes. The three-ton limit
was recommended by USDA as capable of being met through feasible
interceptive devices, such as check-dams, silt trappings, levees, or
terracing at or near the site. Actual soil loss, expressed as a
percentage of potential soil loss for particular types and degrees of
vegetative cover, is calculated in accompanying charts. The standard
itself does not vary; the type and degree of control required to meet
it does. In contrast, an ordinance of Leon County, Florida^-/ requires,
in effect, that there will be no greater sediment load in runoff from
construction sites and finished developments than would be the case
under natural conditions. Here, the permitted level of soil loss may
vary from one site to another.
The North Carolina SCC's rules and regulations on erosion and sediment
control show exceptional sophistication in the use of performance
standards. To begin with, the commission exempts developments from
certain technical requirements where the developer can meet the
desired performance standard for erosion without the use of technical
improvements. Thus, detention storage and controlled release of runoff
are not required "in those instances where the person planning to
conduct the activity can demonstrate that the storm water release
will not cause an increase in accelerated erosion orQsedimentation of
the receiving stream or other body of water . . . ." On the other
hand, the commission is prepared to impose stricter technical standards
on individual developments where compliance with general requirements
fails to reduce sedimentation to a satisfactory level:
Whenever the Commission, or a local government having
jurisdiction, determines that significant sedimentation
is occurring as a result of a land-disturbing activity,
despite application and maintenance of protective prac-
tices, the person conducting the land-disturbing activity
or the person responsible for maintenance will be required
to take additional protective action.'
These provisions reflect the commission's willingness to depart from
fixed technical standards whenever the central objective of meeting the
performance standard requires such a site-specific adjustment.
Despite the advantages of a natural performance orientation in runoff
and erosion control, this approach carries undeniable costs for the
administering agency. Where the developer is free to select technical
measures for reducing runoff and preventing erosion, the plan reviewer
must exercise a great deal of judgment to make sure that the proposed
plan will meet desired standards. Proper implementation will also require
close supervision during the construction stage, when most technical
improvements are installed. Lack of expertise, money, or manpower can
easily undermine an agency's efforts to implement a performance standard.
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This was the experience of officials in DeKalb County when strict
drainage regulations were adopted in 1972.-2^.' Without resources to
review development plans thoroughly or to inspect construction sites
frequently, the county was initially unable to enforce the drainage
ordinance effectively. Enforcement was also hampered by the fact
that county police permitted no public interference with watercourses
on private land to which there was no public right of entry.'
Performance standards are frequently incorporated into land use
regulation through the vehicle of impact zoning. Impact zoning is
[a] process of land use analysis that measures the
consequences of changes in a community in terms of demands
related to the capacities of the natural, physical, market
and fiscal systems. [To be] legally defensible, [it]
requires definitive performance standards related to
public health, safety and welfare, as well as a proper
legislative and administrative framework for negotiation
between town and public or private developer ..987
Following this approach, the community adopts an ordinance under which
each proposed developmentresidential, commercial , or industrialwill
be evaluated for its impact on environmental quality and on municipal
services designed to maintain it. Development will not be permitted
unless it meets environmental standards. The particular manner of
meeting them need not be prescribed, but can be evaluated case-by-case,
depending upon the nature of the development proposed. Such schemes
are usually implemented through existing zoning authority and special
permit procedures, as under an ordinance adopted in Duxbury, Massachu-
setts. ' Assessment of environmental impacts is also required under
the Project Impact Evaluation System of Fairfax County, Virginia.±2~/
A regulatory agency with the expertise and manpower to evaluate proposals
competently might consider controlling runoff from proposed developments
through such an ordinance. Without adequate resources, however, the
agency may encounter severe implementation problems, as noted above
in connection with runoff control in DeKalb County.
Ordinances controlling runoff or erosion often require that suitably
qualified professionals participate in producing the development plan.
The DeKalb County code, for example, specifies that "[g]rading, erosion
control, sedimentation control and drainage plans shall be prepared by
and implemented under the supervision of a currently state registered
professional architect, landscape architect, engineer or combination as
may be appropriate for project planning and design." In the same vein,
the erosion and sedimentation control ordinance of Washington County,
Maryland requires that development plans "shall be prepared and approved
or signed by a Professional Engineer, Land Surveyor, Landscape Architect,
Architect, or other persons acceptable to the Board."
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Plan preparation by qualified experts becomes particularly desirable
where the ordinance itself does not rigidly specify what control
techniques should be used by developers. Moreover, the regulatory
agency's task of plan evaluation may become less burdensome if the
agency can rely on expert certification to the effect that necessary
control measures have been included in the plan. Requiring that
experts be registered, licensed, or otherwise approved by the state
assures that minimum professional standards will be maintained in plan
preparation. Participation by professionals outside the agency could
become even more useful if the agency made its policies and standards
for nonpoint source control generally known to private architects and
builders through a design manual or other similar publication. Penalties
for negligent or fraudulent certification might be helpful under some
circumstances.
A natural performance-oriented approach to runoff management need not
imply complete abandonment of specification standards. Indeed, it may
often be necessary to specify detailed design criteria in order to
assure that control facilities will be safe, aesthetically pleasing,
and efficient over periods of continued use. A good example of
specification standards in support of performance objectives may be
seen in Naperville's runoff control ordinance.-KH='
4.2 Expression of Standards - The Regulatory Framework
Having arrived at a proper blend of performance and specification
standards, the planning body must find a suitable regulatory frame-
work for implementing them. Compliance with standards is most
commonly secured by means of an ordinance. In a community where
earth-moving or runoff-promoting activities take place under uniform
conditions and are susceptible to particular controls, it may be
worth specifying the controls in the ordinance itself. In many
newly urbanizing areas, however, specificity and resulting ease of
administration will have to be sacrificed in order to allow for
variations from one site to another. So, for example, the Chicago MSB,
which encompasses parts of several watersheds, could not hope to
specify a precise set of controls to be used on all new developments
in its jurisdiction. Accordingly, the MSD adopted a performance
standard which developers may meet with the aid of control measures best
suited to their particular development.
One technique frequently encountered in the field of stormwater management
is adoption of an ordinance setting forth the program's policies and
objectives and supplementing it with guidelines or manuals that specify
in detail how developers should proceed.
Guidelines offer a more flexible way of influencing behavior than outright
regulation, but unless they are openly advisory in nature, their use
may be questionable on due process grounds. If a "guideline" is in fact
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a requirement, then it ought to be adopted by whatever formally
established procedure the jurisdiction has for rulemaking, especially
where a regulatory purpose is sought to be achieved by means of guidelines.
If such safeguards are not observed, regulations masquerading as guidelines
could create considerable uncertainty and open the way to arbitrary action
by the regulatory authority.
New Jersey and Maryland both supplement their erosion and sedimentation
laws with manuals of standards developed by agencies of state govern-
ment. The merit of this approach is that the manuals can be updated as
technical improvements occur in the field of erosion control, without
a need to amend the ordinance itself. At the same time, 'developers will
receive detailed, technical guidance in carrying out their responsibilities
under the statute. Similarly, the Engineering Department of the MSD's
Local Sewerage Systems Section has developed a Manual of Procedures and
a set of forms to assist municipalities within the district in implementing
the sewer permit ordinance. This manual spells out design standards
and administrative requirements for issuance of sewer permits and
explains procedures for permit application. In addition, the MSD
has put together an information pamphlet to be used by engineers and
architects in computing for a given development the allowable release
rate, the required storage capacity, and the appropriate size of a
bypass system to conduct the flow from upstream areas.
Another practice, expecially prevalent in regulatory arrangements to
control erosion, is to provide in the ordinance a set of principles or
policies by which new developments are evaluated. The erosion and
sediment control section of the DeKalb County Code, for example, recites
the following:
It is hereby declared to be public policy to:
(1) Minimize the removal of vegetation,
(2) Minimize the exposure of bare earth to precipa-
tion by encouraging the scheduling of land development
in increments of workable size which can be completed
within a single construction season or within a time
period compatible with the type and size of the project.
(3) Provide for the re-establishment of vegetation within
a reasonable period following completion of a final
grading and utility installation.
(4) Give priority to the paving of streets, parking lots
and other areas within a reasonable time following
completion of final grading.
The developer is free to select the combination of measures that will
best further these policies. The advantage of this regulatory model is
that it allows the development process to be more or less strictly
controlled depending on particular site characteristics. Builders on
sites with high erosion potential will naturally have to install more
stringent control measures to satisfy the objectives of the ordinance.
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The model will only operate effectively, however, when agency
personnel are capable of evaluating varied development plans, of
judging their acceptability with respect to particular topographic
conditions, and of administering policies evenhandedly across a
range of cases (see discussion in section 4.1).
Under appropriate circumstances, a community may wish to establish
only a minimum set of standards by ordinance, leaving room for more
specific adjustments where necessary. This approach is especially
desirable in an areawide regulatory scheme that has to allow for
varied types of development. When the ordinance merely sets minimum
standards, various techniques may be used to achieve stricter regulation
on particular sites or in particular communities. In the Chicago
sanitary district, for example, participating municipalities are
encouraged to develop their own stormwater management regulations, tailored
specifically to development patterns within their political boundaries.
Several municipalities have extended onsite detention requirements to
developments of smaller size than those to which the MSB ordinance
applies. Naperville has added fairly precise design requirements
to the underlying performance standard. The city of Boulder requires
all new developments to provide onsite storage for a five-year rainfall.
In addition, a monthly service charge is levied against every lot
(single-family residences are excepted) to pay for maintaining the
public drainage facilities. This charge is reduced if the developer
designs his detention facilities for a 10, 20, or 100-year rainfall,
thus creating an economic incentive to adhere to stricter standards.
The Iowa sediment control law (mentioned earlier in section 3.3.1) relies
on a privately initiated complaint procedure to achieve stricter
regulation in certain settings.
A somewhat unusual approach to regulating stormwater runoff is illustrated
by the Michigan Environmental Protection Act. This law authorizes
courts to grant remedies reasonably designed to protect natural resources
upon a plaintiff's showing that the defendant's conduct is reasonably
expected to cause pollution. The statute itself spells out no control
measures for the courts to adopt in particular situations. In Irish
v. Green,^2r/ a Michigan court acting under this statute ordered a
defendant to install appropriate measures, including sodding, surface
water dams, and reservoirs, to prevent erosion damage to plaintiff's
property. Private litigation may be a useful way to supplement a
comprehensive stormwater management plan, but reliance on litigation cannot
be recommended in view of the expenses, delays, and uncertainties of
adversarial judicial process.
5.0 Implementation and Enforcement
To assure the proper functioning of the selected regulatory scheme, the
section 208 agency should carefully consider how compliance will be
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secured, both during development and afterwards.
It is possible, of course, to have an ordinance that attempts
to regulate runoff from new developments without the aid of any
enforcement strategy. The regulatory objectives will not necessarily
be accomplished, however, unless an enforcement mechanism (permit,
penalty, etc.) is built into the regulation. Standards are not
self-executing. For all practical purposes, an ordinance lacking
enforcement provisions is no more than a policy statement which
developers may ignore with impunity.
5.1 Compliance Monitoring During Development
Implementation of standards for runoff and erosion can and should begin
before the start of actual construction. One very effective way of
accomplishing this is to combine pure regulation with a permit system
under which development plans are individually scrutinized to assure
compliance with the requirements of the ordinance. Numerous examples
of this technique may be cited from the field of runoff and erosion
control, among them the Medford subdivision approval and the MSD
sewer connection permit, as well as the two-step building plan
approval for the Denver Skyline Project. / In implementing a control
program for nonpoint source pollution, a regulatory approach that
incorporates a permit system offers several specific advantages. To
begin with, a permit system makes it impossible for the builder to
embark on earth-disturbing or other runoff-prone activities without
making himself familiar with the governing ordinance and following
its requirements. In a flexible regulatory environment, the permit
system also allows for the tailoring of specific control requirements
to the peculiarities of the individual site and development plan,
and makes the developer accountable at an early stage for any new
technical strategies he may want to employ. Finally, the permit
system can be combined with other devices (performance bonds, permit
revocations, administrative orders) that induce compliance throughout
the construction phase.
It is worth noting, however, that no matter how attractive a permit
scheme may appear in theory, it will be worth rather little if it breaks
down in practice. This may happen when the administering agency lacks
a staff of suitably trained personnel, as was apparently the case in
DeKalb County between 1970 and 1972. Breakdowns are also to be expected
when the load of applications is too great for the supervising agency
to review with due attention. The Chicago MSD, for example, issues
about 1,000 sewer connection permits per year, and for the vast majority
of applications, permit issuance has necessarily been reduced to an
administrative formality. If the pressure of development increases
in the region, the MSD's procedure could eventually turn into an automatic
rubber-stamping routine.
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Controls on land-disturbing activities are frequently built into the
process of granting subdivision approval. Regulation at this stage
may be quite effective in assuring proper grading and paving of streets,
but may have no impact upon development on individual sites. The
necessity for control at this second stage of development should not
be overlooked. Improper site preparation and driveway design can
contribute significantly to nonpoint source pollution. Performance
standards for runoff and erosion should be imposed on builders by
requiring them to plan for controlled release of stormwater and
reduction of soil loss as a precondition to obtaining a building permit
(see discussion above in section 3.3.2).
The enforcement techniques that can most easily be worked into a
permit system are the performance bond and the certificate of comple-
tion. Both are highly desirable devices for securing compliance during
construction because neither seriously strains the resources of
the supervising agency. The performance bond or escrow account~i-£/
draws on the builder's own financial resources to assure that, in
case of default, money will be available to complete the project
according to specifications. The amounts involved can be quite
substantial, e.g., six to ten percent of the construction cost in the
Denver Skyline Project. The certificates of completion, issued after
a building has been built and before it can be put to its appointed
use, gives the enforcing agency a chance to monitor compliance again
at the end of the construction phase. Performance bonds and certificates
of completion have been used successfully to promote onsite detention
in Boulder and in Denver.
An interesting, and apparently effective, variant on the foregoing
approach has been evolved by DURA for developments in the Skyline
area. By agreement with DURA, Denver banks will not grant the
developer favorable interest rates on his construction loan until DURA
signs the certificate of completion, thereby finally deeding the
development site to the developer. This strategy, of course, is most
effective where the public agency originally owns the land on which
private development takes place.
Performance bonds should not be thought of as substitutes for onsite
inspections during construction. Indeed, effective regulatory programs
often employ both techniques. DURA's project manager and his staff, for
example, provide ongoing surveillance and supervision during construction
in the Skyline area. Spot inspections are a good solution to the
problem of inadequate manpower in compliance-monitoring before develop-
ment is completed. Under North Carolina law, "the approving authority,
either the Commission or a local government, shall provide for periodic
inspections of the land-disturbing activity to insure compliance with
the approved plan, and to determine whether the measures required in the
plan are effective in controlling erosion and sediment .... Notice
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of such right of inspection shall be included in the certificate of
approval for the plan." The corresponding regulations assert, in
typical form, the commission's "power ... to enter at reasonable
times upon any property, public or private, for the purpose of
investigating and inspecting the sites of land-disturbing activities."
A variety of administrative and judicial proceedings may be brought to
bear against developers who violate ordinance provisions during construc-
tion. These require substantial expenditures of time and money, and
should be used as backstop enforcement devices when performance bonds
and spot checks fail to produce satisfactory results. Early administra-
tive action usually takes the form of a notice to comply, setting forth
all necessary remedial measures and a time limit for accomplishing
them. u°V This may be followed by an administrative order to stop
work on the project until compliance has been achieved.i2i./ Finally,
a penalty can be assessed against a continuing violator. For example,
the North Carolina Sedimentation Pollution Control Act (SPCA) subjects
violators to a civil penalty of not more than $100 for each violation
and authorizes the appropriate supervising agency to make a written
demand for payment on the alleged violator.i±£/ The developer must
pay or otherwise settle the matter within 60 days in order to escape
judicial action.
Permit revocation is another powerful enforcement weapon available to
many administrative agencies. / The detailed enforcement sections
of the Leon County erosion control ordinance, for example, authorize
the Board of County Commissioners to revoke a development permit upon a
finding that the permittee has proceeded with work on the project while
under a valid stop work order.
Criminal penalties and injunctions may be invoked against recalcitrant
developers if administrative sanctions prove inadequate. Provisions
such as the following from the North Carolina SPCA obviously carry
considerable clout:
Any person who knowingly or willfully violates any provision
of this Article or any ordinance, rule, regulation, or order
duly adopted or issued by the Commission or a local govern-
ment, or who knowingly or willfully initiates or continues
a land-disturbing activity for which an erosion control plan
is required, except in accordance with the terms, conditions,
and provisions of an approved plan, shall be guilty of a
misdemeanor punishable by imprisonment not to exceed 90 days,
or by a fine not to exceed five thousand dollars ($5,000),
or both, in the discretion of the court. V-r/
Cases brought under this type of provision will in most instances be
settled before the matter actually comes to trial, but the threat of
criminal prosecution and heavy fines may well induce the developer to
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complete work according to the approved plan.
Penalty provisions are frequently supplemented by procedures for
injunctive action, as in the sediment control ordinance of Montgomery
County, Maryland:
Any person violating the provisions of this Chapter shall
be guilty of a misdemeanor, and upon conviction, shall be
subject to a fine of not more than one thousand dollars
for each and every violation .... In addition thereto,
the County may institute injunctive, mandamus or any
other appropriate action or proceedings at law or equity
for the enforcement of this Chapter or to correct viola-
tions of this Chapter, and any court of competent juris-
diction shall have the right to issue restraining orders,
temporary or permanent injunctions or mandamus or other
appropriate forms of remedy or relief. U-3/
Needless to say, the enforcement measures described in this section
should not be regarded as mutually exclusive. On the contrary, an
effective enforcement strategy would make use of a combination
of the remedial measures discussed here to apply pressure on developers
before, during, and after construction on a given project. '
5.2 Enforcement of Maintenance Obligations
The section 208 management agency may well be hampered by scarce resources
when it seeks to assure compliance with ongoing maintenance requirements
for completed detention and erosion control facilities.-^' Permanent
reservoirs must be protected against sedimentation, algal growth,
mosquito breeding, and erosion of banks; other types of detention will
carry their own characteristic maintenance burdens. As a rule, storm-
water management agencies have failed to find workable solutions to these
continuing maintenance problems.
In drafting an ordinance on runoff management, it is- extremely important
to allocate the maintenance burden exactly. Where the ordinance is not
explicit on this matter, courts may hold the private developer and
the public agency jointly responsible. In Robert L. Anthony, et al. v.
Department of Environmental Resources and Springfield Associates,A£x/ for
example, the Pennsylvania Environmental Hearing Board stated that the
department and the developer should develop a joint monitoring program
to deal with maintenance problems.
Regulations allocating maintenance responsibility tend to be considerably
less detailed than provisions dealing with compliance monitoring during
construction. The following language is fairly typical: "Persons carrying
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out soil erosion and sediment control measures under this Ordinance, and
all subsequent owners of property concerning which such measures have
been taken, shall maintain all permanent anti-erosion devices, retaining
walls, structures, plantings, and other protective devices." The
Chicago MSD approaches the issue from a similar point of view, although
the formal assignment of responsibility works a little differently in
the district. The MSD's permit authorizing construction of a sewer
connection is automatically replaced by an operations and maintenance
permit which makes the permittee responsible for maintaining all onsite
detention facilities. As long as the development continues to use a
sewer system within the MSD's jurisdiction, the MSD has authority to
inspect the detention system for compliance with maintenance standards.
Since the MSD's sewer construction and operation permit is technically
issued .to the municipality in which development occurs, the MSD has
formal recourse against this primary permittee when a violation occurs.
Neither the MSD ordinance nor the Washington County ordinance, however,
takes realistic account of changes in ownership and management of
facilities and of situations involving multiple owners.
In practice, maintenance responsibility for detention or erosion control
facilities can fall on different entities, depending on the type of
facility involved. When a detention basin is included in a planned
unit development, title to the property usually passes to the homeowners'
association, along with the obligation to maintain it. Similarly,
permanent detention ponds in commercial or industrial parks are maintained
by the owners of establishments in the park or by their lessees. Large,
permanent facilities may be maintained by the municipality or by a
regional park district, but municipal authorities are often unwilling
to assume this rolenunless the facility offers substantial benefits
to the community. More than one municipal government may be
responsible for maintaining a multijurisdictional detention basin such
as the reservoir now planned to accept drainage from Mt. Prospect and
Arlington Heights. No a priori formula exists for allocating such
responsibility. In this instance, the two municipalities hope to work
out a simple, equitable arrangement, perhaps with one municipality
agreeing to cut grass and keep fences and banks in good repair, while
the other cleans the water and maintains the pumps. Whether such an
agreement would prove effective in the long run remains an unanswered
question.
There are, in effect, only two ways of approaching the maintenance problem:
either the public agency must do the job itself or else incentives must
be offered to encourage the appropriate private entity to perform the
task. Public maintenance will frequently be the most acceptable solution
because it avoids the tangle of joint ownership and absentee owners. The
principal disadvantage of this approach is that the regulatory agency
must devise a scheme for funding and staffing the program. It has been
noted above that general revenue sources, such as property taxes and
bonds, are not especially good funding techniques for this type of expense.
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Permit fees are a steady source of income that could theoretically be
applied towards financing maintenance oeprations. It is not at all
clear, however, that these revenues could ever be adequate to cover
the costs of continued maintenance. Montgomery County, for example,
cannot finance its annual administrative expenses, including plan review
and inspections, entirely out of income from application fees, even
without paying for maintenance. Penalties or fines have not in the
past been widely used to cover such costs,-=~^- and penalty proceeds
could easily prove too irregular or too insubstantial. User charges
or effluent charges, such as Boulder's drainage fee, may be the most
reliable source of funds for this purpose, especially where the class
of benefited users is clearly defined. User charges may thus have
their chief application in maintaining large reservoirs or public
drainage systems. Of course, if the benefit conferred is communitywide,
it may make sense to fund maintenance costs out of property taxes
instead.
For small detention facilities, it has generally been assumed that the
private interest in maintaining the value of property will be a
sufficient incentive for cleaning and repairing the facility as needed.
On the other hand, the experience of MSD officials suggests that some
owners or lessees will not bother to keep their facilities in good
working order unless they are subjected to periodic official inspection
and threats of enforcement action. It may be impractical for a section
208 agency to design an independent, building-to-building inspection
program simply to check the condition of small detention facilities.
A realistic alternative could well be to piggy-back inspections of this
sort upon existing, regularly scheduled inspections of elevators or
fire alarm systems.
Another promising technique for pressuring private developers to maintain
detention facilities has been tried out in Palatine, Illinois. The
village of Palatine enters into written agreements with developers
stipulating certain ownership, maintenance, and operation requirements.
The agreement provides that the owner will be primarily responsible for
maintenance, but that if his work is unsatisfactory, the village (after
proper notification to the owner) will perform the needed maintenance
operations and place a lien on the property to cover expenses. This
agreement remains in force until the facility is completed, at which time
the village assumes all maintenance obligations. There is no apparent
reason why such an agreement should not remain effective even after
the construction is completed. ,
A close approximation to this technique, with the time limit removed, is
found in the emergency maintenance provision of the DeKalb County Code.
This section authorizes the roads and drainage director to conduct
emergency maintenance operations on private land whenever he finds that
emergency conditions exist. These operations, however, are limited to
"removal of trees and other debris," and no mechanism is provided for
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collecting costs from the private owner. DeKalb County officials were
apparently concerned that performing majoy repairs on private land would
create a continuing maintenance obligation on the part of the county.
When the party responsible for maintaining a detention facility is
easily identifiable, he can be subjected to enforcement proceedings
just as a developer can during construction. If he fails to perform
his maintenance obligation adequately, he may have to pay a fine or
face a court order. Revocation of an operation and maintenance permit
may be an alternative remedy in rare instances. In addition, private
property-owners may become liable to neighboring landowners for damage
caused by inadequately maintained detention systems. Damages have been
awarded to private plaintiffs in the past when their property was
harmed by overflow from defendant's negligently maintained drainage
ditches. ' Inadequate maintenance of stormwater detention facilities
may also lead to flooding of adjacent properties, thus giving rise to
an action for damages. More frequently, faulty maintenance will result
in insect breeding, unsightly algal growth, or other offensive conse-
quences, against which injunctive relief may be available in a cause
of action for nuisance.
Stormwater management ordinances should spell out in some detail what
remedies are available to private plaintiffs. North Carolina's
erosion control law, for example, permits any injured party to seek
injunctive relief or to sue for damages,~~L' Provisions in the same
law for double damages where actual damages are less than $500 and for
award of litigation costs to either party protect the interests of
litigants with relatively minor complaints.
A final point worth noting in this connection is that not only private
landowners, but also municipalities may become liable when a detention
or drainage system malfunctions. In Calamari v. Town of G.lastonbury, '
a Connecticut court held the town responsible when a drainage system
constructed by a private developer according to plans modified and
approved by the town's engineer caused a stream on plaintiff's property
to fill beyond its usual capacity and to overflow. The town was found
liable in this case even though there seems to have been no negligence
on the part of the town engineer. This decision, if widely followed,
would set an extremely high standard of care for section 208 management
agencies at the plan reviewing stage.
6. 0 Legal Issues
A comprehensive stormwater management program should be drafted with an
awareness of due process considerations if it is to survive challenge
in the courts. The issuance, denial, or revocation of a development
permit are actions that impinge seriously on the developer's property
rights. Accordingly, it is important that these administrative actions
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be surrounded by proper procedural safeguards. Most agencies entrusted
with stormwater management now recognize this need, and erosion and
runoff control ordinances usually include provisions for notice and
hearing when an enforcement action is begun^V anc[ for rights of
appeal from adverse administrative decisions.±rr!/ Rules and regulations
adopted by the North Carolina SCC recognize plan disapproval or
modification as especially sensitive types of agency action entitling
the plan submitter to a public hearing before the commission.A_£'
Measures for detaining stormwater or preventing erosion must be
reasonable if they are to be approved as valid exercises of regulatory
power. The reasonableness requirement assumes greatest importance
when a particular measure or regulatory objective seems inherently
unfair. For example, the Chicago MSD has compensated for poor planning
before 1972 with regulations that may seem inequitable from the stand-
point of the post-1972 developer. He must provide for drainage from
previously developed upstream areas in calculating the storage capacity
for his own development. In other words, he must provide storage for
runoff attributable, at least in part, to developments that escaped
the requirements of the MSB's amended ordinance. Furthermore, any
new bypass system he constructs must be large enough to accommodate
the flow from fully developed areas upstream, even when no development
has actually taken place there. Provisions like these may need
special justification, even though they offer the only realistic
means of controlling runoff in areas where prior unregulated develop-
ment has created serious drainage problems.
An agency should be able to demonstrate the reasonableness of its
regulations. In the first place, it should be prepared to show,
through careful data compilations and planning studies,, that its
regulatory requirements further the community's overall water quality
objectives. Secondly, it would be useful to show that no practicable
alternative exists. For example, the MSD could not, in all probability,
impose detention requirements on existing developments completed before
the 1972 amendment went into effect. Instead, it must rely on new
developments to compensate for earlier planning failures. But third,
MSD's requirements (or similar ones elsewhere) would not be so
questionable on constitutional grounds if the serviced owners of
upstream properties had to pay their fair share of downstream control
costs.
Regulatory schemes calling for stormwater detention may also raise
the potentially vexing issue of taking property without compensation.
This question would most commonly arise when a developer is required
to set aside land for a detention basin, but it might also be raised
when the cost of installing any facility is perceived to be excessive.
The taking issue can always be sidestepped if -the landowner is compen-
sated for property he dedicates to public use, but systematic compensa-
tion will in most cases prove too financially burdensome for the
administering agency. The water quality management agency should
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therefore become generally familiar with the law of takings and with
strategies for avoiding litigation on this issue. Stormwater management
is too new a regulatory field to have generated its own case law on
takings, but guiding principles can be drawn from other categories of
land use regulation.
The basic constitutional test governing the subject of takings was
set out in Pennsylvania Coal v. Mahon.±~U Under that decision, a
court must weigh the public benefits of regulation against the
private loss to determine whether the regulation operates as a taking
in the particular case. When the public interest is strong, there
may be almost no limit to the loss that can be occasioned to the
private property owner. In Turnpike Realty v. Town of Dedham, '
for example, the Massachusetts Supreme Judicial Court upheld flood
plain regulations that allegedly reduced the value of plaintiff's
property by 80 percent. Here, the purpose of safeguarding the
community against the economic and physical dangers of unrestricted
development in the flood plain proved weighty enough to prevail
against a very considerable private loss.
However, where the purpose is simply to preserve plaintiff's land
in its undeveloped state or to secure the land for a public facility
without compensation, courts may treat the regulation less leniently.
In Baker v. Planning Board of Framingham,.lrJ/ for example, the board's
refusal to grant subdivision approval to plaintiff was not sustained
when the only reason for the refusal was that the proposed subdivision
would have deprived the town of land that had been functioning as
a floodwater retention basin. But in Just v. Marinette County,'
it was held that the state of Wisconsin could exercise its police
power to preserve its wetlands in their "natural" state, where
development would pose a threat to water quality, navigation, fishing,
and scenic beauty.
On the issue of whether a developer may be required, without compensation,
to dedicate space for a detention facility, analogies may be drawn
from cases concerning land dedication for other public purposes. One
thread that runs through these cases is that the dedication is most
legitimate where the need for the land is directly and solely attributable
to the activities of the particular developer. (See Aunt Hack Ridge
Estates, Inc. v. Planning Commission of the City of Danbury.-I-*!/In
contrast, compulsory dedication for a public school was disapproved in
Pioneer Trust & Savings Bank v. Village of Mt. Prospect, ' where the
need for additional public school facilities was not uniquely attributable
to the addition of the new subdivision. In general, this judicial
stance fits well with the performance orientation in stormwater manage-
ment, since the philosophy of this approach is to make the developer
correct only the imbalances he himself introduces into the ecological
system. The result in Pioneer Trust may, however, raise questions about
the desirability of regulations (like the MSB's detention requirements)
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VI-46
that force the developer to compensate with extra storage capacity
for the drainage failures of tributary development. Without necessarily
being unconstitutional, those regulations may prove unexpectedly
costly if the administering agency is called upon to defend them in
court.
Even when the water quality management agency is forced to adopt a
relatively vulnerable regulatory position, agency officials can pursue
certain strategies to save their programs against constitutional
challenge.~^r' Most valuable is the technique of supporting regulations
with careful draftsmanship and thorough compilations of relevant
data, which may succeed in defining and strengthening the regulatory
purpose to such a degree that it outweighs individual losses under
the Pennsylvania Coal balancing test. As a practical matter, the
courts have time and again upheld regulations as nonconfiscatory where
the agency has convincingly shown a need for the regulation in terms
of public health, safety, or welfare.134/ Where the agency has been
unable to make this showing, quite similar regulations have been held
to be takings .±^2.'
Water quality management agencies should remain alert to possibilities
of resolving potential constitutional disputes outside the courtroom
through negotiation. This technique has been successfully employed
by agencies with power to control land use. For example, the
San Francisco Bay Conservation and Development Commission, whose powers
to control development in areas adjacent to the bay were judicially
affirmed in Candlestick Properties, Inc. v. San Francisco Bay Conservation
and Development Commissioiy^-^ attempts to reach accommodations with
developers wherever possible. Recently, the commission worked out
an agreement allowing four acres of fill in the northwestern part of
the bay in exchange for dedication of 365 acres to the Conservation
Foundation. Imaginatively conceived tradeoffs like this may forestall
expensive and embarrassing litigation. The role of conversations with
developers should also not be underestimated. The MSD has found informal
discussions particularly useful as a means of warding off formal
challenges to its detention and bypass requirements ..£-_' The North
Carolina legislature considered this technique so important that it
provided for regular preconstruction conferences among "affected parties"
in the preamble to the state's Sediment Pollution Control Act.
7.0 Effectiveness of Existing Stormwater Management Programs
The preceding sections have concentrated on regulatory approaches
designed to control runoff at different points in the hydrological
cycle and to achieve and maintain performance standards with respect
to runoff and erosion. Many of these programs will achieve success
only if they meet with general public acceptance. This final section
will survey briefly techniques that have been used in the past to gain
public approval of stormwater management regulations.
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VI-47
Public acquiescence in a stormwater management program is critically
important during the initial phase in which controls are adopted,
but continuing public acceptance is also needed to permit implementation
of the policy without serious challenge. Jurisdictions that have
employed regulatory procedures for stormwater management have shown
considerable awareness of the need for public involvement and have
used various methods to publicize their programs. The MSB of Greater
Chicago, for example, appointed a special blue ribbon committee,
composed of a cross-section of local citizens, government officials,
builders, and engineers, to assist in the formulation and adoption
of section 3(B) of the sewer permit ordinance. The same committee
also helped develop the manual of procedures for administering the
ordinance. Occasionally, the composition of the regulatory agency
itself may reflect an effort to reconcile various conflicting interests;
North Carolina's Sediment Control Commission may serve as a model in
this context. DURA's plans for the Skyline Project were approved by
both the Denver Planning Office and the City Council as being in
the best interests of the city's overall development. Other techniques
considered useful by officials at DURA, MSD, and elsewhere have
included informal discussions with developers before formal plans are
submitted, and information pamphlets designed to acquaint architects,
engineers, and home builders with the substance and purpose of stormwater
control regulations.
Direct education of the public on the benefits of particular runoff
control measures can be extremely effective, especially where parti-
cipation by many individuals is needed to achieve the regulatory
purpose. A good example of a successful direct appeal to the public
was the letter campaign by which the Springfield Sanitary District
carried out its downspout disconnection program. Although initial
resistance to the program was high, eventually a very high percentage
of homeowners complied. Many citizens who did not respond to letters
threatening legal action reacted favorably to the final letter, which
appealed to their public spiritedness without referring to enforcement.
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CHAPTER SIX
MANAGEMENT OF STORMWATER AS A NONPOINT SOURCE IN
URBAN AND URBANIZING AREAS
FOOTNOTES*
1. In terms of sheer volume, sediment ranks above domestic sewage,
industrial wastes, and chemicals as a major cause of water pollu-
tion. Annual sediment deposits in the nation's reservoirs amount
to approximately 950,000 acre-feet, or nearly five times the
total volume excavated in building the Panama Canal. Suspended
solids carried by runoff to streams are estimated to be at least
700 times the volume of suspended solids in sewage discharge.
See National Association of Counties Research Foundation (NACRF),
Urban Soil Erosion and Sediment Control (1970).
2. The earliest reported study of the pollutional level of urban
stormwater runoff was based on a sampling of flow from street
surfaces in downtown Detroit in 1950. Results supported the
conclusion that "stormwater run-off from highly urbanized and
highly populated areas is heavily polluted and would be but
slightly less objectionable in the receiving waters than the
run-off flow from combined sewers." See C. Palmer, "Feasibility
of Combined Sewer Systems," 35 Water Pollution Control Fed'n
(Feb. 1963). Recent studies of urban runoff also suggest that
in many localities the pollution level of the water may be at
least as high as that of sanitary sewage. See U.S. Environmental
Protection Agency, Water Pollution Aspects of Street Surface
Contaminants (1972)
3. Urban systems Research and Engineering, Inc., Improving Environmental
Quality through Local Use Ordinances 294 (April 1976).
4. Draft dated November, 1976.
5. Center for Ecological Research in Planning and Design, University
of Pennsylvania, Medford, Performance Requirements for the Maintenance
of Social Values Represented by the Natural Environment of Medford
Township, N.J. (1974).
6. Id. at 11, 13.
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted
from the footnotes.
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VI-FN-2
7. As in the context of overall planning, ,the section 208 agency can
achieve an initial lowering of costs by adopting a functional
approach to data collection. For purposes of stormwater manage-
ment, a functionally oriented environmental inventory would include
only those factors that most directly affect runoff and erosion.
Such short-term cost-cutting, however, must be weighed against
the benefits of integrating the community's program for nonpoint
source control with its broader developmental objectives.
8. The computer study for the Wissachickon Watershed was done by the
Regional Science Research Institute, Philadelphia at a cost of
approximately $40,000.
9. See W.L. Jorden and Co., Echo Branch Sub-Basj-n Study, Pilot Sub-Basin
Drainage Program, (Feb. 1976).
10. A. Brandstetter, Computer Analysis of Urban Stormwater Models
(Aug. 1974).
11. Restrictive land use regulations have been upheld largely on the
strength of carefully marshalled evidence in the following cases:
Potomac Sand and Gravel Co. v. Governor of Maryland, 266 Md. 358,
293 A.2d 241, (1972); Spiegle v. Borough of Beach Haven, 46 N.J.
479, 218 A.2d 129 (1966); Golden v. Planning Board of Town of
Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972).
Similar restrictions have been struck down when unsupported by
facts in the record: Sturdy Homes, Inc. v. Township of Redford,
30 Mich. App. 53, 186 N.W.2d 43 (1971); Lyon Sand and Gravel
Co. v. Town of Oakland, 33 Mich. App. b!4, 190 N.W.2d 354 (1971);
National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597
(1965). In Steel Hill Development, Inc. v. Town of Sanbornton,
469 F.2d 956 (1st Cir. 1972), considerations of public health
and welfare led to approval of six-acre zoning as a stop-gap
measure, but the Court was "disturbed" by the "crude manner" in
which the law was adopted without "any professional or scientific
study."
12. Id.
13. Institute for Environmental Studies, University of Pennsylvania,
"Delaware Law and Potential Land Use and Performance Controls for
the Christina Basin," at 7-8 (discussion Paper 10, Nov. 1972).
14. This is especially important when costs are high. Projected costs
for improvements in the Echo sub-basin, for example, were $1.6 million.
15. Institute for Environmental Studies, University of Pennsylvania,
Plan and Program for the Brandywine (Oct. 1968).
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VI-FN-3
16. This is the approach taken by EPA in the Guidelines, supra, section
2.1 and note 4. Cf. supplement entitled "Best Management Practices-
Urban Runoff Sources of Water Pollution," at 4-5 (draft, Feb. 1976).
17. A. Strong, Regulation of Urban Development to Control Runoff and
Erosion IV-3 "(1973) .
18. For example, in Morris County Land Improvement Company v.
Parsippany-Troy Hills Township, 40 N.J. 539, 193 A.2d 232 (1963),
the court invalidated a zoning ordinance permitting only public
and quasi-public uses of plaintiff's land.
19. N.C. Gen. Stat. § 113A-51 (preamble).
20. In contrast with restrictions on development generally, strict
regulations of development in flood plains has been upheld.
Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr.
93 (1972); Turnpike Realty v. Town of Dedham, 284 N.E.2d 891
(Mass. 1972).
21. North Carolina, Rules and Regulations for Erosion and Sediment
Control, Admin. Code subchap. 4B, § 6 [hereinafter cited as N.C.
Rules and Regulations].
22. See Federal Water Pollution Control Administration, U.S. Dep't of
Interior, Water Pollution Aspects of Urban Runoff 13 (June 1969).
23. Id. at 217, appendix F, citing New Orleans Code § 28-20(a)
24. Id., citing Ogden, Utah Code § 14-18-26(b)
25. Id., citing Los Angeles Code § 62.19.
26. Id., citing San Francisco Police Code § 79.
27. J_d., citing Newport News City Ordinance No. 178, § 19.
28. In practice, several existing structures have been modified to
accommodate rooftop storage because their owners could escape
condemnation only by rehabilitating their property in accordance
with criteria established by DURA. Since the Denver Building Code
requires roofs to sustain a snow load equivalent to the weight of
about six inches of water, modification for purposes of rooftop
detention has normally involved only the installation of the special
detention ring. Costs of rehabilitation have been borne by the
private landowner.
29. Cf. Manual of Procedures for the Administration of the Sewer Permit
Ordinance Art. 6, § 6-4 (adopted Sept. 3, 1970)^
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VI-FN-4
30. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946).
31. N.C. Rules and Regulations, supra note 21, § 15.
32. A stormwater detention basin is not subject to federal or state
water quality standards because it is, in effect, an artificial
treatment facility. Unless there is a spillover from such a
reservoir, it will also fall outside the FWPCA's definition of
navigable waters. Of course, multipurpose facilities used for
contact sports or water supply will have to meet applicable public
health standards. Proper maintenance must assure that these basins
function right and do not become nuisances or health hazards.
33. For example, in Pioneer Trust and Savings Bank v. Village of Mount
Prospect, 22 111. 2d 375, 176 N.E.2d 799 (1961), dedication of land
for a school site under a subdivision ordinance was held unconstitu-
tional because the need for the educational facility was not
"specifically and uniquely attributable to the addition of the
subdivision." The constitutionality of compulsory land dedication
is discussed further in section 6.0 infra.
34. Inadequate maintenance of permanent detention basins may lead to
excessive sedimentation, algal growth, mosquito breeding and
erosion of banks.
35. For example, the Chicago MSD will bear the construction cost for
a detention reservoir which will serve Mt. Prospect and Arlington
Heights, but the two villages must work out a way of sharing the
cost of land and maintenance of the completed facility. If such a
project benefited more than two municipalities, equitable cost
allocation could become even harder to achieve.
36. Pavement material, motor vehicle discharges, atmospheric pollutants,
vegetation, and ice-melting compounds all contribute to pollution
on street surfaces. A multi-pronged regulatory scheme is necessary
for controlling these varied sources of contaminants.
37. EPA's analysis of material from representative road surfaces indicates
that
the very fine, silt-like material (43 microns)
accounts for only 5.9 percent of the total solids
but about one-fourth of the oxygen demand and per-
haps one-third to one-half of the algal nutrients.
It also accounts for over one-half of the heavy metals
and nearly three-fourths of the total pesticides.
Water Pollution Aspects of Street Surface Conta-
minants, supra note 2, at 6.
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VI-FN-5
38. Replacement of combined sewers with separate storm and sanitary
sewers may be impossible in most cities except in connection with
large-scale urban renewal, e.g., Denver's Skyline Project.
39. H. Poertner, Practices in Detention of Urban Stormwater Runoff 132-41
(June 1974).
40. Id_. at 187.
41. See Executive Office of the President, Office of Management and Budget,
Catalogue of Federal Domestic Assistance.
42. The following examples are not a complete catalogue of federal
programs with possible bearing on water quality management.
43. See 33 U.S.C. §§ 426(g), 701(a), 577.
44. Watershed Protection and Flood Prevention Act of 1954, Pub. L. No.
83-566, 16 U.S.C. § 1001 et seq.
45. See generally annoted bibliography included in EPA Guidelines,
supra section 2.1 and note 4.
46. See e.g., N.C. Rules and Regulations, supra note 21, § 8a.
47. 7 Envir. Rep. Cas. 2066 (D.D.C. 1975).
48. At the time of the district court decision in NRDC v. Train, more
than half the states had been nondesignated in their entirety.
Cf. 7 Envir. Rep. Cas. 2068.
49. Mass. Gen. Laws Ann. ch. 21, § 43(2)(West).
50. Id. § 27(6).
51. W_. § 26(A) .
52. Mass. Const, art. II, as amended by art. LXXXIX, § 6.
53. Ch. 245 of the Acts of 1970.
54. N.C. Gen. Stat. § 143B-298
55. N.C. Gen. Stat. § 113A-54
56. Cf. 1 U.S. Water Resources Council, Regulation of Flood Hazard to
Reduce Flood Losses 118 (1970).
57. Vt. Stat. Ann. tit. 10, § 6086 (issuance of permit; conditions).
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VI-FN-6
58. Id.
59. Cal. Pub. Res. Code div. 18 (West).
60. Id. § 27001.
61. Id_. § 27401(e).
62. Wis. Stat. Ann. § 59.971 (West).
63. The relevant provision reads as follows:
If any county does not adopt an ordinance by
January 1, 1968, or if the department of natural
resources, after notice and hearing, determines that
a county has adopted an ordinance which fails to meet
reasonable minimum standards . . . the department
[of natural resources] shall adopt such an ordinance.
Id. § 59.971(6)
64. Tri-County Conservancy of the Brandywine, Chadds Ford, Pa.,
Environmental Management Handbook IV-6b, citing Rules and Regu-
lations of the Department of Environmental Resources (Dec. 1975).
65. N.C. Rules and Regulations, supra note 21, § 4c.
66. Id. § 17.
67. Special districts can vary greatly in organizational form and
regulatory authority. The discussion here is necessarily simplified.
68. For example, the Springfield Sanitary District initially lacked
authority to press its downspout disconnection program in the city
of Springfield, which owns and operates its own sewer system. It
required an amendment to the Illinois Sanitary Districts Act to
extend the District's regulatory authority to city sewers tri-
butary to its own system.
69. Minn. Stat. 112.34, § 112.36.
70. This is the case in Minnesota, for example, where SWCD's have taken
a leading role in controlling erosion. Cf. V. Reichert and W. Oemichen,
"Erosion: Today's Soil, Tomorrow's Silt," Soil Conservation, Sept.
1976.
71. Soil Conservation Districts Law, Iowa Code Ann. §§ 467A.1 - A.53
(West Cum. Supp. 1976).
72. Sediment Control Act, Md. Nat. Res. Code Ann. § 8-1101 to § 8-1108
(Cum. Supp. 1975).
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VI-FN-7
73. Mass. Gen. Laws Ann. ch. 131, § 40 (West).
74. Telephone interview with Ayoub Talhami, Supervising Engineer of
Local Sewer Systems, Metropolitan Sanitary District of Greater
Chicago (June 2, 1976).
75. Pub. L. No. 89-80, 42 U.S.C. § 1962 e_t seq.
76. The compact [or other enabling law] could be made
to safeguard the interests of basin residents
through a requirement that the states [or state]
delegate power to basin residents, who then would
elect the members of the commission. They would
vote on the basis of equal-population districts ....
Attempts to provide for basin representation by
advisory committees dealing with recreation, land-
use planning, and other special interests do not
serve as surrogates for representative government
in weighing values. E. Haefele, Representative
Government and Environmental Management 41-42 (1973).
In a nutshell, Mr. Haefele's thesis is that government agencies
empowered to decide fundamental questions of public policy should
be headed by elected representatives of the public. If stormwater
management, for example, involves only technical implementation of
pre-established policy, that task might well be entrusted to
appointees with special qualifications. But to the extent it
involves the making of fundamental social choicese.g., location
of a multipurpose reservoir, or establishment of substantial
restrictions on developmentthe task is more legislative than
administrative in nature, and should accordingly be performed by
officials who are directly accountable to the people.
77. Township of Medford, Burlington County, New Jersey, Subdivision
Ordinance of 1974 (adopted Aug. 7, 1974).
78. Id. art. VI, § 2.
79. Id. art. VII.
80. Compliance and enforcement are discussed at greater length in
section 5.0 infra.
81. Cited in B. Berger £t _al_. , "Strengthening Lake-Shoreland Management
in Massachusetts" (draft dated Feb. 1976).
82. Institute for Environmental Studies, Brandywine Plan, supra note 15,
at I-A-2.
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VI-FN-8
83. A. Strong, Private Property and the Public Interest 206 ff. (1975).
84. These were the Division of Natural Resources of the Bucks County
Planning Commission and the Neshamisy Water Resources Authority.
85. H.A. Mittelstedt, "Terraces Protect Glen Ullin," Soil Conservation,
February 1976, at 9.
86. N.C. Rules and Regulations, supra, note 21, § 6a.
87. Southeastern N.H. Regional Planning Commission, "Sample Portion
of Municipal Subdivision Regulations to Deal with Soil Erosion and
Sediment Control".
88. Office of Research and Development, U.S. EPA, Performance Controls
for Sensitive Lands: A Practical Guide for Local Administrators
445 (March 1975). (Revised version published as Thurow, C.; Toner, W.;
and Erley, D., Performance Controls for Sen.sitiye Lands, Planning Advisory
Service, nos. 307, 308. Chicago: American Society of Planning Officials,
1975.
89. Rate is the more important variable because the pollutant content
of runoff depends much more on the intensity than on the volume of
rainfall.
90. JEd. at 453-54.
91. The equation expresses average soil loss as a function of several
variables, including runoff, slope, erodability of a particular
soil and soil management practices.
92. Center for Ecological Research, Medford Performance Requirements,
supra note 5, at 29.
93. Leon County Ordinance No. 73-10, Ordinance No. 73-57 and Ordinance
No. 75-5.
94. N.C. Rules and Regulations, supra note 21, § 8.
95. JEd. § 14.
96. See W. Jorden and K. Jones, "Building a Drainage Program,"
Public Works, March 1976.
97. This policy was changed in 1972 when a new election brought in a
new Board of County Commissioners.
98. R. Ditmer, "Impact Zoning: An Introduction and Selected Biblio-
graphy," Council of Planning Librarians Exchange Bibliography #974,
at 3 (Feb. 1976).
99. Duxbury Protective By-Law art. 100, adopted under art. 17
(March 15, 1973) .
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VI-FN-9
100. See Ditmer, supra note 98, at 11.
101. £f., for example, City of Naperville, Ordinance No. 72-74, § 12.902F
(Standards for wet bottom storage areas:
Wet bottom storm water storage areas shall be designed
with all of the items required for dry bottom storm
water storage areas except that a low flow conduit
and a system of drains with a positive gravity outlet
shall be eliminated. However, the following addi-
tional conditions shall be complied with:
a. Water surface area shall not exceed
1/10 of the tributary drainage area.
b. Shoreline protection shall be provided
to prevent erosion from wave action.
c. Minimum normal water depth shall be
four (4) feet. If fish are to be used
to keep the pond clean, a minimum of
1/4 of the pond area shall be a mini-
mum of 10 feet deep.
d. Facilities shall be available, if
possible, to allow the pond level to
be lowered by gravity flow for cleaning
purposes and shoreline maintenance.
e. Control structures for storm water re-
lease shall be designed to operate at
full capacity with only a minor in-
crease in the water surface level. Hy-
draulic calculations shall be submitted
to substantiate all design features.
f. Aeration facilities to prevent pond
stagnation shall be provided. Design
calculations to substantiate the effec-
tiveness of these aeration facilities
shall be submitted with final engineering
plans. Agreements for the perpetual
operation and maintenance of aeration
facilities shall be prepared to the
satisfaction of the municipality.
g. In the event that the water surface of
the pond is to be raised for purposes of
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VI-FN-10
storing water for irrigation or in antici-
pation of the evapo-transpiration demands
of dry weather, the volume remaining for
storage of excess storm water runoff shall
still be sufficient to contain the 100
year storm runoff.
102. Manual of Procedures, supra note 29.
103. 4 Envir. Rep. Gas. 1402 (Mich. Cir. Ct. 1972).
104. Redevelopment plans for parcels in Denver's Skyline Project area are
reviewed once before a temporary award is made. Final review and
approval by DURA's Board of Commissioners precedes each actual sale.
105. While either a performance bond or an escrow account can be used by
the 208 agency to guarantee completion of projects according to
plan, the two devices may not appear equally attractive to developers,
A performance bond may require a smaller outlay of capital, but
the amount will not be recoverable as in the case of an escrow
account. The differences between the two forms of guarantee do
not seem to have been exploited in a systematic way to ensure
compliance with runoff and erosion control standards. Cf., for
example, the interchangeable use of cash, corporate bond, and
letter of credit in the Montgomery County, Md. sediment control
ordinance, infra note 113.
106. N.C. Gen. Stat. § 113A-61(d).
107. N.C. Rules and Regulations, supra note 21, § 19(a).
108. Cf. N.C. Gen. Stat. § 113A-61; Leon County Ordinance, supra note 93,
§ 7.1(a).
109. Leon County Ordinance, supra note 93 § 71.(b).
110. N.C. Gen. Stat. § 113A-64.
111. 208 agencies must offer adequate procedural due process before
revoking a permit. For further discussion of this point, see
section 6.0 infra.
112. N.C. Gen. Stat. § 113A-64(b).
113. Montgomery County Code ch. 19 (Sediment Control), § 19-19.
114. For example, the Leon County ordinance, supra note 93, includes
provisions for notice of violation, administrative stop work orders,
permit revocation, and injunctive action.
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VI-FN-11
115. Violations during construction may not even be a serious problem
in many jurisdictions. For example, while some 150 of the 1,000
permits issued annually by the Chicago MSB give rise to some
form of violation proceedings, very few involve non-compliance with
detention requirements. Since builders who have incorporated
detention facilities into their plans seldom fail to include them
in actual construction, violations tend rather to be minor errors
in the construction of outlets or installation of detention rings.
116. No. 73-356-W (Pa. Envt'l Hearing Bd., filed June 12, 1975).
117. Washington County, Md., Ordinance for the Control of Erosion and
Sedimentation § 12 (adopted-March 2, 1971).
118. Cf. Code of DeKalb County, Georgia, ch. 6A, § 6A-8(b)(8)(d).
119. N.C. Gen. Stat. § 113A-64(a)(2) is an exception.
120. See, for example, Birch v. Boston and Maine R.R., 259 Mass. 528, 156
N.E.2d 859 (1926), Land Development v. Louisville Gas, 2 Envir. Rep. Gas.
1001 (Ky. Ct. App. 1970).
121. N.C. Gen. Stat. § 113A-66.
122. No. 106990 (C.P. Hartford County, Conn. Oct. 8, 1973).
123. But cf. Van Buskirk v. State, 3 Envir. Rep. Gas. 1966 (N.Y. Ct. App.
1972) where the state of New York was not held liable for property
damages allegedly caused by the negligence of the state Water
Resources Commission in granting a permit for construction of a
dam by an association of riparian landowners.
124. Cf. Montgomery Co., Md. ordinance, supra note 113, § 19-9.
125. Cf. Naperville, 111. ordinance, supra note 101, § 12.903D.
126. N.C. Rules and Regulations, supra note 21, § 17(a)(4).
127. 260 U.S. 393 (1922).
128. 284 N.E.2d 891 (Mass. 1972).
129. 353 Mass. 141, 228 N.E.2d 831 (1967).
130. 56 Wis. 2d 7, 201 N.W.2d 761 (1972).
131. 160 Conn. 109, 273 A.2d 880 (1970).
132. 22 111. 2d 375, 176 N.E.2d 799 (1961).
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VI-FN-12
133. For detailed discussion of options, see F. Bosselman, D. Callies
and J. Banta, The Taking Issue (1973).
134. Cf. Potomac Sand and Gravel Co. v. Governor of Maryland (wetlands
regulation), 266 Md. 358, 293 A2d 241 (1972); Spiegle v. Borough
of Beach Haven (beach set-back regulation), 46 N.J. 479, 218 A.2d
129 (1966); Golden v. Planning Board of Town of Ramapo (zoning
ordinance), 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972).
135. Cf. Sturdy Homes, Inc. v. Township of Redford (flood plain zoning),
30 Mich. App. 53, 186 N.W.2d 43 (1971); Lyon Sand and Gravel Co.
v. Town.of Oakland, 33 Mich. App. 614, 190 N.W.2d 354 (1971);
National Land and Investment Co. v. Kohn (exclusionary zoning), 419
Pa. 504, 215 A.2d 597 (1965).
136. 11 Cal. App. 3d 557, 89 Cal. Reptr. 897 (1970).
137. While the cost of providing onsite detention is only a small fraction
of the total cost of a given project (site improvement, including
grading, sewer connections, by-pass and detention facilities, generally
amounts to only three to five percent of project costs), the absolute
amount of expenditure may be high enough to stand in the way of
willing compliance from developers. For example, shortly after
the MSB's detention program went into effect, the developer of a
projected shopping center proved reluctant to spend an additional
$200,000 to install detention facilities in conformity with MSB
requirements. Discussions in which MSB officials explained the
program's benefits kept this dispute from rising to the level of
a formal challenge.
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CHAPTER SIX
MANAGEMENT OF STORMWATER AS A NONPOINT SOURCE IN
URBAN AND URBANIZING AREAS
SUGGESTED READINGS
Berger, Bernard B. et al. "Strengthening Lake-Shoreland Management in
Massachusetts." University of Massachusetts, draft dated
February 1976.
Bosselman, Fred; Callies, David; and Banta, John. The Taking Issue.
Washington, D.C.: Council on Environmental Quality, July 1973.
Brandstetter, Albin. Computer Analysis of Urban Stormwater Models.
University of Massachusetts, Battelle Memorial Institute, August
1974.
Center for Ecological Research in Planning and Design. Medford,
Performance Requirements for the Maintenance of Social Values
Represented by the Natural Environment of Medford Township,
N. J. University of Pennsylvania, 1974.
Ditmer, Robert. "Impact Zoning: An Introduction and Selected Biblio-
graphy." Exchange Bibliography No. 974. Monticello, 111.: Council
of Planning Librarians, February 1976.
Federal Water Pollution Control Administration, U.S. Dep't of the
Interior. Water Pollution Aspects of Urban Runoff. Washington, D.C.,
June 1969.
Haefele, Edwin T. Representative Government and Environmental
Management. Washington, D.C.: Resources for the Future, Inc.
1973.
Institute for Environmental Studies, University of Pennsylvania. "Delaware
Law and Potential Land Use and Performance Controls for the
Christina Basin." Discussion Paper 10, November 1972.
. Plan and Program for the Brandywine. October 1968.
Mittelstedt, Herbert. "Terraces Protect Glen Ullin." Soil Conservation,
February 1976.
Jorden, William L., and Jones, K. Randell. "Building a Drainage
Program." Public Works, March 1976.
National Association of Counties Research Foundation. Urban Soil Erosion
and Sediment Control. Washington, D.C.: Federal Water Quality
Administration, U.S. Dep't of the Interior, 1970.
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VI-SR-2
Office of Research and Development, U.S. /Environmental Protection Agency.
Performance Controls for Sensitive Lands: A Practical Guide for
Local Administrators. Washington, D.C., March 1975. (Revised version
published as Thurow, C.; Toner, W.; and Erley, D., Performance^ Controls
for Sensitive Lands, Planning Advisory Service, nos. 307, 308. Chicago:
American Society of Planning Officials, 1975.
Palmer, Clyde L. "Feasibility of Combined Sewer Systems." Journal Water
Pollution Control Federation 35 (1963).
Poertner, Herbert G. Practices in Detention of Urban Stormwater Runoff.
Washington, D.C.~Jvine 1969. ~~
Reichert, Vernon, and Oemichen, William. "Erosion: Today's Soil,
Tomorrow's Silt." Soil Conservation, September 1976.
Strong, A.L. Regulation of Urban Development to Control Runoff and
Erosion. Chadds Ford, Pa.: Tri-County Conservancy of the
Brandywine, Inc., 1973.
. Private Property and the Public Interest. Baltimore, Md.:
Johns Hopkins University Press, 1975.
Tri-County Conservancy of the Brandywine, Inc. Environmental Management
Handbook. Chadds Ford, Pa., December 1975.
Urban Systems Research and Engineering, Inc. Improving Environmental
Quality through Local Use Ordinances. Cambridge, Mass. April 1976.
U.S. Environmental Protection Agency. "Best Management PracticesUrban
Runoff Sources of Water Pollution." Supplement to Guidelines for
Areawide Water Quality Management Program Development. Washington,
D.C., November 1976.
U.S. Environmental Protection Agency. Water Pollution Aspects of Street
Surface Contaminants. Washington, D.C., 1972.
U.S. Water Resources Council. Regulation of Flood Hazard Areas to
Reduce Flood Losses. Vol. 1 Washington, D.C., 1970.
Water Planning Division, U.S. Environmental Protection Agency. Stormwater
Quality Summary Prepared for New Castle County, Delaware. Preliminary
Draft, November 1975.
W.L. Jorden and Company. Echo Branch Sub-Basin Study. Pilot Sub-Basin
Drainage Program. Decatur, Georgia, February 1976.
-------
CHAPTER SEVEN
AGRICULTURE AND SILVICULTURE
TABLE OF CONTENTS
1.0 Introduction
1.1 Scope and Organization VII-1
1.2 Pollution from Sediment VII-2
2.0 Agriculture VII-4
2.1 Erosion and Sediment Control VII-4
2.1.1 Technical Methods of Controlling Sediment
Pollution from Agriculture VII-4
2.1.2 Current Regulatory Status and Source of
Authority VII-5
a. Local Erosion and Sediment Control
Programs VII-5
b. State Erosion and Sediment Control
Programs VII-6
2.1.3 Management Approaches: Plans, Soil Loss
Limits, and Conservation Standards VII-8
2.1.4 Administration and Enforcement VII-12
a. The Complaint Process VII-12
b. Cost-Sharing VII-14
2.1.5 Appropriate Level and Agency of Government....VII-17
2.2 Pollution from Animal Wastes VII-19
2.2.1 Animal Wastes and the NPDES VII-20
2.2.2 Animals Wastes and Water Quality
Management VII-22
3.0 Silviculture VII-25
3.1 Introduction VII-25
3.2 Technical Methods of Controlling Sediment
Pollution from Silviculture VII-26
3.2.1 Logging Roads VII-26
3.2.2 Logging Practices VII-27
3.3 Forest Practices Acts VII-28
3.3.1 Introduction VII-28
3.3.2 Management Approaches: Plans, Permits,
Notifications, and Standards VII-29
3.3.3 Regulations and Standards: Formulation
and Flexibility VII-31
3.3.4 Administration VII-34
a. Inspection VII-34
b. Interagency and Intergovernmental
Coordination VII-34
3.3.5 Enforcement VII-37
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3.4 Alternative Approaches to the Control of Sllvi-
culturally Related Nonpoint Sources VII-40
3.4.1 Revisions to and/or Regulations under
Related Legislation VII-40
a. Water Pollution Control Laws VII-40
b. Erosion and Sediment Control
Legislation VII-41
3.4.2 Fiscal Incentives, Contract Provisions,
and Educational Programs , VII-42
4.0 Agriculture and Silviculture and Critical Areas
Programs VII-45
5.0 Legal Issues VII-52
Appendix A; Erosion and Sediment Control Programs
Appendix B: State Forest Practice Acts and Regulations
Footnotes
Suggested Readings
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CHAPTER SEVEN
AGRICULTURE AND SILVICULTURE
1.0 Introduction
1.1 Scope and Organization
It is necessary to explain at the very outset the reasons for treating
two such important areas of study, agriculture and silviculture, I/
within the confines of a single chapter. This treatment is not meant to
suggest that nonpoint pollution from agriculture and silviculture is
less important than that from other sources or that the technical
practices for controlling pollution from the two different sources are
similar. From the legal and institutional perspective, however, the
two activities and approaches to regulation of pollution resulting
from those activities have much in common.
Since the primary pollutant emanating from agricultural and silvicultural
activities is sediment, jurisdictions needing stronger controls over
agricultural and silvicultural pollution will want to consider adopting
a comprehensive erosion and sediment control program applicable to both.
And, while the size of the commercial forestry industry or agribusiness
in some states and localities will dictate a much more focused approach,
the alternative approaches to regulating nonpoint pollution from agriculture
and silviculture are similar. Such approaches include: setting performance
standards or best management practices for some farming and forestry
activities; requiring owners or operators of farms and forests to have
pollution management plans; protecting watercourses and waterbodies from
accelerated agricultural and silvicultural runoff through critical area
programs; and using technical assistance, cost-sharing, and tax incentives
to ease and speed accomplishment of environmental goals.
Even if control of sediment from agricultural and silvicultural activities
is undertaken through separate programs, moreover, it is important that
those programs be coordinated because of the trade-offs that may exist
between them. The state of Iowa, for example, experienced a 40 percent
loss in commercial forest acreage between 1954 and 1974 due to clearing,
much of it for agricultural use. That conversion from forest use to
agriculture meant going from a use which typically yields one ton per
acre of sediment to another which may yield as much as five tons per
acre annually._2/
Despite the similarities in kinds of pollution and regulatory approaches
to pollution abatement and despite the need for coordination between
agricultural and silvicultural management efforts in a total nonpoint source
program of the type section 208 of the Federal Water Pollution Control
Act seeks to promote, few existing state programs address both activities.
Accordingly, in view of the empirical approach of this manual, this
chapter is divided into two main sections: the first half deals with
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VII-2
agriculture, the second with silviculture. With the exception of
erosion and sediment controls, repetition is avoided by discussing an
individual control technique only once, in the context affording the
best concrete examples of its use.
The value of critical areas programs to sediment control is discussed
at the end with reference to both agricultural and silvicultural activities.
Occasional cross-references will be made to suggest the use of a given
control technique for both agricultural and silvicultural control, but
limitations of space require the reader's willingness to make connections
between the two activities and the different management approaches discusssed
for each.
1.2 Pollution from Sediment
Sediment sounds to the uninitiated like a relatively minor pollutant, hardly
deserving of the name, but in fact it is far from harmless. The title of
a U.S. Department of Agriculture (USDA) publication, SedimentIt's Filling
Harbors, Lakes and Roadside Ditches,3/ gives a capsule summary of some of
the damage sediment does. And while sediment is filling waterwaysthereby
impeding navigation and, in some extreme cases, totally filling reservoirs4/
it is simultaneously destroying fish habitat; 5J marring recreational uses; hampering
irrigation by wearing out pump parts and increasing channel maintenance costs;
and damaging municipal water treatment facilities.6/
In both agriculture and silviculture, of course, erosion can result in the
irretrievable loss of productive soil. The clogging of channels and culverts
by sediment and organic debris aggravates and may even cause substantial
flood damage. The natural nutrients and fertilizer and pesticide residues
which cling to soil particles result in the more traditional forms of water
pollution with their well-known side effects.
A certain amount of sediment in streams results not from man's activities
but rather from the natural flow of water across soil and rock._7/
Recent figures attribute 26 percent of the total sediment load to
streainbank erosion. Those same figures put the contribution of agriculture
at 40 percent, of pasture and rangeland at 12 percent, of forest lands at 7
percent, of urban uses at 4 percent, and of roads at 3 percent.8/
Of course, these estimates are nationwide figures, and the relative
sediment contributions of different land-disturbing activities
will vary significantly from state to state and area to area. State
and areawide water quality management planning agencies should, of course,
determine the extent of the sediment pollution problem within their
jurisdiction and pinpoint its source or sources prior to determining
the focus and scope of any needed control measures. Thus section
208(b)(2)(F) of the FWPCA requires state and areawide water quality
management plans to include:
a process to (i) identify, if appropriate, agricul-
turally and silviculturally related nonpoint sources
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VII-3
of pollution, including runoff from manure disposal
areas, and from land used for livestock and crop production,
and (ii) set forth procedures and methods (including land use
requirements) to control to the extent feasible such sources.
The least costly and most effective control measures for agriculturally
and silviculturally related pollution will typically involve preventive
measures rather than collection and treatment. The U.S. Environmental
Protection Agency (EPA) has labeled such preventive measures "Best
Management Practices" (BMPs). The agency has developed guidance to
assist state and areawide water quality planning and management agencies
in identifying and assessing agriculturally and silviculturally related
nonpoint source problems and in developing local BMPs tailored to the
particular problems so identified. This published guidance includes:
1. Guidelines for State and Areawide Water Quality
Management Program Development (including interim
final Guideline Supplements for BMPs for Nonpoint
Sources) ;_9/
2. Methods for Identifying and Evaluating the Nature
and Extent of Nonpoint Sources of Pollutants; 10/
3. Methods and Practices for Controlling Water Pollution
from Agricultural Nonpoint Sources; ll/
4. Control of Water Pollution from Cropland; 12/ and
5. Processes, Procedures and Methods to Control Pollution
Resulting from Silvicultural Activities.13/
The language of section 208(b)(2)(F) quoted above reflects a
recognition on the part of Congress that the extent of nonpoint pollution
from agriculture and silviculture will vary from state to state and
locality to locality. Meanwhile, the concept of BMPs developed locally
takes into account the fact that the measures appropriate to control
identified sources of nonpoint pollution will vary with differences in
climate, topography, soil, and type of watercourse. The very fact that
meaningful generalized guidance has been written, however, suggests
that despite the variations in extent and nature of nonpoint source
pollution from one political jurisdiction and geographic area to
another, 14/ certain primary features of agriculturally and silviculturally
related pollution and the measures by which to minimize or prevent it
are generalizable.
Reference should be'made to the above-mentioned reports and others cited
in the course of this chapter for background in technical matters. In
addition, brief summaries of agricultural and silvicultural nonpoint
pollution problems and of frequently suggested technical control
methods will be given at the start of the discussion of each activity and
in the footnotes to provide a practical context for the legal and
institutional analysis which follows.
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VII-4
2.0 Agriculture
2.1 Erosion and Sediment Control
2.1.1 Technical Methods of Controlling Sediment Pollution
from Agriculture
The ways in which erosion and sedimentation result from agricultural
activities are familiar to most laymen and need little background
discussion here. Traditionally, wind and water erosion of agricultural
lands has been of concern to farmers and to all levels of government
because of the resulting loss of productive soil. Although during the
past six years the literature and the actions of some state legislatures
have evidenced a new concern for the effects on water quality and on
beneficial water uses of runoff from agricultural lands, some experts
still feel that too much emphasis has been put on control of pollution
from animal wastes and too little on that from sediment. L5/ They point
out that the removal of acreage limitations for feed grains will return
millions of acres of land to production, much of it marginal land which
is highly prone to erosion.16/
The EPA guidance manuals cited above provide extensive discussions of
the technical aspects of erosion control on agricultural lands and
ample citations to other technical studies. Needless to say, the volume
and kind of sediment pollution resulting from agriculture is dictated by
a number of variables. These include: volume, intensity, and distribution
over the year of precipitation; length, gradient, and configuration
of slope; and susceptibility of the particular kind of soil to erosion.
This susceptibility is a function of four factors: the soil's texture,
organic matter content, structure, aid permeability. Once these factors
have been identified for a particular location, the effects on soil
losses of various combinations of erosion control practices can be pre-
dicted with reasonable accuracy. Such practices are many and varied.
Growing vegetation on land is, of course, itself a method of controlling
erosion. Its effectiveness will vary with the type and quality of
growth and with the amount of protection the crop affords in the months
and seasons of greatest wind and rainfall. Moreover, different forms of
crop tillage will result in different amounts of erosion. There is
a good deal of actual experience, much of it sucessful, with so-called
conservation tillage methods: methods which reduce the erosion
potential of land below that of conventional tillage. Such methods are
based on minimizing soil disturbance and/or increasing water infiltration.
They often involve use of plant residues to control erosion, and they
may reduce the number of separate plowing and planting operations.
Other erosion control methods for agricultural land include: terraces,
strip and contour cropping, grassed waterways, rotation of soil
depleting crops with soil conserving ones, rotation of cover crops
with row crops, and use of drainage structures.
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VII-5
2.1.2 Current Regulatory Status and Sources of Authority
The first concerted effort to attack an already serious erosion problem
was made by Congress with the passage of the Soil Conservation Act of
1935._18/ That act established the Soil Conservation Service (SCS) within
USDA and authorized the secretary to require state enactment of soil
erosion control programs before extending aid to private lands. Following
the enactment of the 1935 act the federal government furnished the states
with a "Standard Soil Conservation Law" on which most soil conservation
laws have been modeled. All 50 states, Puerto Rico, and the Virgin Islands
have such laws. All the state soil conservation laws provide for the
creation (generally pursuant to local referenda) of soil and water
conservation districts. These entities' jurisdiction is usually,
but not always, coextensive with county lines, and they are governed by
boards of supervisors which are appointed in some states, elected in others,
or which combine elected and appointed officials in still others.19/
In each state a central soil and water conservation commission (board, council,
or committee) coordinates the districts' activities and provides them with
financial and technical assistance. Few local soil and water conservation
districts have taxing powers. Local soil and water conservation districts
now number in excess of 3,000 and comprise over 97 percent of the agricultural
land within the United States. Approximately two million individual landowners
and over two thousand communities are now receiving conservation assistance
through cooperative agreements with the USDA Soil Conservation Service
(hereinafter USDA/SCS). While SCS is the only federal agency which
receives funds earmarked for direct technical assistance to local
conservation districts, the U.S. Forest Service, the Agricultural
Stabilization and Conservation Service, the Bureau of Land Management,
the Agricultural Research Service, and the Bureau of Sport Fisheries
and Wildlife, among others, all provide services to the districts.^)/
a. Local Erosion and Sediment Control Programs
While approximately half the states empower soil conservation districts to
adopt land use regulations (as provided in the "Standard Law" model),21/
few districts have exercised their authority, preferring instead to
rely on voluntary landowner cooperation. In those states where local
land use authority exists and where the state is not taking the lead
in nonpoint source regulation, however, this existing local authority
is a logical source of power for areawide water quality planning agencies
to tap. The major obstacle to effective use of this authority in
many states is the requirement that land use regulations be adopted by a
three-fourths majority in a referendum.221
New Jersey and Wisconsin are two of the few examples of states in
which local conservation districts have exercised the authority given
to them by existing law to regulate land use for erosion and sediment
control. In New Jersey, however, local regulations like those of the
Camden County Soil Conservation District have been preempted by a
recent state Soil Erosion and Sediment Control hc.t.23_/ In Wisconsin, after
attempts to enact regulations were unsuccessful because of failure
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VII-6
to obtain the required two-thirds favorable referendum vote, the law was
amended in 1971 to permit adoption of regulations with a simple majority
vote. In 1973 there was developed a Model Ordinance for adoption by
soil and water conservation district boards, and several district boards
now have proposed regulations pending. Vernon County expects action on
its proposal early in 1977.24/
Another Wisconsin county, Washington, is conducting a local sediment
control demonstration project and hopes to develop model guidelines
and regulations. That project (undertaken in conjunction with the
local soil conservation district, the state Board of Soil and Water
Conservation Districts, the Wisconsin Department of Natural Resources,
the University of Wisconsin, the USDA/SCS and EPA) is scheduled for
completion in 1978. 25J In Montana, another EPA demonstration project
now underway will include the development of best management practices
necessary for the control of erosion problems (see discussion in section
2.1.3 below) and their enforcement through the adoption of local land use
regulations under the Soil Conservation Districts Law of 1939.26/
Of course, there are numerous examples of local ordinances dealing with
urban erosion and sediment control. Some of these have developed out
of the rural soil and water conservation movement and depend heavily on
the expertise of local conservation districts. Thus Montgomery
County, Maryland's erosion and sediment control program relies on
the local soil conservation district for plan review and other technical
assistance. The Montgomery County program is discussed in detail in
chapter 6, which reviews control programs for sediment resulting from
construction and other land-disturbing activities in an urbanizing
environment.
The municipal and county ordinances discussed and cited in chapter 6
suggest the kind of regulatory programs which are within the general police
power authority of local units of government. Should the appropriate
soil conservation district, districts or association of districts 27/
be unable or unwilling to adopt a comprehensive regulatory program
for sediment-producing activities including agriculture and silviculture,
an areawide water quality planning agency should, of course, explore the
possibility of the county or other local unit or units of government
adopting such a program.
Meanwhile, in the interest of devoting adequate time to what looks to be,
from the practical standpoint, the most likely source of authority for
local regulation of agriculture and silviculture, attention will
be focused here on statewide erosion and sediment control laws.
Many such laws already enacted provide for implementation at the local
level through local soil and water conservation districts and other
local governmental entities.
b. State Erosion and Sediment Control Programs 28/
The requirements of section 208 of the FWPCA and the increased recognition
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VII-7
of the sizable dimensions of nonpoint pollution which that act has
sparked have led to a reevaluation of the need for strong erosion and
sediment control programs which include mandatory provisions. Responding
to this need, a task force which included representatives of USDA, EPA,
the Council of State Governments, and the National Association of Conservation
Districts drafted a Model State Act for Soil Erosion and Sediment Control
("Model Act") which was included in the Council of State Governments 1973
Suggested State Legislation.29/
The Model Act takes the form of an amendment to existing conservation
district enabling laws. It therefore vests regulatory authority for erosion
and sediment control programs in existing soil conservation districts, subject
to a requirement that the local programs conform to statewide guidelines
and conservation standards.
The impact of the Model Act and of the new concern for erosion and sediment
control it reflects has been dramatic. Since 1973, acts regulating erosion
and sedimentation have been introduced in approximately half the state
legislatures and at least 14 such acts have been passed.30/ Many
recent erosion and sediment control enactments draw heavily on the
principles of the Model Act, while other recent legislation in the
area, such as Montana's Natural Streambed and Land Preservation Act of
1975, 31 / takes an individualistic approach.
Some states, however, have not felt the need to expand their statutory
authority at all. Pennsylvania, for example, has based pervasive erosion
and sediment control regulations on a grant of authority contained in its
broad-reaching 1970 Clean Streams Act. That act authorizes the state to
order correction of any "condition which exists on land in the Commonwealth"
which is resulting in or threatening pollution.32/
Ohio originally intended to rely on the general authority vested in the
state's Environmental Protection Agency to enforce regulations relating
to the abatement of agricultural pollution and urban sediment control.
Under the proposed regulations, which will be discussed in more detail later,
pollution abatement is based on minimum conservation standards (the
equivalent of EPA's BMPs) and not on water quality standards. Because
of this, Ohio's EPA decided it did not have clear authority to adopt the
proposed regulations, and Ohio is now planning to introduce new legislation
in January 1977 giving the Division of Soil and Water Districts
within the state's Department of Natural Resources power to adopt the
proposed regulations and to supervise the local conservation districts
in their administration of the program.33/
Each state nonpoint planning agency will need to analyze closely its
existing water pollution control authority to ascertain whether
it contains authority adequate to sustain an erosion and sediment control
program. Other factors to be discussed later, such as choice of appropriate
administering agency, will also enter into any decision whether to adopt
a wholly new law or whether to rely on an existing law. Should a
state or areawide water quality planning agency determine that new
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VII-8
legislation is needed to deal adequately with sediment pollution
resulting from agricultural and/or silvicultural activities, it would do
well to examine the efforts of states which have recently come to
the same conclusion.
2.1.3 Management Approaches: Plans,, Soil Loss Limits, and
Conservation Standards
Unfortunately, there are not many models to look to for guidance.
Many of the "new" erosion and sediment controls laws exempt agricultural
and silvicultural activities from their coverage and focus instead on
erosion and sedimentation from construction and development._34/ Undoubtedly,
in some states problems of political acceptability, not relative size
of sediment contributions, account for this selectivity, yet, in the Midwest,
where agricultural sediment pollution problems are severe, effective
erosion and sediment control programs are being developed. This is an
encouraging sign that such programs can be made politically palatable to
a rural constituency given a few basic prerequisites.
First, the program must be carefully developed and "sold." Its proponents
must have the data to convince the farming and forestry communities that
their activities are causing a sediment pollution problem, and they
must involve those communities in formulating a practical program to
combat that pollution.
Second, government officials in states which have adopted or are considering
laws applicable to agriculture and silviculture stress that the program
must be focused, flexible, and no more "coercive" or burdensome than
absolutely necessary. As shown in the outlines of existing and proposed
state programs in appendix A to this chapter,* this has meant, for the
most part, that states active in this area have eschewed permits
in favor of conservation standards and conservation plans.
The conservation plans are, generally, the same plans which the local
conservation districts have been preparing in conjunction with the USDA
Soil Conservation Service for decades. Yet of the state programs illustrated,
Pennsylvania is the only one which actually requires such plans for normal
agricultural operations such as tilling and plowing. Moreover, Pennsylvania
softened the blow considerably: (1) by giving the farmers until July 1, 1977,
almost 5 years from the effective date of the regulations requiring plans,
to have plans prepared ; and(2) by stipulating, in those regulations, that
plans for low intensity agricultural operations on low erosion hazard sites:
*The programs outlined in appendix A are (1) Pennsylvania's regulations
under its Clean Streams Act; (2) the Model State Act for Soil Erosion and
Sediment Control; (3) Iowa's amended Soil and Water Conservation Law;
(4) Ohio's proposed amendments to its Soil and Water Conservation Law; and
(5) Indiana's Draft Proposal for Soil Erosion and Sediment Control.
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VII-9
. . . can be in the form of a statement indicating
the present land uses and treatments and a declaration
of intent to continue present practices where either;
(1) risks of erosion are minimal, (2) minor land
disturbance now occurs, or (3) the agricultural operation
has adequate conservation treatment on the land.35/
If conservation treatment under such a homemade plan is inadequate,
Pennsylvania's conservation districts may require a plan "prepared
by a person trained and experienced in the field1of erosion and sedimentation
control." In almost every case this means that the plan will be prepared
through a cooperative agreement between the landowner, the conservation
district, and the USDA Soil Conservation Service. The last-named agency
provides the technical expertise needed to develop the plan; the district
approves the plan; and the landowner agrees to abide by it.
In Pennsylvania and New York, another state which requires agricultural
operations to have soil conservation plans, the only formal requirement
that the landowner actually abide by the conservation practices set out
in the plan will be in the terms of the cooperative agreement. Whether
the cooperative agreement will become effective enforcement tools in
Pennsylvania and New York now that they are, in effect, imposed on most
farmers instead of simply being available to the most concerned farmers,
remains to be seen, since the requirement does not go into effect
in Pennsylvania until July 1, 1977 and in New York until January 1, 1978.36/
In Iowa, Ohio, and Indiana, states with much larger numbers of farms
than New York or Pennsylvania and states which are at various stages in
their development of erosion and sediment control programs, the sentiment
is against using the well-established SCS cooperative program as the
focal point of mandatory erosion and sediment controls. These states have
opted instead for an approach which is included but not stressed in the
Model State Act for Soil Erosion and Sediment Control: the adoption
of mandatory performance standards.37/
The term "performance standards," discussed at length in chapter 3,
section 4.0, is used here to mean a generally applicable standard
which regulated activities are required to meet. The methods or best
management practices to be used to meet that standard are either left
up to the individual or spelled out in general technical guidance rather
than through individualized conditions in a permit. (The Best Management
Practice concept is discussed in chapter 6, section 2.1.) For agricultural
activities the basic performance standard which has been used in Iowa and
which other states are considering adopting is expressed as a tolerable
soil loss limit. The idea of soil loss limits is transformed into a
practical control technique by the use of the Universal Soil Loss Equation
(USLE) ._38/
The USLE makes it possible to estimate average annual soil loss due to
sheet and rill erosion by factoring in values for rainfall, length and
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VII-10
steepness of slope, erodibility of the soil, and cropping, management,
and conservation practices. Given a particular soil loss tolerance factor
(which is now typically based on soil productivity factors but which in
the future will have to be keyed to water quality standards), the equation
can be turned around and used to plan the level of conservation required.39/
This "level" will be expressed as the particularized conservation practices
(e.g., contour ploughing, terracing, etc.) determined to be the local
best management practices.
The previous capsule summary of the use of the USLE to arrive at best
management practices glosses over some of the real stumbling blocks
to reliance on the USLE alone. As discussed in EPA's Loading Functions
for Assessment of Water Pollution from Nonpoint Sources, 40/ estimates
based on the USLE are approximations only. That study points out that the
equation represents a long-term average on an annual basis and that "[i]t
can be used to predict an assumed single storm event or a series of storm
events, but fact values for single events or for seasonal events are not
as complete and available as 'annual average' factors. "_41/ Estimates
for extreme storm events are virtually impossible to make, according to
the same source.
In addition, the methods for use of the USLE in predicting sediment
yields from silviculture, construction, and other nonagricultural
sources are not well developed. The equation's developer predicts,
however, that once the effects of "management variables" (different
conservation practices) on soil loss have been determined for these other
activities, the soil loss estimates should be as good as those for agriculture.42/
It remains to be seen, moreover, whether the USLE will be ruled precise
enough to substitute for monitoring when a violation of a soil loss
limit is alleged. Pointing out the difficulties inherent in monitoring anything
so intermittent and hard to trace to a particular source as sedimentation,
officials in Iowa (the one state which has already adopted mandatory soil
loss limits) are confident the the USLE will be judicially approved
if it is challenged in that state.43/
Soil loss limits and conservation standards must vary, of course, with
different kinds of land. In recognition of this fact, Iowa's law provides
for local adoption of standards. In the language of the act, Iowa's soil
conservation districts may:
1. Classify land in the district on the basis of
topography, soil characteristics, current use,
and other factors affecting propensity to soil
erosion.
2. Establish different soil loss limits for
different classes of land in the district if in
their judgement and that of the state soil conservation
committee a lower soil loss limit should be
applied to other land in the district, it being
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the intent of the general assembly that no land in the
state be assigned a soil loss limit that cannot reasonably
be applied to such land.44/
As of this writing, Iowa's 100 local soil conservation districts have
adopted the maximum soil loss rates set out in state guidelines without
any serious objection. For agriculture, the rates are set to coincide
with replenishment rates and vary from two to five tons per acre, de-
pending on the soil type. The maximum permissible soil loss rate from
construction sites suggested by state guidelines is five tons per acre
per year.45/
Ohio's proposed legislation (outlined in appendix A to this chapter)
incorporates "1" values: the maximum rate of soil erosion that will
allow for a high level of crop production to be sustained economically
and indefinitely.4^7 Those values have been defined for different
soils in the Technical Guides developed by the USDA Soil Conservation
Service for individual soil conservation districts. The conservation
practices necessary to achieve different T values are set out in the
Technical Guides and are expected to form the BMPs for Ohio's program.
Under Ohio's proposed regulations, the T values would be achieved in
phases: 2 times T would be allowable until 1980; 1.5 times T would
have to be achieved by 1980; the T value itself by 1986.
Ohio differs from Iowa in the amount of flexibility it would afford
the individual farmer to stay within the maximum allowable soil loss
limits by methods of his own devising. Ohio's proposal provides that
"[t]he Technical Guide shall be used to determine the acceptability
of conservation practices and management measures." Iowa's amended
soil conservation law stipulates, on the other hand, that the districts
"[m]ay not specify the particular practices to be employed so long as
such owners voluntarily comply with the applicable soil loss limits
established for the district."47/
More importantly, however, both Iowa's and Ohio's programs, like the
one proposed in the Model Act, assure necessary flexibility and an
added measure of certainty by providing that anyone following a plan
approved by the local soil conservation district shall be considered
to be in conformity with the required performance standards. By fol-
lowing Iowa's example of not requiring plans, Ohio hopes to avoid what
it considers the wasteful and unnecessary practice of using district
and SCS personnel to draw up or at least spend substantial time re-
viewing conservation plans for agricultural and silvicultural opera-
tions which they know to be up to standard.48/ Without such a require-
ment, preparation and review of conservation plans can be reserved
for individual problem cases: cases of a landowner having some
difficulty with the established conservation practices and cases
involving violations of the soil loss limits in which the landowner
is persuaded to avoid further enforcement action by obtaining tech-
nical assistance and entering into an SCS cooperative agreement.
What is more, under the performance standard system, planning assistance
can continue to be offered in the majority of cases without the psycho-
logical obstacle created by requiring that it be accepted. This helps to
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VII-12
preserve the voluntary atmosphere the districts and the SCS prize.
Finally, and most importantly from a water quality standpoint, soil conservation
districts and the SCS can focus their planning efforts on those geographical
areas which need them most.W In Pennsylvania, where plans are required,
the Department of Environmental Resources does not expect to meet the 1977
deadline set in 1972 because of the backlog on SCS-prepared plans (which
take an average of one and a half months each to complete.) The
department is considering establishing a ranking system which would give
priority to farms located in critical conservation areas as identified from
statewide stream maps.^50/
2.1.4 Administration and Enforcement
a. The Complaint Process
The erosion and sediment control programs outlined in Appendix A to this
chapter illustrate a variety of approaches to ensuring compliance with their
provisions. The Model Act provides, for example, that wherever a permit-
such as a building or grading permitis required in order to undertake
the earth-disturbing activity in question, that permit provides the implementation
mechanism. Such permits are not to be issued until the required erosion
and sediment control plan has been approved by the appropriate local soil
conservation district. Under this approach (which is said to work well
in Michigan), _51/ the l°cal government unit or authority responsible for
issuing the gracing permit, building permit, etc. is likewise responsible
for performing follow-up inspections and for ensuring adherence to the
erosion and sediment control plan.
With agricultural activities, however, there will seldom, if ever, be ^
any pre-existing permit requirement involved. The burden of determining
whether general conservation standards or standards set out in individual
plans are being adhered to will generally fall to the local soil conservation
districts. Conservation districts are the logical choice to undertake
inspection and follow-up because of their technical expertise and their close
familiarity with the people and land involved. Yet many conservation
districts are reluctant to assume an enforcement role, arguing that such
a role would be inconsistent with, and therefore compromise, their role
as teachers and technical assistance resources. Soil conservation^
district officials insist that farmers woild think twice about asking
the district for assistance if they knew that the district official
might use the invitation as an excuse to inspect for possible violations
of conservation standards.52/
At the same time, soil conservation officials are often the first to
admit that the . state and federal soil conservation program has not been
as effective as it might be. This is because the districts have lacked
the enforcement power to fall back on in what is often estimated to
be the 10 to 20 percent of cases where education and outreach programs
fail.53/ Such cases are generally characterized as nuisance cases, and
several states are hopeful that the whole enforcement process can be put
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on a nuisance basis. This would allow the conservation districts to take
a reactive approach, with enforcement being triggered by third party complaints
of sediment damage being suffered.
Iowa is the one state which has actually passed a law instutionalizing the
complaint process.^/ The pertinent section of the Iowa soil conservation
statute now provides:
The commissioners of any soil conservation district
shall inspect or cause to be inspected any land within
the district, upon receipt of a written and signed complaint
from an owner or occupant of land being damaged by sediment,
that soil erosion is occurring thereon in excess of the limits
established by the district's soil erosion control regulations.
If they find that sediment damages are occurring to property owned
or occupied by the person filing the complaint and that such excess
soil erosion is so occurring on the land inspected, they shall
issue an administrative order to the landowner or landowners of
record, and to the occupant of the land if known to the commissioners,
describing said land and stating as nearly as possible the extent
to which soil erosion thereon exceeds the limits established
by the district's regulations .5V
While Ohio proposes to follow Iowa's example in limiting complaints to persons
actually owning or operating property allegedly being damaged by soil sediment
in excess of state standards, 5_6/ Iowa is itself reconsidering whether
people can in fact be expected to police their neighbors.
More than mere residential neighbors, farmers depend on adjoining landowners
and must work to maintain good relations. (Indeed farmers cite this
need for neighborhood responsibility as a very important factor in
limiting pollution from agricultural activities.) In the five years
Iowa's law has been in operation, only about 100 citizen complaints
have been filed. In the words of an Iowa state official, the existing
requirements that complainants be persons damaged "... has stopped many
people from filing a complaint. They just can't bring themselves to coming
down on their next-door-neighbor. "y/Y
While Iowa contemplates amending its law to provide for citizen suits and/or
government action (see below), Indiana's draft proposal for an erosion
and sediment control program 58/ already reflects the perceived need for
a more open process by authorizing "any concerned citizen" to file
a complaint with a soil conservation district. This provision is
just one of the many in Indiana's proposal which is very much under debate.
The concern, of course, is to maximize enforcement without inviting frivolous
complaints. It is worth noting, however, that there is less likelihood
of frivolous or ill-motivated complaints in the context under discussion
than in others. This is because the "penalty" involved is a requirement to
undertake certain conservation measures rather than any prohibition on
continuing or commencing an activity. Yet this very fact militates
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VII-14
against active citizen involvement. No matter how broad the category
of private individuals who can bring complaints, therefore, it is critical
that government agencies be given the initiative as well.
While adequate governmental access to the complaint process is perhaps more
important than broad citizen access, it has not always been* afforded. Thus
Iowa's law makes no provision for the bringing of complaints by soil
conservation districts themselves. This lack is understandable, perhaps,
in light of the general expectation, at the time the amendments to Iowa's
law were under consideration, that the districts would be extremely unwilling
participants._59/ Today, however, Iowa officials fe-el their program is severely
crippled.by the lack of enforcement initiative in the districts,60/
and there can be no excuse for any new law to contain such an omission.
Indeed, drafters of new laws should consider which state and local agencies
should be involved in the enforcement process in addition to local conser-
vation districts.
Clearly the access to the complaint or other enforcement process afforded
private parties should also be afforded state and local agencies and
political subdivisions which are themselves the owners or custodians of land
and water. Often the most obvious and serious sediment damage will be
suffered by governmentally owned improvements such as reservoirs and water
treatment plants. As of August 1976, 116 of the 216 complaints filed with
Iowa soil conservation districts were filed by the State Conservation Commission
in connection with sedimentation of state lakes._6l/ It should also be
noted that Iowa's amended soil conservation law provides that the state's
six conservancy districts, which are charged with effecting improvements
such as flood control projects and reservoirs, can require the soil
conservation districts to take action against an erosion problem
which is preventing the conservancy district from constructing an internal
improvement.62/
Ohio and Indiana also propose to give agencies at the state level the
power to initiate complaints. In Indiana only the state Soil and Water
Conservation Committee, the state agency responsible for administering
the Soil and Water Conservaton Districts Act, would have that power. In
Ohio both the state Division of Soil and Water Conservation and the
agency responsible for pollution control generally, the Ohio Environmental
Protection Agency, would be vested with the authority to initiate complaints.
In view of the likely reluctance of individuals and even of local conservation
districts to initiate complaints or other enforcement actions available
under an erosion and sediment control program, it would appear advisable
to make authority to require such action available to both the state
conservation agency and the state water pollution or environmental
protection agency, as in the Ohio proposal.
b. Cost-Sharing
Environmentalists may be tempted to dismiss the model Act, Iowa's
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VII-15
amended soil conservation law, and their hoped-for progeny as fundamentally
weak because of the caveat attached to their enforcement provisions against
farming and silvicultural operations. That caveat is the requirement
that cost-sharing funds be made available before compliance can be required,
a provision which is to be found in different forms in all of the acts and
proposals under discussion except Pennsylvania's. As contained in section
5(e) of the Model Act, the cost sharing caveat in connection with enforcement
of conservation standards and practices reads as follows:
If there is not available to any such owner, operator,
or occupier at least 50 percent cost-sharing assistance
or adequate technical assistance for the installation
of erosion and sediment control measures required in
an approved farm or ranch plan, or for measures to
conform agricultural and forestry practices to conservation
standards established pursuant to this Act, any such owner,
occupier, or operator who shall fail to install erosion and
sediment control measures required in an approved farm or
ranch conservation plan, or to conform his agricultural and
forestry practices to such conservation standards, shall
not be deemed to be engaged in prohibited land-disturbing
activity subject to penalties under the Act.
A simple perusal of such a provision might indeed lead the reader
to conclude that it undercuts any pretense to regulatory strength
which the act might otherwise boast, but reference must be had, again, to
Iowa's experience to evaluate the only example of such a provision
in operation.
In Iowa, the amended soil conservation law makes a distinction between
"permanent" soil and water conservation practices (e.g., terraces and
grassed waterways) and "temporary" conservaton practices (e.g., contour
planting and minimum tillage). At least 75 percent of the cost of any
permanent conservation practice must be made available to the landowner
before he can be required to undertake ilt. Meanwhile the percentage
of cost-sharing needed to back up a required temporary conservation
practice is set by the individual districts, subject to state revision
upward.j63/ Despite the state's having set the required level of
cost-sharing as high as it did and despite the impoundment of federal
cost-sharing funds in 1972, state officials report that the cost-sharing
requirement has not stood in the way of effective enforcement of Iowa's
law. The Iowa legislature has appropriated two million dollars
for each year of the 1973-1975 biennium. As a result of this high level
of appropriations, no enforcement action has ever had to be abandoned for
want of necessary cost-sharing funds.64/
Under Iowa's cost-share enforcement system, a supplemental administrative
order issues upon commitment of cost-share monies. The landowner is given
six months to commence and one year to complete the needed work, as specified
in the original administrative order notifying him of the violation.
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If the landowner fails to do the work, the district may obtain a court order,
violation of which is punishable in contempt proceedings. (Compare
the penalties in the state outlines in appendix A to this chapter.) It
is interesting to note that in Iowa many complaints have been settled
informally by the district and by the two parties involved. Thus only
21 administrative orders have been issued, and of those only four of the
landowners involved have failed to apply for cost-sharing funds.65 /
Iowa's story makes the whole enforcement question sound very tame indeed,
but drafters of state programs must be careful to to be lulled into a
sense of false security. Not all legislatures can be counted on to
be as generous as Iowa's, although Indiana's has also supported cost-sharing
with approximately two million dollars annually.^6_/ Clearly, new erosion
and sediment control programs should channel available cost-sharing
monies to the individuals and situations with the greatest need. In this
respect, the Indiana and Ohio proposals are more satisfactory than the Model
Act or Iowa's law.67_/ Where Iowa and the Model Act provide that even
so-called "temporary" conservation practices such as contour planting and
minimum tillage cannot be required without cost-sharing being made available,
both Ohio and Indiana propose to limit their "exemptions" to those permanent
erosion and sediment control practices for which the cost is generally
conceded to be greater than'the return to the individual. Ohio's proposed
regulations defines such practices to include erosion control structures,
grassed waterways, diversions, and field windbreaks. (Given the probability
of new data on the cost-benefit ratio of erosion and sediment control
practices, it probably makes sense to identify those "permanent" practices
eligible for cost-sharing in state regulations, as Ohio and Indiana propose
to do, rather than in the statute itself, as Iowa has done.)
Where a conservation practice will bring eventual economic benefits
to the farmer, it might also be worth exploring a loan or part grant,
part loan approach. Still another way to stretch cost-sharing funds
would be to channel funds available for voluntary applicants to those
areas where they can do the most good in preventing erosion and sedimentation.
Indiana is already contemplating establishing such priorities, as, for
example, by favoring hilly counties over flat ones.j38/ States should also
be careful to provide that where inprovements are not maintained,
any monetary assistance provided for their installation is fully
recoverable.
Finally, states should be wary of writing their cost-sharing provisions
so broadly that they are hampered in going after the polluter who needs no
cost-sharing or technical assistance to bring his discharge under control
but can simply stop performing a polluting act. Thus Ohio's proposed
regulations include a prohibition on tilling or performing any other
earth-disturbing practice in such a manner that soil is placed in a ditch,
stream, or lake. Yet if Ohio adopted the Model Act's cost-share provision
unchanged, it would not be able to require a farmer to refrain from
placing fill in a stream without making 50 percent cost-sharing assistance
or adequate technical assistance available to the farmer. Of course, cost-
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VII-17
sharing and "adequate technical assistance" have no meaning in this context,
but the enforcement task would certainly be made simpler by providing
for a category of prohibited practices, to be established by regulation,
for which no cost-sharing or technical assistance will be required.
2.1.5 Appropriate Level and Agency of Government
As is demonstrated by the existing and proposed programs of Iowa, Ohio,
and Indiana and as has been voiced by many state officials, 69/ there
is a consensus (1) that erosion and sediment control programs for
agriculture should be administered at the local level and (2) that the
contender for the job who boasts the greatest technical expertise and the
largest measure of trust from the farmers necessary to do the job well
is the local soil conservation district.
Of the other possible contenders, the urban county is particularly strong,
especially in states or counties where agriculture is not the major
contributer of sediment and a highly integrated urban and rural erosion
control program is sought. Yet experience shows that even where primary
responsibility for erosion and sediment control is in the hands of a
general purpose unit of government, substantial reliance is placed on the
soil conservation districts. This has been true at the state level
in Pennsylvania (see the outline of that state's program in appendix A to
this chapter) and at the county level in Maryland (see the discussion of
Maryland's erosion and sediment control program in chapter 6).
If they intend to entrust a primary role in erosion and sediment
control programs to soil conservation districts, state and areawide
water quality management agencies may need to convince the districts that
it is in their and their "clients" best interests to assume that role. As
soil conservation districts in Ohio, for one, have realized, if they do not
attempt to control agricultural nonpoint pollution, someone else with
less knowledge and experience will._7_0/ Many district officials may have
felt the lack of an enforcement stick in the past and may willingly seize it
once they realize that is is possible to resort to it sparingly while
continuing to use, in most cases, the traditional persuasive, educational,
and service programs, but at an accelerated pace.
It would be asking too much, however, to expect soil conservation districts
to shoulder all the new burdens imposed by mandatory erosion and sediment
control programs or to actively embrace an enforcement role overnight. It
is essential, therefore, that any program which relies for its administration
on soil conservation districts make adequate provision for coordinated planning
and guidance and for back-up enforcement authority. It is generally
agreed that it makes most sense for these functions to be undertaken at
the state level, especially since there will have to be close coordination
with the state water pollution control agency to assure consistency between
agricultural erosion and sediment control standards and state water quality
standards.71/
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At the same time, thought should be given to entrusting a planning and/or
management role to existing regional (interstate or areawide) agencies
where that will facilitate coordinating planning and management along water-
shed lines. As Iowa develops its state water quality management
plan, for example, it is considering giving a coordinative role
in nonpoint pollution control to the state's six conservancy districts.
These districts are organized along broad watershed lines and have a
direct concern in controlling erosion and sedimentation since they are
concerned with water management problems (insuring an adequate water supply,
flood control, etc.) .17J
The management functions of a state or regional supervisory agency will be
basically twofold. The first role will be guideline and standard-setting.
One alternative is to give the local conservation districts or other
local administrative body the authority to draw up administrative
rules and establish conservation standards, subject to state approval.
This is the course Iowa's law took, but Iowa's Department of Soil Conservation
ultimately published a very detailed "Guide for Formulation of Soil
Loss Limit Regulations by Soil Conservation Districts," which all the
state's districts followed closely. Rather than leaving the initiative
with the localities only to run the risk of, in effect, having to reassume
it later after precious time has been lost, a state might consider the alternative
Indiana is now contemplating. Under Indiana's draft proposal the state Soil
and Water Conservation Committee would establish minimum conservation standards
which would govern in a district until such district adopted more stringent
standards or its own standards conforming to state guidelines.
Most states will probably favor entrusting the state standard-setting
role to the agency most familiar with erosion and sediment control,
that is, whatever agency is responsible for coordinating and supervising
local conservation districts. Yet whatever conservation standards are
set will have a vital bearing on the state's water quality. Therefore,
the state water pollution control agency should have a role in their
development. Thus the state water pollution control agency might,
for example, be given authority to require revisions in conservation standards
necessary to meet water quality standards both before and after their promulgation
when it is determined that water quality standards arenot being met because
of agricultj-al nonpoint pollution. 7_3/ Pennsylvania illustrates another
alternative IP that state the state Conservation Commission and the
local consef ation districts were transferred in 1971 from the Department
of Agriculture to the Department of Environmental Resources, the state
agency responsible for water pollution control.
The second basic role which must be retained at the state level
if primary administrative responsibility is delegated to the local level
is back-up enforcement authority. If the complaint process described
above is the key enforcement mechanism, then both the state soil
conservation agency and the water pollution control agency should be
given authority to initiate complaints and to prosecute them in the courts
should the local soil conservation district fail to take action. Having
this authority to prosecute violations of performance standards and
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BMPs may be of more practical value to a water pollution control
agency than the power to prosecute nonpoint source violations of
water quality standards, given the difficulty of detecting the latter type
of violations and their precise sources. It is interesting to note in
this inter-agency connection that in Maryland the state Water Resources
Board apparently deals with agricultural polluters by ordering them to
cooperate with the local conservation district to find a solution.74/
Ensuring an active role in any erosion and sediment control program for
the state water pollution control agency may compensate for any passivity
of local soil conservation districts when it comes to enforcement. In
this connection it will be important to provide the state agency best
qualified in terms of manpower, expertise, and interestthe state
soil conservation agency, the state department of natural resources,
or the state water pollution control agencywith the authority to assume
administration of the erosion and sediment control program if the local
authority is not doing an acceptable job. One way to write such a provision
is to have the program delegated from the top down in the first place, as
Pennsylvania does and as Ohio proposes to do. Under Ohio's proposed
regulations, supervisors of soil and water conservation districts would
enter into agreements or contracts with the Ohio Department of Natural
Resources for the "determination, implementation, inspection, and funding
of agricultural pollution abatement measures." The Division of Soil
and Water Districts within the DNR would be authorized to implement such
a program in any district which failed to negotiate a satisfactory agreement
or contract.75/
2.2 Pollution from Animal Wastes
As noted earlier in this chapter, water pollution from animal wastes has
received more attention in the past than the more pervasive and intractable
problems posed by erosion and sedimentation. 7_6f Heightened concern over
pollution from animal wastes derives from the trend in recent years to
confine large numbers of livestock and poultry in small areas for
feeding. Dairy operations present similar problems of large waste
accumulations. According to statistics cited by EPA in 1973, there were
then 1,914,945 feedlots in the United States, of which about 180,000
were cattle feedlots. TTj It has been estimated that the volume of animal
waste produced in the United States is about 10 times that produced by
the human population and that about one-half of this is produced by
animals in confined feeding facilities.78/
The primary focus of regulatory attention to date has been on requiring
holding systems adequate to contain the accumulation of animal feedlot
wastes and stormwater runoff which comes in contact with those wastes.
Less attention has been placed on the location of such holding ponds
(although some locations may pose a threat to groundwater) or on assuring
that the waste disposed of on the land does not run off into the nearest
water body with the next rain. In other words, more attention has been
paid to animal wastes as a point source of pollution (through direct
drainage from feedlots into waterbodies or through overflow from inadequate
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holding facilities) than as a nonpoint source (through indirect drainage
or pollution of groundwater or through improper ultimate disposal.)
Congress clearly recognized the dual point/nonpoint nature of animal
waste disposal by providing for its control both via NPDES permits 79_/
and effluent standards 80/ and via section 208 management programs. The
"agricultural" provision of section 208 specifically requires water quality
management plans to include, where appropriate, a "process to identify"
and "procedures and methods (including land use requirements) to control
to the extent feasible" "runoff form manure disposal areas."8jL/ The
point source regulatory picture will be sketched first; then the need for
water qualtiy management plans to take a more comprehensive approach
to animal waste regulation will be discussed.
2.2.1 Animal Wastes and the NPDES
EPA's NPDES regulations for discharges to navigable waters from concentrated
animal feeding operation underwent several revisions 82/ and were not
finally promulgated until March 18, 1976.8jV The final regulations established
categories of regulated operations as follows:
1. NPDES Permits Are Required for All:
a. feedlots with 1,000 or more animal units 84/
which discharge to navigable waters, as that term
has been liberally defined 85/ unless discharge occurs
only in the event of a 25-year, 24-hour storm event.
b. feedlot with less than 1,000 but with 300 or
more animal units if feedlot:
1. discharges pollutants through a man-made
conveyance; or
2. discharges pollutants into waters passing through
or coming into direct contact with animals
in the confined area;
3- unless discharge occurs only in the event of a
25-year, 24-hour storm event.
2. NPDES Permits Kay Be Required by the director of the
responsible state or interstate water pollution
control agency or the regional administrator for feedlots
not falling within the above definitions in the following
instances:
a. for feedlots with 300 or more animal units, where
the director or the regional administrator takes"
into account certain enumerated factors relative to:
the size of the feeding operation and its location
relative to navigable waters; the amount of wastes
reaching navigable waters and the means by which
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they do so; and the slope, vegetation, rainfall,
and other factors affecting the likelihood or
frequency of discharging to navigable waters.
b. for feedlots with less than 300 animal units, where:
±. the factors enumerated in section 2.a above are
taken into account: and
ii pollutants are discharged into navigable waters through
a man-made conveyance system; or
iii. "pollutants are discharged directly into
navigable waters which originate outside
of and pass over, across, through, or otherwise
come into direct contact with the animals
confined in the operation."
c. provided that no permit shall be required under this
section until there has been an onsite inspection
and unless the owner or operator of the feedlot
is notified in writing of the requirement to apply
for a permit.
The second category noted above was included in the regulations
to give states a certain amount of flexibility in tailoring the
NPDES program to their own needs.j!6/ Many states which have a
significant number of feedlots already go beyond the NPDES in terms of
categories of facilities covered. For example, several require permits
for all feedlots which cause or threaten to cause water pollution exceeding
state water quality standards. 87_/ Moreover, many if not most of the
states with large commercial feedlots have comprehensive permit programs
developed specifically for those operations. Some of those programs
require permits for all new operations regardless of size, 88/ or
establish thresholds lower than those of the NPDES.89_/ Some state feedlot
programs, Indiana's for example, put the burden of coming forward
on the feedlot owner._90/ Others take the approach of notifying owners
on a case-by-case basis fo the need to apply for a permit. 91_/ Still
others, like Iowa's, compromise by making a distinction between existing
and new feedlot operations and put the burden of coming foward only
on new operations.92/
Limitations on the NPDES imposed by problems of administrative feasibility
(severe limitations on the numbers of feedlot permits which EPA's regional
offices can feasibly process) JK3/ and of jurisdiction (the confinement of
the NPDES to discharges to surface water) 94/ generally apply with
less force to the states.95_/ State and areawide water quality management
planning agencies will need to assess the adequacy and adaptability
of the NPDES and of any existing state feedlot regulatory program
from the broader perspective of the requirements of section 208 and of
the examples of possible point and nonpoint pollution problems described
below.
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2.2.2 Animal Wastes and Water Quality Management
As illustrated by the EPA's NPDES regulations for point sources and by
the complex definitions of covered facilities in Iowa's feedlot regulations,
the pollution potential of a feedlot depends on a number of criteria not
easily reduced to numbers and thresholds. A small facility for one hundred
dairy cows if poorly designed or managed could pose a much more significant
pollution problem than a large, well designed, well-run feedlot for 10
times as many beef cattle.j)6/ A feedlot or animal waste holding pond
located far from a watercourse yet on land with a high water table may
threaten serious pollution of groundwater feeding a domestic or public
water supply. A feedlot and holding pond system may be located well away
from high groundwater and from the nearest stream and any surface runoff
may be properly diverted, but if there is inadequate land for waste
disposal or if the waste is disposed of improperly, a potential point source
may simply be converted to a sure nonpoint source of pollution.
Given the importance of the location of feedlots and holding ponds
in relation to ground and surface water, there is every reason to
require (1) all new, enlarged, or modified and (2), where administratively
possible, most if not all existing feedlots to register with the water
pollution control agency. Such registration notices should include
adequate information and maps with respect to: (1) animal numbers
and density, existing or anticipated waste loads, and design of waste
disposal and holding systems (including permeability of retention structures);
(2) location of dwellings, animal structures, feedlots, holding ponds,
surface water,and domestic and animal water supplies; and (3) slopes
and direction of surface drainage, groundwater elevation, soil types,
location and size of disposal areas, -and planned method and frequency
of land disposal.97/
With such information the state water pollution control agency (with
the aid of the state department of agriculture, the state soil conservation
agency, and other expert assistance) will be able to assign priorities for
inspections to determine whether facilities not covered automatically by
the NPDES nevertheless should be subjected to a plan approval and/or a permit
requirement. This is the approach taken by Iowa, except that there the
registration requirement does not apply to all facilities, 98/ and
Iowa's Department of Environmental Quality must notify those existing
facilities sybject to the act of the need to register. Iowa's criteria
for determining whether a registered feedlot is polluting or may reasonably
pollute waters of the state are reproduced in the footnotes.99/
For states which will need time to gather data and perform inspections on
all feedlots and other sources of animal waste pollution, Ohio's proposed
inclusion of animal waste storage facilities and management facilities
within its proposed erosion and sediment control program suggests a way
of strengthening feedlot regulations.100/ Ohio has recently developed
good management practices for storage and disposal of animal wastes
which it now proposes to adopt as the basic regulatory standards
with which all animal waste disposal facilities must comply. Non-
complying operators are subject to the same complaint and enforcement process
described in the previous section on erosion and sediment control, except
that only existing facilities must be given cost-sharing assistance.
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Under Ohio's current proposal, the state would pay for any non-federal
portion of 75 percent of the cost up to $5,000 of any of the following
improvements where such improvements are necessary to up-grade
existing facilities to meet state standards: animal waste storage facilities
and management facilities; permanently installed equipment; earth grading
and filling; and vegetative cover and fencing. Applicants must agree to
maintain the facility in good operating condition and otherwise assure
continued effective control of sediment and animal waste pollution.
Failure to maintain good practices subjects the grant recipient to
state action to recover the amount of the grant.
Under Ohio's proposed system, farmers and livestock and other animal
producers are effectively encouraged to have a sediment and/or waste
management plan developed for their entire operation. Only if they
manage their operation in accordance with such a plan, approved by
the local soil conservation district, are they necessarily deemed in
compliance with applicable management standards and thus immune from
complaint.
Ohio's proposed program may offer a promising approach for those states
where most concentrated animal feeding facilities not subject to the NPDES
are part of larger agricultural operations. In such areas, combining
an animal waste management program with an erosion and sediment control
program may avoid duplication of adiministrative effort and make most
efficient use of technical assistance,usually that provided by local
conservation districts, agricultural extension personnel, and USDA/SCS.
States which have large numbers of commercial feedlots and therefore
already have or want a more focused feedlot regulatory program may
also profitably borrow from Ohio's proposal. Ohio's approach could be used
to help ensure that facilities below any state-determined threshold and
facilities which have not yet been reached by a registration/permitting
process are subject to certain minimum management standards, which can
be enforced through citizen, local, and state action. In addition to
providing for voluntary plan approval to meet such standardized requirements,
the state should,of course, indicate to what extent compliance with the
terms of an NPDES permit would satisfy state standards. Construction and
management standards relating to groundwater and land disposal of wastes,
matters not covered by the NPDES, should also apply to facilities covered
by the NPDES as well as those which are not.10I/
Many existing state programs provide useful examples of general construction
standards relating to protection of groundwater. A discussion of the
need for standards to protect groundwater, suggestions for inclusion
of pertinent data requirements in a feedlot permitting program, and
generalized standards for protection of groundwater from animal waste
pollution may be found in a June, 1976 EPA publication entitled A Manual
of Laws, Regulations, and Institutions for Control of Ground Water
Pollution. 102/ State by state descriptions and examples of regulations
designed to prevent contamination of groundwater by animal wastes may be
found in the U.S. House of Representatives Conservation and Natural
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Resources Subcommittee Hearings on Control of Pollution from Animal
Feedlots.103/
Existing standards for land disposal of animal wastes likewise abound.
Examples include the model standards appended to the Council of State
Government's "Model State Confined Animal Feeding Environmental Control
Act" of 1973; 104/ Indiana's guidelines on "Irrigation for Land Application
of Animal Waste," "Utilization of Animal Waste as Fertilizer," and series
on animal waste handling and disposal for different types of animals; 105/
Ohio's "Livestock Waste Management Guide"; 106/ and Maine's "Guidelines
for Manure and Manure Sludge Disposal on Land"; 107/ among others.108/
The development and enforcement of such standards through a broad
state permit program or through the best management practice standard .
and/or plan and complaint process suggested by Ohio is a particularly
important contribution state and areawide water quality management programs
can make to the water quality regulatory picture.
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3.0 Silviculture
3.1 Introduction
As used throughout this chapter, the terms "silviculture,"
"silvicultural activities," "forest practices," and variations on those
terms will be used in their loosest and broadest sense to include
construction, use, maintenance, and abandonment of logging roads;
construction of structures in and over watercourses; harvesting; residue
management; reforestation; and the use of chemicals (pesticides,
fertilizers, and fire retardants) . Like pollution from agriculture,
pollution from silviculture is overwhelmingly nonpoint in nature and
results chiefly from runoff and from erosion and sedimentation.
The runoff and sedimentation from silviculture may carry with it mineral
sediment, organic matter (that present in soils, leaves, twigs, and
slash), and dissolved and undissolved chemicals. HO/ Disturbance of
streambeds and banks and of the perimeters of water bodies during
silvicultural activities accelerates erosion and, where shade is
removed, allows stream temperatures to rise, often to the detriment of
valuable fish populations. The focus in this chapter will accordingly
be on legal methods to control (1) erosion and sedimentation from forest
lands and (2) disturbance of watercourses and waterbodies.
While some states and some areas designated pursuant to section 208 will
not include silviculturally related nonpoint sources of water pollution,
such sources are indeed common throughout the United States. Commercial
forests cover one-fifth of the land area of the United States and three-
fourths of the states have 10 percent or more of their land in
commercial forests. Ill/ What is more, states not known for their forest
products now may become so as marginal agricultural land is returned to
forest use and as new technologies and new demands on old forests make
useful products out of formerly unusable trees. .11 2 /
Although water pollution from silviculture is overwhelmingly nonpoint in
nature, EPA has identified rock crushing and gravel washing facilities
and log sorting and log storage facilities which discharge to navigable
waters 113/ as subject to the National Pollutant Discharge Elimination
System (NPDES)_114/ and to effluent limitation guidelines. 115/ In its
definition of the term "silvicultural point source" EPA included the
following "comment" elaborating on which silvicultural activities do and
do not constitute point sources:
This term does not include nonpoint source activities inherent
to silviculture such as nursery operations, site preparation,
reforestation and subsequent cultural treatment, thinning,
prescribed burning, pest and fire control, harvesting operations,
surface drainage, and road construction and maintenance from
which runoff results from precipitation events. However, some
of these activities (such as stream crossings for roads) may
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involve point source discharges of dredged or fill material which
may require a 8404 permit (see 33 C.F.R. 209.120).116/
Those silvicultural activities which result in pollution and which are
not covered by the NPDES program or by section 404 of the FWPCA will, of
course, have to be covered by statewide and areawide water quality
management plans. Under section 208(b)(2)(F) of the FWPCA such plans
are required to include "a process to (i) identify, if appropriate,
. . . silviculturally related nonpoint sources of pollution . . . and
(ii) set forth procedures and methods (including land use requirements)
to control to the extent feasible such sources . . . ."
In general, the most effective means for controlling silviculturally
related nonpoint sources is through preventive land management practices
rather than through treatment. Sediment is transported to the receiving
water through runoff and would be difficult and expensive to treat once
it has reached the stream. Where nonpoint pollution from silviculture
is determined to be a significant problem, the water quality management
process must include the development of "best management practices"
(BMPs). EPA is currently developing guidance to assist planning
agencies in identifying and assessing nonpoint source problems and in
developing BMPs for the particular problem.117/ Moreover, many states
have already undertaken the task of regulating sediment pollution from
silviculture. The following section, and, especially, the accompanying
footnotes, outline some existing examples of "best management
practices. ".U8/
3.2 Technical Methods of Controlling Sediment Pollution from
Silviculture
3.2.1 Logging Roads
It is generally agreed that logging roads are the major sediment source
associated with silviculture. This is particularly true in those parts
of the West where the timber industry is extending into ever more rugged
country; where more miles of road must be built; and where the slopes
are steeper, the rainfall heavier, and the soils more fragile and
susceptible to slides. At the same time, silviculture experts in both
the South and the Northeast also consider that the bulk of their erosion
and sedimentation stems from logging roads.119/ Many states on both
sides of the continent have already developed recommended or mandatory
road construction, maintenance, and abandonment standards. Region X of
the EPA has recently developed an excellent guide entitled Logging Roads
and Protection £f_ Water Quality,120/ which provides a good summary of
erosion control practices for logging roads. Standards from this and
other technical guides and, more significantly for the purposes of this
report, from existing state statutes and regulations or guidelines are
summarized in the footnotes.121/
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3.2.2 Logging Practices
Growing trees on land is in itself an excellent method of keeping the
soil on the land and out of the water. It is only at the intervals of,
typically, 10 to 20 years when trees are thinned or cut that a timber
operation becomes a potential polluter. Generally, the amount and
duration of soil exposure and the amount, duration, and velocity of
runoff will determine the amount of sediment washed into streams. In
addition to logging roads, skid trails along which logs are pulled and
the landings at which they are collected and from which they are
transported may be heavy sediment contributors. Needless to say,
skidding logs or trees in or across streams and dumping logging debris
in streams causes erosion of the streambanks and bed themselves and adds
organic material to the water in addition to sediment.
From the standpoint of water quality, the harvesting method which
minimizes (1) road mileage, (2) number and usage of skid trails and
landings, and (3) the use of mechanical equipment in and around streams
and, indeed, anywhere on the forest floor is the method to be preferred.
Thus, the practice of removing relatively large blocks of trees all at
once, known as clearcutting, may or may not be preferable from a water
quality standpoint, depending on the amount of soil bared in the
operation. Since clearcutting generally requires fewer roads and fewer
entries into the forest than selection cutting, the soil exposure from
the former method may in fact be less in many cases. That is not to
say, however, that clearcutting is not a proper subject of environmental
regulation for water quality as well as for aesthetic and, sometimes,
wildlife protection reasons. Harvesting large areas of trees,
regardless of the number of roads and trails used to do it, may pose a
potential erosion hazard if regeneration and growth of underbrush is
slow. Moreover, except in unusual circumstances where streamside trees
have been killed by natural agents such as fire, insect or disease,
clearcutting should be prohibited in a buffer zone along streams,
rivers, lakes, etc. both to minimize erosion and to preserve shade and,
thereby, existing water temperatures.122/ The "waterside protection
zone" provisions of a number of western state forest practices acts are
outlined in appendix B to this chapter, and the use of a critical areas
approach to minimize silvicultural pollution is discussed in section
4.0, below.
Erosion control standards for skid trails, landings, stream crossings,
and general harvesting procedures are outlined in the footnotes with
references to pertinent state standards and the technical
literature.123/
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3.3 Forest Practices Acts
3.3.1 Introduction
The regulation of forest practices is far from being a new concept. At
several defined periods over the past century, concern over forest
devastation through poor cutting practices and forest fires and a desire
to ensure future forest productivity and watershed protection have
resulted in many proposals for and enactments of state and federal
legislation. Congress has passed more than a dozen statutes with
respect to forests, most of them designed to foster the use of sustained
yield forest management practices in federal forestland (over 183
million acres) and neighboring private forestland.124/ Under the
Sustained Yield Forest Management Act of 1944,1257 the Secretaries of
the Department of Interior and the Department of Agriculture are
empowered to establish so-called "sustained yield units" which may
include private lands through cooperative agreements with the landowner.
Such cooperative agreements are to include limitations on the time,
rate, and method of harvesting timber from the land.126/
Moreover, land and resource management plans127/ developed for units of
the National Forest System are soon to be governed, as a result of the
newly passed National Forest Management Act, by Department of
Agriculture guidelines designed to ensure, among other things, that
timber will be harvested from National Forest System lands only where
"... protection is provided for streambeds, shorelines, lakes,
wetlands, and other bodies of water from detrimental changes in water
temperatures, blockages of watercourses, and deposits of sediment, where
harvests are likely to seriously and adversely affect water conditions
or fish habitat."128/
Harvesting by private corporations or individuals on federal and state
forest lands is done under timber sales contracts. The contracts are a
potentially powerful vehicle for requiring forest management practices
which are designed to prevent or reduce nonpoint source pollution. EPA
is working closely with the U.S. Forest Service to include language in
timber sales contracts which will ensure that best management practices
are used in all national forest lands. It should be kept in mind that
section 313 of the FWPCA and Executive Order 11752 require federal
properties, facilities, and activities to be in compliance with state,
interstate, and local substantive requirements respecting control and
abatement of pollution.129/
The upsurge in national interest in forest practices which followed the
publication of the Joint Congressional Committee Report in 1941 was matched
by a corresponding spate of state forest practices legislation, passage
of which was undoubtedly motivated in part by a desire to anticipate and
forestall federal regulation.130/ Many of the state forest practices
laws now on the books date from this period, the 1940*s and early
195Q's.l31/ While usually such laws include among their declared aims
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the protection of watersheds, protection of water quality is generally
an indirect beneficiary, at best, of measures designed primarily to
increase forest productivity. Many of the "old" forest practices
statutes are primarily seed tree laws which seek to ensure continued
forest productivity through the establishment of cutting standards
("leave three to eight seed trees per acre").132/ There are few
encouraging words and fewer useful tools in these old forest practices
acts on which to rely in combating pollution from forest
mismanagement.13 3/
Our attention in this chapter will be focused, therefore, on the "new"
forest practices acts, legislation passed primarily by the western
states in part because the old laws were not sufficiently protective of
water quality. Citations to and outlines of the portions of the laws of
California, Idaho, Nevada, Oregon, and Washington discussed are included
in appendix B to this chapter.
There has been a great deal written and said on both sides of the
question of the need for and workability of forest practices laws of the
type now in effect in the western states listed above. To the extent
such laws and proposals modeled on them impose notification, plan, and
permit requirements, their opponents criticize them for threatening to
drown the landowner or timber operator in red tape and for diverting the
energies of state foresters from technical assistance to desk work.134/
Proponents point out that in Oregon, a state with relatively long
experience with such a "new" forest practices act, both the timber
industry and state forestry officials appear to be reasonably satisfied
with the act.135/
It is not within the mandate of this handbook to take sides in this
controversy. Rather, primary features of both the "new" forest
practices acts and of a number of alternative management approaches to
protection of the water from silviculturally-related nonpoint pollution
will be set out. It will be up to state and areawide water quality
management planners and, subsequently, state and local legislators to
determine the regulatory approach most suitable to the particular
dimensions and characteristics of their silvicultural pollution
problems.
3.3.2 Management Approaches: Plans, Permits, Notifications,
and Standards
The most obvious feature of the new forest practices laws enacted in the
West over the past six years is their emphasis on procedural vehicles
through which to better enforce substantive requirements. These
procedural vehicles include notification and plan submittal requirements
as well as the more familiar permit or license. Oregon's 1971 Forest
Practices Act 136/ requires timber owners and operators to notify the
state forester before commencing "an operation." Oregon's regulations
include all significant silvicultural activities within the definition
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of "operation": harvesting of forest crops; road construction; site
preparation; application of insecticides, herbicides, rodenticides, and
fertilizers; clearing forest land for change to non-forest uses;
treatment of slashing; and pre-commercial thinning. Exemptions from the
notification requirement include routine road maintenance, recreational
uses, tree planting, and direct seeding unless the seed is treated with
rodenticides. Whether they require prior notification or not, all
forestry operations in Oregon must be conducted in accordance with the
detailed forest practice standards applicable to the appropriate one of
the three forest regions into which the state has been divided.
Idaho's 1974 Forest Practices Act is similar to that of Oregon in simply
requiring notification, but its exemptions are broader, including, as
they do, clearing forest land for conversion to non-forest uses and
activities undertaken pursuant to a woodlot management plan approved by
a local soil conservation district. Idaho provides that the state's
forest practices regulations govern in all cases except where the Idaho
Department of Lands has approved a plan "for an alternate practice or
practices which provide for equivalent or better results."137/
Nevada in 1971 and California in the Z'Berg-Nejedly Forest Practice Act
of 1973 have gone furthet than Oregon and Idaho by requiring state
approval of applications and plans for timber operations before those
operations are commenced. Both state statutes 138/ attempt to allay
the fears of commercial foresters about potential costly time delays by
setting strict limitations on the time the state forester may take in
reviewing an application and plan. In Nevada, the state forester
firewarden must issue or deny the permit within 45 days of receiving the
application. In California, the state forester has 10 days to do an
initial inspection and 15 days after that to review the plan, which must
have been prepared by a registered professional forester. If the state
forester does not act within that period, or whatever longer period may
be agreed upon by the owner or operator, operations may proceed in
accordance with the plan. It should be noted that the final version of
California's bill is said to have passed with the concurrence of both
the state's forestry industry and of most of its conservation
organizations.139/
In its 1974 Forest Practices Act,140/ the state of Washington
compromised between the notification and the plan and permit requirement
approaches by establishing four separate categories of forest practices.
The amount of information required and state review involved increases
as the practices increase in importance and environmental threat from
category to category. The act sets out general guidelines which the
state Forest Practices Board must follow in defining which forest
practices will be included in which category.
Regardless of the merits of Washington's compromise approach (which seem
substantial), it may be that the issue of which regulatory technique to
use, a notification or a plan approval and permit, has been over-
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emphasized by writers and commentators. Notification requirements can
be written to require the owner or operator to submit as much
information as he would include in a plan and permit application, while
strict time limits mean that, in effect, many plans and permit
applications will be treated simply as notifications. Oregon's system
appeals to the forestry industry because there is no permit or plan
approval delay, yet Oregon's Department of Forestry apparently has an
administrative policy of asking timber operators to wait 10 days after
notification before commencing operations. Most operators apparently
find no problem doing so.j.41/ As for permit delays, Washington forestry
officials, for one, have apparently been able to keep within the short,
14-day period allowed them for review of most plans and permits.14 2 /
Although the psychological impact of labels is not to be discounted,143/
the really important questions to ask about a regulatory program are (1)
whether it allows for the formulation of workable standards which are
flexible and fair; (2) whether it is administratively workable both for
the bureaucrat and the the person subject to regulation while ensuring
protection of the values it seeks to foster; and (3) \\rhether it is
easily, effectively, and fairly enforceable. (Of course, this is not an
exhaustive list of the criteria by which to judge an adequate forest
practices program. Additional tests are included, for example, in a
list compiled by the Society of American Foresters entitled "Criteria
for a Competent State Forest Practices Act.")144/
3.3.3 Regulations and Standards; Formulation and Flexibility
No attempt is made here to evaluate different states' forest practice
standards, since such technical matters are beyond the scope of this
study. References to the kinds of standards or best management
practices which would be included in a program designed to limit erosion
and sedimentation from silvicultural activities are made in section 3.2
above. As with the conservation practices for agriculture discussed in
section 2.0 of this chapter, however, it is important to review the
general characteristics of the standard-setting and standard-application
process.
Needless to say, forest practices standards and practices designed to
protect water quality should be drawn up by people with adequate
expertise. This argues, of course, for the standards being contained
primarily in regulations, rather than in statutes. Given the present
evolutionary state of the art of determining best management practices
for silviculture (evidenced by the fact that the state of Washington
apparently revised their regulations five times within two years),145/
it is probably unwise to tie an administrator's hands by providing
specific standards of the type to be found, for example, in Nevada's
forest practices act.146/
On the other hand, standard-setting should not be left to the unbridled
discretion of one state agency likely to represent one point of view.
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Instead, the forest practice legislation (or any other legislation
discussed in this handbook, for that matter) should provide for expert
and citizen guidance in the regulation writing process and should
contain guidelines concerning what types of standards must be adopted.
Washington and California provide good examples of such legislation.147/
On paper at least, Washington's provision for a broadly representative
technical advisory committee for the formulation of regulations to be
approved by the State Forest Practices Board is a good model (although
perhaps open to potential under-representation of environmental
concerns). Need for local variations in standards is accommodated, as
it must be, by the establishment of regional forestry districts and of
regional committees to assist the statewide advisory committee. The
nine-member regional committees are required to have four members
regularly engaged in forest practices; other states should consider
stipulating representation of conservation and environmental interests,
too. Since there are always problems of apathy and absenteeism with any
advisory committee, moreover, frequent opportunities for public
participation in review of regulations both pre- and post-promulgation
should be afforded.
In order to ensure that water quality protection is adequately
considered in the regulation promulgation process, Washington's statute
further provides that: "Forest practices regulations pertaining to
water quality protection shall be promulgated individually by the board
and by the department of ecology after thsy have reached agreement with
respect thereto."148/ California's statute specifically requires its
state Board of Forestry to develop soil erosion standards, as follows:
4562.5. Soil Erosion Studies. It is the purpose of this
section to insure that soil erosion associated with timber
operations is adequately controlled to protect soil resources,
forest productivity, and water quality. The prevention, retar-
dation, and control of accelerated erosion are the principal
goals of this section. The board shall conduct such investiga-
tions of soil characteristics and erosion rates and of the
instruments, techniques, and procedures available for development
and application of soil resource conservation standards, and
shall, by January 1, 1976, publish reports or otherwise dissem-
inate the information thus obtained, including a determination,
if possible, of permissible levels of soil loss. The board
shall promulgate regulations for each district to govern timber
operations that may cause significant soil disturbance.149/
Of course, any such statutory guidance respecting necessary and proper
subjects for regulation runs the risk of being under-inclusive
(California's, for example, says nothing about thermal pollution from
shade removal). It should, therefore, include a broad catch-all
provision to allow for adoption of whatever additional standards may be
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necessary to safeguard the water quality values to be protected by the
act.
As with any new state law, it is important to provide for reports to the
legislature on progress and experience under the act and for frequent
reviews of regulations promulgated. Thus California's act provides for
an annual report to the legislature detailing actions taken pursuant to
the act and including recommendations for legislative action "necessary
to more fully carry out the purposes and requirements" of the act.150/
California's law allows for readjustment of district boundaries as well,
should land within a district as originally drawn turn out not to share
its physical characteristics15I/ Since the State Board of Forestry can
create as many districts as it deems necessary, it should always be
possible under this system to have regulations tailored to unique local
conditions.
That is not to suggest, however, that the regulations themselves should
be extremely detailed. As with agriculture, the extreme variability of
soils, even within small geographical areas, makes setting absolute best
management practice standards difficult. For example, road construction
on a given slope gradient may or may not be problematic depending on
whether the soils or geological substrata are unstable or not.152/
Hence regulations should be written in such a way that the enforcer can
obtain as much information as necessary from the operator and so that
standards are general enough to be adapted to unique conditions. Where
it is not proposed to require forest cutting plans for all operations,
provisions should be made for the operator to have a plan approved
voluntarily. This option should, as in the agricultural context
discussed above, provide assurance to the person who is doubtful about
his conformity to regulatory standards.153/ The plan should be limited
in duration, however. In California, for example, plans are effective
for not more than three years (except for stocking work).154/
In those few cases where the legislature or the technical advisory board
does feel a regulatory standard needs to be specific to best protect
forest and water resources, the act or regulations should provide strict
substantive procedural safeguards for variances from that standard.
Thus Nevada's forest practices statute imposes a very high burden of
proof on those who would conduct tractor logging on slopes with a 30
percent or greater incline or who would fell or skid trees or construct
roads or landings within 200 feet of the high water mark of a waterbody
or watercourse. In the first case, the timber owner or operator must
obtain a special variance from the state forester firewarden; in the
second case, the variance must be obtained from a committee composed of
the state forester firewarden, the director of the Nevada Department of
Fish and Game, and the state engineer. In both cases, the variance
decision is to be governed by enumerated considerations, all having to
do with possible erosion and threats to water quality.155/
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Nevada's scheme is, in effect, a critical areas program superimposed on
a conventional permit and plan approval program. Since disturbance of
highly erodible soils and of soils near and within streambeds accounts
for the greatest share of sediment pollution from silviculture, Nevada's
approach of assigning priorities and setting criteria for decision-
making in the legislation itself is one to consider.
3,3.4 Admini str a t i on
a. Inspections
With the number of notifications or plans and permit applications which
may be received in a given year and with the short time within which
inspections will have to be made, all but the best-staffed state
agencies will have to assign priorities for inspections. Oregon
officials, who inspected 6,404 operations out of the 9,427 for which
they received notification in the past fiscal year,156/ base their
informal priorities on soil types, slope, whether the logging will be by
cable or tractor, road mileage, and the presence and quality of streams
in the area.
Since how the operation is conducted is more important than what the
notification or plan and permit application says about how it is
proposed to be conducted, inspections should be done during all
operations. Washington's law has a good provision which helps take the
guesswork out of when an operation is actually going to start. That
provision requires the timber operator to give two days notice before
the commencement of actual operations "whenever an approved application
authorizes a forest practice which, because of soil condition, proximity
to a watercourse or other unusual factor, has a potential for causing
material damage to a public resource, as determined by the
department."157/ Apparently this provision has been applied
successfully. .15 8 /
The key factor cited by both Oregon and Washington officials 159 / is
the familiarity of the state agency's field people with the lay of the
land and with the ways of particular operators. However willing the
forest products companies may be to go along with new state standards,
and most are, getting the word to the "catskinner" on the job is the
hard part of administering any program. Local inspectors can focus
their attention on those operations which they know may be performed
without adequate regard to environmental quality. Of course, this is
also where state personnel need to channel their educational programs, a
key supplement to any regulatory program, as will be discussed later in
this chapter.
b. Interagency and Intergovernmental Coordination
While most forest products companies and timber operators have few
problems with the actual regulatory standards promulgated under state
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forest practices acts, they have been justifiably concerned with the
problems of overlapping jurisdiction which the passage of any new
legislation in an environmentally conscious state is likely to pose
these days.160 / Specifically, logging activities in or around
waterbodies, such as culverting a stream for a logging road, are likely
to already involve at least one state agency, perhaps a local one as
well, and the Army Corps of Engineers under section 404 of the FWPCA.
The solutions to this problem of overlap will be as various as are state
wetlands laws, state fish and game laws, state land use laws, and local
flood plain ordinances, to name a few of the laws which might be
involved. No new law or regulations applicable to silvicultural or any
other activities, for that matter, should be formulated without first
developing a procedure through which any conflicting standards can be
reconciled and any overlapping approval processes can be streamlined.
Apparently, the state of Washington had a serious initial problem
its Forest Practices Act, its Shoreline Management Act of 1971,161/ and
its Hydraulics Project Approval Law.162/ It recently promulgated forest
practices rules and regulations163/ which clarify the situation and
encourage the kind of interagency cooperation which the forest practice
regulatory agency, the Department of Natural Resources (DNR), reports
taking place. Thus while a timber operator who wishes to do any work in
a streambed must have approval from the Department of Fisheries or Game
under the Hydraulics Act referred to previously, DNR apparently arranges
for consolidated review of major multi-permit operations, including a
joint inspection by representatives of DNR, the Department of Ecology
(Water Pollution Control), and the Departments of Fisheries and
Game.164/
When overlap threatens to be a problem, new laws or regulations in this
area should provide for interagency agreements providing, where
feasible, joint inspections, joint application review, and joint
hearingsor the assumption of one agency's duties in a certain area by
another. Time limits should be imposed on reaching such agreements so
that they may go into effect prior to the effective date of new
legislation.165/
Potential conflicts between state and local legislation should also be
anticipated and dealt with before they arise. Fuzzy language like that
found in the provision of Washington's Forest Practice Act dealing with
local planning and zoning requirements should be avoided. Washington's
act provides that no county, municipality, or any other local or
regional entity should regulate forest practices except those with
respect to lands to be converted to non-forest use. Such entities may
adopt additional or more stringent regulations which are "not
inconsistent" with the forest practices regulations and which will not
"unreasonably prevent timber harvesting. "16>6/ Such language simply
creates confusion and invites litigation. The status of local
ordinances or regulations should be made clear, not obscure, by any new
statute.
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If additional or more restrictive local forest practices regulations are
determined to be desirable, they should be expressly authorized without
qualification as they are in Calfornia. The relevant provision of the
Z'Berg-Nejedly Forest Practice Act reads:
4516. County and Regional Regulation. Notwithstanding any
provision of this chapter, individual counties and the Califor-
nia Tahoe Regional Planning Agency shall have the right} within
the reasonable exercise of their police power, to adopt rules
and regulations. Such county or agency rules and regulations
may include, but are not limited to, matters relating to soil
erosion control, protection of stream character and water fores-
tation methods, mass soil movement, submission of timber
harvesting plans, location and grade of roads and skid trails,
excavation and fill requirements, slash and debris disposal,
haul routes and schedules, hours and dates of logging, and
performance bond requirements.167/
The Tahoe Regional Planning Agency has, in fact, adopted such
regulations, along with a Tree Conservation Ordinance which applies to
tree cutting associated with land use conversions and any other non-
commercial cuttings. The Tahoe Forest Practices Ordinance further
stipulates that it establishes only minimum standards applicable within
the Tahoe Region and that any political subdivision may enforce equal or
higher standards within its territory.168/
It should be noted in this connection that a recent case in the Supreme
Court of South Carolina held that the tree cutting section of a zoning
ordinance was not authorized by the states's zoning enabling
statute.169/ Nevertheless, forest practices regulations whose purpose is
to prevent degradation of a locality's waters, flooding, and other
consequences of erosion detrimental to the health and welfare of that
locality should be legitimate expressions of the local police power
where that power has not been narrowly construed and where preemption is
not an issue.170/ (Note 170 contains references to local tree cutting
ordinances.)
An additional or alternative way to encourage participation of local
governments in regulation of silvicultural nonpoint pollution is to give
them an opportunity to compel enforcement of state regulatory standards.
Since it is often the local people who will be primarily affected by the
pollution of water supplies, the reduction in reservoir storage
capacity, the loss of fishing and other recreational opportunities, and
damage to irrigation and water treatment equipment from sediment, there
is a strong case for affording them an enforcement role in a statewide
regulatory system. Before describing what form that role might take,
enforcement provisions will be described generally.
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3.3.5 Enforcement
As with erosion and sediment control programs for agriculture, one of
the important arguments in favor of forest practices legislation is the
need for effective enforcement tools. Such tools are required to
achieve with a small, reluctant minority of timber operators the
advances in erosion and sediment control and protection of water bodies
which the rest of the operators either already have adopted or
voluntarily will adopt once education and technical assistance have been
made available. Like the erosion and sediment control programs
discussed in the Agriculture section of this chapter, forest practices
acts should allow for a go-slow, cooperative approach to enforcement
where that is considered to be the most promising course. Unlike most
of the erosion and sediment control programs applicable to agriculture
and silviculture discussed earlier, many state forest practices acts now
on the books do provide effective enforcement provisions for cases of
hard-core resistance or persistent negligence.
During the first years of a new act many violations will result from
unfamiliarity with new requirements. One example might be uncertainty
as to whether a certain practice is covered by a notification or a
permit requirement when the line has not yet been clarified by
regulation. For such cases, forest practices acts should provide for
warnings. More than half of Oregon's enforcement actions or citations
in its first two years (fiscal 1973 and 1974) took the form of warnings.
Of those 105 cases over the two-year period where court citations were
issued in Oregon, the overwhelming majority of defendants pleaded
guilty; only five pleaded not guilty. Of the 49 violators who received
a fine (the largest fine was $1,000 and most were in the $5 to $50
range), about half were guilty of failure to give the required
notification. The director of the Oregon program characterized the half
of the violations not involving failure to give notification as
primarily involving failure to protect Class I streams (waters which are
valuable for domestic uses and for fish spawning, catching, and/or other
recreational uses).
In March 1975, Oregon's director reported that only 5 percent of the
Deparment of Forestry's time was spent in strict enforcement
actions.171/ In fiscal 1976, only 36 of 146 cases of violation involved
failure to file notification,_17_2/ weakening the argument that laws like
Oregon's waste state foresters' time on non-substantive duties. Idaho's
forest practices law suggests one way to spread out the enforcement
burden for the procedural requirements of such an act: a provision
requiring the initial purchaser of forest tree species to receive and
keep on file for inspection by the Idaho Department of Lands a copy of
the timber cutter's notification of harvesting with respect to the trees
purchased,173/
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For substantive violations which threaten harm to resources if not
halted, the forest practices regulatory authority must be authorized to
issue stop work orders. Such provisions, along with the necessary
accompanying opportunity for the forest owner or operator to take an
administrative appeal, are to be found in many of the existing forest
practices acts.174/ In the period January through June 1976, the state
of Washington's Department of Natural Resources issued 12 such stop work
orders (77 notices to comply were issued in the same period).175/ By
the time such an order is issued, however, damage requiring corrective
measures may already have been done. Oregon officials found in fiscal
1973 and 1974 that about 60 percent of violations required remedial
work.176/
In most cases, the owner or operator can be brought to correct past
deficiencies and avoid future ones by threat of court actions. In those
few cases where this is not true, however, it is important that the
state be able to undertake corrective action itself, without undue
delay. Again, examples of such powers can be found in existing
legislation, the specifics of which are outlined in appendix B.
In Oregon and Idaho, state officials must first estimate the cost of the
repair and notify the owner of the estimate. If the owner or operator
refuses to pay, the state agency may take its request to its
administrative board which, after giving the owner or operator an
opportunity to appeal, may then authorize the state agency to proceed
with the necessary work. Washington allows the state agency to
undertake such work without prior authorization (after the owner or
operator has had a chance to appeal the final administrative order). In
California, the state forester may take such corrective action on his
own authority after first providing an opportunity for a public hearing
before the State Board of Forestry.
Such provisions go on to stipulate that any unpaid costs become a lien
on the land and, sometimes, on personal property as well. Since it is
usually the operator, not the landowner, who is responsible for the
violation, it makes practical and equitable sense to provide as
California does, that costs of remedial action, including administrative
costs, may also be recovered from the operator in a civil action for
debt.111/ While such corrective action will be resorted to rarely,
state officials often see it as a more useful source of leverage than
time-consuming court actions.178/ In both the one corrective action
case brought to date in Washington and the one such case in Oregon, the
costs quoted to the operators by the state agencies were so high that
the operators decided to do the work themselves, after all.179/
Other enforcement techniques include bonding requirements, as used in
Nevada.ISO/ A student of the California law reflects:
A performance bond is a limited enforcement tool because it
only corrects obvious effects: a prohibition against yarding
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in streams is virtually unenforceable by a bond procedure.
Nevertheless, large abuses are deterred by fear of forfeiture.181/
Perhaps more useful in deterring lesser violations of forest practice
standards is California's licensing provision. No person in the state
is allowed to engage in timber operations without a license, which is
good for only one year. Renewal may be denied
until any violations by the applicant as exist on the date of
submission of the renewal application, of which the applicant
has been notified and given reasonable opportunity to correct,
are corrected on such reasonable terms and conditions as the
[State Board of Forestry] may require.182/
A final concern in any effective enforcement program is access to the
enforcement process by those with a direct interest in ensuring
adherence to forest practices standards. At the state agency level, this
will include all agencies concerned with water quality: the agency
responsible for water pollution control, the department of fish and
game, or equivalent, and maybe others. Examples of the involvement of
such agencies in the programs under discussion were given earlier in
this chapter and also appear in the outlines in appendix B.
In the state of Washington, the Department of Ecology (which, as
mentioned previously, is jointly responsible for promulgation of forest
practices regulations pertaining to water quality protection) is
authorized to petition the Forest Practices Appeals Board if it
determines that a person has failed to comply with the regulations and
that the Department of Natural Resources has failed to take enforcement
action. If it finds merit in the contention, the Appeals Board must,
within 48 hours, direct DNR to take appropriate enforcement action._1_83/
In California, where the State Water Quality Board has jurisdiction over
nonpoint as well as point sources, its regional boards apparently
monitor water quality for forest practices violations and take
enforcement action accordingly.184/
As for enforcement action initiated at the local level (where most of
the ill effects from violations of forest practices rules will be felt),
it might be prudent to give local government entities the same powers as
other government agencies. In Washington, for example, a county may
appeal DNR approval of any application concerning lands within the
county's jurisdiction to the Forest Practices Appeals Board.185/
Penalties available under the state forest practices acts here discussed are
detailed in appendix B.
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3.4 Alternative Approaches to the Control of
Silviculturally Related Nonpoint Sources
3.4.1 Revisions to and/or Regulations
under Related Legislation
States whose water quality management planning processes identify
silvicultural activities as a significant contributor of nonpoint
pollution should certainly consider adopting comprehensive legislation
such as that discussed in the previous section; other states with fewer
commercial forestry operations may want to consider simply building
upon existing, general authority.186/ This authority may take a number
of different forms: a water pollution control law which covers nonpoint
as well as point source discharges; an erosion and sediment control law
which covers all earth-disturbing activities; or a wetland or other
critical areas protection program, to name the most generally available.
Critical areas programs will be discussed in a separate section later in
this chapter. This section briefly addresses the first two options
listed above.
a. Water Pollution Control Laws
As noted above, California's Regional Water Quality Control Boards
are authorized to regulate pollution from logging operations. The
Porter-Cologne Water Quality Control Act authorizes the boards to
regulate existing or threatened discharges of "waste" which may ad-
versely affect the water environment, and the term "waste" has been
interpreted to include soil, slash, sawdust, and other debris from
logging operations.3-87^7 Montana's water quality act defines waste
to include decayed wood, sheerings, sawdust, bark, and sediment.188/
As mentioned previously, Pennsylvania's Clean Streams Law gives the
state Department of Environmental Resources broad power to order a
landowner or occupier to correct any condition existing on land which
is resulting in pollution or the danger of pollution.189/ Pollution
is defined broadly so as not to be limited simply to point source
discharges but to embrace "contamination by alteration of the physical,
chemical, or biological properties of [Waters of the Commonwealth],
or change in temperature, taste,, color or odor therof ..." when
such contamination
will create or is likely to create a nuisance or to
render such waters harmful ... to public health,
safety, or welfare, or to domestic, municipal, agri-
cultural, recreational, or other legitimate benefi-
cial uses, or to livestock, wild animals, birds,
fish, or other aquatic life.190/
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Pennsylvania's Department of Environmental Resources (DER) has taken
this general water pollution control authority and used it to adopt
erosion and sediment control regulations which apply to all earthmoving
activities including those connected with silviculture. Guidelines for
forest products harvesting or removal operations interpret the
applicability of the regulations and their plan and permit requirements
to silvicultural practices. Permits are only required for earthmoving
activities affecting 25 acres or more. Since DER estimates that
normally only 10 percent of a forest product harvesting area is directly
affected by earthmoving, permits are generally only required for
harvesting of 250 acres or more. Operators conducting smaller
operations must, however, have an erosion and sedimentation control plan
prepared by a person trained and experienced in the area. All operators
must implement and maintain the erosion and sedimentation control
measures set forth in a plan.
DER's forestry guidelines set forth a suggested outline and provisions
for a basic forest practices plan.191/ Inspections to determine whether
operations are proceeding without a required permit or plan or whether
erosion and sedimentation control measures set out in a plan are being
followed are carried out by DER personnel. In states where logging
operations are larger and more sophisticated than they are in
Pennsylvania, water quality agencies responsible for administering
forest practices regulations should utilize the experience of state
foresters in joint inspections.
b. Erosion and Sediment Control Legislation
In states where the extent of silvicultural pollution is judged
insufficient to warrant comprehensive forest practices legislation,
logging roads may nevertheless be a significant source of sediment.
Since road construction is more a typical earthmoving practice than a
specialized forest practice, it might well be regulated through a state
erosion and sediment control program.192/ States which have inadequate
authority for such a program in their water pollution control law may
have already adopted or may be considering adopting legislation similar
to the Model State Act for Soil Erosion and Sediment Control.193/ Such
legislation is readily adaptable to the regulation of erosion and
sedimentation from road construction and other earth-disturbing
activities connected with silviculture.
As presently written or proposed, many of the erosion and sediment
control programs outlined in appendix A leave the reader confused about
their application to silvicultural activities. Thus Ohio's proposed
amendments to its soil conservation law would allow the Board of County
Commissioners to adopt rules requiring persons to obtain permits and
file sediment control plans
. . . before clearing, grading, excavating, filling, or
otherwise improving or preparing five or more contiguous acres
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of land for the construction of nonfarm buildings, structures,
utilities, recreational areas, or other similar nonfarm uses,
in order to secure compliance.194/
A later section of the propostid act provides for the establishment of
(1) standards to control agricultural pollution and (2) pollution
abatement practices for farming and silvicultural operations eligible
for cost-sharing.
Since there are no definitions of "clearing" or "nonfarm uses" in the
Ohio proposal, it is impossible to tell whether some or all
silvicultural operations carried out on five or more acres would require
a permit and plan approval, and it must be inferred that silviculture
will be subject to the same performance standards as agriculture.
Drafters of erosion and sediment control legislation who intend the laws
to apply to silviculture, as Ohio apparently does, must be careful to be
absolutely clear in the legislation as to what silvicultural activities
are covered by such provisions.
Moreover, acreage thresholds for permit requirements like Pennsylvania's
25 acres and Ohio's proposed 5 acres must be considered carefully in
reference to silviculture activities. It may well be that a threshold
which makes sense for a construction site does not make sense for
logging and logging roads. In addition, such thresholds, baldly stated,
are difficult to interpret. Does selective logging of a five-acre site
constitute "clearing" that site? What about a forestry operation
extending over a year's time, consisting of discrete clearcuts, each
less than five acres, connected by logging roads?
3.4.2 Fiscal Incentives, Contract Provisions, and
Educational Programs
A large category of existing laws applicable to forest practices has yet
to be touched on in this chapter, a category which includes enabling
legislation for service forestry programs (educational and technical
assistance) and for cost-sharing and preferential tax laws for
timberland. The concept of tying technical and financial assistance and
tax relief to sound forestry practices, including measures to protect
water quality, is not new. One example long in existence is the New
York Forest Practice Act of 1946, under which management and market
services are extended to owners signing cooperative agreements with the
New York Department of Environmental Conservation.195/ All such
cooperative agreements now include an undertaking to abide by the
standards set forth in the "Guidelines for Timber Harvesting in New
York" recently prepared by the New York Section of the Society of
American Foresters.196/
States which provide direct monetary as well as technical assistance to
forest owners contingent on their complying with approved forest
practices include Virginia 197/ and Mississippi 198/. While these
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states' acts were designed primarily to foster reforestation and forest
productivity, it must be remembered that well-managed forests are
themselves a preferred land use from the point of view of low water
pollution potential. Thus by providing direct cost-sharing assistance
to small landowners 199/ for reforesting land, Virginia and Mississippi
do promote the creation and preservation of a forest as "a natural
reservoir for retention of water," in the language of the purposes
section of Virginia's Reforestation of Timberlands Act.2QO/
The further use of such acts to promote sound logging practices is a
little problematic. The requirement in Virginia's law that notice be
given when land seeded with help from the state is logged applies only
to land for which assistance was given in loan form and is merely a
device to ensure repayment.201/ When assistance takes the form of an
outright grant of money, material, or technical assistance for
reforestation, attempting to retain leverage over the long period it
takes the trees to mature could be difficult.
Although Virginia and Mississippi have both recently adopted forest
practices guidelines which do address water quality considerations
(Virginia' s202/ are more detailed than Mississippi' s203_/), we know of
no attempt in either state to enforce logging standards through the
state's forest incentives program.204/ Virginia does, however, use its
inspection program under its Seed Tree Law as a mechanism for
encouraging better harvesting practices.205/
In order to be used, then, to promote good logging practices as well as
reforestation, an incentives program like Virginia's or Mississippi's
would have to be considerably broadened. Such a broad program would
make financial assistance contingent on a management plan or cooperative
agreements that would take in the whole forestry operation from cutting
to re-seeding to cutting again. It also would provide for follow-up
inspections and monitoring to be sure that the agreed-upon practices
were being carried out.
An indirect form of financial incentivetax abatement or special tax
ratesoffers another possible tool for promoting good forestry
practices. The possible advantanges of tax incentives over direct cost-
sharing programs are their wider use and applicability (large timber
operations are not usually excluded) and the fact that they afford
leverage on an annual basis. As more and more states move to 100
percent valuation of real estate, preferential assessments will be
sought by increasing numbers of owners of forest and farm land. Two
relatively recent publications have listed and summarized state forest
tax incentive laws;206/ therefore, only a brief sketch of how such a
law might be used to abate or prevent nonpoint source pollution will be
offered here.
A good illustration of this kind of legislation is New York's 1974
amendment to its Real Property Tax Law, Chapter 480-a.2Q7/ New York now
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provides that any tracts of at least 25 acres devoted to or suitable for
forest crop production may be certified by the Department of
Environmental Conservation as eligible for tax assessment at their value
per acre for forest crop production. Additional tax revenue from such
lands is derived through a 6 percent stumpage tax imposed on receipts
when the land is logged. The Department of Environmental Conservation
notifies the owner when it deems the forest crop ready for harvesting
and directs the owner in recommended forestry practices for such
harvesting. It is clear that failure to abide by the Department's
harvesting and management standards (which are the guidelines developed
by the Society of American Foresters referred to earlier) constitutes
grounds for de-certification.208/
What is not clear from New York's forestry tax provision is whether its
stiff five-year roll-back penalty is available for improper management
or, more probably, only for conversions "to a use which precludes
management of the land for forest crop production."209/ The roll-back
penalty (foregone taxes plus 10 percent interest) in the state of
Missouri's preferential tax assessment program has been interpreted to
apply to failures to maintain proper forest conditions and
practices.210/ Such practices are to be specified in rules and
regulations recommended by the State Forester and adopted by the
Missouri Conservation Commission.2ll/
While the application of a harsh roll-back penalty is certainly an
excellent deterrent, it would be unfair to use it for failure to abide
by many forest practices standards which are unavoidably vague (e.g.,
"minimize size of landings") and violations of which result in slight or
easily corrected damage. Consequently, any new tax law or regulations
written with water quality practices clearly in mind might provide for a
limited classification of violations (e.g., violations of cutting
restrictions along stream and lake sides) for which roll-back penalties
as well as de-certification would apply. Landowner certainty should be
further assured by inclusion of a provision allowing for formal state
assurance that proposed cutting and management practices do conform to
prescribed standards. As noted often before, this may be accomplished
through state approval of forest management plans.
Still other useful methods for injecting protection of water quality
into existing forestry programs suggest themselves. Such options
include encouraging better forest practices among small contract
loggers. It is often these loggers rather than the large timber
companies who are unaware of the need for and technical developments in
erosion and sediment control.212/ Possibilities for assuring the use of
sound practices by independent loggers include a licensing program such
as California's;213/ a state forestry association listing of reliable
harvesters, like the one being developed in Mississippi;214/ and
development by the state forestry department in conjunction with state
forestry associations of a recommended harvesting contract for private
landowners.215/ State cost-sharing assistance or tax relief could
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perhaps be predicated on the use of an approved harvesting contract by
the private forest owner.
Space does not permit further discussion of these more narrowly targeted
options, nor does the focus of this handbook on regulatory programs
allow treatment of still another potentially exceedingly valuable
approach to curbing forest mismanagement: intensive educational
programs. It might well be, however, that an agressive educational
program (1) tied closely to mandatory standards and to fiscal incentives
and penalties and (2) subject to careful monitoring would be adequate to
control a particular state's or area's nonpoint pollution problem from
silvicultural sources. While we know of no state which has put together
such a comprehensive program, Virginia and Mississippi are examples of
states which have recently embarked on vigorous educational programs.
4.0 Agriculture and Silviculture and Critical Areas Programs
A recent computer study of Canadarago Lake, New York undertaken at
Cornell University found that 40 percent of the surrounding land was
contributing 90 percent of the total sediment. This prompted an SCS
official to remark, "This knowledge could contribute to development of a
'critical area' strategy, with heaviest investment in the areas with the
greatest problem."216/
It will not have escaped the reader's notice, perhaps, that many of the
erosion and sediment control programs, the animal waste control
programs, and the forest practices laws and regulations discussed in this
chapter establish their own internal critical areas provisions. For
example: erosion and sediment control programs may reflect the fact
that the potential for pollution increases the closer the activity is to
water or the greater the slope between the activity and the water (1) by
establishing corresponding priorities for erosion and sediment control
plans;217/ (2) by providing for local variations in soil loss
limits;218/ or (3) by prohibiting certain activities along stream banks
or in streambeds.219/
A recognized technique for filtering out the pollutants in runoff from
animal waste facilities is the use of a buffer strip between the feedlot
and any nearby waterway, specially graded and seeded to retain and
"treat" the runoff. 220/ Sediment in runoff from cropland may also be
removed by grassed terraces.22JV Most striking of all, of course, are
the "waterside protection zones" created by many forest practices acts
and regulations. On the well-supported theory that much if not most of
the sedimentation from silviculture results from road building; from
logging near streams or on steep slopes descending directly to streams;
and from logging activities undertaken directly in the streams, such
protective zone provisions restrict many such activities and may
prohibit the most earth-disturbing ones altogether.222/
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Restrictions of this sort in laws and regulations applicable to
agriculture and silviculture are in part locational restrictions
designed to keep the most polluting activitieschemical spraying and
mechanical soil disturbanceaway from the water itself. In the case of
agriculture, such restrictions are also designed to use the natural
runoff retarding and filtering qualities of undisturbed grass, brush,
and trees as a pollution treatment system for whatever manure and
chemical laden runoff reaches the buffer zone from contiguous land. In
the case of forests, leaving a strip of trees along a watercourse also
maintains cool water temperatures often necessary to native aquatic
life.
In appreciation of both the particular sensitivity and the pollution
control value of stream and lakeside areas, a number of states have
recommended new "critical areas" programs as supplements to or even
substitutes for more broadly conceived erosion and sediment control
programs. Thus, when Ohio's Agricultural Pollution Technical Advisory
Board was helping to develop the state's proposed erosion and sediment
control program, it recommended that the erosion from stream and
riverbanks and from lake shores, which it considered to be a significant
contributor of sediment, be dealt with by a separate program.223/ When
considering its state's need for a forest practices act like those
recently enacted in the West, Wisconsin's delegation to the American
Forestry Association/U.S. Forest Service/U.S. EPA Water Quality Workshop
in Chicago counter-proposed reliance instead upon controls focused
along rivers and lake shores, supplemented by general educational
efforts.224/
Other states, when confronted with the need to regulate pollution from
agriculture and silviculture, have suggested that existing state land
use or wetlands programs lend themselves well to abatement of pollution
from one or both of these new sources of concern. In New England, which
has both a number of old forest practices acts 225/ and several
relatively recent wetlands and land use laws, one knowledgeable
commentator has judged that the broad-purpose acts effect or could
effect much more far-reaching regulation of forest practices than the
older, single-purpose acts.226/
In some cases, adoption or adaptation of one or a combination of
critical areas programs* may indeed be adequate to control erosion and
sedimentation from a particular source. This might be true for
silviculture in a state with little commercial logging. In other cases,
stringent controls on land-disturbing activities in critical areas may
*The term is used here as a catch-all to describe critical areas protec-
tion programs, wetlands laws, streambed laws, wild and scenic rivers
programs, hillside protection laws, and open space easement and purchase
programs.
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allow adoption of a more lenient or gradual approach elsewhere. For
states which already have critical areas programs, the idea of using
existing legal and administrative machinery will exert a strong appeal.
States without such programs may be considering them for reasons
including but not limited to water quality. Since Chapter 3 describes
the use of critical areas programs to achieve water quality objectives
in some detail, the remainder of the discussion here will be brief and
confined to a few examples of the ways in which such programs can be
used to minimize nonpoint source pollution from agriculture and
silviculture.
While the term "critical areas program" is most accurately used to
describe a statewide program to preserve and protect natural areas of
outstanding significance, such programs are generally least appropriate
to the accomplishment of broad nonpoint pollution control objectives
because of limitations in scope. Thus, Florida's Environmental Land and
Water Management Act of 1972, described in Chapter 3, excludes both
agricultural and forest lands from its coverage and is further limited
to 5 percent of the state's land.227/ Broader land use programs
could be used, however, to protect water quality, particularly public
water supplies, by designating protected watersheds and by preserving
and regulating forest uses there. This is done, for example, in Hawaii,
where the Department of Land and Natural Resources is empowered to
regulate tree-cutting in areas it designates as forest and water reserve
zones.228 / Another statewide land use planning scheme, Vermont's well-
known "Act 250," exempts agriculture and forestry from its coverage but
does regulate logging road construction above the 2,500-foot level.2_29/
Existing or contemplated wetlands*legislation is a much more likely
source of authority for the regulation of nonpoint pollution from
agriculture and silviculture.230/ Many states and localities have
wetlands and/or flood plain legislation, and most such laws and
ordinances apply to all watercourses and waterbodies, not just ones of
outstanding ecological value. Traditionally, however, such laws and
ordinances have exempted agricultural and silvicultural activities
altogether either for reasons of political expediency or because
agriculture and silviculture were mistakenly assumed not to affect the
wetland ecosystem.231/
Another reason for exempting agricultural and silvicultural activities,
of course, has been the fear of imposing an onerous administrative
burden both on the farmer or forester and on the wetlands protection
agency. An answer to such fears may lie, of course, in the examples of
*In this section, the term "wetlands" is used to encompass streambeds
and banks, floodplains, and the watercourses and waterbodies themselves,
as well as the inland and coastal marshlands more frequently associated
with the term.
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the agricultural and silvicultural programs discussed earlier. Where an
agricultural activity, like the construction of an animal waste holding
pond, or a silvicultural activity, like the construction of a logging
road, should be prohibited in a sensitive wetland area, there may be no
need to impose a wetlands permit requirement on the action. It can
simply be prohibited outright or in the absence of a special permit, as
long as there are effective education and enforcement programs to ensure
that such prohibitions are observed. More routine activities, carried
out on a year-to-year basis on farms or as part of a long-term
harvesting program in forests, could be subject to a soil and water
conservation plan requirement as an alternative to a traditional wetlands
permit. Such a provision might take the form of an exemption from a
permit requirement for (1) agricultural uses of land authorized under a
farm conservation plan approved by the local soil conservation district
and, where wetlands are involved, by the wetlands protection agency, and
(2) silvicultural activities authorized under a forest management plan
approved by the state forester and/or the local conservation district
and, where wetlands are involved, by the wetlands protection agency. In
addition to being given the opportunity to review and approve such farm
and forest management plans where wetlands are involved (and it is safe
to say they will be in many cases), the state wetlands protection agency
and, where it is not the same, the state water pollution control agency
might be authorized to bring enforcement actions against activities
undertaken in or affecting wetlands where such activities are in
violation of the conditions of an approved plan or are not sanctioned by
it.
Wetlands statutes offer a legal and institutional structure for imposing
controls on agriculture and silviculture to protect both against
nonpoint pollution and against destruction of valuable ecosystems. A
more focused approach to the control of erosion and sedimentation, our
main concern here, is offered by laws or ordinanc.es focused on the
watercourse itself, its bed, and banks. A recently enacted law of this
kind is Montana's Natural Streambed and Land Preservation Act of
1975.232I The declared policy of that act is to preserve rivers and
streams and the lands and property immediately adjacent to them in their
natural state "... and in so doing to keep soil erosion and
sedimentation to a minimum, except as may be necessary and appropriate
after due consideration of all factors involved."233/ Statewide
guidelines for administration of the act are adopted by the State Board
of Natural Resources and Conservation, but the act is actually
administered at the local level by local conservation districts (or,
where none exists, by a grazing district or board of county
commissioners) pursuant to locally adopted rules.
In the model rules developed for adoption at the local level by the
Montana Department of Natural Resources, the definition of covered
projects for which prior approval is required under the act and under
the board guidelines is expanded to go beyond hydrographic
modifications, (e.g., culverts, channel changes, diversions, dams, and
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reservoirs). Thus "project" is defined to include "farming practices,
including: (a) brush removal operations by mechanical, spraying or
other means; and (b) grazing and tree cutting on erosive sites as
determined by the district."234/ Unfortunately, the coverage of such a
regulation is still difficult to guage since what constitutes land
"immediately adjacent" to rivers and streams is never defined.
More explicit is a Watercourse Protection Ordinance of Napa County,
California which defines "watercourse" to include "an area extending
laterally outward 50 feet beyond the top of the banks on either side of
the channel."235/ The stated purposes of the Napa County ordinance
include the following objectives intended to promote the public health,
safety, and general welfare by "preserving riparian cover": the
preservation of fish and wildlife habitats; the prevention of stream
bank erosion; the maintenance of cool water temperature; and the
prevention of stream water siltation. To achieve these among other
objectives, the ordinance stipulates that no person may "deposit or
remove any material within a watercourse . . . plant or remove any
vegetation within a watercourse; or alter any embankment within a
watercourse" without first obtaining a permit from the Napa County
Conservation, Development, and Planning Commission. No application is
to be approved when the commission finds that the proposed work will
"destroy a significant amount of riparian cover."236/
Laws such as Montana's Streambed and Land Preservation Act and the Napa
County ordinance discussed above might serve as useful supplements to a
general erosion and sediment program or to a forest practices act,
particularly where such general programs do not include permit
requirements. To be really useful components of an overall nonpoint
pollution control program, however, such laws and/or regulations
promulgated under them would have to include more particularized
standards pinpointing their application to agricultural and
silvicultural activities. An example of still another type of critical
areas program focused on protection of the streambed and banks, a state
wild and scenic rivers program, will illustrate.
New York's Wild, Scenic and Recreational Rivers System Act 237/ was
enacted in 1973 to "insure that the finest natural rivers throughout the
state would remain freeflowing and that their immediate environs would
be protected from inappropriate development."238/ Under the terms of
the act, the Adirondack Park Agency is responsible for the
administration of the river system on private lands within the
boundaries of the Park (see section 7.3 of Chapter 3 for a description
of the Adirondack Park). The Adirondack Park Agency's "Rules and
Regulations Governing the Wild, Scenic, and Recreational System Within
the Adirondack Park" are a good example of how broad-purpose regulations
can be made specific enough to control particular activities, in this
case timber harvesting as well as agricultural, residential, industrial,
recreational, and other uses.
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The Adirondack regulations are an excellent example of a regulatory
system which focuses landowner and bureaucratic time and energy on the
most environmentally significant activities while at the same time
raising the level of care and environmental sensitivity with which all
activities are carried out. In other words, the Adirondack Rules
establish a system similar to the one in Washington's Forest Practices
Act under which some activities require permits before being undertaken,
others are simply subject to certain uniform restrictions and standards,
and some may be sanctioned on a broad scope and time frame through
submission and approval of a management plan.
While the Adirondack regulations are complex because of the different
use area categories within the Park and the three different river
classifications (wild, scenic, and recreational), the requirements for
wild river areas illustrate the approach taken. In wild river
areas,239/ the most restricted river category, a "special rivers system
permit" is required for the following activities:
1. Vegetative cutting inside the mean high water mark of the
river or within 100 feet of the mean high water mark, except
for the removal of dead or diseased vegetation and cutting
of up to 5% basal area per acre over a ten-year period for:
(a) The purpose of clearing the river or its tributaries
of fallen trees or trees threatening to erode or
undercut the bank; or
(b) The purpose of undertaking permitted activities
[which include forest management other than the
activities above-described].
2. Wood roads for motor vehicles as necessary for forest
management purposes only.240/
Between the buffer strip 100 feet on each side of the river described
above and the outer boundary of the river area, forest management
practices are to conform to guidelines published by the New York Section
of the Society of American Foresters and to the Adirondack Rules and
Regulations on clearcutting and logging near or across rivers.241/
Before granting a special rivers system permit, the Adirondack Park
Agency must make explicit, detailed findings which are worded to conform
closely to the type of activity proposed (cutting of vegetation, road
building, new structures, including docks, boathouses, and single-family
homes, subdivisions, bridges, etc.). Thus, vegetative cutting is only
to be allowed within 100 feet of the mean high water mark for
"compelling purposes as would be consistent with recognized sound
forestry practices and would cause no undue adverse environmental
impact, particularly in respect to the stability of the river bank and
the aesthetic character of the river shoreline."242/
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VII-51
Finally, any person who owns 500 or more acres of contiguous land within
a river area may submit a land management plan for approval by the
Adirondack Park Agency instead of applying for individual permits. The
plan is to be for a period of not less than 10 years; is to address
potential adverse environmental impacts of any planned activities in
detail; and is to include financial guarantees and other means by which
the landowners will be bound to perform the activities as set forth in
the plan. Such plans are subject to a public hearing before approval
and, once approved, are to be reviewed every five years. Plan approval
may be revoked after a hearing.243/
A separate variance procedure is available under the Adirondack Rules
and Regulations for hardship cases involving application of particular
restrictions or standards.2447 Violations are punishable by penalties
of from $100 to $1000 a day, and the Attorney General may act on his own
or at the request of the Agency to enforce any regulations or orders and
to enjoin, correct, or abate any violation thereof.245/
Detailed as the Adirondack Regulations are, they are not by any means
the whole answer to protection of land and water resources from nonpoint
pollution. As has been noted previously, New York State is using other
means, including required conservation plans for all agricultural and
forestry uses over 25 acres, to attack the problem on a broader basis.
One shortcoming in the water-focused approaches described above is that
they pay little attention to the character of the land along the
streams. What may be an adequate buffer zone where the land is flat and
the soils stable will not be when the opposite conditions prevail.
Steep slopes and unstable soils are particularly prevalent in the West
and the best examples of legal mechanisms for controlling erosion and
sedimentation from activities undertaken on steep slopes are to be found
there. It will be remembered, perhaps, that under California's Z'Berg-
Nejedly Forest Practice Act, the stream or lake protection zone widths
vary depending on the area's estimated erosion potential (which is
partly a function of slope).246/ California also has a number of local
hillside protection ordinances, but most of those emphasize control of
residential development, not disturbance or removal of vegetation.247/
Another approach to the problem which California is considering is the
withdrawal of highly unstable soils from logging through purchases under
a state water conservancy program or through acquisition of open space
easements.248/ Acquisition programs for critical areas, which are
discussed in some detail in Chapter 3, should be considered an important
part of the arsenal for combating nonpoint pollution from agricultural
and silvicultural nonpoint sources. In fiscal 1976, the U.S. Department
of Agriculture made an additional $16 million available for its water
bank program, which has been compensating landowners since 1972 for
maintaining wetlands and providing additional habitat for migratory
waterfowl.249/ The water bank program, which is administered through
the Agricultural Stabilization and Conservation Service, with planning
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and technical assistance from the USDA Soil Conservation Service, is
just one of a number of federal programs available to facilitate
protection of critical areas.
5.0 Legal Issues
For the most part the constitutional issues surrounding regulation of
agricultural and silvicultural nonpoint sources are very little
different from those raised by the regulation of pollution and of land
use in general, which are treated in detail in Chapters 2 and 3. For
this reason, and because the regulation of agriculture and silviculture
as a nonpoint source of water pollution is so new that there are few
useful cases on the subject, this section on legal issues will be brief.
There can be no doubt that in preserving the purity of drinking water
supplies for humans and animals and in protecting against harm to fish
and against flooding, control of nonpoint pollution from agriculture and
silviculture is a legitimate expression of the police power. There have
been few challenges to ancient judicial recognition of this fact, which
has been expressed frequently with respect to woodland and, less
frequently, with respect to agricultural land.
The most complete statement to date of the state's interest in the
control of timber harvesting is to be found in a 1949 decision of the
Supreme Court of Washington, State v. Dexte_r.250/ Finding the state's
requirements for reforestation of harvested land not converted to
another use to be a proper exercise of the state's police power, the
court gave explicit recognition to the problems of accelerated runoff
and erosion, saying:
Unfortunately for the respondent's plea for the unrestricted
right of the owner of timberland to do as he pleases with his
own, the record of such unrestricted use has been one of "cut
out and get out". . . Denuded hillsides have made possible the
rapid runoff of surface waters, thus increasing the dangers
from floods and contributing to costly soil erosion. . .
. . . Surely, where natural resources can be utilized and at
the same time perpetuated for future generations, what has
been called "constitutional morality" requires that we do so.
There is ample and sound authority to sustain our conclusion
that the challenged legislation is for the general or public
welfare and is a proper exercise of the police power. . . [citing
and quoting cases]. 251/
There is less judicial precedent for regulation of agricultural
activities than for regulation of forest practices for the simple reason
that there have been, over the years, far fewer mandatory requirements
applicable to agriculture. Yet looking at what precedent there is in
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VII-53
the agricultural area and relying on the analogies available from other
land-disturbing activities such as earth removal and mining, it is clear
that the courts will have little trouble in accepting the purposes of
agricultural nonpoint source regulations to be legitimate.
This can be seen from a Colorado wind erosion case whose conclusions are
equally applicable to water-borne soil. That case, Oberst v. Mays,252/
involved a statute, Colorado's Soil Erosion-Dust Blowing Act of 1954,
under which (1) like certain of the erosion and sediment control
programs discussed earlier, enforcement actions were triggered by
complaints and (2) like some of the forest practices acts discussed, the
enforcing authority could itself provide and charge for corrective
action should the landowner fail to undertake such action within the
time specified in an order. The plaintiff landowner, Mr. Oberst,
alleged that the subject statute deprived him of due process of law
because it failed to give him notice and an opportunity for a hearing in
connection with the abatement and assessment action. In affirming the
trial court's judgment for the defendant county, the court declared:
We hold that the conditions allegedly existing on plaintiff's
lands were such as to warrant summary abatement in the pro-
tection of the "health and well-being of the citizens of the
state." The dust blowing from the lands into the air and upon
adjacent property was injurious to the public health and to
adjacent property, and constituted a nuisance per se and hence
was subject to summary abatement.253/
Other cases have upheld local regulation of earth removal and
requirements for reseeding and other conservation practices as valid
exercises of state-delegated police power where they were found
necessary to protect the land against wind and water erosion.254/
A more difficult question arises in connection with the form which
regulations on agricultural and silvicultural nonpoint pollution may
take. As noted in Chapter 2, regulations and standards must be
reasonably related to the harm they are designed to avoid. If, for
example, a state opts for a uniform performance standard for erosion
controli.e., a maximum rate or rates of soil loss-it should have a
rational basis for believing that erosion in excess of that rate will
cause pollutants to enter waters causing, in turn, a violation of
applicable water quality standards. Such a performance standard should,
furthermore, be meaningful to the individual so that he may know whether
his conduct is permitted or proscribed. Experts believe that with the
use of the Universal Soil Loss Equation, conservation standards or "Best
Management Practices" which should meet the soil loss limits can be
described. Although the use of the USLE to predict what activities will
and will not result in violation of a soil loss limit has not yet been
tested in court, attorneys in Iowa, the only state to have legally
formalized its use, expect it to withstand any future legal
challenge.255/
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VII-54
Inevitably, however, many conservation standards and other erosion and
sediment control regulations will defy exact wording. The prevalence in
existing forest practice regulations of vague injunctions like "keep
construction roads as narrow as possible" has already been noted. It is
doubtful that such general vagueness of language would invalidate
application of the underlying statute to a flagrant polluter,256/ but
the rights of the regulated to know what is expected of them should be
safeguarded. This may be done, as noted before, by giving the
landowner or operator the option of having a plan approved to determine
compliance and by providing for warnings and informal meetings where
there j_s a legitimate question as to a given practice's consistency with
regulations and standards.257/
Of course, the owner or operator should also be afforded an
administrative hearing both upon any order issued against him and also
in the event that the regulatory agency determines to undertake
corrective action itself.258/ Examples of statutory provisions affording
such procedural due process may be found in the western forest practices
acts which are cited and outlined in appendix B.
The remaining constitutional issue is, of course, the by now familiar
"taking" issue. Everything that has been said before in connection with
this issue applies with equal force to the agriculture and forestry
sectors. The fact that a significant fraction of the subjects of
agricultural and silvicultural water pollution control regulations may
be marginal operators who can ill afford any costs of antipollution
equipment and procedures259/ has no bearing on the constitutionality of
regulations necessary to protect the public health and welfare.260/ The
"taking" issue remains the same regardless of ability to pay.
Many of the types of agricultural and silvicultural nonpoint source
regulations discussed earlier in this chapter would simply prohibit, in
the language of the landmark "taking" case, Just v. Marinette County,
"changing the character of the land at the expense of harm to public
rights."261/ Moreover, many of the best management practices discussed
will not work a financial hardship on the owner or operator, regardless
of the profitability of the particular farming or forestry operation.
When a developer who has bought 10 acres of marshland intending to fill
it is faced with new legislation prohibiting such filling, his chances
of recovering his investment may indeed be small. When a farmer, on the
other hand, is required to leave a strip of undisturbed vegetation along
a creek, it may well be that he is being asked to do something he does
already because of the problems of operating equipment in low-lying,
waterlogged areas. Many of the anti-erosion measures for logging roads
are cheap, and others are simply questions of better design.262/
For those few cases in which new antipollution requirements will
require substantial investment or substantial foregone income by th«
marginal operator, such options as cost-share programs, preferential
taxation schemes, and easement or fee purchase programs can, as
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discussed earlier, ease the burden. In those even fewer cases where
nonpoint pollution regulations might prohibit the continuance of
existing agricultural and silvicultural uses on substantial acreage,
". . .a system of compensable regulations [would be] a means of
validating [such] land use restrictions that are so restrictive that the
courts would hold them to be a taking in the absence of compensation
paid to the landowner."263/ An example of such a severely restrictive
regulation might be a prohibition on all future logging in streamside
areas and areas with unstable soils as applied to a logging operator
most of whose land fell within the proscribed area. Legislatures
contemplating passage of nonpoint source control legislation would do
well to identify such cases in advance and allay the fears and
uncertainties of landowners and regulatory agencies alike by writing in
compensation provisions of the type suggested by numerous
commentators.264/
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APPENDIX A
EROSION AND SEDIMENT CONTROL PROGRAMS
Pennsylvania
I. Statutory and Regulatory Authority
The Clean Streams Law of Pennsylvania, 35 Pa. Stats. §691.1 et seq.
(1964, 1975-76 supp.) (D£R)
Rules and Regs, of Department of Environmental Resources,/Ch. 102
Erosion Control (adopted 9/72)
DER Guidelines: Soil Erosion and Sediment Control Manual (Jan. 1,
1974); Soil Erosion and Sedijnentation Control Manual for Agriculture
(Jan. 1, 1975); and Soil Erosion and Sedimentation Guidelines for
Forestry (no date).
II. Coverage
"Earchmoving activities" includes any construction or other
activity which disturbs the land including mineral extraction.
Agriculture and silviculture included; covered and hard-surfaced
feedlots not included.
III. Control Techniques
Permit required from DER for all earthmoving activities
affecting 25 acres or more except:
1. For agricultural plowing and tilling.
2. Where E & S control plan has been developed for
activity by USDA/SCS.
3. Where permit otherwise required under Clean Streams Law,
Surface Mining anc'. Reclamation Act, Water Obstruction Act,
or water pollution section of same title.
(DER has discretion to reduce the 25 acre threshold statewide,
for critical areas, and for any county or municipality.)
Plan whether permit required or not all persons engaged in
earthmoving must use control measures to prevent accelerated
erosion as set forth in Plan. (Agricultural control plans for
plowing or tilling required by July 1, 1977.)
TV. Standards
Erosion and sediment control measures set forth in §§102.22, .23
to be incorporated into earthmovir.g activities except where designer
of plan shows that alternate method will work. (Standards quite
specific manuals elaborate.)
Plans to be by person trained and experienced in erosion and sediment
control methods and techniques. (Except Agriculture Manual allows
simple statement of present conservation practices where such are now
adequate.)
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V. Administration and Implementation
DER or designee may require plans to be filed.
Applications for required permits must be accompanied by plan.
Local government body which issues building permits to notify
DER or designee of applications involving earthmoving affecting
five acres or more and shall not issue building permits requiring
earthmoving permits until latter issued.
County Conservation District may review plans for adequacy,
require revisions, and inspect to determine if plan is properly
implemented.
VI. Enforcement
Wherever danger of pollution exists DER may order landowner to
correct condition, except where pollution or danger of pollution
is from sediment and results from Act of God on land for which
a USDA/SCS conservation plan has been developed and implemented.
Conducting activity without required permit or contrary to
regulations or administrative order = nuisance.
Penalties: Violation of act, regulation, or code = summary offense
subject to fine of $100 to $1000 or 60 days in jail for first
time; repeat offenders are guilty of misdemeanor, $100 to $5000,
or 1 year in jail or both; civil penalties may be imposed as
well by Environmental Hearing Board, enforced by liens.
VII. Inter-Agency/Inter-Governnental Relationships
review and permit application processing performed by
Soil and Water Conservation Districts, who receive support from
Bureau of Soil and Water Conservation in DER.
Inspection districts may apply for delegation of inspection
authority, otherwise DER Bureau of Water Quality Management
inspects .
Permit issuance Regulations provide for delegation of admin-
istration and enforcement of whole program to counties or other
local units of government upon presentation of acceptable plan
showing adequate staffing and approval of county commissioners.
For now, DER regional offices issue permits upon recommendation
of Districts.
VIII. Cost- Sharing Provisions
Cost-sharing is not a required part of the erosion and sediment
control program in Pennsylvania.
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Model Act
I. Statutory and Regulatory Authority,
M3del State Act for Soil Erosion and Sediment Control (developed
under the auspices of National Symposium on State Environmental
Legislation and published by the Council of State Governments in
their 1973 Suggested State Legislation.)
No model regulations.
II. Coverage
All "land-disturbing activity" defined to include tilling,
clearing, grading, excavating, transporting, and filling of land.
"Person" defined to include state and political subdivisions.
III. Implementation Techniques
Plans
1. Erosion and sediment control plans must be reviewed and
approved by SCO before any land-disturbing activity takes place.
2. Madifications to approved plans may be required where
original plan has proved inadequate.
Exemptions
1. Any person implementing and maintaining farm or ranch
conservation plan approved by district with respect to
normal agricultural and forestry activities;
2. Any person whose normal agricultural and forestry practices
are in conformance with the conservation standards established
pursuant to the Act; and
3. Any persons in categories (1) or (2) who fail to use measures
spelled out in plan or conform to conservation standards if
at least 50 percent cost-sharing assistance or adequate tech-
nical assistance not available.
IX7. Standards
State State Soil and Water Conservation Commission to adopt
erosion and sedimentation control guidelines which shall contain
conservation standards for various types of soils and land uses
and which shall include criteria, techniques, and methods for
the control of erosion and sediment.
Local SCDs to establish conservation standards consistent.
with state's.
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V. Administration and Implementation
Other permits no agency authorized under other law to issue
permits for activities involving land disturbance is to issue
such permit unless application accompanied by BCD approved erosion
and sediment control plan, with inspection and enforcement to be
done by permit-issuing authority.
Agricultural and forestry operations SCDs authorized to inspect
to determine compliance with plan or with conservation standards;
nonconforming operator to be given notice of measures needed, six
months to commence and 12 months to complete.
VI. Enforcement
Appeals from SCD administrative orders taken directly to court.
Penalties violations of requirements and orders = misdemeanors
punishable by fine not to exceed $500 or [up to?] one year's
impri sonment.
VII. Inter-Agency/Inter-Governmental Relationships
Program formulation by SCDs to be done with assistance of an
advisory committee (membership stipulated in Act).
In areas where there is no district, state conrittee to designate
local unit of government, such as county, municipality, town, parish,
borough, or township to develop and implement program.
VIII. Cost-Sharing Provisions
Fifty percent cost-sharing required to be available before farm
or ranch conservation plans and conservation standards can be
enforced with respect to normal agricultural and forestry activities.
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Iowa
I. Statutory and Regulatory Authority
Statute: An Act Relating to Conservation of Soil and Water
Resources of the State, and to Control Water Pollution Code
of Iowa, Chs. 467A, 467B, 467C, and 467D (1975).
Regulations: Commissioners of individual SCDs shall adopt regu-
lations necessary to establish soil loss limits and to implement
the limits, regulations to be approved by state soil conservation
committee.
Guidelines: State Department of Soil Conservation has prepared
"A Guide for Formulation of Soil Loss Limit Regulations by Soil
Conservation Districts" (January 1972).
II. Coverage
All owner's of property, including non-farm property* within the
district are bound by soil loss limits, except that farmers are
exempted from certain structural regulations and public roads
within city limits are exempt.
"Landowner" defined to include federal agencies, state and
political subdivisions.
III. Implementation Techniques
Soil Loss Limit is the maximum amount of soil loss by water
or wind erosion, in tons per year, which the SCDs shall determine,
after a hearing, is acceptable consistent with meeting the goals
of the Act and which the State approves; different limits may be
establisned for different classes of land.
No permit or plan requirement.
IV. Standards
Erosion Control Practices. SCDs may require owners of real
property to employ either soil and water conservation practices
(e.g., permanent practices such as terraces or grassed waterways
or temporary practices such as contour planting and minimum
tillage) or erosion control practices (drainage structures for
non-farm uses) except that SCDs may not specify the particular
practices to be employed so long as the owner voluntarily complies
with the applicable soil loss limits.
V. Administration and Implementation
Complaint and Follow-up
1. Complaints may be made by (a) owner or occupier of land
being damaged by sediment or (b) regional Conservancy Districts
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(there are six in state) created under Iowa Code Ch. 467D,
when Conservancy District informs appropriate SCD that it is
unable to proceed with a planned "internal improvement" (e.g.,
a flood control, project or a reservoir) because it v/ould not
be adequately protected from soil erosion.
Administrative order must state as nearly as possible extent
to which soil erosion exceeds limits established and to be issued
upon finding that (a) excess soil erosion is occurring and
(b) complainant is suffering sediment damages:
(1) for agriculture projects order may allow six months for
conmencement and one year for completion of work specified as
necessary.
(2) for agricultural land, cost-sharing must be available before
erosion and sediment control practices can be required.
VT. Enforcement
If work specified in administrative order not done, SCD may
petition court for order. Burden on SCD to prove that soil erosion
is in fact occurring in excess of limit.
Failure to obey court order = contempt of court.
Nuisance action SCDs, Conservancy Districts, and owner of property
damaged by soil erosion may bring action to abate nuisance and to
have offending landowner comply with SCD regulations.
VTI. Inter-Agency/Inter-Governmental Relationships
SCDs adopt standards and rules for implementation after
public hearing and with approval of State Soil Conservation
Committee.
Districts administer and enforce law, regulations, and standards
and set level of cost-sharing necessary to require temporary
conservation practices.
VIII.Cost-Sharing Provisions
No landowner to be required to establish any new or temporary
soil and water conservation practices [these are the erosion
control standards applicable to agriculture] unless cost-sharing
has been made available in following amounts:
(1) At least 75 percent of cost of permanent soil and water
conservation practice (defined in Act: terraces, grassed
waterways, etc.)
(2) Amount set by state soil conservation comnittee for any
temporary practice (defined in Act: contour planting, minimum
tillage, etc.)
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Ohio
I. Statutory and Regulatory Authority
Proposed Act which would amend Ohio Rev. Code §§1515.01, 1515.30,
6111.04, and 6111.44 and which would enact §§307.79, 1515.3]-.33 and
1515.99 relative to agricultural pollution abatement and urban
sediment pollution. (This legislation which, as H.B. 1011, was
withdrawn from consideration in 1976 is expected to be resubmitted
in January, 1977.)
Proposed regulations and standards which are now used on an
essentially voluntary basis include "Agricultural Pollution and
Abatement Standards and Regulations" (revised 6/21/76) drawn up
by an Agricultural Pollution Technical Advisory Board and two
publications of the Cooperative Extension Service of the Ohio
State University: "Ohio Erosion Control and Sediment Pollution
Abatement Guide" and "Ohio Livestock Waste Management Guide."
II. Coverage
Proposed legislation would make mandatory abatement procedures
applicable to agricultural and urban sediment pollution (to be
defined). Annual waste disposal covered. 6/21/76 regulations
say not applicable to "river and shore erosion areas" but are
applicable to privately and publicly owned woodland (except
areas under jurisdiction of urban or metropolitan government) and
to ditches and streams in agriculture areas under public management.
III. Control Techniques
Regulations: Proposed Act empowers the Chief of the Division of
Soil and Water Districts, subject to the approval of the Ohio DNR
and of the Ohio Soil and Water Conservation Commission, to adopt:
(1) standards for a minimum level of management and conservation
practices to control agricultural pollution;
(2) criteria for determination of such management and conserva-
tion practices; and
(3) procedures for administration and enforcement of rules..
Plan: Anyone managing land and animal wastes in accordance with
plan "currently" approved by SCO considered in compliance with
regulations and standards.
IV. Standards
No person owning or operating land in agricultural areas shall
permit:
(1) average annual soil loss by sheet or rill erosion in excess
of that specified by Technical Guide (a document developed
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for each SCD by SCS); T value (soil conservation level
for maximum agricultural productivity) to be achieved
in three phases by 1986.
(2) accelerated erosion (defined in regulations) "in drainage-
ways, grassed waterways, or in ditches and streams
required by the Ohio Rev'd. Code to be maintained."
(3) tillage or other earth disturbing practice on land adjacent
to ditch, stream, or lake in manner that soil is placed
in or is in danger of eroding into same.
V. Administration and Implementation
Local SCDs would be able to assume implementation powers for
agriculture pollution abatement program via agreement or contract
with DNR.
State State Division of Soil and Water Conservation (DNR) would
implement in a district whose Board of Supervisors failed to
negotiate agreement with DNR.
VI. Enforcement
Enforcement Action by District may be triggered by:
(1) "a legitimate complaint from someone receiving damage";
(2) initiative of Division of Soil and Water Conservation or
OEPA ;
(3) own surveillance .
Phases of Action
1. Voluntary solution to be attempted by offer of cost-sharing
and technical assistance.-
2. On-site investigation to include identification of any other
erosion or animal waste problems;
3. Person refusing to cooperate to be given opportunity to
meet with District Board to review;
4. Where no action after allowed interval, District to file
violation report with State Division of SWC.
5. Division to issue administrative order; may he followed up
by injunction.
6. Persons aggrieved may appeal to special state Soil and
Waters District Board of Review and thence to Court
(spelled out in detail in proposed Act);
7. Anyone violating Division order guilty of misdemeanor
(fine unspecified).
VII. Inter-Agency/Inter-Governmental Relationships
State - local: see Administration, above.
Inter-agency Director of DNR is to use Division of Soil and
Water Districts to coordinate efforts of state ar.d local govern-
mental agencies to meet minimun state air and water quality
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A-9
standards for agricultural pollutants, and Director of Environ-
mental Protection to coordinate those efforts.
OEPA, as well as DNR, may initiate complaints to local districts.
VIII.Cost-Sharing Provisions
Sediment State Division of Soil and Water Districts would pay
any non-federal portion of 75 percent of the cost of the following
eligible practices:
1. critical area stabilization
2. diversions
3. field windbreaks
4. grade stabilization
5. grassed waterways and outlets
6. terraces
Animal waste facilities state will pay non-federal portion of
75 percent of the cost of required improvements for existing
animal facilities (including storage facilities, earth grading,
vegetative cover and fencing) but not for new or expanded facilities.
State may recover funds paid where improvements not maintained.
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A-10
Indiana
I. Statutory and Regulatory Authority
Draft Proposal for Soil Erosion and Sediment Control (N.B. - This
proposal is still undergoing review, comment, and revision; drafts
available from State Soil and Water Conservation Comnittee, DNR,
Agricultural Administration Building, Purdue University, West
Lafayette, Indiana 47907)
Guidelines (Standards) and Regulations would be established by
State Soil and Water Conservation Conmittee.
II. Coverage
"Land disturbing activities" - any land change which may result
in or contribute to soil erosion from water or wind and the
movement of sediment into water courses or impoundments or onto other
land. Exemptions to be set forth in future Guidelines. "Person"
includes state and political subdivisions.
III. Implementation Techniques
Plan - required for all land disturbing activities, to be
approved by local District.
Permits - grading, building or other permits involving land
disturbance not to issue unless District has approved E & S
plan and applicant has certified he will follow it.
Agriculture and Silviculture
No one to be claimed engaged in prohibited land disturbance if
(1; ne is following approved plan ;
(2) his normal agricultural and forestry practices conform to
prescribed standards ;
(3) cost-sharing or technical assistance as provided for not
available (see below).
IV. Standards
State Soil and Water Conservation Committee (DNR) to adopt
Guidelines and Standards:
(1) to establish "technical guide" in use in each District
containing conservation standards and soil loss limit
for various types of soil and land uses;
(2) to list permanent control measures for which cost exceeds
personal benefit and to list percentage of cost-sharing
assistance to be made available;
(3) to include time schedule (not more than 10 years)
for compliance with maximum soil loss to be tolerated.
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A-11
State standards to govern until local ordinances adopted based on
conforming or stricter District standards.
V. Administration and Implementation
Inspections and follow-up (a) to be performed by permit-issuing
authority where grading, building or other permit required;
(b) with respect to other land-disturbing activities, any con-
cerned citizen, District or Committee may file complaint against
one alleged to be violating District standards.
VI. Enforcement
(1) Activities subject to complaint: (a) Complaint triggers
District investigation and attempt to bring about solution via
cost-sharing, technical assistance, etc.; (b) landowners may
meet with District Board to review District investigation. If
Board finds violation of standards, it shall give landowner
period for voluntary compliance; (c) where no action, District
to torn case over for prosecution to county Prosecuting Attorney.
(2) Penalties - violations = misdemeanor, $500.00 maximum per day.
(3) Permit-issuing authority, District, Carmittee, or any
concerned citizen may request legal or equitable relief.
VII. Inter-Agency/Inter-Governmental Relationships
State-local, see standards, above.
VIII.Cost-Sharing Provisions
State guidelines to set amount of cost-share assistance which
must be made available before "permanent erosion and sediment
control measures for which the cost is greater than the return
to the person" can be required.
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APPENDIX B
STATE FOREST PRACTICE ACTS AND REGULATIONS
Oregon
I. Oregon Forest Practices Act
ORS 527.610-527.730 and subsec. (1) of ORS 527.990.
Oregon Forest Practice Rules (3rd rev. effec. 8/1/75).
(These comprise rules of general applicability and
specific rules for Oregon's three forest regions:
excerpts here are from the Eastern Oregon Region).
Forest Practice Committees for each of three regions
develop regulations; the State Board of Forestry adopts
them; State Forester administers Act and Regulations.
II. Implementation Techniques
(1) Notice to State Forester required prior to:
(a) harvesting; (b) road construction or improve-
ment; (c) site preparation; (d) application of
insecticides, herbicides, rodenticides, and
fertilizers; (e) clearing for conversion to non-
forest use; (f) treatment of slashing; (g) pre-
commercial thinning.
(2) notice may be for multiple operations and is
valid for 1 year.
(3) written approval of State Forester required for
stream channel changes .
(4) "landowners" covered include state and political
subdivisions.
III. Waterside Protection Zone
(1) "During and after harvesting operations, stream
beds and streamside vegetation shall be maintained
in as near a natural state as possible in order to
maintain water quality and aquatic habitat."
(2) Shading: "Where insufficient non-merchantable
tree species exist to provide up to 75% of original
shade over the stream, a fringe of undisturbed
merchantable trees may be required. This require-
ment may be waived if an acceptable harvest plan of
staggered cuttings or other means is developed
which will not result in a significant increase in
stream temperatures. . .Neither an optimum nor a
minimum width can be set arbitrarily for shading
streams. . .the necessary width will vary with
steepness of terrain, other topographic features,
the nature of the undercover, the kind of soil, and the
amount of timber that is to be removed."
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B-2
(3) Leave stabilization strips of undergrowth vegetation
along all class II streams in widths sufficient
to prevent washing of sediment into Class I streams
below.
IV. Inter-Agency Involvement
(1) State Forester to meet at least annually with other
state agencies "concerned with the forest environment"
to review sufficiency of rules and to report on
suggested amendments, etc. to Board of Forestry.
(2) Every forestry operation to comply with regulations
of Department of Environmental Quality.
V. Enforcement Techniques
(1) After determination of violation and service of
citation and order to cease violation upon operator
with copy to owner, State Forester may issue temporary
order directing the operator "to cease any further
activity in that portion of the operation that
is resulting in [continuing] damage."
(2) At operator's or owner's request, Board must hold
hearing on temporary order within 5 work days
(defendant can then appeal to circuit court).
(3) Where order directs repair of damage or correction
of an unsatisfactory condition and operator fails
to comply, State Forester may proceed with repair if:
(a) operator or owner agrees to pay cost; or (b)
State Board authorizes him to proceed with work
after giving operator and owner opportunity to
appear. Such expenditures shall constitute a
general lien upon real and personal property of
operator and owner.
VI. Penalties
Failure to give required notice of violation of regs. is
a misdemeanor and each day in violation of an order is a
separate offense.
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California
I. Z'Berg-Nejedly Forest Practice Act of 1973, Div. 4, Chap.
8, Public Resources Code §§4511-4628 (as amended, to be
effective 5/23/76). Amended Forest Practice Rules
(adopted by State Board of Forestry, 6/30/75): Subchapter
1, Coast Forest District; Subchapter 2, Northern Forest
District; Subchapter 3, Southern Forest District (Rules
developed in consultation with the three District
Technical Advisory Committees). Administrator:
State Forester. [Technical standards cited here are
from Regulations for Northern Forest District; the
regulations for the three districts are substantially
similar for our purposes].
II. Implementation Techniques
(1) Licenses"No person shall engage in timber operations
[includes: cutting or removal of timber; construction
and maintenance of roads; stream crossings; landings,
skid trails; and fire hazard abatement] until he
has obtained a license from the board." and
(2) Plansno person (defined to include state and local
government) may conduct operations unless timber harvest-
ing plan prepared by registered professional
forester has been submitted. Plan must outline
methods for avoiding "excessive accelerated erosion
from timber operations to be conducted within the
proximity of a stream."
(3) Conversionspersons intending to convert timberland
which is zoned "timberland preserve11 to uses other
tnan growing timber must have application approved by
State Forestry Board or delegated State Forester.
One of the findings which must support approval is that
soils, slopes and watershed conditions are suitable
for uses proposed.
III. Waterside Protection Zone
(N.D.)* Stream or lake protection zone:
(1) 150 feet on both sides of water in areas with
extremely high Estimated Erosion Potential (as measured
in accordance with chart which bases categories on soil
texture and depth, productivity potential of site,
and slope. )
(2) 100 feat in areas of high Estimated Erosion Potential
(3) 50 feet in areas of moderate or low Estimated
Erosion Potential
[Registered Professional Forester and State Forester may
agree after inspection to increase or decrease distances
by not more than 50%]. Within zone, 50* or more of shade-
producing canopy to be left unless less is justified by Plan
and specific finding re no unreasonable effects on
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B-4
IV. Inter-Agency Involvement
(1) Copies of timber harvesting plans to be transmitted
to Department of Fish and Game, appropriate California
regional water quality control board, and county
planning agency.
(2) All work within stream beds, lakes, marshes, meadows
(except stream crossings) prohibited except as
provided through Fish and Game Code (N.D. Regulations)
V.. Inter-Governmental Involvement
[Act]". . .individual counties and the California Tahoe
Regional Planning Agency shall have the right, within
the reasonable exercise of their police power, to adopt
rules and regulations by ordinance or resolution which
are stricter than those provided under this chapter
and its regulations. Such county or agency rules and
regulations may include, but are not limited to matters
relating to . . ." inter alia: soil erosion control;
protection of stream character and water quality; flood
control; reforestration methods; mass soil movement;
submission of timber harvesting plans; location and
grade of roads and,skid trails; excavation and fill
regulations; slash and debris disposal; hours and dates
of logging; performance bond requirements.
VI. Enforcement Techniques
(1) Board may deny license if applicant has failed or
refused to comply with regulations within the past
3 years.
(2) Licenses are only good for one year; renewal may be
denied until any existing violations are corrected.
(3} Scate Forester to return plans not in conformance
with Act or Regulations; applicant may then request
public hearing before Board.
(4) State Forester may request Attorney General to bring
action for compliance or may himself ask court for
temporary restraining order. Court may authorize
State Forester to take emergency corrective action
and expenses shall become lien on property.
(5) Court may enjoin any further timber operations where
there are outstanding violations. Defendant may
enter agreement with State Forester re resumption
of operations and correction of violations which
agreement r.ay be incorporated in court order and
backed up by bond to secure performance.
(6) State Forester may take corrective action secured
by lien on land after first giving- notice of proposed
action and of opportunity for public hearing before
State Board.
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B-5
VII. Penalties
Violations are misdemeanors punishable by maximum fine
of $500 or six months imprisonment or both. Each day
in violation of order for corrective action is separate
offense.
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B-6
Washington
I. The Washington Forest Practices Act of 1974
Ch. 76.09 RCW
Washington Forest Practice Rules and Regulations promulgated
by the Washington Forest Practice Board* (7/16/76)
Administered by the Department of Natural Resources
II. Implementation Techniques
Act provides for 4 classes of activity subject to different
regulations:
(1) Class I- practices with no direct potential for damaging a
public resource and which require no permit or notice;
(2) Class II- practices which require only notification and may
commence 5 days thereafter (Act specifies certain activities
excluded from Class II and allows Board to exclude others);
(3) Class III- practices requiring DNR approval (within 14 days) ;
(4) Class IV- practices on platted or to be converted lands or
practices which have a potential for substantial impact on
the environment and therefore require an evaluation under
the State Environmental Policy Act (Classes I-III specifically
exempted from the state EPA) must have DNR approval
(varying time limits).
Alternate Plan: exception to required conformity with Act and with
Regulations: applicants may propose to be governed by
alternate plan which would achieve purposes and policies of
the Act as well or better through variance from regulations.
III. Waterside Protection Zone
(1) Streamside Management Zone (SMZ)-streambank integrity
within area 50 feet from high-water for Type 1 and 2
waters and 25 feet from high-water for Type 3 water:, avoid
disturbing brush,stumps, and root systems and leave high
stumps where necessary to prevent timber from entering
water.
(2) Shade Requirements- within Streamside Management Zone
along those type 1,2, and 3 waters designated by CNR
as tenperature sensitive: (a) leave all nonmerchantable
shade vegetation;(b) leave sufficient merchantable timber
to retain 50% of the summer mid-day shade (except that
DNR may require 75% in some circumstances); (c) waivers
possible where applicant: (i) shows high probability of
windthrow and agrees to replant in first planting season;
(ii) agrees to staggering producing equal or greater temper-
ature control; (iii) provides alternate satisfactory method
of temperature control.
*Pegulations pertaining to water quality protection are promulgated
individually by the Board and the Department of Ecology after they
have reached agreement with respect thereto).
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B-7
IV. Inter-Agency Involvement
(1) Composition of Board: Forest Practices Board is composed
of: Commissioner of Public Lands; Director of Department
of Coimierce and Economic Development; Director of Department
of Agriculture; Director of Department of Ecology or
their designees; and an elected member of a county legis-
lative authority, as well as representatives of the public
and industry.
(2) Department of Ecology: Where Department of Ecology (DOE)
(responsible for water pollution control) determines that
a person has failed to comply with those parts of regulations
relating to water quality protection , DOE shall inform
DNR in writing. If DNR fails to take authorized enforcement
action within 24 hours, DOE may petition chairman of Appeals
Board, who shall, within 24 hours, deny petition or direct
DNR to take enforcement action.
(3) Departments of Fisheries and Game
(a) no heavy equipment to be used in Type 1, 2, or 3 water
except with approval of Departments of Fisheries and Game.
(b) any work involving deepening, widening, straightening
or relocating channel or stabilizing banks must be done
in compliance with Hydraulics Act and, in cases of Typel
water, Shoreline Management Act.
(c) where Department requires remedial work in a stream
bed, it shall first seek approval from Departments of
Fisheries and Game.
(4) Coordination: Board reconmends that DNR negotiate inter-
agency agreements re assumption by DNR of administrative
responsibility for other laws and regulations applicable
to forest practices on non-federal lands.
V. Inter-Governmental Involvement
Role of Political Subdivisions:
(1) In course of rule promulgation counties may propose specific
regulations pertaining to problems within county and
Board and DOE may adopt.
(2) Local and regional governmental entities are prohibited
from adopting law, ordinance, or regulation pertaining
to forest practices except:
(a) land use planning and zoning authority with respect
to platted or to be converted lands;
(b) taxing lav;s
(c) public health laws
(d) certain limited regulations with respect to forest
practices within shorelines of state under "Shoreline
Management Act of 1971"
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B-8
(3) For applications relating to platted or to be converted
lands which county finds inconsistent with any applicable
regulations, DNR must either disapprove or appeal to
Appeals Board.
(4) County may appeal any DNR approval with respect to lands
within jurisdiction to Appeals Board.
VT. Enforcement Techniques
(1) Informal conference - every operator shall be afforded
opportunity to discuss proposed enforcement actions at
an' informal conference with DNR unless there is danger
of imminent damage to public resource.
(2) Notice to Comply - operator to undertake specific course
ordered by DNR unless he or owner requests Departmental
hearing. After hearing DNR to issue final order which
may be appealed to Appeals Board.
(3) Stop Work Order - DNR has authority to issue where Act
or Regulations are being violated; approved application is
being deviated from; or iimiediate action is necessary to
prevent continuation or to avoid material damage to a
public resource. This final order is appealable directly
to Appeals Board.
(4) Corrective Action - after operator fails to take any action
requested by final order of DNR or decision of Appeals
Board or court, DNR may determine cost of work and notify
operator and owner of it. If operator or owner fails within
30 days to do work, DNR may do it and operator/owner shall
become liable for cost. Payment due becomes lien on land.
Emergency Corrective Action - available for failure to
obey Stop Work Order.
VTI. Penalties and Other Relief
Civil Penalty - $500.00 for each violation of Act or Regulations.
Every day's violation of Notice to Comply or Stop Work Order a
separate violation. May be mitigated by DNR. Appealable to
Appeals Board.
Injunction - DNR may petition A.G. for; county may bring action
for injunctive, declaratory or other relief for forest practice
activities within its jurisdiction against DNR, owner, or operator
to enforce Regulations or final order of DNR or Appeals Board.
Criminal Penalties - also available.
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B-9
Idaho
I. The Idaho Forest Practices Act (1974)
Idaho Code, Title 38, ch. 13
§§38-1301 -38-1312
Rules and regulations promulgated by the State Board of Land
Conmissioners (effective 3/17/76).
Administered by the Idaho Department of Lands.
II. Implementation Techniques
Notice required before conmencing a forest practice on state
and private lands:
(1) notice valid for two years, for practices continuing
longer must be renewed annually.
(2) Forest Practices requiring advance notice:
(a) harvesting; (b) road construction including installation
or improvement of bridges, culverts, and other stream
structures; (c) reforestation; (d) application of
insecticides, herbicides, rodenticides and fertilizer.
(3) Exemptions include:
(a) routine road maintenance, grazing, Christmas tree growing;
(b) forest practices under approved woodlot .management plan;
(c) clearing for conversion to non-forest use.
Rules govern unless Department approves plan "for an alternate practice
or practices which provide for equivalent or better results."
III. Waterside Protection Zone
Requirement to provide shading, soil stabilizing and water
filtering effects of vegetation along streams by one or more
of the following methods _(inter alia) :
(a) leave hardwood trees, shrubs, grasses and rocks
wherever provide shade and erosion control;
(b) where not enough non-merchantable trees exist
to allow for 75 percent of original shade,
Department must approve harvest plan providing
for scattered cutting which will not result in
significant increase in steam temperatures;
(c) buffer strip to be 75 feet wide unless approved
by Department.
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B-10
IV. ' Inter-Agency Involvement
(1) Forest Practices Advisory Committee mandate includes
achieving coordination among state agencies which are
concerned with the forest environment.
(2) Director (a) to meet at least annually with other state
agencies and with Forest Practices Advisory Cormittee
to review recommendations for amendments to rules and,
(b) to consult with personnel of other agencies where their
expertise is "desirable or necessary."
V. Inter-Governmental Involvement
Requirements of notice, etc. apply to political subdivisions
of the state.
VI. FJifoi cement Techniques
(1) Department may issue notice of violation when operator
has violated rule. Order shall be served along with
notices of violation.
(2) If violation does not cease, Department may direct operator
to cease the damaging activity- Operator may require hearing
before Board of Land Commissioners.
(3) Department may also issue orders requiring repair of damage -
and if not repaired:
(a) estimate cost and upon owner, etc. agreeing to pay, repair; or
(b) request authority from Board to repair. Board must give
owner, etc. opportunity to appear. Board approved expendi-
tures, including administrative costs, beccne a general
lien on real and personal property.
(4) Initial purchaser of lumber must, before accepting delivery,
obtain and keep on file for Department insoection a copy of
the required notice for the harvesting practice from which
his trees are acquired.
VII. Penalties
Violations of notice requirement, forest practice rule, temporary
cease and desist order, and material misrepresentations are
misdemeanors. No fine amount set.
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B-ll
Nevada
I. Nevada Forest Practice Act
Nev. Rev. Stat. §§ 528.010 - 528.C90
(enacted 1955, amended 1971 and 1973)
Rules and Regulations Promulgated by the Nevada State
Board of Forestry and Fire Control (approved Dec. 10, 1962)
' Administered by the State Forester Firewarden and the
Division of Forestry, State Department of Conservation
and Natural Resources
II. Implementation Techniques
Permit required prior to any logging or cutting.
Plan~all applications for logging permits must be
accompanied by a plan showing inter alia:
(a) An accurate topographical map showing exterior
boundaries of the areas to be logged and the
roads, structures and landings, existing and
proposed.
(b) The volume of timber to be removed.
(c) The time required for removal of such volume.
(d) The specification as to the percentage of
merchantable volume to be removed and the
composition of any residual stand.
(e) The revegetation plan, if applicable.
(f) The slash-disposal and cleanup plans.
(g) The road construction specifications and erosion
control measures.
Grounds for Permit Refusal include:
1. failure to comply with the forest practice rules
or regulations; and
2. that the logging operation as planned will cause
significant soil erosion and sedimentation.
Variances
a. required for tractor logging on slopes of 30 percent
or more:
1. request must be accompanied by additional
specified information;
2. state forester firewarden has discretion
to prescribe special conditions;
3. state forester firewarden must take certain
factors into account including "the extent
to which tractor logging may cause siltation
and eroded soils to infiltrate the 200-foot
stream buffer."
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B-12
b. required for work within waterside protection
zone, see below.
III. Waterside Protection Zone
a. Zone-Within 200 ft., measured on the slope, of the
high water mark of any lake, reservoir, stream or
other body of water tree felling or skidding;
construction of roads or landings; and operation
of vehicles prohibited without variance.
b. Variance-
1. must be obtained from committee composed of
State Forester Firewarden; the director of the
Nevada Dept. of Fish and Game; and the State
Engineer.
2. Before acting on request, committee must consider
following factors:
(a) The extent to which such requested
activity is consistent with good
forestry management for the harvesting
of timber;
(b) The extent to which such requested
activity significantly impedes or
interrupts the natural volume and
flow of water;
(c) The extent to which such requested activity
significantly affects a continuation of the
natural quality of the water pursuant to state
and federal water qulaity standards;
(d) The extent to which such requested activity
is consistent with the prevention of significant
soil erosion; and
(e) The extent to which such requested
activity may significantly obstruct fish
passage, cause sedimentation in fish spawning
areas, infringe on feeding and nursing areas,
and cause variations of water temperatures;
and
(f) The filtration of sediment-laden water as
a consequence of timber harvesting on adjacent
slopes.
IV. Inter-Agency Involvement
A committee composed of the State Forester Firewarden,
the director of the Nev. Dept. of Fish and Game, and
the State Engineer decides on applications for variances
from the prohibitions on logging in the waterside
protection zone.
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B-13
V. Enforcement Techniques
Performance Bonds are required for all logging activities,
with the amount based upon the price or value of the timber
to be cut.
Logging Permit
1. must be renewed after a year;
2. may be suspended for : violation of forest
practice rules, conditions of the permit, or terms
of the plan; refusal to allow inspection; or
inadequate performance bond;
3. may be denied for failure to correct a violation of
a previously issued permit within a period of 3
years prior to current application.
VI. Penalties
Violations of any regulation in act or promulgated
pursuant to it is a misdemeanor punishable by not more
than 6 mo's. imprisonment, by fine of not more than
$500, or by both.
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CHAPTER SEVEN
AGRICULTURE AND SILVICULTURE
FOOTNOTES*
1. As used throughout this chapter, the terms "silviculture," "silvi-
cultural activities," "forest practices," etc. will be used in their
loosest and most general sense to mean the actions involved in and
results emanating from forest harvest, production, management, and
protection systems which include within them the following activi-
ties: construction, use, maintenance, and abandonment of logging
roads; construction of structures in and over water; harvesting;
residue management; silviculture (the growing of the trees them-
selves); reforestation; and the use of chemicals.
2. Iowa state report to a Workshop on Forest Practices and Water Quality
sponsored by the American Forestry Association, the U.S. EPA, and
the U.S. Forest Service (Chicago, 111., April 13-14, 1976). Seven
such workshops were held around the country between July 1975 and
April 1976 under a grant from the U.S. EPA as part of the agency's
guidance program under § 304 of the FWPCA. Papers presented at
the individual conferences may be examined at the offices of the
American Forestry Association (1319 18th Street, N.W., Washington,
B.C. 20036) or at EPA. Hereinafter these workshops will be cited
as AFA/EPA/Forest Service Workshops.
3. Soil Conservation Service, U.S. Dep't of Agriculture, Information
Bulletin No. 325.
4. In Eureka, California, a 1,750 acre-foot reservoir built in 1938 was
totally filled with sediment by 1955. 2 Cal. State Water Resources
Control Board, A Method for Regulating Timber Harvest and Road Con-
struction Activity for Water Quality Protection in Northern California
49 (Pub. No. 50, 1973).
5. In a paper given at the AFA/EPA/Forest Service Workshop, supra note 2
(Portland, Ore., Dec. 9 and 10, 1975), Roger A. Barnhart, head of
the California Cooperative Fishery Research Unit at Humboldt State
University, attributed prime responsibility for the decline in salmon
and trout populations in California to sedimentation of the streams.
6. See California Study, supra note 4, at 49.
7. Not only does water running off land in a "natural" state carry some
sediment, but water flowing in stream or river channels is itself
erosive and scours sediment from the stream's bed and banks as long
as there is sediment there to scour. Since "unnatural" amounts of
* In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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VII-FN-2
sediment have been accumulating in streams for at least a hundred years,
experts predict that it will take a long time before improved erosion
control practices result in any dramatic improvement in water quality.
See Victor H. Barry, Jr., Deputy Administrator for Field Services, SCS,
paper presented at the Annual Meeting of the National Association of
Conservation Districts (Honolulu, Hawaii, Feb. 1-5, 1976). Given this
fact, it is obvious that water quality monitoring may be of limited
usefulness for determining the effect of a general erosion control
program and for determining an individual's compliance or noncompliance
with it.
8. The other contributors, according to this estimate, are "other [non-
forest] federal lands" at 6 percent, mining at 1 percent, and "other"
at 1 percent. Dow Chemical Company, An Economic Analysis of Erosion
and Sediment Control Methods for Watersheds Undergoing Urbanization 15
(1972) (NTIS PB 209 212). These are the latest figures according to
USDA/SCS.
9. U.S. EPA, Draft Final Guidelines for State and Areawide Water Quality
Management Planning (Nov. 1976).
10. Oct. 1973 (EPA-430/9-73-014).
11. Oct. 1973 (EPA-430/9-73-015).
12. A joint publication of U.S. Dep't of Agriculture and U.S. EPA,
Report No. ARS-H-5-1 and Report No. EPA-600/2-75-026a (Nov. 1975).
13. Oct. 1973 (EPA-430/9-73-010).
14. See Soil Conservation Service, U.S. Dep't of Agriculture [hereinafter
USDA/SCS], Land Resources and Major Land Reserve Areas of the United
States (Agriculture Handbook No. 296, Dec. 1965, revised March 1972).
15. See Control of Pollution from Feedlots; Hearings Before the Subcomm.
on Conservation and Natural Resources of the House Comm. on Government
Operations, 93d Cong., 1st Sess. 323-24 (Nov. 29 and 30, 1973) [here-
inafter cited as Hearings]. In his testimony before the subcommittee,
Robert R. Buckmaster, chairman of the Iowa Water Quality Commission,
when asked to compare the dimensions of feedlot pollution versus
siltation in his state, replied, "I do not think you can even compare
them in magnitude. I am much more concerned about erosion," and,
later, "when we are talking about agricultural pollution generally
. . . feedlots are of minor importance." Id. at 323-24. It should
be noted that at the time Mr. Buckmaster was testifying, Iowa claimed
to lead the nation in livestock production. Id. at 267.
16. See N. W. Hines, "Farmers, Feedlots and Federalism: The Impact of
the 1972 Federal Water Pollution and [sic] Control Act Amendments
on Agriculture," 19 S.D. L. Rev. 540, 566 (Summer 1974).
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17. See Methods and Practices for Controlling Water Pollution from
Agricultural Nonpoint Sources, supra,note 11, at 3-24.
18. 16 U.S.C. § 590a et seq.
19. M. Garner, "Erosion and Sediment Control Laws of the United States"
(1975).
20. See two pamphlets published by the National Association of Conserva-
tion Districts, "America's Conservation Districts" and "Conservation
Districts and Nonpoint Pollution Control"; and see W. Parks, Soil
Conservation Districts in Action (1952), R. Morgan, Governing Soil
Conservation, Thirty Years of the New Decentralization (1965), and
R. Held and M. Clawson, Soil Conservation in Perspective (1965),
for historical background.
21. See M. Garner, "Approaches to Urban and Rural Erosion and Sediment
ControlAdministrative Actions to Extend State Programs" (1972).
That paper lists the following 27 states as having given districts
authority to adopt land use regulations: Alabama, Arkansas, Colorado,
Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Mississippi,
Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota,
Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, West Virginia, Wisconsin, and Wyoming. Id. at 5.
22. J-d. at 6.
23. 1975 N.J. Laws ch. 251, effective Jan. 1, 1976; codified at N.J. Rev.
Stat. § 4:24-39 et seq.
24. Communication with Mary M. Garner, National Association of Conservation
Districts (Dec. 20, 1976).
25. The local EPA coordinator is Harold Ryan, tel. (414) 338-1257.
26. This project is being undertaken jointly by the Lewis and Clark Soil
Conservation District, the Montana Department of Natural Resources
and Conservation, and the Department of Health and Environmental
Sciences.
27, Districts may generally enter into agreements with each other to form
cooperative associations. This has been done, for example, by eight
districts in Colorado, which have agreed to form the Colorado West
Area Association of Soil Conservation Districts to carry out the
functions of the individual districts collectively.
28. Many of the state erosion and sediment control programs to be discussed
in this and later sections have been the subject of study by the
National Association of Conservation Districts (NACD) under its EPA-
funded Sediment Control and Manpower Project (SCAMP). As the name
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of the project suggests, the surveys done and materials gathered for
SCAMP focus on manpower needs for erosion and sediment control. Dis-
cussion of manpower needs in this chapter will, therefore, be brief.
(The reader is also referred to the NACD 208 Water Quality Project
Information Letters for general descriptions of erosion and sediment
control programs and for selected regulations, interagency agreements,
etc., see note 30 infra.) The most relevant SCAMP Information Circu-
lars are: No. 5 (Maryland Sediment Control Law, April 20, 1976);
No. 7 (Virginia Erosion and Sediment Control Law, May 6, 1976);
No. 10 (Iowa Erosion and Sediment Control Law, June 15, 1976); No. 11
(Montana Natural Streambed and Land Preservation Law, June 21, 1976);
No. 12 (Pennsylvania Soil Erosion and Sedimentation Control Program
under the Clean Streams Act, July 12, 1976); and No. 13 (Ohio Erosion
and Sediment Pollution Abatement Program, Current and Proposed Authori-
ties, August 1, 1976).
29. This publication is available from the Council of State Governments,
Iron Works Pike, Lexington, Kentucky, or from the National Association
of Conservation Districts, Room 1105, 1025 Vermont Avenue, N.W.,
Washington, D.C. 20005-
30. As part of a larger 208 Water Quality Project funded by the U.S. EPA,
the National Association of Conservation Districts is developing and
disseminating information on state erosion and sediment control laws.
Their 208 Water Quality Project Information Letter No. 2 (June 1,
1976), along with a supplement (Jan. 1, 1977), includes a list of
such laws, together with outlines of their key provisions. (The laws
included are those from Georgia, Hawaii, Iowa, Maryland, Michigan,
Montana, New Jersey, New York, North Carolina, Ohio, Pennsylvania,
South Carolina, South Dakota, Virginia, and the Virgin Islands.)
NACD informational materials are distributed to, inter alia, state
associations of conservation districts, SCS state conservationists,
state water quality agencies, EPA regional 208 coordinators and
regional NFS coordinators, and areawide water quality management
planning agencies. From late 1972 through early 1975, NACD held a
series of 40 sediment control conferences to develop a greater
public awareness of the need for state legislative action in this
area, to discuss the provisions of the Model Act, and to report on
recently enacted state sediment control legislation. EPA's Office
of Water Planning and Standards published a summary of these con-
ferences, prepared by NACD and entitled Report on State Sediment
Control Institutes Program (April 1975).
31. Mont. Rev. Codes Ann. §§ 26-1510 through 26-1523.
32. 35 Pa. Cons. Stat. § 691.316.
33. See R. Goettemoeller, paper presented at a seminar on Non-Point
SourcesManagement/Institutional Problems," at 7 (Sept. 24, 1976).
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VII-FN-5
34. See, for example, Virginia's Erosion and Sediment Control Law of 1973,
Va. Code § 21-89.1 et seq. which exempts "tilling, planting, or
harvesting of agricultural, horticultural, or forest crops." Id.
§ 21-89.3. A similar exemption is to be found in North Carolina's
Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. § 113A-
52(6). Maryland's erosion control law exempts agriculture but not
silviculture. Md. Nat. Res. Code Ann. § 8-1102.
35. For all cites to Pennsylvania's program, see the outline in appendix
A to this chapter. The Oct. 18, 1976 issue of Land Use Reports re-
ported that the Agricultural Advisory Committee to Pennsylvania's
Dep't of Environmental Resources has approved proposed changes to the
erosion and sedimentation control regulations which would treat ap-
plication to the local conservation district to have a plan prepared
as compliance with the July 1, 1977 deadline and which would allow a
farmer to delay implementation of any portion of a conservation plan
which would present an "undue financial hardship."
36. The relevant section of New York's Soil and Water Conservation District
Law stipulates that every owner or occupier of agricultural land must
apply by Jan. 1, 1978 to the appropriate soil and water conservation
district to have a plan prepared. The districts have until Jan. 1,
1980 to prepare such plans, after which they are to review each plan
once every five years. "Agricultural land" is defined as any land-
holding exceeding 25 acres which is used for the raising of any
agricultural or forestry products. "Concentrated agricultural opera-
tions" such as feedlots and poultry operations are also subject to
the plan preparation requirement, with the exact categories of
facilities covered to be defined by the state Soil and Water Conser-
vation Committee. N.Y. Soil & Water Conserv. Dist. Law §§ 3(10),
3(11), and 9(7-a) (McKinney).
37. See Model Act § 5(e), which provides "any person whose normal agri-
cultural and forestry practices are in conformance with the conser-
vation standards established pursuant to this Act, shall not be
deemed to be engaged in prohibited land-disturbing activities."
38. For a detailed explanation of the Universal Soil Loss Equation,
see Control of Water Pollution from Cropland, supra note 12, at
16; and W. Wischmeier, "Use and Misuse of the Universal Soil Loss
Equation," 31 J. Soil and Water Conservation 5 (Jan.-Feb. 1976).
39. See R. Goettemoeller, supra note 33, at 4; and telephone interview
with Mr. Goettemoeller (Sept. 13, 1976).
40. U.S. EPA, Loading Functions for Assessment of Water Pollution from
Nonpoint Sources (May 1976) .
41. Id. at 26.
42. Wischmeier, supra note 38, at 7.
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VII-FN-6
43. See infra note 255 and accompanying text.
44. Iowa Code § 467A.44(1) and (2) (1975).
45. Iowa Dep't of Soil Conservation, "A Guide for Formulation of Soil
Loss Limit Regulations by Soil Conservation Districts" (Jan. 1972).
46. This is a commonly accepted definition derived from W. Wischmeier
and D. Smith, Predicting Rainfall-Erosion Losses from Cropland East
of the Rocky Mountains (Agricultural Handbook No. 282, 1965).
47. Iowa Code § 467A.44(3)(a) (1975).
48. See note 39 supra.
49. Telephone interview with Lawrence G. Vance, Fieldman, State Soil and
Water Conservation Committee, Department of Natural Resources, Purdue
University, West Lafayette, Ind. (Sept. 16, 1976).
50. Telephone interview with Thomas Koons, Bureau of Water Quality
Management, Department of Environmental Resources, Harrisburg, Pa.
(Sept. 13, 1976).
51. Indiana telephone interview, supra note 49.
52. Id.
53. This margin of failure reflects the consensus of opinion of officials
interviewed in the states whose programs are discussed in the text
and outlined in appendix A to this chapter.
54. The history of Iowa's decision to amend its soil conservation law to
provide for mandatory soil loss limits is described in D. Lindquist,
"Iowa's Sediment and Erosion Program" (Aug. 26, 1976).
55. Iowa Code § 467A.47 (1975).
56. For details of Ohio's proposed amendments to its soil and water con-
servation law, see outline in appendix A to this chapter.
57. Supra note 54, at 11.
58. For details of Indiana's draft proposal, see outline in appendix A
to this chapter.
59. Supra note 54, at 11.
60. Id.
61. Id. at 10. Of course, state agencies and state subdivisions such as
state or local public works departments are themselves often the
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VII-FN-7
creators of erosion and sediment and should be subject to enforce-
ment actions where this is so.
62. Iowa Code § 467A.52.
63. Id. § 467A.48.
64. Telephone interview with Dan Lindquist, Department of Soil Conserva-
tion, Des Moines, Iowa (Sept. 14, 1976).
65. Lindquist, supra note 54, at 10-11.
66. Indiana telephone interview, supra note 49.
67. For details on cost-sharing provisions of erosion and sediment control
programs, see the outlines in appendix A to this chapter.
68. Indiana telephone interview, supra note 49.
69. Officials interviewed included those named in notes 39, 49, 50, and
64.
70. Goettemoeller, supra note 33, at 2.
71. While beyond the scope of this manual, it should be noted that writing
conservation standards to achieve specific water quality standards is
no mean task. In Ohio, the Division of Soil and Water Districts sug-
gests that research needs to be accelerated to develop cost-effective
practices which landowners can use in the flat lake plain soils "where
per acre soil loss is low but the concentrations of associated materials
(nutrients and pesticides) is high due to the makeup of the soil and
intensity of agriculture." Id. at 7.
72. See Lindquist, supra note 54, and Iowa telephone interview, supra
note 64.
73. Apparently Ohio has considered giving the Ohio Environmental Protection
Agency these powers. Ohio telephone interview, supra note 39.
74. This is according to Montgomery County Soil Conservation District
officials, as reported during a field tour of district projects in
cooperation with the National Association of Conservation Districts
on July 6, 1976.
75. Ohio Agricultural Pollution Technical Advisory Board, proposed
"Agricultural Pollution Abatement Standards and Regulations" (revised
June 21, 1976).
76. See supra note 15, and accompanying text.
77. 38 Fed. Reg. 18000 (July 5, 1973).
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VII-FN-8
78. See U.S. EPA, Methods for Identifying and Evaluating the Nature and
Extent of Non-point Sources of Pollutants 43 (Oct. 1973).
79. The National Pollutant Discharge Elimination System was created by
§ 402 of Pub. L. No. 92-500, the Federal Water Pollution Control Act
Amendments of 1972. By regulations promulgated March 18, 1976
(41 Fed. Reg. 11458), EPA has included concentrated animal feeding
operations within the NPDES program. The definition of such opera-
tions appears at 40 C.F.R. § 125.51(a)(2) and is basically the same
as that given "feedlots" in the text of this chapter.
80. Under authority of §§ 301, 304(b) and (c), 306(b) and (c), and 307(c)
of the FWPCA, EPA promulgated effluent limitations guidelines applicable
to feedlots on Feb. 14, 1974 (39 Fed. Reg. 5706). Guidelines for best
practicable control technology currently available, which appear at
40 C.F.R. § 412.12, require animal wastewater facilities to be con-
structed to contain all process generated wastewaters plus the runoff
from a 10-year, 24-hour rainfall event. Guidelines for application
of the best available technology economically achievable (required by
1983), upgrade the afore-described containment capacity required to
that necessary to accommodate the runoff from a 25-year, 24-hour
rainfall event (40 C.F.R. § 412.13); this same requirement applies to
all new sources (40 C.F.R. § 412.15). Duck feedlots are subject to
their own, individualized effluent guidelines (40 C.F.R. § 412.20 et
seq.).
81. § 208(b)(2)(F).
82. See 37 Fed. Reg. 28290 (Dec. 22, 1972); 38 Fed. Reg. 10960 (May 3,
1973); 38 Fed. Reg. 18000 (July 5, 1973); and 40 Fed. Reg. 54182
(Nov. 20, 1975).
83. 41 Fed. Reg. 11458 et seq. Under these regulations, permit applica-
tions were required by Sept. 1, 1976.
84. As defined at 40 C.F.R. § 124.82(a)(3), the term "animal unit" means
"a unit of measurement for any animal feeding operation calculated by
adding the following numbers: the number of slaughter and feeder
cattle multiplied by 1.0, plus the number of mature dairy cattle
multiplied by 1.4, plus the number of swine weighing over 55 pounds
multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus
the number of horses multiplied by 2.0."
85. 40 C.F.R. § 125.l(p) defines "navigable waters" as including:
(1) All navigable water of the United States;
(2) Tributaries of navigable waters of the United States;
(3) Interstate waters;
(4) Intrastate lakes, rivers, and streams which are
utilized by interstate travelers for recreational
or other purposes;
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(5) Intrastate lakes, rivers, and streams from which
fish or shellfish are taken and sold in interstate
commerce; and
(6) Intrastate lakes, rivers, and streams which are
utilized for industrial purposes by industries
in interstate commerce.
86. 41 Fed. Reg. 11460 (March 18, 1976).
87. Thus Nebraska's "Rules and Regulations Pertaining to Livestock Waste
Control, Envir. Rep. 836:0581 (BNA) (amended to be effective Jan. 23,
1975) provide:
Rule 3. WHEN STATE CONSTRUCTION PERMITS AND/OR
NPDES ARE REQUIRED
3.01 State construction permits will be required for all
existing and proposed livestock operations when livestock
wastes:
(1) create a nuisance, or
(2) violate Nebraska Water Quality Standards, or
(3) discharge into waters of the State, or
(4) violate the Nebraska Environmental Protection Act.
3.02 An NPDES permit will be required only when livestock
wastes discharge into waters of the state.
3.03 Minor runoff of wastes onto adjoining property will
be allowed, if the operator has obtained the permission of
the owner of such property. In no event will runoff be
allowed to violate Nebraska Water Quality Standards or be
discharged into waters of the State except as provided by
an NPDES permit.
The above-quoted rules were promulgated by the Nebraska Department
of Environmental Control pursuant to its general authority to develop
comprehensive programs for the control of water pollution and to
adopt rules and set standards for water quality. Neb. Rev. Stat. §§
81-1504(2), 81-1505(1).
88. For example, according to the Minnesota Pollution Control Agency,
Minnesota's feedlot regulations cover all new and modified feedlots.
See description of Minnesota's program included in Hearings, supra
note 15, at 1127.
89. Thus, under Iowa's regulations, infra note 92, reproduced in Hearings,
supra note 15, at 284 and 1089, roofed confinement feeding operations
with more than 100 beef cattle or more than 70 dairy cattle must
register if they discharge to a watercourse.
90. Indiana's Confined Feeding Control Law, Ind. Code § 13-1-5.7-1 et seq.
Ind. Code § 13-1-5.7-2 provides that all existing confined feeding
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operations "shall submit an application and pertinent information
as may be required" by the Indiana Stream Pollution Control Board.
"Confined feeding operation" is defined to include, inter alia,
any operation with 300 or more cattle; any animal feeding operation
electing to come under the chapter; and any animal feeding operation
that is causing a violation of water quality standards. Id. § 13-1-
5.7-1. Indiana officials distinguish their feedlot "approval" program
from a "permit" program and indeed the difference in terminology may
result in valuable psychological benefits in terms of acceptance by
the feedlot owners and operators. The same is true of Iowa's "regis-
tration" system (see note 92 infra). Telephone interview with Rex
Jones, Division of Water Pollution Control, State Board of Health,
Indianapolis, Ind. (Sept. 23, 1976).
91. See, for example, the description of the Pennsylvania approach in
Hearings, supra note 15, at 1200. Pennsylvania has not found pollu-
tion from feedlots to be a significant enough problem to justify the
adoption of a specific feedlot program. Instead, the Department of
Environmental Resources relies on the authority vested in it under
the state's Clean Streams Law to abate pollution from all sources,
regardless of size. Whether a permit will be required for any
particular feedlot depends on an individualized review of its pollu-
tion potential.
Even among those states with specific feedlot pollution control
programs, a number rely on onsite inspections to determine which
existing operations are causing or threaten to cause water pollution
and will therefore require permits and pollution control measures.
Thus, Nebraska conducts onsite inspections of livestock operations
to determine the need for livestock waste control facilities based
on the following criteria:
1. location of watercourse to feedlot
2. type of watercourse
3. size and capacity of feedlot
4. drainage pattern from feedlot to watercourse
5. ground cover in drainage-way
6. slope of feedlot and drainage-way
7. amount of foreign drainage through feedlot
8. 10-year, 24-hour rainfall
9. soil type
10. process wastewater
11. groundwater tables and
12. feedlot waste management practices. Hearings,
supra note 15, at 1143-44.
92. Water Quality Commission, Iowa Dep't of Environmental Quality, "Rules
and RegulationsConfined Feeding Operations," adopted pursuant to
Iowa Code § 455B.9 (Iowa Dep't of Environmental Quality, 3920 Delaware,
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VII-FN-11
P.O. Box 3326, Des Moines, Iowa 50316), reproduced in Hearings,
supra note 15, at 284 and 1089.
93. See statement of Alan G. Kirk II, Acting Assistant Administrator for
Enforcement and General Counsel, U.S. EPA, in Hearings, supra note 15,
at 58.
94. See note 85 supra.
95. That many states already have the manpower and the jurisdiction to
review permits and plans for facilities not covered by the NPDES is
evidenced by the broader definitions of applicability in many existing
state programs. Outlines of those programs may be found in the
responses to the September 1973 questionnaires sent to the states by
the House Conservation and Natural Resources Subcommittee, which are
reproduced starting at page 1018 in Hearings, supra note 15.
96. Some research indicates, furthermore, that larger feedlots are sub-
stantially more likely than small ones to have adequate facilities
and management practices in place already . See statement of Richard
M. Hall, Natural Resources Defense Council, and a letter from Dr. William
T. Paynter, Indiana State Health Commissioner, quoted therein, in
Hearings, supra note 15, at 155.
97. See the model regulations for feedlots contained in U.S. EPA, A Manual
of Laws, Regulations, and Institutions for Control of Ground Water
Pollution IV-53 (1976).
98. Different thresholds apply depending on whether the confined feeding
operation is open or covered and how far the feedlot is from a water-
course, supra note 92.
99. Iowa Regulations, supra note 92:
If the department determines that a confined feeding
operation is, in fact, polluting or may reasonably
pollute waters of the state, the operator shall obtain
a permit for disposal of waste water therefrom and '
shall provide necessary water pollution control facil- * *
ities which shall be constructed in accordance with
plans and specifications approved by the department.
The following factors will be considered when applicable,
informing a judgement as to whether a confined feeding
operation will or will not constitute a potential
water pollution problem.
(1) Soil type.
(2) Distance to stream or other waters of the state. i '
(3) Use of land between feedlot and stream or other '. *
waters of the state. 4*
*',
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VII-FN-12
(4) Slope of the land or time for waste to seep into
soil before entering stream or other waters of
the state.
(5) Control of waste discharge in proportion to stream
flow.
(6) Distance to structures occupied by humans.
100. Ohio's erosion and sediment control program is outlined in appendix A
to this chapter.
101. Complications in fitting the two programs together can be ironed out
by obtaining state certification to administer the NPDES program.
102. Supra note 97.
103. Hearings, supra notes 15 and 95, at 1018 et seq.
104. Council of State Governments, 1973 Suggested State Legislation, vol.
32 (Iron Works Pike, Lexington, Ky. 40505).
105. Prepared by and available from the Cooperative Extension Services.
Purdue University, West Lafayette, Ind. 47907 (Mail Room, AGAD
Building).
106. Prepared by and available from the Cooperative Extension Service,
Ohio State University, Columbus, Ohio 43210.
107. Published by the Life Sciences and Agriculture Experiment Station, the
Maine Soil and Water Conservation Commission, and the Cooperative
Extension Service, University of Maine at Orono (Misc. Report No. 142,
July 1972).
108. See A Manual of Laws [etc.] for Control of Ground Water Pollution,
supra note 97, at 11-36 to 11-44 for other references.
109. U.S. EPA, Processes, Procedures, and Methods to Control Pollution
Resulting from Silvicultural Activities 3 (Oct. 1973).
110. Id. at 2.
111. Id. at 1, 4.
112. In an article in the June 1976 issue of Planning magazine, Hallie
Black, a forester, discusses the projected new demand for "pucker-
brush": the dense, mixed stands of trees that have overgrown New
England's (and, presumably, other areas') fields and woodlots. As
the wood chips and other wastes once used by the timber industry
to make particle board and other such products are used increasingly
to generate heat and power in the companies' mills, "puckerbrush"
stands to become increasingly in demand as a substitute. Id. at 22.
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VII-FN-13
113. For the applicable definition of navigable waters, see note 85
supra.
114. 41 Fed. Reg. 24709 (June 18, 1976).
115. 41 Fed. Reg. 24711, and 40 C.F.R. § 124.85(a)(2) and (3) and the
regulations cited therein.
116. 41 Fed. Reg. 24711, 40 C.F.R. § 124.85(a)(1).
117. See supra note 109 for a technical manual on this subject which EPA
has already published, and see Office of Water Planning and Standards,
U.S. EPA, Draft Nonpoint Source Control GuidanceSilviculture (Dec.
1976).
118. See, for example:
Alabama - "Best Management Practices Concerning Forestry and Water
Quality in Alabama" (draft, Dec. 1976) (available from the Alabama
Forestry Commission, 513 Madison Avenue, Montgomery, Ala. 36130);
New York - "Guidelines for Timber Harvesting in New York" (Feb. 1975)
(prepared by the New York Section of the Society of American Forestry,
available from the State University of New York, College of Environ-
mental Science and Forestry, Applied Forestry Research Institute,
Syracuse, N.Y. 13210); and "Rules and Regulations Governing the
Wild, Scenic and Recreational Rivers System within the Adirondack
Park (effective April 19, 1976) (promulgated by the Adirondack Park
Agency, P.O. Box 99, Ray Brook, New York [these regulations incor-
porate the specifics of the "Guidelines" of the New York Section of
the SAF referred to above]);
Oklahoma - "Best Management Practices Concerning Forestry and Water
Quality in Oklahoma" (final draft, Dec. 1976) (available from the
Oklahoma Forestry Association, 941 Susan Avenue, Ada, Oklahoma 74820);
Vermont - "Nonpoint Source Water Pollution Evaluation Handbook," and
"Approved Forestry Cutting Practices" (Vermont Agency of Environmental
Conservation, Dep't of Forests and Parks, Montpelier, Vt.); and
"Recommended Forest Management Standards for Timber Harvesting in
Vermont" (Vermont State Forestry Planning Committee);
Virginia - "Water Quality and Forestry Handbook" (revised June 15,
1976) (prepared by the Virginia Division of Forestry, Richmond, Va.).
Compare the standards set forth in the western statutes and regula-
tions cited in appendix B to this chapter.
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VII-FN-14
119. Telephone interview with Caleb Pennock, Virginia Division of Forestry,
Charlottesville, Va. (Sept. 8, 1976); and see Perry R. Hagenstein
(Exec. Director, New England Natural Resources Center, Boston, Mass.),
"Legislating Regulation of Forest PracticesA New England Perspec-
tive," at 6 (paper presented at the AFA/EPA/Forest Service Workshop
[supra note 2] in Boston, Mass., Oct. 15-16, 1975).
120. U.S. EPA Region X, 1200 Sixth Avenue, Seattle, Washington 98101
(March 1975) (EPA 910/9-74-007).
121. The Region X guide attributes the high erosiveness of roads in the
past largely to the blind application of standard road engineering
practices without adequate preconstruction planning to minimize
road mileage and to choose locations and designs which reflect the
individual topographic, geologic, soils, and climatic conditions
(supra note 120, at 56, 95, 99, 114-15). As with every other
potential pollution source discussed in this handbook, the planning
stage has been slighted in the past but is in fact all-important.
The information aids identified by Region X as necessary for proper
planning of road location include: aerial photographs.; topographic
maps£ detailed soil surveys; geologic maps; precipitation intensity/
duration maps; vegetation maps; and hydrographic studies. All such
information should be supplemented by field investigations (supra
note 120, at 96, 101-45). It is generally agreed, as reflected in
the technical literature (see suggested readings) and in the laws of
states which have adopted laws and regulations or guidelines concern-
ing forest practices (see supra note 118 and appendix B) that minimum
locational and road design criteria include the following elements:
Road Location and Size
1. general location - roads should "follow the topography," that is,
they should follow natural geologic formations such as benches or
ridges which will provide stability; and should not be located mid-
slope or on tops or toes of banks;
2. landslides - areas susceptible to mass soil movement should be
avoided (this is a particular problem in the West);
3- grade - grades should be as low as possible (California's
Northern District Regulations provide, for example, that road grades
are not to exceed 15 percentalthough 20 percent will be allowed for
distances not to exceed 500 feetunless justified in the individual
timber harvesting plan which must be filed under California law);
4. wetlands and watercourses - roads should be kept out of wet,
poorly drained areas and natural drainage channels; roads should be
located far enough from streams to prevent road-generated sediment
from entering them;
5. spoil - debris from road construction must be disposed of or
graded and revegetated in such a way that it does not pose an erosion
hazard;
6. number and size - roads should be as few and as narrow (preferably
single lane with turnouts) as possible;
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VII-FN-15
7. drainage design - many states (see, ja.&. , note 118, Virginia
Guidelines, and appendix B, western' state regulations) stipulate
in great detail what kind of drainage structures should be placed
at what intervals along roads;
8. stabilization and maintenance - fill material must be adequately
compacted; all exposed areas must be stabilized with vegetation,
rip-rap, mulch, etc. All drainage structures must be maintained.
Abandoned roads must be seeded over.
Region X, supra note 120; California State Water Resources Control
Board, A Method for Regulating Timber Harvest and Road Construction
Activity for Water Quality Protection in Northern California 71 et
seq. (Publication No. 50, 1973); G. Brown, Forestry and Water
Quality 18 (reprinted 1976); and state standards, supra note 118
and appendix B infra.
122. California is one state which limits clearcutting because of erosion
potential. Under California's forest practices act, the state Board
of Forestry is authorized (1) to encourage selection, shelter wood,
and other types of management where biologically appropriate and
(2) to regulate the size and shape of areas in which even-age manage-
ment (clearcutting) is used. The board's regulations for the Northern
District limit the size of clearcuts based on the degree of Estimated
Erosion Potential as follows: Extremely High - 20 acres; High - 30
acres; Moderate - 40 acres; Low - 80 acres. These limits may be ex-
ceeded, but the size of the proposed clearcut must be justified in a
Timber Harvesting Plan, giving full consideration to "damaging effects
to streams from land slips or slides, siltation, water yield, and
debris deposits." Moreover, clearcutting is generally prohibited
within the Stream or Lake Protection Zone (see appendix B for cita-
tions and details).
For discussions of the pros and cons of clearcutting, see: D. Smith,
"Maintaining Timber Supply in a Sound Environment," in Report of the
President's Advisory Panel on Timber and the Environment 369, 393 et
seq. (appendix L) and 424 (bibliography) (1973); L. Wilson, "Man's
Activities in Watershed AreasA Need for Planning," 4 Environmental
Law 229 (Winter 1974); and J. Bernstein ^t _al., "Clearcutting: Can
You See the Forest for the Trees?" 5 Environmental Law 85 (Fall 1974).
Much of the clearcutting debate has centered around clearcutting on
national forest lands, and two sets of proposed guidelines which were
developed for federal lands should be of interest to those contem-
plating restrictions on private lands as well. Those recommended
guidelines are (1) ones developed by the Senate Subcommittee on Public
Lands in March 1972 and submitted to the Senate Committee on Interior
and Insular Affairs in a report entitled "Clearcutting on Federal
Timberlands" (92d Cong., 2d Sess., 13 pp.); and (2) ones developed by
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VII-FN-16
the Council on Environmental Quality and proposed but not issued
as an executive order in January 1972. See also Hearings on
"Clearcutting Practices" on National Timberlands Before the Subcomm.
on Interior and Insular Affairs, 92d Cong., 1st Sess. (1971).
The National Forest Management Act of 1976, Pub. L. No. 94-588
(passed in the last session of the 94th Congress and submitted for
the President's signature as S. 3090) requires the Secretary of
Agriculture to promulgate guidelines for the development of land
management plans which insure, inter alia, that clearcutting is
used only where it is determined to be "the optimum method . . .
to meet the objectives and requirements of the relevant land
management plan." Id. § 6(9)(3)(E)(iv). Land Management Plans
for units of the National Forest System are to have, as their
objective, the coordination of multiple uses, including "outdoor
recreation, range, timber, watershed, wildlife and fish, and
wilderness." Id. § 6(e)(l). The act also provides for limits on
the size and shape of clearcuts and for guidelines to insure that
clearcuts, where allowed, "are carried out in a manner consistent
with the protection of soil, watershed, fish, wildlife, recreation,
and esthetic resources, and the regeneration of the timber resource.'
Id. § 6(g)(F)(v).
123. General Erosion Control Standards for Skid Trails and Landings
include:
1. Avoiding tractor or wheel skidding on unstable, wet, or easily
compacted soils and on steep slopes (Oregon's* rules for the state's
Eastern Region stipulate slopes in excess of 35 percent, Idaho's*
regulations stipulate 30 percent).
2. Stabilizing skid trails, whenever they are subject to washing,
immediately following completion by water barring, cross draining,
scarifying, seeding, or other suitable means.
3. Washington's regulations* note that landings should be mech-
anically compacted where necessary to avoid erosion and mass soil
movement. The regulations for the Adirondack Park** in New York
State stipulate that landings should be graded, leveled, and re-
seeded after use, where necessary.
Typical Limitations on Logging Work in Watershed Areas include:
1. No trees should be felled into or across streams, except under
highly unusual conditions (see Washington's regulations*).
2. No landings should be established near streams (the Adirondack
regulations** stipulate 200 feet from the mean high water mark;
Washington's regulations* simply use the mean high water mark).
* See outline of state forest practices acts in appendix B to this chapter.
**See note 118 supra.
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VII-FN-17
3. Skidding and cable-yarding of logs or trees across streams should
be avoided. Where absolutely unavoidable, crossings should be made
at right angles and culverts or other means should be used to provide
for unrestricted fish passage. In some states, New York** and Wash-
ington,* for example, stream crossing work requires a permit from an
agency concerned with wildlife preservation.
4. All logging debris which is in or might enter a stream should be
removed immediately, at least above ordinary high water mark (Washing-
ton's regulations* require disposal above the 25-year flood level
for most streams).
124. See U.S. EPA, Compilation of Federal, State, and Local Laws Controlling
Nonpoint PollutantsAn Analysis of the Law Affecting Agriculture^
Construction, Mining, and Silviculture Activity 37 (Sept. 1975).
125. 16 U.S.C. § 583 et seq.
126. 16 U.S.C. § 583a.
127. Land and resource management plans are called for under section 5
of the Forest and Rangeland Renewable Resource Planning Act, 16
U.S.C. § 1604.
128. Pub. L. No. 94-588, § 6(g)(3)(E)(iii). Clearcutting guidelines
mandated by the act are discussed supra note 122. For a discussion
of these and other provisions of the act, see Comment, "Major New
Public Land Laws Provide Detailed Guidance for Activities of Forest
Service, Bureau of Land Management," 6 ELR 10240 (Nov. 1976).
129. Recent cases construing the reach of section 313 of the FWPCA and
congressional authorization for state regulation of federal installations
and agencies generally include Minnesota v. Hoffman, 9 Envir Rep. Cases
1353, 7 ELR 20066 (8 Cir. Oct. 28, 1976); EPAv. California U.S. ,
8 Envir. Rep. Cases 2089, 6ELR 20563 (June 7, 1976); Hancock v. Train,
U.S. ,8 Envir. Rep. Cases 2100, 6 ELR 20555 (June 7, 1976); and
Minnesota v. Callaway, 401 F. Supp. 524, 7 Envir. Rep. Cases 1473
(D. Minn. 1975).
130. See John R. McGuire, Chief, U.S. Forest Service, "A Historical
Perspective of Forest Practice Regulation," at 2 (paper presented
at the AFA/EPA/Forest Service Workshop [supra, note 2], Washington,
D.C., Feb. 10, 1975).
131. For a summary of forest practice law developments during this period,
see a publication of the Society of American Foresters (5400 Grosvenor
Lane, Bethesda, Md. 20014), "Forest Practices Development in the
United States 1940 to 1955." At least 16 states regulate cutting
* See outline of state forest practices acts in appendix B to this chapter.
**See note 118 supra.
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VII-FN-18
practices to some extent. See William C. Siegal, "State Forest
Practic Laws Today," Journal of Forestry, April 1974, at 208;
and Paul V. Ellefson, "Focus on the Issues," Journal of Forestry,
April 1974, at 196. The latter article consists primarily of a table
outlining the forest practices acts of California, Florida, Idaho,
Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Nevada,
New Hampshire, New Mexico, New York, Oregon, Vermont, Virginia, and
Washington. While other states may have laws pertaining to forests,
they are usually confined to state forests (see Compilation of Federal,
State and Local Laws, supra note 124, at 171 et _se£.).
132. For citations to such laws, see Ellefson, supra note 131.
133. Massachusetts and New Hampshire are exeptions to this generalization.
See P.R. Hagenstein, "Legislating Regulation of Forest Practices
A New England Perspective," at 3 (paper presented at the AFA/EPA/
Forest Service Workshop [supra note 2] in Boston, Mass., Oct. 15-16,
1975). While the Massachusetts forest practices act is adequate
in form, a shortage of manpower has left the notice and plan
requirements largely unenforced. Letter from John H. Lambert, Jr.,
Chief Forester, Division of Forests and Parks, Mass. Dep't of Natural
Resources, to Judith Aronoff, U.S. EPA (July 31, 1974).
134. Much of the opposition to state forest practices acts comes,
naturally enough, from small operators who are least able to
bear what they predict will be the costs of regulation. Several
participants in the AFA/EPA/Forest Service Workshops, supra note 2,
expressed this viewpoint. Larger timber operators often object
not the the fact of a forest practices act but to its form. This
is true, for example, of the Weyerhaeuser Company, which expressed
its general support for a state forest practices acts while objecting
to certain features of the model act suggested by EPA. See letter
from Jack Wolff, Vice President for Land and Timber, to James Agee,
Ass't Admin, for Water and Hazardous Materials, U.S. EPA (May 15,
1975). For a description of the suggested state forest practices
act developed in 1974, see James L. Agee, "A Suggested State Forest
Practices Act: One Implementing Mechanism for Improving Water Quality
on Forest Lands," Journal of Forestry, Jan. 1975, at 40.
135. Carl H. Stoltenberg, Dean of the School of Forestry at Oregon
State University, has come to the following conclusions respecting
experience under the Oregon Forest Practice Act:
I believe the major gains developing from the Oregon
Forest Practice Act are the following. (1) There has
been a significant (but unmeasured) reduction in man-
caused stream turbidity and stream-temperature increases
associated with forestry practices. (2) The regulatory
functions of several state and federal agencies are now
funneled through a single state agency, the State
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VII-FN-19
Forestry Department. This has made state regulatory
activities more efficient and has simplified the job
of compliance for forestry operators. (3) There is
a better understanding and a closer working relationship
between regulatory agencies and specialists within
various state agencies; there is also better understanding
and more constructive working relationships between these
agencies, conservation groups, and forestry operators.
(4) Loggers, landowners, and the general public have a
much better understanding of water quality problems
and their relationship to forestry practices, of
solutions to such problems, and of reasonable forest
practice standards, (5) I also believe there is improved
regeneration of forests on private lands, but hard data
on such progress is lacking.
These gains have been accomplished at a significant, but
again unmeasured cost. Included among these costs, how-
ever, are the following: (1) Loss of most of Oregon's
service forestry program. The administration of the
Forest Practices Act has been underfunded and service
foresters have been diverted to the administration of the
Forest Practices Act. (2) Advantageous relationships with
private fire protection associations have been reduced
because private associations could not carry out the Act's
regulatory activities. (3) Some of the required practices
have been costly for private operators to applyparticularly
in the short run, even though their long-run effects may
be helpful.
It should be noted, however, that one Oregon official the author spoke
to maintained that there was more onsite contact with loggers under
the Forest Practices Act than previously; it was just that more stress
was being put on activities which might impact water and less on seeding
Telephone interview with Eugene Mannock, Oregon Department of Forestry
(September 1976). A Washington State official who has been intimately
involved in the administration of that state's Forest Practices Act
reports that in his opinion the act has helped service forestry and
facilitated better contacts with small owners. When asked to explain
the difference between this experience and that reported by Dean
Stoltenberg in Oregon, that official pointed ot the fact that
Washington, unlike Oregon, has increased its forestry budget
substantially. Telephone interview with Howard L. Stolaas, Deputy
Supervisor, Dep't of Natural Reosurces, Olympia, Washington (Sept. 13,
1976).
136. Citation to and details on this act, as well as on the forest
practices acts of California, Idaho, Nevada, and Washington, may
be found in appendix B to this chapter.
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VII-FN-20
137. Idaho Rules and Regulations (for cite, see outline in appendix
B to this chapter) § 812.01.
138. Again, see the outlines in appendix B to this chapter for cites
to and details of these laws.
139. Siegal, supra note 131, at 210.
140. See citation and outline in appendix B to this chapter.
141. See Oregon telephone interivew, supra note 135.
142. See Washington telephone interview, supra note 135.
143. As noted earlier in the context of feedlot regulation (supra note
90), what something is called may well affect its political acceptability.
One wonders if California's use of the term "license" instead of "permit"
was wholly or in part motivated by such considerations.
144. March 7, 1975, available from Society of American Foresters, supra
note 131.
145. See Washington telephone interview, supra note 135.
146. See citation in appendix B to this chapter.
147. See citations to and details on Washington's and California's acts
in appendix B to this chapter.
148. Wash. Rev. Code § 76.09.040.
149. Cal. Pub. Res. Code, § 4562.5 (Deering).
150. _Id_. § 4515.
151. Id_. § 4531.
152. Region X's road construction guide makes a particularly powerful
case for case-by-case decision making, supra note 120, at 22, 94.
153. See section 5.0 infra for a further discussion of the certainty
question.
154. Cal Pub. Res. Code § 4590 (Deering).
155. S_ee appendix B to this chapter, Nevada outline, for an enumeration
of the criteria for variances from the prohibition on activities
near waterbodies.
156. Oregon telephone interview, supra note 135.
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VII-FN-21
157. Wash. Rev. Code § 76.09.030(4).
158. Washington telephone interview, supra note 135.
159. Oregon and Washington telephone interviews, supra note 135.
160. See Weyerhaeuser letter, supra note 134.
161. Wash. Rev. Code § 90.58.010 e£ se^. , and see section of Forest Practices Act
dealing with this act (id. § 76.09.240(4). Weyerhaeuser has apparently
brought suit contesting the application of regulations adopted under
the Shoreline Management Act to one of its operations.
162. Wash. Rev. Code § 75.20.100.
163. See Washington outline in appendix B to this chapter.
164. Washington telephone interview, supra note 135.
165. For a detailed treatment of alternative mechanisms for coordinating
permit procedures, see F. Bosselman, D. Fuerer, and C. Siemon, The
Permit Explosion: Coordination of the Proliferation (1977).
166. Wash. Rev. Code § 76.09.240(1).
167. Cal. Pub. Res. Code § 4516.
168. Tahoe Regional Planning Agency, Ordinance No. 12, § 2.11.
169. Dunbar v. City of Spartanburg, No. 20147 (S.C. Sup. Ct. Jan. 7,
1976). 17 Municipal Attorney 264 (Sept. 1976). (Municipal Attorney
is a publication of the National Institute of Municipal Law Officers,
Washington, D.C.).
170. See chapter 2 and chapter 6 for futher discussion of erosion
control and the police power. Local ordinances adopted for the
preservation of urban and surburban woodland resources are discussed
in an article by Mark B. Lapping and William B. Kurtz, "Protecting
Privately Owned Urban Woodlands: Trends in Municipal Tree Ordinances,"
Journal of Forestry, Sept. 1976, at 622. That article refers to a
number of particularly notable ordinances including those in: Leon
County, Florida (Tree Ordinance No. 73-21, as amended by 75-3),
and Oakland County, Michigan (Dep't of Planning and Physical Development,
Planning Division, "Model Environmental Ordinance to Protect Woodlands"
(1974). Other sources referred to include C. Bingham, Trees in the
City (Planning Advisory Service Rep. No. 236, 1968) (American
Society of Planning Officials, Chicago, 111., 44 pp.; D.R. Neely,
ed., A Standard Municipal Tree Ordinance (1972) (International
Shade Tree Conference, Inc., 14 pp.); and S. Carter et_ _§!_. , "Local
Environmental Management" in Municipal Year Book 237-59 (1974) (Inter-
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VII-FN-22
national City Management Ass'n, Washington, D.C.). The last study
reveals, apparently, that as of 1974 at least 343 localities had
some form of tree-preservation ordinance. Examples of tree-preservation
ordinances, timber-harvesting ordinances, and woodland protection ordinances
are referenced and discussed in Charles Thurow, William Toner, and Duncan
Erley, Performance Controls for Sensitive LandsA Practical Guide for
Local Administrators, ch.6 (Planning Advisory Service Report Nos.
307, 308, 1975) (American Society of Planning Officals, Chicago, 111.).
171. N. Skill, Forest Practices Director, Oregon Dep't of Forestry, "A
Contribution to Quality Forest ManagementThe Oregon Forest Practices
Act," (March 1975). This paper includes the fiscal 1973 and 1974
statistical breakdowns referenced earlier in the text.
172. See Oregon telephone interview, supra note 135.
173. Idaho Code, § 38-1309.
174. See Oregon's, Washington's, and Idaho's forest practices acts as
outlined in appendix B to this chapter.
175. Letter and compilation of official notice summary from
Howard L. Stolaas, Deputy Supervisor, State of Washington Dep't of
Natural Resources, Olympia, Washington, to the author (Sept. 14, 1976).
176. Supra note 171, at 2.
177. Cal. Pub. Res. Code § 4610.
178. See Washington telephone interview, supra note 135.
179. See Oregon and Washington telephone interviews, supra note 135.
180. Nev. Rev. Stat. § 528.044.
181. Comment, "Regulation of Private Logging in California," 5 Ecol.
L. Q. 139, 179 (1979).
182. Cal. Pub. Res. Code § 4574.
183. Wash. Rev. Code § 76.09.100.
184. California state report to APA/EPA/Forest Service Workshop, supra note 2
(Portland, Ore., Dec. 9 and 10, 1975).
185. Wash. Rev. Code § 76.09.050 (8).
186. One state already considering this course, for a different reason, is
Montana. A proposed Forest Practices Act, modeled after Oregon's, was
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VII-FN-23
defeated in that state in 1975 "mainly because small land owners communicated
strenuous objections to their elected representatives, "according to
Montana's state report to the AFA/EPA/Forest Service Workshop, supra
note 2 (Portland, Ore., Dec. 9 and 10, 1975). That report (presented
by Howard McDowell, Executive Vice President, Inland Forest Resources
Council) listed as among the laws available in Montana to control non-
point pollution in the absence of a forest practices act, the following:
Natural Streambed Preservation Act of 1975, Water Use Act, Water
Pollution Control Act, Dredge and Fill (Navigable River Act), Flood
Plain Management and Regulation Act, Lakeshore Protection Act, Montana
Environmental Quality Act, and Water Resources Planning Act.
In its report to the AFA/EPA/Forest Service Workshop, supra note 2 (Chicago
111., April 13-14, 1976), the delegation for the state of Michigan
suggested that many existing silvicultural.pollution problems from
road and stream crossings, steep slopes, and conversion from forest
to residential uses might be eased through enforcement of existing laws
such as the Inland Lakes and Streams Act (requires permits for stream
crossings and dredge and fill operations), the Soil Erosion and
Sedimentation Act, and the Shoreland Protection and Management Act
(which includes, inter alia, a citizen suit provision).
187. Op. Cal. Att'y Gen. 182, interpreting the Dickey Act, the predecessor
of the Porter-Cologne Act, but applicable to the subsequent act as
well. See California State Water Resources Control Board, supra note 4,
at 10. Similarly, a 1971 opinion of Virginia's Attorney General
interpreted that state's Water Control Law to include sediment and silt
within the meaning of "pollutant." SCAMP Info. Circular No. 7, supra
note 28, at 1 (May 6, 1976).
188. Mont. Rev. Codes Ann. §69-4802.
189. Supra note 32.
190. 35 Pa. Cons. Stats. Ann. § 691.1 (Purdon).
191. See appendix A, outline of Pennsylvania Erosion and Sediment Control
Program, for citations and further details.
192. The state forestry people in Indiana have already come to the conclusion
that they would prefer to be included within a state erosion and sediment
control program rather than to adopt a state forest practices act.
Accordingly, they have suggested certain amendments to the proposed
Erosion and Sediment Control Act, outlined in appendix A to this chapter,
which are designed to make it better fit forestry circumstances. (Those
suggestions were not available at the time of this writing.) See
Indiana telephone interview, supra note 49.
193. See appendix A, outline of Model State Act for Soil Erosion
and Sediment Control.
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VII-FN-24
194. See appendix A, outline of porposed Ohio amendments.
195. New York Environmental Conservation Law §§ 9-0713, 9-0715 (McKinney)
196. See note 118 supra.
197. Virginia's Reforestation of Timberland Act of 1970.
198. Mississippi Forest Resource Development Law of 1974, Miss. Code
Ann. §§ 49-19-201 through 49-19-227.
199. Virginia's technical and cost-sharing assistance is only
available for tracts of 500 acres or less and for lands not
receiving federal financial assistance (Va. Code §§ 10-90.24,
10-90.25). Excluded from eligibility under Mississippi's act are
"private corporations manufacturing products" and industrial lands
(Miss. Code Ann. § 49-19-205(c) and (d) , as well as lands receiving
federal funds (id_. § 49-19-213) .
200. Va. Code § 10-90.20.
201. Id. § 10-90.26(3).
202. See note 118 supra.
203. Mississippi Forestry Association, (620 N. State St., Jackson, Miss.,
39201) "Forestry Practices in Mississippi." This booklet is out
of print but is now in the process of revision for renewed
publication.
204. Mary H. Sizemore and Richard A, Laurence, "Regulation of Forest
Practices," at 2 (paper presented at several of the AFA/EPA/
Forest Service Workshops, supra note 2); and Virginia telephone
interview, supra note 119.
205. Id., Virginia telephone interview. Virginia Seed Tree Law, Va.
Code §§ 10-75 through 10-83.01.
206. See W. Sizemore and Sizemore Staff, "Improving the Productivity
of Nonindustrial Private Woodlands," Appendix, "A Summary of
State Laws Regulating Cutting Practices," in Report of the
President's Advisory Panel on Timber and the Environment (1973);
and Compilation of Federal, State and Local Laws, supra note 124.
207. New York Real Prop. Tax Law, § 480-a (McKinney).
208. Id. § 480-a.8.
209. Id.
210. Missouri State Forestry Law, Mo. Rev. Stat., § 254.210, and Op.
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Att'y Gen. No. 70, Phillips, 2-24-53.
211. Mo. Rev. Stat. § 254.240.
212. Washington telephone interview, supra note 135.
213. Cal. Pub. Res. Code §§ 4571-4577 (Deering).
214. Letter form Glen Jones, Executive Vice President, Mississippi
Forestry Association (620 North State Street, Jackson Miss.
3920l)(Aug. 26, 1976).
215. In Virginia, the State Division of Forestry will, on request,
make- recommendations for private logging contracts and will inspect
to see that the terms of the contract are being carried out.
Virginia telephone interview, supra note 119.
216. David P. Overholt, Chief, Resource Conservation Planning Branch,
Soil Conservation Service, Washington, D.C., "National Efforts
to Improve Erosion and Sediment Control," at 5 (paper presented at
the Annual Meeting, Potomac River Basin Commission, Nov. 7, 1974).
217. Supra notes 49 and 50 and accompanying text.
218. See the description of Iowa's soil loss limits and erosion
and sediment control program, supra notes 44, 45 and 54 and 55,
accompanying text, and appendix A.
219. See description of Ohio's standards in appendix A. See also
North Carolina's Sedimentation Pollution Control Act of 1973,
which includes certain mandatory requirements for "larid-
disturbing activities," including the following "buffer zone"
provision:
No land-disturbing activity during periods of construction
or improvement to land shall be permitted in proximity to a
lake or shall be permitted in proximity to a lake or natural
watercourse unless a buffer zone is provided along the margin of
the watercourse of sufficient width to confine visible siltation
within the twenty-five percent (25%) of the buffer zone nearer
the land-disturbing activity, provided, that this sub-
division (1) shall not apply to a land-disturbing
activity in connection with the construction of
facilities to be located on, over, or under a lake
or natural watercourse. N.C. Gen. Stat. § 113A-57.
(This act has not been discussed because it excludes agricultural
and silvicultural activities from its coverage.)
220. See Ohio Livestock Waste Management Guide, supra note 106,
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which includes an illustration of a grass filter area with switch-
back and gradient terraces, and which says: "A grass filter is effective
in treating dissolved and fine suspended solids [from animal wastes]
by infiltration, filtration, absorption, adsorption, and decomposition.
Considerable nigrogen can be lost to the atmosphere and a high proportion
of the BOD can be removed." Id. at 23.
221. There is data which indicates that "a 100-125 foot wide strip of
good sod should filter about 75 percent of the sediment from
normal field runoff on moderate slopes [while] [w]ith a properly designed
terrace system, less than 20 percent of the soil eroded from
the between-terrace areas is transported completely off the field."
Control of Water Pollution from Cropland, supra note 12, at 25.
222. See the "waterside portection zone" provisions outlined in appendix
B to this chapter.
223. Goettemoeller, supra note 33, at 5.
224. Wisconsin state report to AFA/EPA/Forest Service Workshop, supra
note 2 (Chicago, 111., April 13 and 14, 1976).
225. See supra note 133.
226. Hagenstein, supra note 133, at 3-6. Mr. Hagenstein cites Maine's
land use law, applicable to its unorganized townships of the state:
its Shoreland Zoning Act; and Connecticut's, Massachusetts', and New
Hampshire's wetlands laws, and he describes their existing or
possible application to timber operations.
227. See chapter 3, section 4.1.
228. Haw. Rev. Stat. § 183-41.
229. Vt. Stat. Ann. tit. 10, § 6001 et se^. , § 6001(3).
230. The possibility of using wetlands laws in New England to protect
water from the adverse effects of timber harvesting has already
been explored in the paper by Hagenstein cited at note 133, supra.
It is worth quoting from this paper at length:
It seems clear that silvicultural practices in New
England are of little importance in relation to water
quality, but there does seem to be some real concern
over the impact of logging and logging road construction
on the character of surface waters. Forest practices
regulation may be needed. If it is needed, the
question is, "What kind of regulation is most appropriate?"
Do we need wholly new forest practice laws, can we use
wetlands laws to control logging as well as other activities
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in critical areas, or should we regulate road construction,
including logging roads, wherever they might be built?
It seems to me that the case for new forest practice
acts aimed at water quality problems is a strong one
only if there is good evidence that cutting timber along
streams, as contrasted with logging road construction and
skidding, is a major problem. If the problem is logging
and skid roads in wetlands, it seems to me that the
appropriate route to regulation is through wetlands laws.
The apparent exemption of forestry, including logging roads,
from wetlands regulations in Connecticut and Massachusetts
is a real anomaly in view of the much more limited kinds
of actions that are regulated in wetlands in these states.
Using wetlands laws has the advantage of using a system
that already exists in four of the six New England states
(in Maine, a combination of the Shoreland Zoning Act
and the Land Use Regulation Commission apparently
regulates all logging in wetlands) and a set of laws
whose specific purpose is to minimize impacts on
water flow and quality. Id_. at 6.
231. _Id.
232. Mont. Rev. Codes Ann. § 26-1510 et seq.
233. Id_. § 26-1511.
234. "Model Rules for Adoption by Conservation Districts, Grazing
Districts and Counties to Implement the Natural Streambed
and Land Preservation Act of 1975," Rule 9 (compiled
by Montana Dep't of Natural Resources and Conservation,
32 South Ewing, Helena, Montana).
235. The quotations fro;a this ordinance are taken from the excerpts
reproduced in Performance Controls for Sensitive Lands, supra
note 170, at 113-115.
236. Id. at 114.
237. N.Y Environ. Conservation Law preceding § 15-0901 note (1972
addition to Conservation Law of 1911 § 429-k - 429-v).
238. "Rules and Regulations Governing the Wild, Scenic, and
Recreational Rivers Systems Within the Adirondack Park,"
introduction (effective April 19, 1975) (see note 118,
supra).
239. Id., § 584.3(a). Wild rivers are defined as rivers which,
among other characteristics, "are free of diversions
and impoundments, and are inaccessible to the general
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VII-FN-28
public except by water, foot or horse trail. Their river areas
are primitive and undeveloped in nature, with development,
if any, limited to forest management and foot bridges."
240. Id. § 584.7.
241. Id. § 584.6(b)(l) and (2).
242. Id. § 584.13.
243. Id. § 584.15.
244. Id. § 584.16.
245. Id. § 586.2.
246. See the summary of California's stream and lake protection zone
provision in the outline in appendix B to this chapter.
247. For a good discussion and good examples of hillside protection
ordinances, see chapter 7 of Performance Controls for Sensitive
Lands, supra note 170.
248. California state report to AFA/EPA/Forest Service Workshop, supra
note 2 (Portland, Ore., Dec. 9 and 10, 1975).
249. This program, which is concentrated on the northern part of the
central and Mississippi river waterfowl flyways, provides for
10-year agreements with owners and operators of eligible wetlands.
Payment rates are $5 per acre, $4 if the wetlands are under a drainage
easement.
250. 32 Wash. 2d 551, 202 P.2d 906(1949), Annot., 13 A.L.R.2d 1081, 1120.
251. 202 P.2d 906, 908. To the same effect, see In re Opinion of the
Justices, 99 N.H. 532, 114 A.2d 327 (1955), in which the New Hampshire
Supreme Court pronounced the state's proposed preferential taxation
scheme for timberland constitutional, using the following reasoning:
It is generally recognized today that the encouragement
of reforestation and forest conservation affects the public
interest and the public welfare so that the General
Coutt may enact legislation which will prevent the
indiscriminate damage or destruction of the forests
and water resources of the state even though this
may involve some regulation and control over the
private ownership of such property. Opinion of the
Justices, 103 Me. 506, 69 A. 627, 19 L.R.A.,N.S., 422;
State v. Dexter, 32 Wash.2d 551, 202 P.2d 906, 13
A.L.R.2d 1081, affirmed in 338 U.S. 863, 70 S.Ct.
147, 94 L.Ed. 529. This principle was stated
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VII-FN-29
as follows in Conway v. New Hampshire Water
Resources Board, 89 N.H. 346, 349, 199 A. 83, 87:
"The state clearly may engage in undertakings to
develop its resources. It is no less in its interest
than to conserve them . . . ." Since the protection
and promotion of forests and water resources are
within the ambit of public welfare the taxing power
may be used to aid that public purpose. In re Opinion
of the Justices, supra, 84 N.H. 574, 577, 149 A. 321;
Baker v. Town of West Hartford, 89 Conn.394, 94 A. 283;
Annotation 13 A.L.R.2d 1120; Schulz, Conservation Law and
and Administration, 403 (1953). It follows that growing
wood and timber may be classified separately from other
property for the purposes of taxation. Note, 53 Harv.
L.Rev. 1018; Report of the New Hampshire Timber Tax
Study Committee (1954).
_Id. at 328.
252. 148 Colo. 285, 365 P.2d 902 (1961).
253. 148 Colo. 285, 290-91.
254. Cases involving local ordinances regulating the removal of topsoil,
gravel, sand, etc., are collected at Annot., 10 A.L.R.3d 1226, § 18
(Prohibiting or Regulating Removal or Exploitation of Oil and Gas,
Minerals, Soil, or Other Natural Products Within Municipal Limits).
See also Kelleher v. Board of Selectmen of Pembroke, 294 N.E.2d
512, 519 (Mass. App. 1973), and Burroughs Landscape Const. Co.,
Inc. v. Town of Oyster Bay, 61 N.Y.S.2d 123 (1946) in which the
Supreme Court for Nassau County had this to say:
[T]he necessity of the conservation of the topsoil
of Long Island needs little argument with those who
have observed the removal of topsoil from large
tracts of land and the subsequent abandonment of the land
to become a barren waste eroded by wind and water, fit
for nothing but to grow course vegetation and constituting
a nuisance to the surrounding property as a source of
wind blown sand and dust. Legislation such as has been
adopted by the Town of Oyster Bay is both reasonable and
necessary if the land is to be preserved and the welfare
of the people and the community safeguarded. The
prohibition of removal during a part of the year and the
conditions imposed by the ordinance as to planting and
reseeding constitute a practical and effective means of
curbing the evils sought to be prevented ....
In determining whether an ordinance is a reasonable
regulation under the police power, the Court is not
confined to the question solely of public health and
public safety. The power is much broader and extends
generally to the promotion of the public good and to so
dealing with existing conditions as to bring out of them
the greatest welfare of the people by promoting general
prosperity. Id. at 126.
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VII-FN-30
The Burroughs case has been quoted at such length not because of its
weight as precedent, which is slight, but because its language is
so readily applicable to the application of mandatory conservation
standards to agricultural lands.
255. Lindquist, supra note 54, at 11-12, and see supra notes 38-43
and accompanying text for a description of the Universal Soil
Loss Equation.
256. An Alaskan pollution control statute recently survived an attack
which included an allegation that it was "void for vagueness" because
the definition of "pollution" was itself vague and further because
it applied to activities which were "potentially" harmful to public
health, safety, or welfare. The Supreme Court of Alaska had this
to say in response:
Whatever may be the outer boundaries of conduct prohibited
by [the subject statute] it is beyond dispute that the
emptying of a lagoon of raw sewage into a stream running
through residential areas comes within the definition
of the term "pollution" .... Courts have often recognized
that the possibility of difficult or borderline cases
will not invalidate a statute where there is a hard
core of cases to which the ordinary person would doubtlessly
know the statute unquestionably applies .... [citing
cases]
We hold that by use of the word "potentially"
the statute prohibits acts which a reasonable person
would foresee as creating a substantial risk of
making water actually injurious to the statutorily
protected interests .... A foreseeability requirement
assures that fair notice is given to the defendant that
his conduct is within the ambit of the statute. Such
an element added to the definition of the offense
also criminalizes only that conduct which is serious
enough to warrant enforcement and conviction,
thus discouraging discriminatory enforcement.
Stock v. State, 526 P.2d 3, 9, 10-11 (1974). See also Annot . ,
32 A.L.R. 3d 215, § 17a (Validity and Construction of Anti-
Water Pollution Statutes or Ordinances) .
257. See the earlier discussion of Oberst v. Mays, supra, nffte 252-53 "
and accompanying text for a case dealing with what procedures will
be allowed in emergency situations.
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VII-FN-31
258. The state of Washington's Forest Practice Rules and Regulations
(see appendix B) included the following provision for informal
conferences:
WAG 222-46-020 INFORMAL CONFERENCES.
(1) Opportunity mandatory. The department shall
afford the operator or his representative reasonable
opportunities to discuss proposed enforcement actions
at an informal conference prior to taking further enforcement
action, unless the Department determines that there may
be imminent damages to the public resource. Informal
conferences may be used at any stage in enforcement
proceedings, except that the Department may refuse to
.conduct informal conferences wiht respect to any
matter then pending before the Appeals Board or a
court.
(2) Reports required. Department personnel in attendance
at informal conferences shall keep written notes of the
date and place of the conference, the persons in
attendance, the subject matter discussed, and any
decisions reached with respect to further enforcement
action.
(3) Records available. Copies of written notes shall
be sent to each participant in the conference, be
kept in the Department files until one (1) year after
final action on the application involved, and be open
to public inspection.
259. D. Hartley and V. Price, Problems of Agricultural Doers in Implementing
P.L. 92-500 (Sept. 1975).
260. See 32 A.L.R.3d 215, § 22 pp.253.
261. 56 Wis.2d 7, 201 N.W.2d 761, 771 (1973). Further discussion of this
case may be found in chapter 2 section 3.6.
262. Virginia telephone interview, supra note 119.
263. Fred Bosselman, David Callies, and John Banta, The Taking Issue 302 (1973')
264. See for example, Id. ch. 16 and J. Montgomery, "Control of Agricultural
Water Pollution: A Continuing Regulatory Dilemma," 1976 U. 111. L.F.
533, 556-57.
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CHAPTER SEVEN
AGRICULTURE AND SILVICULTURE
SUGGESTED READINGS
Agriculture
Cornell University Conference on Agricultural Waste Management.
Agricultural Wastes: Principles and Guidelines for Practical
Solutions. Ithaca, N.Y.: Cornell University, Feb. 10-12, 1971.
Council of State Governments. 19T5 Sugge_s^e_d_StateJLegislation,
vol. 22. Lexington, Ky., 1972. (includes Model State Act for
Soil Erosion and Sediment Control and Model State Confined Animal
Feeding Environmental Control Act)
Dow Chemical Company. An Economic Analysis^ of_ Erosion and Sediment^
Control Methods for Watersheds Undergoing Urbanization.
Springfield, Va.: National Technical Information Service, 1972.
(NTIS PB 209 212)
Hartley, David K.; and Price, Victoria S. Problems of Agricultural
Doers in Implementing P.L. 92-500. Washington, D.C.: National
Commission on Water Quality, Sept. 1975. (available from David
K. Hartley, Gov't Affairs Consultant, 2310 19th St., N.W.,
Washington, D.C. 20009)
Held, R. Burnell; and Clawson, Marion. Soil Conservation in Per-
spective. Baltimore: Johns Hopkins Press, 1965.
Hines, N. William. "Improving Water Quality Regulation in Iowa."
Iowa Law Review 57 (1971): 231.
. "Agriculture: The Unseen Foe in the War on Pollution." Cornell
Law Review 55 (1970): 740.
. "Farmers, Feedlots and Federalism: Regulation of Agricultural
Pollution under the 1972 FWPCA Amendments." South Dakota Law Review
19 (1974): 540.
. "Legal Aspects." In Agricultural Practices and Water Quality:
Proceedings of a Conference Concerning the_Role of Agriculture in
Clean Water, chap. 26. Federal Water Pollution Control Research
Series. Springfield, Va.: National Technical Information Service,
Nov. 1970. (PB 199 828)
Loehr, Raymond C. Pollution Control for Agriculture^ New York: Academic
Press, 1977.
-------
VII-SR-2
Montgomery. "Control of Agricultural Water Pollution: A Continuing
Regulatory Dilemma." University of Illinojs Law Forum 1976: 533.
National Association of Conservation Districts. Report on State Sedi-
ment Control Institutes Program. Washington, D.C.: U.S. EPA,
April 1975. (EPA-440/9-75-001)
. Suggested Guidelines and Standards for Erosion and Sediment
Control Programs. League City, Tex., n.d. (available from the
National Association of Conservation Districts Service Dep't,
Box 855, League City, Tex. 77573)
National Water Well Association. A__Manual °f Laws, Regulations, jtnd
Institutionsfor Control of Ground Water Pollution. Washington,
D.C.: U.S. EPA, 1976. (EPA-440/9-76-006)
Parks, W. Robert. Soil Conservation Districts in Action.. Ames, Iowa:
Iowa State College Press, 1952.
Piampiano, J. Robert. "Draft Proposal for Legislation to Control Water
Pollution from Agricultural Sources." Cornell^JLaw Review 59 (1974):
1097.
Recker. "Animal Feeding Factories and the Environment: A Summary of
Feedlot Pollution, Federal Controls, and Oklahoma Law." Southwestern
Law Journal 30 (1976): 556.
Street, J. C. "Agriculture and the Pollution Problem." Utah Law Review
1970 (June): 395.
Symposium. "Agricultural Pollution and the Law." Utah Law Review 1970
(June) : 383.
U.S. Congress, House, Committee on Government Operations, Subcommittee
on Conservation and Natural Resources. Hearings on Control^ of Pollu-
tion from Animal Feedlots. 93d Cong., 1st Sess., 29-30 Nov. 1973.
U.S. Dep't of Agriculture, Agricultural Research Service. A Manual for
Guideline Development. Control of Water Pollution from Cropland,
vol. 1. Washington, D.C.: Government Printing Office, Nov. 1975.
(EPA Report No. EPA-600/2-75-026a; USDA Report No. ARS-H-5-1)
U.S. Dep't of Agriculture, Economic Research Service. Methods__a_nd Prac-
tices for Controlling Water Pollution_from Agricultural Nonpoint
Sources. Washington, D.C.: U.S. EPA, Oct. 1973 (EPA-430/9-73-015)
U.S. Dep't of Agriculture, Soil Conservation Service. "Control Sediment
Keep Water Clean." SCS Environmental Quality Aid, reprinted from
Soil Conservation Magazine, Sept. 1970.
-------
VII-SR-3
Land Resource Regions and Major Land Resource Areas of the
United States. Agricultural Handbook No. 296. Washington, D.C.,
Dec. 1965, rev'd March 1972.
. SedimentIt's Filling Harbors, Lakes, and Roadside Ditches.
Agricultural Information Bulletin No. 325. Washington, D.C.,
Dec. 1967, reprinted Aug. 1973.
U.S. EPA, Region X. Cattle Feedlots and the Environment^. Springfield,
Va.: National Technical Information Service, 1972. (PB 227 880)
Walker, R. Wynn. A Systematic Procedures for Taxing Agricultural
Pollution Sources. Springfield, Va.: National Technical Infor-
mation Service, Oct. 1975. (PB 246-656)
Wischmeier, W. H.; and Smith, D. D. Predicting Rainfall-Erosion Losses
from Cropland East of the Rocky Mountains. Agricultural Handbook
No. 282. Washington, D.C.: U.S. Dep't of Agriculture, Agricultural
Research Service, 1965.
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VII-SR-4
Silviculture
Agee, James L. "A Suggested State Forest Practices Act: One Imple-
menting Mechanism for Improving Water Quality on Forest Lands."
Journal of Forestry, Jan. 1975, p. 40.
Bernstein, James E.; Hazelton, Penny; and Hubel, Dennis J. "Clear-
cutting: Can You See the Forest for the Trees?" Environmental
Law 5 (Fall 1974): 85.
Brown, George W. Forestry and Water Quality. Corvallis, Ore.: Oregon
State University School of Forestry, reprinted 1976.
Comment. "Regulation of Private Logging in California." Ecology Law
Quarterly 5 (1975): 139.
Ellefson, Paul V. "Focus on the Issues." Journal of Forestry, April
1974, p. 196.
Jones & Stokes Associates, Inc. A Method for Regulating Timber Harvest
and Road Construction Activity for Water Quality Protection in
Northern California, vol. 1 (Procedures and Methods) and vol. 2
(Review of Problem and Annotated Bibliography). Sacramento: Cal.
State Water Resources Control Board, 1973. (Publication No. 50)
Midwest Research Institute. Processes, Procedures,and Methods to
Control Pollution Resulting from Silvicultural Activities. U.S.
EPA, Oct. 1973. (EPA 430/9-73-010)
President's Advisory Panel on Timber and the Environment. Report of
the President's Advisory Panel on Timber and the Environment.
Washington, D.C.: Government Printing Office, April 1973.
Siegel, William C. "State Forest Practice Laws loday." Journal of
Forestry, April 1974, p. 208.
Society of American Foresters. "Criteria for a Competent State Forest
Practices Act." (available from the Society of American Foresters,
5400 Grosvenor Lane, Bethesda, Md.)
U.S. Congress, Senate, Subcommittee on Interior and Insular Affairs.
Hearings on Clearcutting Practices on National Timberlands. 92d
Cong., 1st Sess., 1971.
U.S. Environmental Protection Agency, Region X, Water Division. Logging
Roads and Protection of Water Quality. U.S. EPA, March 1975.
(EPA 910/9-75-007)
Wilson, L.P. "Man's Activities in Watershed Areas: A Need for Planning."
Environmental Law 4 (Winter 1974): 229.
-------
VII-SR-5
General
Aspen Systems Corporation. Compilation of Federal,_State and Local
Laws Controlling Nonpoint Pollutants. U.S. EPA, Sept. 1975.
(EPA-440/9-75-011)
Bosselman, F.; Feurer, D.; and Siemon, C. The Permit Explosion^
Coordination of the Proliferation. Washington, B.C.: Urban
Land Institute, 1977.
Midwest Research Institute. Methods for Identifying and Evaluating
the Nature and Extent of Nonpoint Sources of Pollutant!?. U.S.
EPA, Oct. 1973. (EPA-430/9-73-014)
Morgan, Robert J. Governing Soil Conservation; Thirty Years of the
New Decentralization. Baltimore: Johns Hopkins Press, 1965.
National Association of Conservation Districts. Erosion and Sediment
Control Programs: Six Case Studies (Maryland, Virginia, Pennsylvania,
Ohio, Iowa, Montana). League City, Tex., 1977. (available for
$5.00 from the NACD Service Department, P.O. Box 855, League City,
Tex. 77573)
Thurow, C.; Toner, W.; and Erley, D. Performance Controls for Sensi-
tive Lands. Planning Advisory Service Report Nos. 307, 308.
Chicago: American Society of Planning Officials, 1975.
-------
CHAPTER EIGHT
SALT WATER INTRUSION
TABLE OF CONTENTS
1.0 Introduction VIII-1
2.0 Control Techniques for Aquifers VIII-2
2.1 Standards for Well Construction VIII-2
2.2 Limitations on Withdrawals from Aquifers VIII-4
2. 3 Protecting and Enhancing Aquifer Recharge VIII-4
2.4 Use of Fresh Water Injection Wells VIII-7
3.0 Control Techniques for Salt Water Intrusion
into Estuaries VIII-7
3.1 Illustrative State Approaches to
Minimum Flow Maintenance VIII-9
3.2 The Role of the Federal Government
in Flow Maintenance VIII-12
3.3 Controls on Canal Building VIII-13
4.0 Institutional Arrangements:
Intergovernmental Approaches VIII-14
5.0 Legal Issues VIII-18
5.1 Rights in Groundwater and
Restrictions on Groundwater Extraction VIII-19
5.2 Rights of Surface Owners Damaged by
Underground Storage Programs .VIII-22
5.3 Legal Issues with Respect to
Maintenance of Minimum Flow VIII-22
5.3.1 Rights in Surface Water and Limitations on
its Diversion under a Riparian System VIII-22
5.3.2 Rights in Surface Water and Limitations on
its Diversion under an Appropriation System VIII-24
Footnotes
Suggested Readings
-------
CHAPTER EIGHT
SALT WATER INTRUSION
1.0 Introduction
Groundwater is contained in underground formations called aquifers.
This stored water in aquifers is released to the surface through wells
and springs or by seepage into lakes, rivers, and wetlands. Just as
groundwater ultimately returns to the surface, it is also replenished
from the surface, by percolation directly into the aquifer. Under
natural conditions, there is a balance between the inflow and outflow
of an aquifer. However, when fresh water is removed from the aquifer
for use, or when replenishment of the aquifer is decreased, the fresh
water level of the aquifer is lowered. This change tends to permit
nearby salt water or minerals and salts found in the nearby soil to
move into the fresh water zone of the aquifer. Salt water intrusion
caused in this way is said to result from a reversal or reduction in
the pressure gradient.
An aquifer functions as a reservoir, a filter, and as part of the hy-
drological cycle, and is a public resource which must be protected by
water quality agencies. Though the problem differs in both kind and
magnitude in coastal and inland areas, salt water intrusion is a po-
tential source of pollution for all existing aquifers.
Though the specific controls have taken on unique characteristics in
different areas of the country, three basic approaches to the prevention
of salt water intrusion into underground aquifers have been attempted.
They are (1) controlling the removal of water from the aquifer; (2) en-
suring adequate recharge of the aquifer; and (3) constructing physical
barriers between the fresh water and the salt water.
An estuarine region is the intermediate zone between fresh water rivers
and open ocean. These regions are among the most biologically produc-
tive on earth and need to be protected by water quality management agen-
cies. In all estuarine systems, the essential process is one of mixing
between the waters of the ocean and the fresh waters from inland. The
fresh water inflow and tidal currents primarily determine the circula-
tion patterns. Estuaries and the coastal zones around them are affected
by land and water use throughout an associated river system.
Estuaries suffer from major alterations of fresh water inflow, particu-
larly where the changes accentuate natural fluctuations. Diminished
inflows from upstream, as well as increased salinity in the water ac-
tually delivered by the rivers, can have an adverse effect. Salt water
intrusion may reach further upstream, increasing the salinity of the
estuaries and decreasing the amount of mixing. This change has an ad-
verse impact upon estuarine ecosystems. For example, significant changes
in the flow of fresh water from the Susquehanna River into the Chesapeake
Bay could affect the Bay's oyster crop which thrives between certain
salinity limits.I/
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VIII-2
2.0 Control Techniques for Aquifers
Aquifer management can reduce the level of salt water intrusion in an
area. Until recently, except in a few water short areas such as Southern
California, there have been few economic or legal incentives for the
institution of management regimes. Groundwater is generally the cheap-
est source of supply since it need not be diverted and stored in man-
made reservoirs prior to distribution. The law has encouraged use of
the resource; both the doctrine of riparian rightsthe common law of
groundwaterand the law of prior appropriation, despite the substantial
variations between them, recognize capture as the basis for the acquisi-
tion of a right. As a result, only a few management techniques have
been applied. The most important are: (1) regulation of well construc-
tion to increase the efficiency of the withdrawal; (2) regulation of well
spacing much as oil and gas fields are unitized; (3) reduction in the
absolute amount of water pumped in a basin (reductions can be accomplished
by general permit systems or permit systems which only come into play
when there is a declared emergency, e.g., a critical overdraft); and
(4) the conjunctive operation of groundwater reservoirs to balance the
use of ground and surface supplies. Conjunctive operation includes pump-
ing withdrawals and methods of financing the purchase of surface supplies
for aquifer replenishment.
In recent years a variety of controls have been used. Florida and
California impose, under certain circumstances, standards for well con-
struction. Regulation of pumping, both by limiting the amount of water
removed and by creating good pumping patterns, can prevent the depletion
of an existing aquifer. Controls over pumping are illustrated by the
Virginia Groundwater Act of 1973 and the Santa Clara Valley Water Dis-
trict Act. An alternative to pumping controls is maintaining adequate
recharge. Such replenishment of a depleted aquifer has been accomplished
by special water replenishment districts in Florida and California. Other
areas, such as Volusia County, Florida; Dade County, Florida; and Amherst,
Massachusetts, are attempting to protect naturally recharged aquifers by
controlling land use through traditional zoning techniques. Finally,
the construction of physical barriers to prevent salt water from reaching
the aquifer's fresh water has been tried in several areas. The use of
injection wells to create new fresh water barriers in southern California
has had noteworthy success.
2.1 Standards for Well Construction
Standards for well construction can be used to protect and preserve the
groundwater supply in aquifers. Although poor well construction may
not be the principal cause of salt water intrusion, the problem of
aquifer contamination by salt water should be attacked from all possible
angles. Wells or other excavations that intersect aquifers bypass the
natural protection normally furnished to aquifers by nearby impermeable
materials and provide an avenue for the entrance of contaminants, such
as salt water. Salt water can enter during the drilling of the well,
its operation, or following its abandonment. The proper construction
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VIII-3
and destruction of wells can significantly reduce the impairment of
aquifers. _2/
California's state water code has provisions relating to water well
drilling._3/ It sets out a scheme whereby whenever the state Department
of Water Resources or one of the state's nine regional water boards
determines that conditions warrant the imposition of well construc-
tion standards to protect water quality, such standards must be written
by the affected cities and counties. The city or county ordinance
is subject to changes by the regional board, and if a city or county
does not adopt an ordinance or modify it to the regional board's satis-
faction, the regional board can adopt standards for water well construc-
tion which have the same force and effect as if adopted as a city or
county ordinance. Any action by a regional water board or any failure
to act pursuant to the water code may be reviewed by the state water
board on its own motion and must be reviewed by the state water board
on the request of any affected city or county.
Not as a result of the above provisions of the California Water Code,
but rather in recognition of its independent responsibility to prevent
the pollution or contamination of the district's groundwater, the
Santa Clara Valley Water District has imposed standards for both well
construction and well sealing.47 Although Santa Clara's regulation of
the sinking of wells reflects their current concern about the general
safety and purity of the wells in the area, the use of well construc-
tion standards is recognized as a potential and ready instrument in a
future fight against salt water intrusion.V Santa Clara Valley Ordi-
nance No. 75-6 includes standards for properly locating the well site,
requires an annular seal in the upper portion of the well to prevent
contamination from surface sources, and specifies construction require-
ments to prevent inter-aquifer transfer or mixing of degraded ground-
waters with good quality waters through wells. The standards apply
to all water wells and other permanent artificial excavations which in-
tersect aquifers. Hence, wells and other potential manmade paths for
salt water intrusion can be reached.
In Florida, the state water code requires the licensing of all persons
who want to engage in business as water well contractors.^/ The state
Department of Environmental Regulation administers an examination and
reviews licenses annually. Coupled with this limitation on who may
drill wells, Florida's state law gives the Department of Environmental
Regulation discretionary control over well construction, repair, and
abandonment. If the department deems it necessary to effectively
protect the state's groundwater resource, it may designate critical
areas where prior permission would be needed to build, repair, or de-
stroy wells.]_/ This power can be used to insure the proper placing of
wells. Regulating the location, depth, and spacing of wells has al-
ready been useful in preventing salt water intrusion in Florida.8/
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VIII-4
2.2 Limitations on Withdrawals from Aquifers
Salt water intrusion that results from a lowering of an aquifer's
fresh water level can be prevented by placing limits on the amount of
water withdrawn. This can be done independently of or in conjunction
with the regulation of how, where, and when a well may be built.
The perennial yield, or amount of water that can be safely taken from
an aquifer annually, is dependent upon tbe amount of water recharged
into that aquifer. If more water is pumped out than is recharged, the
level of the aquifer begins to fall. This overpumping, called mining,
is a direct cause of salt water intrusion. In coastal valleys it can
disrupt the natural equilibrium between the ocean water and the fresh
groundwater in the aquifers, while in inland areas it can allow the
inflow of inferior water from nearby rock materials.^/
In California, the Santa Clara Valley Water District uses a permit
system to limit pumping in the area. The meticulous control of pump-
ing along with the judicious location of wells within the district has
proved very useful in ensuring that the district's supply of under-
ground water is not depleted. Although it should be noted that salt
water intrusion has not yet been a major problem there, should a prob-
lem arise, the pumping controls already in existence can be adapted
to solve it.IP/
Water withdrawals in Kings, Queens, Nassau, and Suffolk Counties in
New York require the approval of the state Department of Conservation.
Permits can be conditioned or denied in the interests of conserving
available supplies.il/ By and large the litigated application rejec-
tions indicate that industrial users are sometimes denied permits to
insure that sufficient municipal supplies remain available.12/
If sufficient information is available on water levels and geologic
conditions, pumping can be controlled so that a maximum unit can be
pumped while the intrusion of salt water is stopped. It should be
noted that if the pumped water is for an overlying use, such as sup-
plying a small farm, the reduction in pumping which occurs as the wa-
ter starts to become saline acts automatically to apply this system
of control.13/
2.3 Protecting and Enhancing Aquifer Recharge
An alternative or supplement to the above discussed methods of protecting
an existing aquifer by controlling the removal of its fresh water is
to ensure adequate recharge of the aquifer, which can be achieved both
by enhancing its natural replenishment and by recharging the aquifer
artificially. The artificial recharge, or planned introduction of water
into an aquifer, can be accomplished either independently of, or in
conjunction with, the naturally occurring replenishment which results
from the percolation and infiltration of rainwater, irrigation water,
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VIII-5
and other surface waters. Traditional land use controls have been
used to protect and maximize naturally occurring replenishment as well
as to ensure effective artificial recharge. Artificial replenishment
of an aquifer is accomplished primarily through works designed to main-
tain high infiltration rates, increase wetted areas, and lengthen infil-
tration periods. \AJ Moreover, aquifers can be replenished simply by
applying imported water to the soil overlying the aquifer.
Human activity can impede the process of groundwater recharge. The
connection between improper land use and salt water intrusion is clear,
and proper care in land use decisions can be helpful in protecting and
maximizing the natural recharge of aquifers. Areas where the soil is
more permeable and porous are better for recharge and can be protected
by zoning restrictions from extensive development which would impair
their natural capabilities. Critical areas with high water tables,
highly porous soils, or a thin soil mantle, and aquifer recharge areas
should be identified and specially treated. Development in the recharge
area and accompanying coverage with impervious surfaces will impair re-
charge to the underlying aquifer by physically sealing the recharge area
to percolation, thereby increasing surface runoff and decreasing natural
replenishment.
It is difficult to regulate land pursuant to a consistent environmental
policy because there are no general standards against which to test the
validity of a development. Since there is no societal consensus to stop
developing land, there is no equivalent of a "no discharge policy" to
define "pollution free" land. Nonetheless land use planners have in
recent years attempted to use geological and hydrological studies to
determine the carrying capacity of land for various kinds of development.
One of the most sophisticated studies applying this concept into a series
of guidelines for community growth is a study for Medford, New Jersey,
which developed a set of performance standards for new subdivisions
based on environmental considerations. (See chapter 3, section 2.4 antl
chapter 6, section 4.1 for a more detailed discussion of performance
standards).
Likewise, a study of the Christina River Basin undertaken by the Uni-
versity of Delaware Water Resources CenterJJ)/ suggests the importance
of defining the functions and values of recharge areas relative to the
water yield of the aquifers as a necessary first step in evaluating
land use regulations tailored for such areas. The study concludes that
designing land use regulations which both maintain recharge areas and
allow some development best serves the public interest. The University
of Delaware researchers identified two regulatory options to protect
the present water yield of the Potomac aquifer recharge area under study:
either zone 64 percent of the land as an open space conservation area
and allow development of the rest, or zone the entire area for low den-
sity with the option of higher density if the developer provides conser-
vation measures to compensate for the loss of natural recharge.
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Bade County, Florida, recognized the need to control development in
the yet undeveloped southern portions of the county to insure the wa-
ter supply for both Miami and the Everglades National Park and com-
missioned a study which resulted in the drawing up of a master plan
that would limit urban development to certain areas. Primary and
secondary land for groundwater recharge would be designated, with dif-
ferent types of zones for each established. Urban development would
be concentrated into ridges of high ground that would not need dredging
or filling. The rest of the land would be divided between an intensive
agriculture zone; a recreation and agriculture zone; and a recreation
and limited agriculture zone.167
In Amherst, Massachusetts, the town's selectmen have adopted a policy
to protect its recharge areas and are considering several regulatory
techniques which, taken together, would constitute a unique and com-
prehensive' plan administered at the local level. The system that has
been recommended includes establishing a recharge zone which would re-
strict activities that particularly limit the recharge of water. Sug-
gested regulations include establishing minimum lot sizes; requiring
site plan approval; requiring a buffer layer between the water table
and the bottom of an excavation; limiting roads across aquifers; re-
quiring fiberglass tanks for fuel storage; inspecting septic tanks;
restricting the dumping of salted snow to selected areas; and estab-
lishing inspection wells to monitor the recharge area.17/
While the large aquifer which Volusia County, Florida depends upon
for its water supply is not presently being overpumped, this is likely
to change, and salt water intrusion is a potential problem there. To
control development in the area, and in an attempt to maximize natural
rainwater percolation, a recharge ordinance was passed. The Volusia
County Recharge Ordinance, recently allowed to expire, 18_/ had as its
purpose "the protection of the water resources of the county and the
prevention of the development or use of land in the potential recharge
area in a manner tending to adversely affect the quality of water."19/
The ordinance defined and mapped the recharge area and required per-
mits for virtually any change in land use, including construction,
clearing, agriculture, demolition, refuse deposits, dredging, or fill-
ing. The few exceptions were private recreation, agriculture which re-
quired no landfill or drainage, and previously existing uses. A com-
prehensive procedure was designed, adapting the environmental impact
statement as a regulatory mechanism. To obtain a permit, the applicant
had to describe the probable impact of the proposed action on the en-
vironment, any adverse impacts which could not be avoided, and alterna-
tives to the proposed action. The proposed development was evaluated
by the Planning Department, the Environmental Control Department, and
the Public Works Commission. The evaluations were submitted to the
Department of Developmental Coordination and then to the County Council,
which had to determine that there would be no adverse effects on the
potential water recharge area or on the maintenance of natural recharge
before a permit was issued. 20_/
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VIII-7
2.4 Use of Fresh Water Injection Wells
Another approach to the prevention of salt water intrusion into un-
derground aquifers is the construction of physical barriers between
the fresh water and the salt water. This approach is especially
suited to coastal areas and has been used successfully to prevent
seawater intrusion in California. Where recharge by surface spreading
is not feasible due to the presence of impermeable layers overlying
the aquifers, maintaining a barrier to saline intrusion by the in-
jection of fresh water through wells located along, or landward from,
the fresh water/salt water interface may be possible. In metropoli-
tan areas, where land values are too high to utilize the more common
flooding and ditch and furrow methods, the use of injection wells may
be more economically feasible.21/
Many attempts to recharge groundwater through injection wells have
had disappointing results. However, the Los Angeles County Flood
Control District is successfully operating large-scale injection well
projects to create and maintain a freshwater ridge to halt seawater
intrusion in the coastal plain of Los Angeles County. Favorable in-
jection rates have been maintained by conducting a comprehensive well
maintenance program. By periodically inspecting and cleaning the wells
and using only high quality water for injection, the usual problems
of silting and bacterial growths have been overcome.22_f Equally ef-
fective has been the Alameda Gap Area Project, a joint project of Los
Angeles County and Orange County, administered by the Los Angeles Flood
Control District. Because the aquifers there are relatively shallow,
very high pressure would be required if the injection barriers alone
were used. So, between the line of injection wells parallel to the coast,
there are extraction wells, which extract the salt as it moves inland
and send it back to the ocean.23/
3.0 Control Techniques for Salt Water Intrusion into Estuaries
Estuaries provide a natural barrier between salt and fresh water flows.
This natural barrier can be disturbed by the construction of upstream
diversion and storage works. During most of our history the emphasis
in water resource management has been upon preventing floods and increasing
supplies available for consumptive uses. Thus the law has only recently
turned to the problem of flow maintenace, either through the maintenance
of the status quo or through reservoir operation conditions which simu-
late the status quo.
There are two water law systems governing surface water in the United
States.2kJ Under the riparian system, prevalent in the eastern states,
a water right is incident to ownership of land which is physically ad-
jacent to a public water source. All rights along a stream have an
equal claim and the number of holders of such right is subject to in-
crease or decrease as ownership of the land changes hands. Each ripar-
ian is entitled to make a reasonable use of the water, taking into con-
sideration the needs and uses of other riparians. When there are competing
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VIII-8
uses, a court may decree an apportionment between the users, and
where the uses are totally incompatible, a court may prefer one use
over the other. Typically, domestic uses are given preference over
industrial uses.
The appropriation system is prevalent in the western states and bases
the water right upon beneficial use.^5/ Under this statutorily im-
posed doctrine, land ownership is irrelevant. A right is obtained
simply by taking water and applying it to a beneficial use, and may
be lost by ceasing to make such use. Unlike the riparian system,
where the water must be used on the riparian's land, the appropria-
tion system places no limitations on the place of use. As between
competing appropriations from the same source, priority in time is
determinative. Protection of flow maintenance presents legal problems
in both the riparian and appropriation systems, problems which will
be summarized briefly here and discussed in more detail in the "Legal
Issues" section below.
In its pure form the common or judicially created law of riparian
rights protects the status quo because no riparian can diminish the
quantity or quality of the stream as each user has a right to the nat-
ural flow. There are cases holding that the seasonal storage of water
in a reservoir is not a proper exercise of riparian rights, but the
natural flow doctrine has gradually been replaced by the reasonable
use theory which allows some diversion and storage. Further, reliance
on the natural flow theory of riparian rights is not a satisfactory
basis for the protection of flows in riparian states. It has never
been held that all riparians must let the water flow to the sea, which
is exactly what estuary protection requires. All that the law requires
is that the water flow to all riparian properties. In short, the com-
mon law is a law of private rights and public rights are accorded lit-
tle recognition.
There is, however, a significant feature of the reasonable use theory
which can support minimum flow maintenance policies. To encourage the
construction of reservoirs, states either by statute, constitutional
amendment, or judicial decisiontrimmed back common law riparian rights
to exclude flood waters. In many states these waters are said not to
be subjected to vested common law rights. Thus a state can either re-
quire them to be allowed to flow to the estuary or store them and re-
lease themfree of claims of vested rightsduring dry periods.
In the western states which follow the law of prior appropriation, flow
maintenance is more difficult. Flow maintenance has historically been
thought to be antithetical to the law of prior appropriation because
the purpose of the law was to get the water out of the stream. Techni-
cally this policy was implemented by doctrines which required an actual
diversion to perfect an appropriation and the requirement that water
be put to a beneficial use. Together these doctrines were used to deny
instream appropriations for instream uses. Recently the courts have
begun to retreat from these doctrines and hold that the state may appro-
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VIII-9
priate water for instream uses so long as vested consumptive rights
are not impaired. Instream uses are generally used to protect scenic
resources such as wild rivers and springs. Some states, however, are
experimenting with the broader concept of flow maintenance for envi-
ronmental objectives. This is the concept of minimum flow maintenance.
Base flows are set for a variety of environmental objectives which
clearly include water pollution prevention. New appropriations are
allowed, for example, in Washington, only where the volume of water
in the stream is sufficient 50 percent of the time to fulfill prior
vested rights.
3.1 Illustrative State Approaches to Minimum Flow Maintenance
Both eastern and western states are implementing minimum flow protec-
tion policies. Though estuarine protection is not a problem in Iowa,
depletion of the state's surface water is a potential problem. The
state statute that controls the issuing of permits to appropriate sur-
face water attempts to protect the surface water in a way that would
be useful in a fight against salt water intrusion. The statute re-
quires that permits be of short duration, issued only for beneficial
uses, and subject to a number of conditions specified in the act. The
distinctive feature of the Iowa statute is that a permit issued for a
"depleting" use must protect the average minimum flow of a stream.26/
The depleting use concept in the Iowa statute is vague. It is defined
broadly to mean any use which "might impair rights of lower or sur-
rounding users, or might impair the natural resources of the state or
might injure the public welfare if not controlled. "2_7/ The term is
used in only one section, and in administering the act the state water
commissioner has required permits of all regulated uses, whether the
source would be depleted or not.28_/
The concept of conditioning permits so as to protect average minimum
flow of a stream is an important feature of the Iowa statute. The
phrase "average minimum flow," though given a lengthy definition in
the act, was difficult to administer. The water commissioner apparently
decided that only permits for consumptive uses needed to contain a
condition relating to the protected flow of a stream. For the most
part, consumptive uses have been defined in practice to mean the use
of water for irrigation.^)/
How the average minimum flow of a particular stream should be deter-
mined was also a complex problem in Iowa. First, a statewide standard
for protecting the level of stream flows was agreed to by the state's
Natural Resources Council. It was a flow level "equalled or exceeded
by the stream involved 84 percent of the time between April and Septem-
ber in the past years determined to be most representative of normal
conditions."^)/ This standard was then adjusted for special circum-
stances existing in connection with each particular stream and its
tributaries. The past history of the flow of a stream was derived pri-
marily from data in the records of the U.S. Geological Survey. Further
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VIII-10
difficulties stemmed from the fact that several consumptive users might
deplete the source below the limit set for individual users. The State
Water Commissioner has, therefore, encouraged agreements among users.
These have quite effectively dealt with situations in which the flow
is above the protected level but is diminishing during late summer. 31/
In some riparian jurisdictions, minimum flows are established pursuant
to the public construction and operation of reservoirs. In Michigan,
the state water resources commission can establish minimum stream flows
to "safeguard the public health, welfare, and safety . . . ." More
precisely, minimum flows are established to carry out the purposes of
the Local River Management Act. ^7 Local governments within a water-
shed can establish a Watershed Council and a River Management District.
Councils are study bodies, but local river management districts can
construct storage and river control facilities. Minimum flows set by
the state limit the power of a district to impound water since all im-
poundment and control of water is subject to the minimum flows estab-
lished for the watershed and thus environmental protection objectives
can be accomplished through the watershed planning and management process.
Another way that salt water intrusion can be prevented is through the
state's power to deny and condition approaches on a "public interest"
standard. In the Colorado-Lavaca Basin watershed, the Texas Water
Rights Commission has used its control over permits to appropriate
water to control salt water intrusion. At a hearing on one permit to
appropriate water for farming, it was contended by those opposed to
the granting of the permit that during times of low water flow, salt
water intrudes. As a condition of issuing the permit, the Commission
required the applicant to design his diversion facilities in such a
way that he could not divert water until the stream is above a certain
flow.
The California experience with denying and conditioning permits accord-
ing to a "public interest" standard is particularly instructive. The
major technique used by the California Water Rights Board to protect
instream uses is the imposition of seasonal minimum flow schedules on
applicants who have been given the right to store water. Historically,
the Board has required the bypassing of the natural flow or restricted
the time during which water can be withdrawn. Initially, it required
such action as a result of persuasion from agencies, such as the Depart-
ment of Fish and Wildlife, which intervened in appropriation applica-
tion proceedings. Later, the power to deny an application on the ground
that it was inconsistent with the public interest came to include the
power to condition withdrawals on the maintenance of minimum flows for
fish and wildlife maintenance. Both the state and the Federal Power
Commission have made increasing use of these techniques in recent years.
Since 1972, the California Department of Fish and Game has been required
to make recommendations concerning the amount of water needed for preser
vation and enhancement of fish and wildlife resources.
The far-reaching impact on flow maintenace of state environmental policy
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VIII-11
acts and specific directives to maintain fish and wildlife is also
illustrated by the California State Water Resources Board's Water
Rights Decision 1379 setting minimum flow for the Sacramento-San
Joaquin Delta._34/ The Delta of the San Joaquin and Sacramento rivers
is a rich agricultural and recreational region depending on the main-
tenance of adequate fresh water inflows during the low flow months
to offset the intrusion of salt water from San Francisco Bay. Large
quantities of water flow across the Delta on their way to contract
beneficiaries served by the federal Central Valley Project and the
California State Water Project. The California State Water Resources
Board (and its successor) had been hearing appropriation applications
for these two projects since 1958 and had reserved jurisdiction to con-
dition withdrawals in order to prevent salt water intrusion and to pro-
tect fishery resources. After a long and complex series of proceedings,
the board decided that on the basis of legislative policy and the board's
statutory powers to condition permits so as to best develop, conserve,
and utilize in the public interest the water sought to be appropriated,
it has the authority not only to require the project operators to re-
frain from interfering with the natural flow required for proper salin-
ity control and for fish and wildlife in the Delta, but also to re-
quire release of a reasonable quantity of water stored under authority
of the operators' permits for these purposes. For the first time, the
board required that water stored under a previously granted permit might
have to be released to provide adequate supplies of water to maintain
public environmental benefits, as opposed to protection of discrete
existing users. The crucial question of who should pay for the release
of the previously stored water, however, remained unanswered.
It is one thing to tell an appropriator that water is unavailable for
appropriation because the public places a higher claim on it. It is
another to tell an appropriator that he must surrender some of the wa-
ter previously captured. In the Delta Water Rights decision, which is
being appealed, the state argues that all appropriators have long been
on notice that storage releases would be required to protect the sa-
linity balance. However, in other cases the notice may not be so clear
and difficult issues of who should pay for the releases will arise.
In the Delta Water Rights decision there were four classes of users
affected by the decision holders of prior upstream rights, Delta water
users, federal and state contract beneficiaries, and the general pub-
lic. The board lacked jurisdiction over the first two classes and so
it dealt only with the latter two classes. Further, the decision as
it now stands is only an interim decision. No releases were ordered,
so the decision does not resolve the question of who should pay. It
suggests, however, that the costs of flow releases should be allocated
between contract beneficiaries and the general public:
The Legislature has determined that an adequate
water supply for all uses in the Delta, including in-
dustrial and urban, must be maintained. It has indi-
cated that this may be accomplished by providing a
substitute water supply at no added financial burden
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to the users by virtue of such substitution ....
[T]he Department [of Water Resources] suggests that
the Board should distinguish between reimbursable
and nonreimbursable project costs and indicate those
who have responsibility for payment for benefits de-
rived from project operations. However, how much
those who receive benefits from the use of project
waters, either as the result of better quality water
or in other ways, should pay is a matter to be re-
solved by execution of repayment contracts with the
Department or to be determined by the Legislature
and not this Board .... Nowhere does the Board
find any California law which provides that the Delta
users shall be provided with supplies in excess of
their vested rights without payment. On the other
hand, depletions of water in the Delta are also
caused by diversions from upstream tributaries
that have been made by many metropolitan and ag-
ricultural systems for the last century or more.
California law provides no method by which all of
these diverters must share in the cost of maintain-
ing an adequate water environment in the Delta chan-
nels. Some streams have been drastically depleted.
The state and federal water projects have no effect
on many of these streams._35/
3.2 The Role of the Federal Government in Flow Maintenance
With regard to minimum flow maintenance programs, the role of the
federal government must be considered. By ownership of the public
domain or land adjacent to navigable rivers, the federal government
has the right to reserve water to fulfill the purposes of federal wa-
ter programs as well as the constitutional power to allocate water to
its contract beneficiaries. These federal rights are superior to all
state created rights arising after the date of the federal reservation,
not the date federal usage is initiated. Also, since federal reserved
rights are not quantified, all state minimum flow programs must be co-
ordinated with assertions of those rights, and a particular state pro-
gram may be frustrated if the purpose of the federal reservation re-
quires withdrawals along streams in which the state wishes to reserve
water.
Despite a consistent series of cases holding that federal water allo-
cation policies must prevail over state policies, it has been recently
argued that the National Environmental Policy Act of 1969 gives the
states the right to condition the operation of a federal reservoir.
In Environmental Defense Fund v. Armstrong ,36_/ for example, the plain-
tiff fund challenged the construction of the New Melonies dam in Cal-
ifornia, contending that the federal environmental impact statement
failed to consider adequately both non-structural alternatives and alter-
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VIII-13
native methods of using the stored water, as well as their respective
environmental impacts. The Environmental Defense Fund further argued
that the Bureau of Reclamation had failed to secure the necessary
state appropriation permit from the California State Water Resources
Control Board. Although the bureau objected to discussing alterna-
tive uses of the "conservation yield" because the reservoir would not
be filled for eight years, the district court held that a tentative
discussion of the best estimate was required and that the environ-
mental impact statement would be subject to later supplementation.
The court also held that it was impossible to evaluate the merits
of the proposed project until the bureau had obtained the necessary
permits.
Subsequently, the California State Water Resources Board decided to
grant the appropriation upon the condition that the bureau agree to
comply with 24 requirements relating primarily to the envi-
ronment. The board also reduced the amounts of water requested, grant-
ing permission to the bureau to fill the reservoir to one-fourth of
its proposed capacity during normal conditions. This capacity reduc-
tion was to be at the expense of storage for power generation in order
to ensure that water would be available for preservation and enhance-
ment of fish and wildlife, white water boating, and water control pur-
poses. The board left open the possibility that an increase in storage
would be permitted if a justifiable need were demonstrated in the fu-
ture, thus suggesting that the environmental uses could be displaced
by more beneficial uses. The bureau is presently contesting the per-
mit limitations on the ground that California cannot impose these con-
ditions on the federal government, and a federal district court has
held that the bureau is not bound by state law. United States v.
California 37/ held that the state cannot require minimum flow releases
for the New Melonies project, since the irrigation and power purposes
for which Congress authorized the project could not be achieved if the
California Water Resources Board decision were upheld.
3.3 Controls on Canal Building
The digging and draining of canals causes a lowering of the water table
and thus a change in pressure, which allows salt water to move in. This
can be prevented by restricting the building of canals, by requiring
the inclusion of barriers in actual design, or by building barriers in
already existing canals.
In Florida, as a result of the extensive digging of drainage canals in
the early 1900's, the water table no longer holds the ocean water in
check. In response to this problem, Florida's water code prohibits the
digging of canals beyond an established salt water barrier line.^38/ This
is a line inland of the coast beyond which "no canal shall be constructed
or enlarged, and no natural stream shall be deepened or enlarged, which
shall discharge into tidal waters without a dam, control structure or
spillway at or seaward of the salt water barrier line, which shall pre-
vent the movement of salt water inland of the salt water barrier line."39/
Lines are established by petition of local districts or county commis-
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VIII-14
sions, who must agree to pay the state Board of Conservation for any
expenses involved and enforce the line themselves. A public hearing
must be held before a salt water barrier line is established. Vari-
ances are allowed at the discretion of the Board of Conservation with
the concurrence of the agency that petitioned for the barrier line.40/
4.0 Institutional Arrangements: Intergovernmental Approaches
Agencies at the state level are generally the best prepared to handle
long-range planning to prevent salt water intrusion. They have the
required legal authority, the necessary flexibility, and the required
expertise to begin effective control of salt water intrusion. Broad,
minimal standards which would be applicable throughout the state should
be imposed by a state agency, allowing room for modification and re-
finement of the standards as the unique needs of particular areas with-
in the state become known.
In almost every state there are a variety of public districts which
may be created at the local or regional level to aid in the resolution
of specific water resource problems in specific areas. It is at this
level that one can expect to find a definite commitment to the pre-
vention and control of salt water intrusion. The unique problems of
the locality would be understood at this level as well as such other
factors as the relative cost and political acceptability of alternative
controls. Within the framework imposed by the state agency, such a
regional agency with a specific goal can most effectively control a
specific salt water intrusion problem in a given area. Thus, statewide
planning should be integrated with regional controls to best solve the
problem of salt water intrusion.
In California, Florida, and Virginia, for example, special districts
specifically designed to meet the peculiar requirements associated
with water basin operations work together with state-level agencies.
It should be noted that special districts have only those powers which
the state legislature has conferred upon them and such other powers as
are necessary and convenient to the exercise of these express powers.41/
All three states exemplify successful coordination between state level
agencies and regional or local level agencies. Without much duplica-
tion of effort, unique problems of particular areas are handled indi-
vidually by each district, while problems affecting more than one area
are dealt with by the state. The states are responsible for long range
planning and the integration of the actions of the several districts.
This is accomplished by imposing broad, general standards. Enabling
legislation, delegating specific authority and powers to the special
districts, allows them to deal with their special concerns within the
state agency's plans and minimal standards.
In California, while the Department of Water Resources and the state
Water Resources Control Board have joint responsibility for the admin-
istration and control of the state's water, water replenishment districts
may be organized in regions where the existing underground water supplies
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are insufficient to meet demands placed upon them and where further
excessive pumping without replenishment will destroy the usefulness
of the aquifer.42/
Formation of water replenishment districts in California may be begun
by petition, which is then referred to the state Water Resources Con-
trol Board for action. An investigation, followed by hearings, is
made for the purpose of determining (a) whether the persons and land
in the proposed district will actually benefit by planned utilization
of the groundwater basin, and (b) whether the boundary of the proposed
district includes all persons and lands which rely on the underlying
water supplies. Following the hearings, the boundaries of the proposed
district may be modified to include or exclude certain lands in accord-
ance with the benefits derived. 4_3/ The idea is to be sure that all the
people residing in the district share the benefits of the agency so
they can reasonably be expected to share the costs.
As authorized in California, water replenishment districts are speci-
fically empowered to buy and sell water; exchange water; distribute
water to persons in exchange for the cessation or reduction of ground-
water extraction; spread, sink, or inject water into the ground; store,
transport, recapture, reclaim, pump, treat, or otherwise manage and
control water for the beneficial use of persons in the agency; build
necessary works; and take action to protect water quality and water
rights of persons or property in the district. Finally, California's
water replenishment districts are authorized to levy assessments in
proportion to the quantity of water pumped from underground aquifers.447
After passage of the Water Replenishment Act in 1955, the Central and
West Basin Water Replenishment District was organized. The district
conducts an engineering survey each year to determine the groundwater
conditions and the amount of needed replenishment. A yearly replenish-
ment assessment is then levied and collected quarterly on each acre-foot
of water produced in the ensuing year. All the money is used solely
to buy and distribute water. Administrative expenses are paid for by
a property tax imposed on all people residing in the district. The
district uses its legislated power to arrange pumping patterns by con-
tracting with certain producers to use imported water instead of pumped
groundwater. The contracts, which do not nullify the producers' ground-
water rights, have reduced extractions and rearranged pumping patterns,
thereby decreasing the quantity of water needed to recharge the aquifer.45/
It should be noted that California's Water Replenishment District Act,
in order to avoid duplication of or overlapping with other water agen-
cies, provides that if an existing agency has adequate facilities to
accomplish any part of the replenishment program, that agency shall
investigate, determine the cost, and contract for the work.4_6/ The Cen-
tral and West Basin Water Replenishment District has used this provi-
sion to have the Los Angeles County Flood Control District carry out
the replenishment program at existing or future facilities of the Flood
Control District.
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In Florida, the Water Resources Act of 1972 vests in the state De-
partment of Natural Resources the responsibility to accomplish the
conservation, protection, management, and control of the waters of
the state with sufficient flexibility and discretion to accomplish
these ends through delegation of appropriate powers to water manage-
ment districts ,4-T/ The Department of Natural Resources may delegate
any of its powers to the water management districts, or, conversely,
exercise directly any statutory powers granted to the districts.
The state is divided by the act into five water management districts,
the boundaries of which "follow as nearly as practicable" natural
river basin boundaries. The management districts have the power to
do any act necessary to replenish the groundwater of the district.
Florida's water management districts are specifically empowered to
buy water; exchange water; distribute water to persons in exchange
for ceasing or reducing groundwater extractions; spread, sink, and
inject water into the ground; and store, transport, recapture, re-
claim, purify, treat, or otherwise manage and control water for the
beneficial use of persons or property within the districts._48/ Thus,
they are quire similar to California's Water Replenishment Districts.
The Florida Water Resources Act of 1972 is unique in that it provides
for the state to carry out a comprehensive plan regarding the licens-
ing and constructing of wells and the pumping of groundwater. The
coverage of wells by the statute is broad, though there are a number
of exemptions. In addition to the rules and regulations relating to
the method and manner of constructing wells, carried out by the use
of a permit system, there are provisions governing the conducting of
inspections and other regulatory functions necessary to adequately
regulate pumping in the state.4^9_/ While the formal requirements gov-
erning the issuing, modifying, and revoking of the permitsincluding
provisions for notice, hearing, subpoenas, taking testimony, making
findings and conclusions, and judicial revieware imposed at the
state level, they are administered by the regional Water Management
Districts.
In Virginia, the Groundwater Act of 1973 provides for comprehensive
control of the state's groundwater basins. The act authorizes the
state Water Control Board and the state Health Department to jointly
regulate and control the use of groundwater in critical areas of the
state. The Water Control Board may, either at its own discretion or
by petition from a city or county, initiate a critical groundwater area
proceeding whenever (1) groundwater levels in the area are declining
or have declined excessively; (2) the available groundwater supply in
the area in question is being or is about to be overdrawn; or (3) the
groundwater in the area in question has been or may be expected to
become polluted. Hearings are to be held to see if corrective con-
trols need to be adopted, and if so, the board may declare the area
in question to be a critical groundwater area. The order of the board
must define the general boundaries of the critical groundwater area
and must also indicate the exact location of specific aquifers.50/
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After a groundwater area in Virginia has been declared critical by
an order of the board, no groundwater may be used or wells constructed
or operated without a permit. However, permits are not required for
water for agricultural uses, human consumption or domestic purposes,
or any single industrial or commercial purpose in an amount less than
fifty thousand gallons a day. The use of groundwater for any such
purpose to the extent that it is applied to a beneficial use would
constitute a right to use equal to that established by a permit,
should the state be called upon to decide between two competing users.51/
An advisory committee of residents of the critical groundwater area
is formed in order to advise the board on the implementation of plans
and procedures for the control of groundwater in critical groundwater
areas. The board is specifically empowered to make rules regarding
permits in any critical area, to collect administration fees, to re-
quire that flowing wells be capped or equipped with valves, to impose
standards on well construction and operation, and to inspect the wells
in the area.52/
%
A unique provision of the Virginia Groundwater Act of 1973 is that
the board may encourage, promote, and recognize voluntary agreements
among groundwater users in the same critical groundwater area. If
the board approves such an agreement, then, until terminated, it con-
trols in lieu of any formal order, rule, or regulation of the Board.
The board may terminate any voluntary agreement when it finds it to
be inconsistent with the intent, purposes, and requirements of the
act.53/
In California, in addition to the Water Replenishment Districts
formed under the authorization of the state water code, other districts,
with several purposes, have been formed by special enabling legislation,
and are controlling salt water intrusion.
The Los Angeles Flood Control District was created by the Flood Control
District Act. The state legislature empowered the district to control
storm waters and conserve them for beneficial use. It is this power
which allows it to maintain and administer the injection well barriers
in the Domingus Gap Area Project, the West Coast Basin Barrier Project,
and the Alameda Gap Area Project.54 /
The Alameda Gap Area Project involves a basin which exceeds the juris-
dictional boundary of the Los Angeles Flood Control District, and is
a joint project of the Flood Control District and the Orange County
Water District, which was established in 1933 by a special act of the
California State Legislature.^/ The enabling legislation gives the
Orange County Water District the powers necessary to provide for the
general management of the county's massive groundwater basin, speci-
fically including control of seawater intrusion from the ocean into
underground aquifers. In 1953 the state gave the district the power
to assess a replenishment tax on all groundwater pumped from the basin
in order to pay for imported water needed for aquifer recharge.56/
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VIII-18
Another type of special district in California is that exemplified
by the Santa Clara Valley Water District, created by the state leg-
islature in 1951. The governing law, the Santa Clara Valley Water
District Act, provides the power to adopt and enforce ordinances
and to take any necessary action to "prevent contamination, pollu-
tion or otherwise rendering unfit for beneficial use the surface or
subsurface water used or useful in the district. "_5_7/ Ordinance No.
75-6 imposing standards on the construction and sealing of wells and
limits on the pumping of groundwater in the district was passed under
this authority.58/
5.0 Legal Issues
In evaluating the above described controls over salt water intrusion
and potential institutional arrangements to effect them, legal lim-
itations must be kept in mind. Every state has the power to make reg-
ulations in the best interests of the health, safety, and welfare of
its citizens. This "police power," though not unlimited, is exceed-
ingly broad. The three criteria necessary to sustain an exercise of
the police power are: (1) it must be enacted in furtherance of a
proper legislative purpose; (2) it must bear a reasonable, not an ar-
bitrary, relation to that purpose; and (3) it must not be discrimina-
tory. (See the general discussion of the police power in chapter 2 of
this handbook.) States clearly have the constitutional power to reg-
ulate the capture and use of water. The importance of water to a
state and its citizens makes its regulation by states appropriate
police power regulation.
Preventing salt water intrusion is clearly beneficial to the health
and welfare of the people, and the rational relationship of the
above described controls to the problem is evidenced by the success
they have had in the past. Instituting a permit system for the pump-
ing of groundwater, limiting development in aquifer recharge areas,
and maintaining minimum flows in surface waters are clearly related
to a legitimate state concern over salt water intrusion.^/
Although, in general, it can be said that the regulation of water
is a legitimate end of the state, specific applications of the regu-
lations have often been attacked on the ground that, as applied to
the particular property in question, they constitute a "taking" of
"vested property rights" without due process, prohibited by the fed-
eral and state constitutions. An evaluation of the merits of the
vested rights argument requires a determination of the nature of wa-
ter rights and the sense in which they are property.
Under the riparian system of water rights characteristic of the east,
both surface and groundwater rights exist because of land ownership,
and no use of the water is required to perfect them. Thus they can
be asserted at any time and they can be asserted against existing
users. When a riparian jurisdiction shifts to prior appropriation
or some form of hybrid permit system, riparians often argue that such
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VIII-19
a shift constitutes a taking of their vested riparian rights. Such
taking claims are often based on hypothetical situations, for there
is usually no showing that the pumper will be denied the right to use
the water he needs in the future.
Because most of the suits have involved claims to pump in the future,
the courts have held that a state may confine vested riparian waters
to consumptive uses in effect at the time of shift or uses which would
occur within some reasonable period of time in the future.60_/ Ripar-
ian claims based on landownership and not use are subject to regula-
tion by the state pursuant to its power to set the ground rules under
which property rights in common resources can be acquired.61/
Pumping cutbacks in an appropriation jurisdiction (generally, the
western states, see definition in section 3.0 above) raise equally
substantial constitutional questions when existing pumpers are cut
back. If pumping is prohibited in areas designated as critical sur-
face or groundwater basins, those denied the right to pump generally
have no standing to raise constitutional objections since the state
has the power to control unappropriated water and this power includes
the power to withdraw water from appropriation. Existing pumpers can-
not be cut back unless the court concludes that the pumping limitation
is inherent in the appropriative right. This is what California did
when it recognized the doctrine of mutual prescription (see the dis-
cussion of this doctrine in section 5.1 below). Arizona on the other
hand has not limited groundwater pumping except to deny new pumpers
the right to sink wells in designated basins. As a result of this,
Arizona faces serious overdraft problems including salt water intru-
sion.
5 1 Rights in Groundwater and Restrictions on Groundwatej:
Extraction
Placing limits on the amount of fresh water allowed to be pumped from
an aquifer in order to maintain a sufficient fresh water level to keep
salt water out of the aquifer would probably withstand a challenge
based on the "taking" issue.
California has developed an effective method of curtailing groundwater
pumping which sets the stage for subsequent conjunctive management in-
stitutions. In theory, under California law all property owners over-
lying a basin have correlative rights to use the supply, and if there
is a shortage, the curtailment burden must be shared. If, and only if,
there is a surplus can the supply be appropriated by users (generally
public entities) on land outside the basin. Surplus is defined as ?
supply in excess of the annual recharge and not the total groundwater
resource accumulated over time. Thus, when annual pumping levels ex-
ceed the replenishment rate, the basin is said to be an overdraft al-
though water which has accumulated over time remains in the basin.
In the celebrated opinion in City of Pasadena v. Alhambra,62/ the Cal-
ifornia Supreme Court converted both overlying and appropriative rights
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VIII-20
to prescriptive rights* to trigger conjunctive operation by putting
floors on the right to pump. In an -ingenious opinion, the court
held that once there was an overdraft, each overlying owner was pump-
ing adversely to himself as well as others, and thus each user had
to cut back to the proportion that his pumping during the prescrip-
tive period bore to the safe annual yield. All other groundwater
rights not exercised during the prescriptive period are lost.
In a subsequent trial court opinion the doctrine of mutual prescrip-
tion was extended to salt water intrusion prevention. Under Pasadena
v. Alhambra the prescriptive period starts to run when pumping exceeds
the safe annual yield. In San Luis Rey Water Conservation Dist. v.
Carlsbad Municipal Water Dist.63/ safe annual yield was extended to
the time that the basin is contaminated by salt water, even though,
in terms of quantity, pumping does not exceed the safe annual yield.
In a 1962 case, Central and West Basin Water Replenishment District v.
Adams,6_4/ the plaintiff sought an adjudication of water rights of all
pumpers in the central basin of Los Angeles County and a restriction
on their pumping. The complaint alleged among other things that a
continuing overdraft and lowering of water levels resulted in sea wa-
ter intrusion; that unless defendants' extractions were enjoined, con-
tinuing overdrafts would damage and destroy the basin by further sea
water intrusion which would constitute an irreparable injury; and that
to preserve the utility of the basin, extractions must be reduced to
prevent further sea water intrusion. The judgment placed restrictions
on groundwater extractions necessary to protect the quality of the
basin's water.65/
In a 1964 case, California Water Service Co. v. Edward Sidebotham &
Son? 66/ the plaintiffs filed suit to adjudicate water rights in the
West Basin and to enjoin the overdraft on that basin to prevent even-
tual depletion of the supply and permanent injury by salt water intru-
sion. The trial court found that annual overdrafts since 1932 had re-
sulted in continual lowering of the groundwater elevations, which per-
mitted salt water infiltration; that the overdrafts if allowed to con-
tinue unabated would result in a progressively increasing area of salt
water infiltration; and that this situation would lead to eventual
destruction of the groundwater in the basin and elimination of the
basin as a common source of water supply. The appellate court held
that the trial court had the authority to limit the taking of ground-
water to protect the supply.67/
^Prescriptive rights are rights acquired by adverse use. A person with
a recognized water right can lose the right if another person uses the
water for a long period of time in a manner inconsistent with the prior
claimant's right, and the prior claimant fails to assert his rights.
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VIII-21
While the continued reiteration of the doctrine set forth in the
Raymond Basin case (Pasadena v. Alhambra, discussed above), the ap-
parent acceptance of the equities embodied therein by a vast majority
of groundwater pumpers, and the continual decline of basin levels may
appear to indicate that limits on the right to pump groundwater from
aquifers will in the future be determined within such a framework,68/
a recent significant exception to the mutual prescription cases should
be noted. The case of City of Los Angeles v. City of San Feinando 69/
amended the "mutual prescription" doctrine and held that prescriptive
rights do not apply against public entities. Thus, the holding effec-
tively rules out any future "mutual prescription" settlements or judg-
ments in basins where some or all of the rights are held by public en-
tities. _70/ Of course, a public entity could still voluntarily agree
with other users to limit their pumping of an aquifer.
The future of using the courts to enjoin harmful pumping which allows
salt water intrusion is, therefore, unsettled. The procedure in Cal-
ifornia is further complicated, though perhaps in a necessary and pos-
itive way, by a provision in the California Water Code which gives the
Water Resource Control Board authority to enjoin and limit harmful
pumping in basins which are the subjects of court adjudications. Sec-
tion 2020 of the state water code spells out the procedure.^/ This
section of the water code has not, however, been applied in practice.72/
Where actions are brought to adjudicate underground basins in the
Southern California counties of Santa Barbara, Ventura, Orange, San
Diego, and Los Angeles, the State Water Resources Control Board may
seek injunctive relief to prevent serious sea water intrusion where
it is acting as court referee. After the board has filed its report
as referee, it may conclude that groundwater extractions, if not re-
stricted, would result in destruction of or irreparable injury to the
basin due to sea water intrusion before final judgment. If so, the
board may apply for a preliminary injunction to restrict pumping so as
to avoid such destruction or injury to the basin's waters during the
litigation period. However, the final judgment must equitably compen-
sate in quantities of water for variations between the rights on which
the preliminary injunction is based and such rights as are determined
in the final judgment .^73/
While plenary adjudication of all rights in a basin by a court may be
the most definitive and final answer to who has a right to what water,
administrative control of a state's water supply can be a legal and
effective way for a state to mold its water policy.
Regarding authority to recharge groundwater supplies through the use
of stored water, the California Water Code recognizes the deliberate
artificial recharge of a groundwater basin,^74_/ and the principles un-
derlying this statutory authority have been upheld by the courts. In
the leading case of City of Los Angeles v. City of jSlendale,75/ the
city of Los Angeles was allowed to both transport and store water in
the aquifer under the San Fernando Valley. Los Angeles was successful
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VIII-22
in its suit to prevent other municipalities from acquiring a right
to the imported supply conserved underground. ^76/ Glendale was re-
affirmed in City of Los Angeles v. City of San Fernando,111 in which
Los Angeles was given the right to store water it imported as well as
return flows produced by the water it imported.
5.2 Rights of Surface Owners Damaged by Underground
Storage Programs
Another form of taking can occur when a jurisdiction implements a
salt water intrusion program, and replenishment water damages surface
uses. Quarries are frequently injured by storage programs since the
area being mined can be flooded. A California district court of appeals
held in Alameda Water District v. Niles 7_8/ that an overlying landowner
who is injured by the storage of water has no damage or equitable ac-
tion for injuries against the entity storing the water. A quarry, which
was depleting a groundwater basin and impairing a replenishment program
in the course of trying to pump enough water to work its quarry, sued
the water district for a million dollars in damages and the district
sued to enjoin the quarry from pumping out the replenishment water.
The trial court denied the quarry's inverse condemnation action for
damages and limited its right to pump to the historic groundwater lev-
els in the district. The court based its decision on an analogy to the
California groundwater doctrine of correlative rights which gives each
overlying pumper a right to only a reasonable amount of water in order
to protect the common interest of all overlying owners. The trial court
reasoned that overlying landowners also had an "acknowledged public
servitude" to raise underground water levels to their historic maximum
level. Just as each pumper must limit his pumping in the interests of
an equitable distribution of common supply, so must each overlying owner
refrain from using his land in such a manner as to impair a public stor-
age program undertaken for the benefit of all groundwater users in the
basin.
5.3 Legal Issues with Respect to Maintenance of Minimum Flow
5.3.1 Rights in Surface Water and Limitations on its
Diversion Under a Riparian System
To generalize, riparian states possess the power to implement a mini-
mum flow program by declaring the waters within their jurisdiction pub-
lic and either storing them and releasing them in dry periods or by
limiting the rights of riparians and others to divert or impound in
a manner inconsistent with the preservation of minimum flows. Only
a riparian with a preexisting consumptive use should be able to claim
compensation if such a program interferes with a' riparian use. For
example, under this approach an industry which discharges into a river
has no vested right to the natural assimilative capacity of the river.
A constitutional challenge to a statute imposing a permit system (with
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VIII-23
conditional permits over the use of surface water) on holders of com-
mon law riparian rights would probably arise only during a period of
water shortage. The most likely complainant would be the irrigator
since he is the primary consumptive user of water. He is the one most
likely to be adversely affected by a minimum flow restriction. 79_/ The
typical irrigator would not have a valid constitutional claim. Though
the user is required to obtain a permit and to pay a fee for it, this
is not a substantial deprivation. His permit states a limit to the
amount of water he can take, and the limits are probably sufficiently
high that he can take all he can use. As long as the water in the wa-
tercourse remains above the minimum flow, the irrigator would be in no
worse position than he was under the common law.^0/
Even when the minimum flow is reached and no futher water can be taken,
the irrigator is adversely affected by the act only to the extent that
the established minimum flow exceeds the point at which he would have
been denied further access to the watercourse under the "reasonable use"
theory of the riparian rights doctrine. It is doubtful that this rela-
tively minor imposition is sufficient to outweigh the benefit derived
by the public from the guarantee of a certain minimum flow in the states'
streams.81/
Professor N. William Hines has suggested that a provision be included
in the statute which sets up the permit system which would effectively
avoid the possibility of the act being held to have unconstitutionally
destroyed valid rights. Such a provision should require all persons
claiming rights to use the states' waters as the result of interests
acquired prior to the effective date of the act to file their claims
with the commissioner before a certain date or the right to enforce
their claims would be barred. Any claims filed within the period would
have to be closely examined and if a meritorious claim turned up it
would have to be recognized, but it is likely that not many such rights
would be claimed, and that fewer could be substantiated.82/
The ability of a state to control intrusion of a canal system by con-
structing a barrier was upheld in Carmazi v. Board^ of_Cpunty Commissioners
of Bade County.83/ The case involved the Little River Canal which ex-
isted before the Flood Control District was formed. The canal had or-
iginally been a natural stream. Bade County had installed a salinity
control dam in the canal portion without providing for navigation. The
suit was brought by several landowners who lived landward of the dam
and contended that they were damaged because the location of the dam
prevented their access by boat to Biscayne Bay. They claimed they had
riparian rights of which they were now deprived and so were entitled
to compensation. The court decreed that navigation itself was a public
right, but that the only riparian right was the right to enter the wa-
ter body adjacent to the property. Loss of access to the bay was, there-
fore, not compensable.j34V
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VIII-24
5.3.2 Rights in Surface Water and Limitations on its
Diversion Under an Appropriation System
Historically three doctrines of the law of prior appropriation have
limited the ability of public entities to appropriate water for min-
imum flow maintenance. First, all water must be put to beneficial
use. Second, an appropriation can only be perfected by an actual
diversion; the water must be taken out of the stream. Third, it is
often said that the state "owns" the waters within its jurisdiction
in a "sovereign" rather than "proprietary" capacity; hence the state
can only deny citizens the right to use waters, it cannot acquire
rights on an equal footing with its citizens.
The policy behind the beneficial use doctrine is a crude recognition
of correlative rights among appropriators in order to prevent the
"evils" of speculation and monopolization of a common supply. A use
is not beneficial if it is grossly inefficient compared to appropria-
tion customs in the area. Early cases rejected an appropriator's
claim to the entire or a substantial portion of the flow of a stream
on the ground that the use was too inefficient compared to the needs
of other water users, and thus it was not beneficial. The actual
diversion doctrine also rests on the prevention of speculation as well
as the policy that physical diversion works give notice of prior claims
to other potential appropriators. The notion that a state cannot ac-
quire rights because its ownership is only as a sovereign, is a 19th
century effort to eliminate the state as a competitor for resources and
thus promote private enterprise.
None of these doctrines are relevant today, and they should not be
used to deny public instream appropriations to preserve minimum flows.
A carefully coordinated minimum flow program is a legislative or ad-
ministrative recognition that instream uses are valuable, and thus
one can no longer argue that minimum flows are a grossly inefficient
use of water. If the water is valuable instream, there is no reason
to require that it be removed, so the reason for the actual diversion
requirement has ceased. The third doctrine is no longer applicable in
an era ;:h-rp we recognize the value of public rights to environmental
quality. The most recent western state to consider these issues, Idaho,
upheld an appropriation to preserve a spring system against all the
standard appropriation challenges, thus the case suggests that in the
future minimum flows can be integrated into the appropriation system.85/
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CHAPTER EIGHT
SALT WATER INTRUSION
FOOTNOTES*
1. National Water Commission, Water Policies for the Future 30 (Washing-
ton, D.C., 1973).
2. Iwamura, Standards for the Construction of Wells (Santa Clara, Cal.:
Santa Clara Valley Water District, 1975).
3. Cal. Water Code §§ 13800-13806 (Deering).
4. Santa Clara Valley Water District Act, § 5(5).
5. Telephone conversation with Albert Henley, general counsel for
Santa Clara Valley Water District (July 1975).
6. Fla. Stat. § 373.323.
7. Id. § 373.313.
8. F. Maloney, S. Plager, and F. Baldwin, Water Law and Administration:
The Florida Experience 94 (1968).
9. American Society of Civil Engineers, Ground Water Management No. 40,
at 9 (1961).
10. Telephone conversation with Albert Henley, supra note 5.
11. N.Y. Envir. Conserv. Law § 15-1527 (McKinney).
12. E_._g_., In re Long Island R.R. Co., 50 State Dep't Rep. 93 (N.Y. 1934).
13. American Society of Civil Engineers, Ground Water Basin Management
No. 40, at 89 (1972).
14. Ground Water Management, supra note 9, at 72.
15. C. Thurow, W. Toner, and D. Erley, Performance Controls for Sensitive
Lands 30 (American Society of Planning Officials Planning Advisory
Service Report Nos. 307, 308, 1975). See also Joachim Tourbier,
Water Resources as a Basis for Comprehensive Planning and Development
in the Christina River Basin (Univ. of Delaware Water Resources
Center, 1973).
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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VIII-FN-2
16. Thurow, Toner, and Erley, supra note 15, at 32.
17. Id. at 33. See also Dale Pope, Planning for Ground Water Protec-
tion: Amherst, Massachusetts, A Case Study of the Hydrogeologic
Implications of Land Use on an Unconsolidated Aquifer 67-72 (Dec.
1972).
18. Telephone conversation with official in Volusia County, Florida
(Aug. 1976).
19. Aquifer Recharge Ordinance of Volusia County, Florida, Ordinance
No. 73-9, § 2.
20. Thurow, Toner, and Erley, supra note 15, at 31-32.
21. Ground Water Management, supra note 9, at 86.
22. Telephone conversation with Jim Rencillio, Los Angeles County
Flood Control District (July 1976).
23. Id..
24. For general discussions of the law of water rights, see 1 and 2
W. Hutchins, Water Rights Laws in the Nineteen Western States (1971);
J. L. Sax, Water Law Planning and Policy: Cases and Materials
(Indianapolis: Bobbs-Merrill, 1968); and R. Dewsnup and D. Jensen,
A Summary Digest of State Water Laws (1972).
25. For a discussion of western water law, see sources cited in note
24 supra.
26. Iowa Code § 455A.2.
27. Id. § 455A.1.
28. Dewsnup and Jensen, supra note 24, at 306.
29. Id., at 307.
30. Id.
31. J-d. at 308.
32. Mich. Comp. Laws Ann. § 323.301-.318 (1975).
33. Telephone conversation with A. E. Richardson, Texas Water Rights
Commission (April 8, 1976).
34. Delta Water Rights Decision, No. 1379 (Cal. State Water Resources
Control Bd. July 1971).
35. Id. at 14-15.
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VIII-FN-3
36. 352 F. Supp. 50 (N.D. Cal. 1972), supplemented, 356 F. Supp. 131,
affd, 487 F.2d 814 (9th Cir. 1973), cert, denied. 416 U.S. 974
(1974).
37. 403 F. Supp. 874 (E.D. Cal. 1975).
38. Fla. Stat. § 373.033(1).
39. Id.
40. Id. § 373.033(2)-(5).
41. Peter Davis, Institutional Design for Water Quality 142 (Univ. of
Wisconsin, 1970).
42. Ground Water Management, supra note 9, at 130.
43. Id.
44. Dewsnup and Jensen, supra note 24, at 152.
45. Id., at 151.
46. Id. at 152.
47. Fla. Stat. § 373.069.
48. Id. § 373.106(2).
49. Id- § 373.309-.339.
50. Va. Code § 62.1-44.83-44.103, § 62.1-44.95-.96.
51. Id. § 62.1-44.97.
52. 16.. § 62.1-44. 92.
53. Id. § 62.1-44.91.
54. Telephone conversation with Jim Rencillio, supra note 22.
55. 1933 Cal. Stats, act 5683.
56. Orange County Water District Act, § 27.
57. Santa Clara Valley Water District Act, § 5(5).
58. Santa Clara Valley Water District Ordinance No. 75-6, §§6 and 7.
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VIII-FN-4
59. See, e_.£. , Hatcher v. Board of Supervisors, 165 Iowa 197, 145 N.W.
12 (1914), in which the Iowa Supreme Court spoke extensively to
the state's right to regulate water for the greater collective
benefit of the public. The court recognized that water was an
important "public" resource and therefore a proper subject of
police power regulation.
60. Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962).
61. See Waite, "Beneficial Use in a Riparian Jurisdiction," 1969
Wis. L. Rev. 864. As Professor N. William Hines has pointed out
in his article, "A Decade of Experience under the Iowa Water Permit
System," 8 Nat. Res. J. 46 (1968), riparian rights are "property"
only in a very limited sense. The common law riparian owner had
no property rights in the water of a stream, but only a restricted
right to use it. This right is subject to similar rights in all
other riparian owners on the watercourse, as well as to applicable
federal and state laws.
62. 33 Cal.2d 908, 207 P.2d 17 (1949), popularly known as the Raymond
Basin case.
63. No. 184855 (San Diego County, Gal. Super. Ct. Aug. 3, 1959).
64. No. 786, 656 (Los Angeles County, Cal. Super. Ct., filed Jan. 2,
1962).
65. Id.
66. 224 Cal. App. 2d 715, 37 Cal. Rptr. 1 (1964).
67. Id.
68. Sax, supra note 24, at 474.
69. Cal. Super. Ct., May 12, 1975.
70. California Department of Water Resources, California's Ground Water
126 (Bulletin No. 18, 1975).
71. Cal. Water Code § 2020 (Deering).
72. M. Bookman, "Legal and Economic Aspects of Salt-Water Encroachment
into Coastal Aquifers," in Salt Water Encroachment into Aquifers
175 (Louisiana Water Resources Research Institute, Louisiana State
Univ., 1968).
73. Cal. Water Code §§ 2000-2048 (Deering).
74. Id. § 1242.
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VIII-FN-5
75. 23 Cal.Zd 68, 142 P.2d 289 (1943).
76. Id.
77. Supra note 69.
78. 37 Cal. App. 3d 924, 112 Cal. Rptr. 846 (1974), hearing denied,
Cal. Sup. Ct. (May 8, 1974), cert, denied, 419 U.S. 869 (1975).
See Gleason, "Water Projects Go Underground," 5 Ecol. L. Q. 621
(1976).
79. Hines, supra note 61, at 50.
80. Id.
81. Id. at 51.
82. Id. at 52.
83. 108 So.2d 318 (1959).
84. Id.
85. State, Dep't of Parks v. Idaho Dep't of Water Admin., 96 Idaho 440,
530 P.2d 924 (1974). See generally A. Dan Tarlock, "Recent Devel-
opments in the Recognition of Instream Uses in Western Water Law,"
1975 Utah L. Rev. 871.
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CHAPTER EIGHT
SALT WATER INTRUSION
SUGGESTED READINGS
American Society of Civil Engineers. Ground Water Management No. 40.
New York, 1961.
. Ground Water Basin Management No. 40. New York, 1972.
Carter, Luther J. The Florida Experience. Baltimore: Johns Hopkins
University Press, 1974.
Dewsnup, Richard L.; and Jensen, Dallin W. A Summary Digest of State
Water Laws. Arlington, Va.: National Water Commission, 1972.
Gindler, Burton; and Holburt, Myron. "Water Salinity Problems: Ap-
proaches to Legal and Engineering Solutions." Natural Resources
Journal 9 (1969): 329-400.
Gleason. "Water Projects Go Underground." Ecology Law Quarterly 5
(1976): 621.
Hines, N. William. "A Decade of Experience under the Iowa Water Permit
System," Part 1. Natural Resources Journal 7 (1967): 499-554.
. "A Decade of Experience under the Iowa Water Permit System,"
Part 2. Natural Resources Journal 8 (1968): 23-71.
Hutchins, Wells A. Water Rights Laws in the Nineteen Western States,
vols. 1 and 2. U.S. Department of Agriculture, Natural Resource
Economics Division, Miscellaneous Publication no. 1206. Washing-
ton, D.C., 1971.
International Symposium on the Salinity of the Colorado River. Natural
Resources Journal 15 (1975): no. 1.
Johnson, Corwin W. "Legal Assurances of Adequate Flows of Fresh Water
into Texas Bays and Estuaries to Maintain Proper Salinity Levels."
Houston Law Review 10 (1973): 598-640. (also NTIS PB 222-036)
Johnson, Ralph W. Legal and Institutional Problems in the Management of
Salinity. University of Washington, 1973. (NTIS PB 244-730)
Louisiana Water Resources Research Institute. Salt Water Encroachment
into Aquifers. Louisiana State University, 1968.
Maloney, F.; Plager, S.; and Baldwin, F. Water Law and Administration;
The Florida Experience. Gainesville, Fla.: University of Florida
Press, 1968.
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VIII-SR-2
Moore, Charles; and Snyder, Herbert. "Some Legal and Economic Implica-
tions of Sea Water Intrusion: A Case Study in Ground Water Manage-
ment." Natural Resources Journal 9 (1969): 401-19.
Robie, Ronald. "Some Reflections on Environmental Considerations in
Water Rights Administration." Ecology Law Quarterly 2 (1972):
695-731.
Sanderson, James W. "Is the Federal Water Pollution Control Act Really
an Impediment to Energy Development in the West?" Paper presented
at the Conference on Energy and the Public Lands sponsored by the
Environmental Law Institute and the University of Utah College of
Law and Division of Continuing Education, Park City, Utah, Aug.
1976. Mimeographed.
Tarlock, A. Dan. "Recent Developments in the Recognition of Instream
Uses in Western Water Law." Utah Law Review 1975: 871.
Thurow, Charles; Toner, William; and Erley, Duncan. Performance Controls
for Sensitive Lands. Planning Advisory Service Report, nos. 307, 308
(American Society of Planning Officials, 1975).
Waite. "Beneficial Use in a Riparian Jurisdiction." Wisconsin Law
Review 1969: 864.
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CHAPTER NINE
MINING
TABLE OF CONTENTS
1.0 Introduction IX-1
1.1 Mining Methods and Pollution Problems IX-1
1. 2 Methods of Pollution Abatement IX-2
1.2.1 Surface Mines IX-2
a. Sedimentation IX-2
b. Acid Drainage IX-2
1.2.2 Deep Mines IX-3
1. 3 Federal Controls IX-3
2.0 Statutory Authority for Control of Pollution from
Mining Activities IX-5
2.1 State Level Controls IX-5
2.1.1 Reclamation Statutes IX-5
2.1.2 Mine Sealing Statutes IX-6
2.1.3 Water Pollution Control Statutes IX-6
2.1.4 Other State Regulatory Authority IX-7
2.2 Regional Controls IX-8
2. 3 Local Controls IX-9
3. 0 Appropriate Level and Agency of Government IX-9
3.1 Interstate Agencies IX-9
3.2 State Agencies IX-10
3.3 Regional (Intrastate) Agencies IX-11
3.4 Local Agencies IX-11
4.0 Planning, Operational Controls, and Standards IX-12
4.1 Critical Areas IX-12
4. 2 Exploration Permits IX-13
4.3 Mining Permits IX-14
4. 4 Operating Requirements IX-15
5. 0 Administration and Enforcement IX-16
5.1 Reporting IX-16
5 .2 Inspections IX-16
5. 3 Permit Renewals IX-17
5.4 Bonding Requirement s IX-17
5.5 Permit Revocation and Denial IX-19
5.6 Citizen Suits IX-19
5.7 Injunction IX-19
5.8 Penalties IX-20
6.0 Abandoned Mines IX-20
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7.0 Legal Issues , IX-22
Footnotes
Suggested Readings
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CHAPTER NINE
MINING
1.0 Introduction
Mining activities in the United States cover a broad range of methods
used and resources sought. Most mining activities have the potential for
producing some form of water pollution, whether correctable (such as sedimen-
tation from small sand or gravel quarries) or exceedingly difficult to
abate (such as acid runoff from giant coal mines). Attempts to control
pollution from mining have not generally been sucessful until recently.]Y
Metals such as iron and copper, nonmetals such as sand, gravel, and
stone, and fuels such as coal and uranium are the principal resources
recovered by mining. They will not be discussed individually except
where there is a pollution problem unique to the particular resource
being mined.Coal, however, will be discussed, since it is responsible for
so many water pollution problems resulting from mining activities._2/
1.1 Mining Methods and Pollution Problems
There are basically two different kinds of mining methods: underground,
or deep mining, and surface mining. Deep mines may be differentiated
by either the kind of chamber left after mineral extraction or the nature
of their entryways._3/ Surface mining is usually performed by stripping,^/
open pit, or dredging methods.
The principal pollution problems resulting from mining operations
are sedimentation and acid drainage. Sedimentation is primarily associated
with surface mining, where large expanses of unconsolidated materials,
often of a highly erodable nature, are exposed to runoff. Deep mining also
causes sedimentation but on a smaller scale, from roads constructed
for haulage and from piles of wastes (spoil) cast out from the mine.
Acid drainage is present in both deep and surface mining. Acid formation
typically results from the exposure of a substance such as pyrite to air
and water which causes it to oxidize. This creates acid and ferrous iron
which then can be leached into nearby surface water and groundwater
and which, when fully oxidized, result in acid, sulfates, and iron oxide or
"yellowboy."
Pollution problems resulting from mining acitvities do not usually
stop when the mining operation is halted. Abandoned mines, both
surface and underground, can continue to pollute almost indefinitely
unless corrective measures are taken. In 1973, abandoned mines were the
largest single source of acid mine drainage pollution in the United
States. 5_/ Abandoned mines should be a major concern of any pollution abate-
ment program and will be discussed in section 6.0 of this chapter.
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1.2 Methods of Pollution Abatement
1.2.1 Surface Mines
a. Sedimentation
Of the two most serious pollution problems from surface mining, sedimentation
and acid drainage, the former is the most easily controlled. In the planning
stages, sedimentation may be abated through careful site selection. In
locating a surface mine, consideration should be given to the steepness
of the area to be mined, the makeup of the overburden and spoil that will be
removed, and the amount of water that will run through the area. Mine
locations in arid or alpine areas are extremely difficult to revegetate
and should therefore be avoided.
Certain construction and operation techniques can substantially reduce
sedimentation from mines. The first step may be creating drainage structures,
above the site, to keep runoff from flowing through the open cut and, below
the site, to check velocities and catch any sediment. Pipes, ditches, dams,
channels or other water control devises may be used for this purpose,
depending on the nature of the mine and the quantity of water to be
diverted. This should be followed by the separation, removal, and
safeguarding of the topsoil portion of the overburden, which will substantially
facilitate the revegetation process when the mine is regraded and the topsoil
replaced. j3/
The mine should be operated to ensure that the minimum area and overburden
are exposed at any given time. In area strip mining, this entails filling,
grading, and revegetating one trench as a new one is dug. In a contour
mine, this might mean using a technique such as the box cut.7_/ Any
overburden or waste that is exposed at any particular time should be
protected against erosion with temporary revegetation or some other form
of protective covering. If, as is often the case, erosion cannot
be completely prevented, it might become necessary to build a series of
holding ponds to allow the sediment to settle out before it enters nearby
rivers and streams.
As soon as possible after the mineral is removed, the mine excavation
must be refilled, regraded, and the surface returned to either its approximate
original contour J3/ or a usable, nonpolluting topography. After regrading,
the topsoil should be restored and revegetation begun.j)/
b. Acid Drainage
Acid drainage and other polluting runoffs from surface mines may be
controlled with much the same methods used to control erosion and sedimentation.
In the planning stage, sites should be selected to minimize oxidizable
and pollution-producing materials and the seepage of surface and underground
waters.
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When surface mining is conducted where pollutants are present, it is
important that such materials be handled in a way that minimizes pollution.
This can best be accomplished by isolating and protecting them from water
flow or seepage. Spoil piles awaiting reclamation should be covered, and
both surface water and groundwater should be prevented from coming in
contact with them. If it is impossible or impractical to prevent the
leaching of pollutants from a surface mine, then the polluted runoff itself
should be treated. Treatment can be effected through the use of
of settling ponds, evaporation ponds, or, as is most commonly practiced
with acid runoff, lime or limestone neutralization.10/
1.2.2 Deep Mines
The major difference between the control of pollution from deep mining and
that of surface mining is the method used to prevent acid drainage. There
are three ingredients necessary for the production of mine acidthe oxidizable
material associated with the mineral being mined, air, and water. If
one of these three components is eliminated, the acid will not be produced.
The site-selection process should be used to minimize the presence of
oxidizable materials and excessive water. Avoidance, however, is often
impossible, so steps must be taken to treat the acid produced or to reduce
the rate of oxidation. In active mines it is difficult to reduce the
rate of oxidation since normal condensation provides enough water to form acid,
and the removal of the air presents obvious practical problems.ll/
Once the acid has been formed, its impact may be reduced or eliminated by
controlling the flow of water through the mine and treating the effluent
that flows or is pumped from the mine. Treatment may be carried out in a
number of ways, but lime or limestone neutralization is most frequently used.12/
Acid drainage from an abandoned mine does not lend itself well to treatment
because the problem is likely to continue indefinitely, and the cost
of permanent treatment would be prohibitive. However, it is possible to
reduce or eliminate the formation of the acid by removing the air from the
mine. This may be most sucessfully accomplished by flooding the mine,
but often flooding is not practical.JJJ/ Air seals can be used instead;
they are, however, less effective since it is difficult for them to completely
prevent air from entering the mine.14/
Methods of abating pollution from mining activities, although discussed
separately above, are not totally independent and will often be used in
conjunction with each other. The use of erosion-prevention techniques does
not necessarily eliminate the need for settling ponds, and even when
acid drainage has been reduced, it may still be necessary to treat
the effluent from a mine.
1.3 Federal Controls
The Federal Water Pollution Control Act Amendments of 1972 15/ (FWPCA)
is the major piece of federal legislation concerned with pollution from
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mining on nonfederal lands. The National Pollutant Discharge Elimination
system established by section 402 of the FWPCA requires that a permit be issued
by the administrator of EPA or under an approved state program for the discharge
of a pollutant from a point source. This includes point source pollutants from
mines such as effluents from "any discernible, confined and discrete conveyance."16/
It does not include nonpoint source pollutants fco.m mines such as much of the
sedimentation and drainage. Section 208(b)(2)(G) of the FWPCA requires that
water quality management plans include "a process to (i) identify, if appropriate,
mineral related sources of pollution including new, current, and abandoned surface
and underground mine runoff, and (ii) set forth procedures and methods (including
land use requirements) to control to the extent feasible such sources."
Other federal laws governing control of pollution from mining activities
are generally concerned with activities taking place on federal lands.
The principal legislation that deals directly with the question of water pollution
is the Federal Coal Leasing Amendments Act of 1975.17_/ The act requires that
the Secretary of the Interior or the Secretary of Agriculture, if national
forest lands are involved, prepare a comprehensive land use plan for any
area for which a mineral lease is sought._18_/ Before issuing a lease, the secretary
must consider the possible effects of the proposal on the environment, but he is
specifically barred from denying the lease on this basis. 1.9_/ The act further
requires that after the lease is granted but before the lessee takes any action
that might significantly disturb the environment, he must submit an operation
and reclamation plan, which the secretary can either approve, disapprove, or
require to be modified. 20/
Pursuant to the Mineral Leasing Act of 1920, 21/ the Department of the Interior
(DOI) has adopted rules and regulations governing the issuance of leases 22]
and the operation of mines 23/ involving federally-owned coal. This regulatory
authority extends to areas beyond simply the public lands, for under the Stock
Raising and Homestead A^t the United States reserved the subsurface mineral
rights when granting surface rights to public lands._24_/ Under regulations
recently adopted pursuant to the Mineral Leasing Act, the Department of the
Interior proposes to apply state laws and regulations if after review it
determines that they "afford general protection of environmental quality and
values at least as stringent as would occur under exclusive application
of [DOI's standards] ."_2_5/ The application of state laws and regulations
is restricted by the reservation that they will not be used if they "would
unreasonably and substantially prevent the mining of Federal coal in such
State," and "it is in the overriding national interest that such coal
be produced without such application of such requirements."26/
The above regulations go on to require that DOI consult with representatives
of states where the development of federal coal is taking or will take place,
for the purpose of formulating and entering into agreements
to provide for a joint Federal-State program with respect
to surface coal mining reclamation operations for administrative
and enforcement purposes. Such agreements shall, whenever
possible, provide for State administration and enforcement
of such programs, provided that Federal interests are
protected.277
DOI has proposed the application of Wyoming's 28/ and Montana's 29/
reclamation statutes, but several important provisions have been omitted.
The Montana and Wyoming provisions designating lands unsuitable for
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surface mining 30/ and the Wyoming provision requiring the surface owner's
consent prior to commencement of mining operations 31/ have been eliminated in the
proposed federal application of the laws.
DOI's failure to adopt the entire state law raises a substantial question: can
a state apply its own stricter regulatory program to the mining of federal coal,
or is it preempted by the DOI's regulations? The Mineral Leasing Act provides:
Nothing in this chapter shall be construed or held to affect
the rights of the States or other local authority to exercise
any rights which they may have, including the right to levy and
collect taxes upon improvements, output of mines, or other rights,
property, or assets of any lessee of the United States.32/
This section has been held to allow state taxation of federal leasehold operations, 33/
and police power regulation to the extent of allowing state oil and gas policy
regulations to apply to federal leases._34_/ Whether or not state reclamation
statutes may apply, however, is the subject of considerable dispute._35/ DOI's
position is that state reclamation laws can be applied unless their effect is to
prohibit mining of federal coal. The state of Wyoming has brought
suit to test this position, 36/ and until that case has been decided
the question will remain unresolved.
There are other federal laws regulating mining in specific areas,
but because they lack general applicability it is unnecessary to discuss
them here.37/
2.0 Statutory Authority for Control of Pollution from Mining Activities
Regulation of mining activities in order to reduce or eliminate water pollution
is a controversial and complex process. This chapter will discuss
various methods have been or could be used to control pollution from
mining activities and will point out the possible advantages or disadvantages
that they present. First the existing statutory development that might be
used will be discussed, and then the elements of an overall program
will be presented ar/d analyzed.
Statutory authority for the control of pollution from mining activities
may be found in different legislative programs and at different levels
of government. In this section, the programs that are or could be
used and the limitations of their coverage will 'be briefly discussed.
While different statutory schemes and levels of government are discussed
separately, a comprehensive program for control of pollution from
mining activities may need to draw on several of the approaches reviewed
here.
2.1 State Level Controls
2.1.1 Reclamation Statutes
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At the state level, pollution from mining activities may be subject to
controls from several different statutory programs. The most directly
applicable are reclamation statutes. As of December 1975, 38 states had
some form of reclamation program, 38/ but the coverage of these
statutes varies substantially. Most acts are applicable only to the
recovery of specific minerals, and apply only to surface mining since
it creates more obvious problems than deep mining.39/
2.1.2 Mine Sealing Statutes
States with reclamation statutes not applicable to deep mining sometimes
provide for the plugging of abandoned mine shafts as part of their
mine safety acts.^40/ These provisions are designed to prevent entry
into the mine. With some modificaton they might be used as a method of
requiring airtight or watertight sealing of deep mines to prevent acid
formation.
Pennsylvania had modified its mine sealing statute so that it is
specifically directed toward the prevention of water pollution. The
statute requires that "operators engaged in the mining of coal in this
Commonwealth shall, upon the abandonment of a mine, seal any and all
openings leading from such mine to the surface through which water may
flow into any of the streams of this Commonwealth and through which
appreciable quantities of air may enter the mine."41/ The act goes
on to define mine sealing as "the closing of openings into a mine in
such a manner as to minimize or stop the pollution of the waters of
the Commonwealth by mine water and to prevent access to the mine by
persons or animals."42/
2.1.3 Water Pollution Control Statutes
Of more general applicability are state water pollution control
statutes. These are occasionally made specifically applicable to
pollution from mining activities but more often than not, mine-related
pollution will only be controlled by the general language of the
statute. Maryland's general water pollution control statute 43_/
is a fairly typical example of a statute whose language is not specifically
applicable to pollution from mining activities, but is general enough
to cover it and is in fact used to require a mine operator to obtain
a permit before he may discharge a pollutant into the waters of the state.
The act requires that a permit be obtained by
any person intending to construct, install, modify, extend,
alter:, or operate any industrial commercial or recreational
facility or disposal system or any state owned treatment
facility or any other outlet, or establishment, the operation of
which would result in or be capable of causing a discharge
of pollutants or an increase in the discharge of pollutants into
the waters of the State. . . . 44/
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Regulations promulgated under the act define discharge as "the addition,
introduction, leaking, spilling, or emitting any pollutant to waters
of the state, or the placing of any pollutant in a location
where it is likely to pollute."45/
In West Virginia, the Water Pollution Control Act 46/ requires
that a permit be obtained from the Department of Natural
Resources in order to:
open, reopen, operate or abandon any mine, quarry or
preparation plant, or dispose of any refuse or industrial
wastes or other wastes from any such mine or quarry or
preparation plant; Provided, that the department's
permit shall only be required wherever the aforementioned
activities cause, may cause or might reasonably be expected to
cause a discharge into or pollution of waters of the State.47/
West Virginia's act is used principally to regulate discharges
from deep mines or coal processing operations, since discharges from
surface mines are regulated under the West Virginia Surface Mining
Reclamation Act.^8/ The Water Pollution Control Act applies to all
operations or proposed operations that will discharge into the waters
of the state. Only operations with closed water systems would be exempted
from its requirements.
In Pennsylvania, the Clean Streams Law is made even more directly
applicable to all phases of mining activities. Under the Clean
Streams Law, a permit is required for all mining operations, including
"preparatory work in connection with the opening or reopening of a
mine, backfilling, sealing and other closing procedures, and any other
work done on land or water in connection with the mine.'%9/ A permit
is also required for any discharge from a mine, including "a discharge
which occurs after mining operations have ceased. "_50_/ This kind of direct
applicability helps to eliminate any confusion about authority
to control pollution from mining and mine-related activities. The
principal problem with the use: of water pollution control statutes is
that they often are directed only at point source discharges, and
are not or cannot be used to control nonpoint sources that are the cause
of much of the pollution from mines.
2.1.4 Other State Regulatory Authority
Other state programs that are being or could be used to control
pollution from mines at the state level include land use planning
and soil conservation programs. Virginia51_/ and Florida,52/
for example, have a critical areas designation process for areas
of special environmental importance deserving of special protection.
Once such areas are designated, standards and criteria are adopted by
the legislature or responsible agency to insure that these areas are
used and developed in such a fashion as to preserve their unique character.
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In Virginia, no legislation has been adopted to protect these areas;
however, the fact that the Green Springs area has been designated as
critical was used in support of arguments opposing strip mining there.
In Florida, development which must be regulated in areas of critical
state concern is specifically defined to include mining operations.53/
In Hawaii, the Land Use Commission exercises zoning authority over
the entire state.J54/ State lands are divided into four classifications
urban, rural, agricultural, and conservation. In all of these except
urban (where permitted uses are determined by local governments), mining
would require a permit from the commission. A permit might be restricted
as necessary to bring the use in keeping with the overall purposes of
the land use program.
Soil conservation and sediment control statutes are principally concerned
with construction in urbanizing areas and with agricultural and silvicultural
practices.jx5_/ However, some erosion and sediment controls apply to
mining as well. Maryland's law, administered by soil conservation
districts, requires that:
Before any person clears, grades, transports or otherwise
disturbs land for any purpose including, but not limited
to constructing buildings, mining minerals, developing golf
courses, or constructing roads and streets, the appropriate
soil conservation district first shall receive, review, and
approve the proposed earth change. Land clearing, soil
movement, and construction shall be carried out in accordance
with the written recommendations of the soil conservation
districts regarding control of erosion and siltation and
elimination of pollution.j>6/ (emphasis added)
2.2 Regional Controls
There exist few regional agencies with authority to regulate pollution
from mining activities. The San Francisco Bay Conservation and Development
Commission, which has jurisdiction over San Francisco Bay, 57/ requires
that a permit be obtained from it by "any person or governmental agency
wishing to place fill, to extract materials, or to make any substantial
change in use of any water, land or structure, within the area of the
commission's jurisdiction."^/ This provision would cover any mining
activities that might be attempted in the bay.
The Ohio River Valley Water Sanitation Commission (ORSANCO) is an
interstate agency concerned with the abatement of water pollution in the
Ohio River Basin. The compact creating it gives the commission the
authority to promulgate rules, regulations, and standards for control of
sewage and industrial wastes discharged or permitted to flow into those
portions of the Ohio River and its tributaries that are in two or more
signatory states.59/ At first, acid mine drainage was exempted from
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the definition of industrial wastes, but in 1960 ORSANCO adopted a resolution
endorsing control measures for acid mine drainage abatement.^)/ This
resolution has been instrumental in encouraging signatory states to
remove mine drainage from an exempt category of industrial waste
discharge.j>lY ORSANCO regulations have the force of law, but due
to the nature of the commission's charter they are difficult to
enforce. Before ORSANCO may take action against an individual
in violation of its regulations, it must have the assent of the majority
of the commissioners from a majority of the states, and, more important,
it must have the assent of a majority of the commissioners from the
state in which the violation is taking place.
Other interstate compacts generally similar to ORSANCO that are concerned
with the control of water pollution and might be used to authorize, or
at least encourage, the control of pollution from mining activities are
referenced in the footnotes ._6_2/
2.3 Local Controls
Local control of water pollution from mining may be derived from
land use planning and zoning authority. The language in Georgia's
zoning enabling statute is typical; it empowers the local governing
authorities to adopt zoning regulations for the purposes of "promoting
the health, safety, morals, convenience, order, prosperity,
or general welfare of the municipality or county or both."Ji3/ A recent
case, Georgia Marble Co. v. Walker, 64 / held chat under this statute a
local government could require a special zoning permit from a mine operator
even when the operator had already obtained a permit under the Georgia
Surface Mining Act of 1968.65/
A similar case in Pennsylvania, Appeal of Mutual Supply Co., 66/
upheld a municipality's right to prohibit the mining of coal within
its jurisdiction based on its general zoning authority. West
Virginia is an example of a state whose planning and zoning enabling
act specifically authorizes local governments to regulate mining
activities. _67/ Wyoming, on the other hand, specifically denies them that
authority.68/
3.0 Appropriate Level and Agency of Government
Reclamation, water pollution, and land use control programs should
function interdependently in order to eliminate pollution from mining
activities. Unfortunately, this is not always the case. The overlapping
responsibilities and divergent interests of the various agencies and
governmental bodies involved can create confusion and unnecessary duplication.
3.1 Interstate Agencies
The interstate compact, such as ORSANCO, should provide a good
method for coordinating programs and reducing duplication. When
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the area covered by an interstate compact is an entire watershed, it
represents the ideal geographic area within which to deal with pollution
problems. The principal concern of most interstate compacts is information
gathering and dissemination. This function should not be underrated
because it can and should provide the affected states and local governments
with the technical means to formulate coordinated and effective control
programs.
The usefulness of an interstate compact may be substantially limited by
political restraints. States are understandably reluctant to give up
any authority, particularly in an area as controversial and economically
important as mining. They are, therefore, hesitant to create an
interstate commission to serve anything other than an advisory function.
Even when real regulatory authority is granted, enforcement is procedurally
hobbled. j>9/
3.2 State Agencies
The state level, where the authority to regulate pollution from mining
activities is most commonly found, probably represents the most
practical level from which to exercise that authority, since the
greatest expertise and resources are available there. In many states,
the basic authority for the control of the discharge of pollutants is
in one department and the authority for regulation of mining activities
in another. 70_/ This is not necessarily bad if there is adequate
delineation of authority and duplication of effort is avoided. Duplication
of effort may be avoided by a statutory provision such as Virginia's multiple
permit process which allows an applicant needing a permit from more than
one state environmental regulatory agency to make a single unified
application to the administrator of the Council on Environment, who
may "consolidate, coordinate and expedite the permit review process
including but not limited to the elimination of redundant or overlapping
procedures ; consolidation of any formal hearings . . . and coordination
of the processing of permits."71/
The split of authority between agencies can have a beneficial effect
by reducing the possibility that a single agency's orientation might
make it favor certain values and goals over others. The responsible
agencies will tend to oversee each other to ensure that their
particular interests are not being ignored.
Having a single agency responsible for all parts of the mining operation
does, however, administratively simplify the control of pollution.
Pennsylvania, which at one time had substantial fragmentation of
responsibility, reorganized all the responsible agencies into the
Department of Environmental Resources. In this reorganization, much
of the interagency division of responsibility was retained, but at the
departmental level. This provides for sufficiently broad representation
to ensure that all interests are protected, but, at the same time, provides
a single administrative unit to exercise authority over all phases of
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a mining operation.
3.3 Regional (Intrastate) Agencies
Regional regulation of mine pollution has a number of advantages. It
can be structured to deal with specific problems that might be unique
to a particular region whose jurisdiction is broader than a county's
but narrower than a state's. Regulations could be tailored to suit the
needs of a specific region, and need not be applied to areas of the
state for which they are inappropriate. Control, though, would still
be exercised over an entire geographic unit, whose size would justify
a staff sufficiently large to effectively regulate mine pollution. However,
besides the San Francisco Bay Conservation and Development Commission
which is only peripherally concerned with mining, there are few, if any,
intrastate regional commissions directly concerned with the abatement
of mine-related pollution.
3.4 Local Agencies
At the local level, regulatory capability is limited. Local officials
are not likely to have t'he expertise necessary to control mining
in order to eliminate pollution. The nature of pollution from mining
activities is also such that it is usually a multijurisdictional
problem that individual localities cannot readily correct. However,
particularly in the absence of a state siting program, local governments
through the exercise of their zoning authority can ensure that mining
activities do not take place in areas where they would be incompatible
with maintaining environmental quality and with future land uses.
Soil conservation districts also provide local administrative authority
that can be used to control harmful effects of mining on water quality.
They are concerned with the control of sedimentation and erosion, two
major problems from mining, and offer the same advantages of familiarity
with local problems and accessibility claimed for other local govermental
agencies. (Soil conservation districts are discussed in some detail in
chapter 6, section 3.3.1 and chapter 7, sections 2.1.2 and 2.1.5.)
An interesting compromise between local and state administration is
contained in California's Surface Mining and Reclamation Act of 1975.7_2/
That act provides that the overall policy and standards under which surface
mining operations are to be conducted be established at the state level
by the state Mining and Geology Board. The actual granting of permits
and admininstration of the act, however, is left to the local governmental
unit within whose jurisdiction the proposed mining operation is to
take place. This legislative arrangement certainly improves state
and local cooperation and clarifies areas of responsibility, but it has
a substantial drawback. Although the local government may consult the
state geologist for assistance in reviewing a permit application and
reclamation plan, and the plan must be drawn according to state guidelines,
the ultimate responsibility for determining its adequacy rests with the
local governmental body.7_3/ As a result, the most difficult administrative
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decision, that of predicting the environmental risks involved in a given
mining proposal, is left up to the level of government with presumably
the most limited resources and expertise.
4.0 Planning, Operational Controls, and Standards
A basic program of pollution control from mining activities should address
the following facets of the operation, regardless of the mining techniques
used: critical areas, exploration, location and plan, operation, and
abandonment and reclamation. Within these general areas there may be
a great deal of variation, but before a sucessful program of pollution
control may be established, each general area must be considered. In
discussing how various states have dealt with these areas, reclamation
statutes have been relied upon extensively, since they apply most
directly to mining operations. However, there is no reason why these
regulatory procedures could not be part of other statutory schemes.
These regulatory options are discussed in the order in which they
afreet a mining operation.
4.1 Critical Areas
One of the most important and perhaps most frequently neglected
methods for controlling pollution from mining activities is designation
of critical areas in which, due to their unique value or high pollution
risk, no mining activity may take place. In Texas, the Railroad Commission,
which administers the Surface Mining and Reclamation Act, 74/ may designate
certain lands off-limits to all or to certain types of surface mining. The
decision to designate these lands must be based on five criteria set
out in the act: (1) the feasibility of reclamation; (2) the risk of damage to
renewable resources such as water supplies or food or fiber production;
(4) the likelihood of flooding or unstable geology; and (5) effects on
any park or damage to any public road or building. 75.7
The designation process in Texas cannot begin until an application for
a mining permit is made in an area for which there is an outstanding petition
for designation. If the commissioner determines that a petition
is valid, he must hold a hearing at which affected parties may present
evidence in support of their positions. Although the criteria
established in the Texas act are good, substantial discretion is
left in the hands of the administrator by allowing him to determine
the validity of a petition. Also, because designations are not made
until a permit is applied for, uncertainty will remain in areas in which
mining has not yet been attempted.
Ohio grants even more discretion in its designation process. In its
Strip Mining and Reclamation of Mined Land Act, 76/ it provides
that the "chief [of the Division of Reclamation] may [emphasis added],
by rule, designate as unsuitable for strip mining" 77/ certain ecologically
critical, unique, or publicly valuable areas. In North Dakota, surface
mining is prohibited in areas where reclamation is determined to be
impossible, 78/ and in Maryland, surface mining may not be conducted
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on slopes of more than 20 percent.7J3V Flexibility is retained in the
North Dakota procedure, since the determination of whether reclamation
is impossible is left up to the Public Service Commissioner. However,
if it is determined that reclamation is impossible, or if criteria like
those specified in the Texas statute exist, discretion in the designation
decision should be limited.
A major weakness in all the critical areas designation procedures that
are part of reclamation statutes is that they do not include deep mining
operations. This is a particularly unfortunate shortcoming in eastern
coal-producing states because the authority to ban deep mining in
areas of high sulfur content could be an extremely successful method of
controlling acid mine drainage. However, this weakness could be corrected
if a critical areas designation process were included in a state land
use control program, as in Florida and Virginia, 80/ since it could
encompass all incompatible activities.
4.2 Exploration Permits
Exploration activities are conducted, although on a smaller scale,
much the same way mining activities are and cause many of the same
water pollution problems that an actual mining operacion does. Therefore,
it is important that any comprehensive pollution abatement program
include regulation of these activities.
West Virginxa requires that, in an area not covered by a surface
mine permit, a permit be obtained from the Department of Natural
Resources before excavating equiment may be used to remove overburden
for the purpose of exploring for coal.81^/ In order to obtain a permit,
an applicant must submit a map of the seam to be explored, a complete
reclamation plan, and a performance bond to insure that the reclamation
is completed. Reclamation may be postponed if the exploration permit
is exchanged for a surface mining permit. This provision would
appear to adequately control surface exploration, though it does not
cover underground exploration.
In Montana, unlike most other states, state law is sufficiently
comprehensive to bring virtually all forms of mining exploration
under regulation. The Montana Hard Rock Law requires licensing of all
persons engaged in exploration. 82_/ To obtain a license, an applicant
must submit a map of the area proposed for exploration, sufficiently
detailed to locate the area to be explored and to determine whether
significant environmental problems would be encountered. A reclamation
and revegetation bond must also be submitted.^/ If a license is
granted, the licensee must agree to construct his temporary roads and
conduct his drilling and excavating operations in a manner established
by the Department of State Lands._84_/
Under the Montana Strip and Underground Reclamation Act, a permit
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must be obtained to prospect on lands not covered by a valid strip
or underground mining permit. To acquire a permit, an applicant
must submit a map of the area to be explored, and a reclamation
and revegetation plan.85/
4.3 Mining Permits
Perhaps the most important device for the control of pollution from
mining, and certainly the most widely used, is the permit required before
the acfutal mining operation begins. Either through its denial or
the imposition of conditions within it, this permit provides the best
opportunity to ensure that a mining operation is conducted in a way
that will minimize water pollution.
Pennsylvania provides a good example of the elements necessary for an
effective permit program.j$6/ There an applicant must provide the
Department of Environmental Resources (DNR) with:
A. a map or a plan showing
1. the location of the land affected;
2. the drainage above and below affected lands;
3. the location of all streams;
4. the results of the test borings showing the nature
and depth of the various strata;
5. an analysis of any coal, mineral seam and overburden; and
B. a detailed reclamation plan including
1. the highest and best use before mining;
2. the proposed use after reclamation;
3. the manner in which topsoils will be segregated;
4. the manner by which the soil and fill will be compacted;
5. a complete planting program designed to permanently
revegetate;
6. a plan for recontouring, or in lieu thereof, terracing
or other alternatives that will not pose water
pollution risks;
7. a timetable for the implementation of this plan;
8. an explanation of how acid drainage and siltation or
other stream pollution will be avoided.
DNR then reviews the application, making further inquiries and inspections
as may be necessary. If DNR objects to all or any part of the application,
it is required to notify the operator in writing and give him the opportunity
to correct the objectionable aspects. No action taken by the department
is final until the applicant has had the opportunity to appeal to
the Environmental Hearing Board.8T,/ The board is a quasi-judicial, three-
member panel empowered to hear appeals from decisions made by the
Department of Environmental Resources.
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A shortcoming in Pennsylvania's permit application is thai it does not
require the operator to submit a plan of proposed operating procedures.
As a result, an opportunity to regulate and plan operating procedures
on an individual basis is lost. In Virginia, by contrast, a separate
operations and drainage plan must accompany the permit application and
reclamation plan. The plan must contain "the proposed method of operation,
including the manner, time and distance for back filling and grading
work where appropriate, and stating the nature and extent of anticipated
adverse disruptions and injurious effects, . . . [and] proposed control
techniques to minimize or prevent such disruptions or effects."88/
With respect to drainage, it shall include plans, if necessary, for
sediment ponds, drainage above the highwall, bench drainage, permanent
stream protection, and acid treatment. 8_9/ Through the use of an
operation and drainage plan, an agency may ensure, before a permit
is granted, that the mining itself will be conducted in such a manner
as to reduce of eliminate water pollution. If such plans are not
required, operating procedures can only be controlled after the
permit is granted, by regulations like those discussed in the next
section.
The permit procedures discussed above apply only to surface mining operations,
a shortcoming common to many reclamation statutes. Since the water
pollution causes and effects are similar, these procedures could, however,
easily be applied to at least the surface-disturbing aspects of deep mining
operations, as in New York 90/ and Oklahoma.^l/ Montana not only
controls the surface-disturbing activities resulting from underground
mining, but also requires that a permit application for underground
mining include "cross-sections and maps showing the proposed underground
locations of all shafts, entries, and haulageways or other excavations
to be excavated during the permit year."^/ This requirement affords
the Department of State Lands the opportunity to regulate the design
of a deep mine in order to reduce water quality deterioration while
it is operating and to facilitate sealing it when it is abandoned. The
department may not approve a permit application unless, on the basis
of the information set forth in the application, water pollution control
and reclamation of the area can be accomplished in a manner which will
maintain the state's clean environment and prevent the degradation
of its natural resources.93/
4.4 Operating Requirements
No matter how extensive, the gathering of information and the preplanning
that go into the permit application and approval procedures do not
always provide sufficient basis for projecting and preventing all forms
of water pollution that might occur. Therefore, regulations governing
the operation of a mine should be imposed above and beyond the restrictions
contained in the permit. These regulations should usually be quite general
in order to retain a high degree of flexibility. Rather than setting
specific standards, they ought to provide parameters within which mining
operations must be conducted. In Virginia, operating regulations only
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provide time limits within which grading and backfilling must be
begun (60 days following the removal of the mineral) and methods for
stockpiling coal, treatment of toxic material, covering of the pit,
grading of spoil, and grading of the final bench.94/
West Virginia's regulations governing the operation of surface mines are
much more detailed. They provide specific standards for haulageways,
drainage facilities, methods of operation, revegetation and evaluation
of vegetative cover._95/ The drainage system regulations 96/
provide minimum standards for constructed drainways, sediment control,
and water quality control. In addition, they set minimum quality standards
for water leaving the permit area.9]_/ Although this level of detail
in the regulations may inhibit administrative flexibility, it does
provide basic guidance for both the operator and the regulatory agency.
Such detailed standards also allow consistent control of mining
methods, and serves as a framework within which the operating plan
can be prepared and evaluated. However, in promulgating detailed
standards, care should be taken to avoid a situation in which a
variety of problems arising from different methods cannot be taken into
consideration. For example, a provision in regulations 98/ promulgated
under Kentucky's strip mining statute _99/ which required construction
of drainage diversion facilities was suitable for contour mining in the
eastern part of the state put proved impossible to use in area mining
operations in western Kentucky.100/
5.0 Administration and Enforcement
Permits, conditional permits, and regulations governing mining procedures
are of little use if they are not accompanied by sufficient procedures
for supervision and enforcement capabilities. A discussion of various
supervisory and enforcement provisions follows.
5.1 Reporting
The most common supervisory technique is a reporting requirement.
Maryland requires that mine operators submit a report once a year
describing the extent of the mining conducted during the year, the
amount and type of reclamation carried out, and estimates of the extent
of the next year's operation. This is to be accompanied by a map showing
the same information. 101/ Most reporting procedures are similar to Maryland's.
Some states, including West Virginia 102/ and Texas, 103/ leave
determination of the reporting interval up to the regulatory agency.
West Virginia also requires the operator to analyze and report to the
director of the Department of Natural Resources any sizable accumulation
of stormwater or breakthrough of water caused by his operation.
5. 2 Inspections
The reporting procedures described above are, of course, only as
reliable as the operator submitting them. They should be accompanied
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by moi itoring and onsite inspections by agents of the responsible
regulatory department. The inspections should be of sufficient frequency
and throughness to determine whether or not the permit, reclamation plan,
and departmental regulations are being complied with. Virginia
specifically provides for onsite inspection only after the mining and
reclamation plan are completed.104_/ In Pennsylvania 105 / and Texas, 106/
inspections are conducted at the discretion of the regulatory
agency or the inspector himself. In Colorado, 107/ inspections
must be performed annually. In West Virginia, they must be performed
at least every 15 days. 108/
Different circumstances will require different intervals of inspection;
it is, however, safe to say that provision for inspection only
after the mining and reclamation are complete, as is the case in Virginia,
is inadequate. Irregular inspections performed at frequent intervals,
as required in Texas and Pennsylvania, should be adequate to ensure
compliance if conscientiously administered, but fixed and frequent
intervals like West Virginia's would be the safest way to ensure compliance.
5.3 Permit Renewals
A potentially highly effective method of supervising mining operations
is to require frequent permit renewals. In West Virginia, an operator
must renew his permit every year, and his renewal application must
contain "such information as the director may reasonable require."109/
The renewal shall be granted if the "operation is in compliance with the
provisions of the [Surface Mine and Reclamation] Act."IIP/ This
requirement affords a regulatory agency an excellent opportunity to
review an operator's activities. On the other hand, in jurisdictions
such as Maryland, where a permit can be issued for a period of as
long as 25 years, 111/ the opportunity is lost.
5. 4 Bonding Requirements
The most important and most frequently used method of ensuring compliance
with pollution abatement and reclamation plans is a bond requirement.
Generally, the operator is required to post a bond before his permit is
granted and, as his reclamation progresses, that bond is either gradually
released or held until the entire reclamation program is completed.
Virtually all reclamation statutes have some sort of bonding provision.112/
The potential effectiveness of these provisions varies substantially,
depending on the sufficiency of the bond required and the procedures
involved in its release.
Several states, such as Michigan and New Mexico, give ther permit-granting
agency the option to require that a bond be posted. In Michigan, the
bond option is exercised when the chief of the Geological Survey Division
of the Department of Natural Resources "has reasonable doubts as to an
operator's financial ability to comply."113/ In New Mexico, a bond
is required "[wjhenever the commission finds it necessary to insure compliance
with the Coal Surface Mining Act."114/ These types of provisions tend
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to defeat the purpose of a bonding requirement, which should provide an
automatically available fund for reclamation if an operator fails
or refuses to reclaim. The financial reliability of an operator may
change during the term of a permit, and even if it does not, it may still
prove difficult to extract sufficient funds from him to perform the
necessary reclamation. Unless the operator is seeking a new permit, he
has no incentive to comply until he is forced to do so.
Iowa and South Dakota have bonding requirements that leave the amount
of bond to the discretion of the permit-granting agency. In Iowa,
the standard for determining the amount is the "estimated cost of
rehabilitation" 115/ based on factors such as topography, mining
methods, depth and composition of overburden, and depth of the mineral
deposit. In South Dakota, the standard is "an amount sufficient to
cover the cost of reclamation as determined by the commission."116/
If conscientiously administered, this kind of standard could provide a
good, flexible method for determining the amount of a bond so that it
would realistically reflect the cost of reclamation in a variety of
circumstances. However, this kind of discretion does lend itself to
abuse. Some states set a fixed sum per acre to be mined or a lump
sum for the entire operation. This reduces the flexibility of the
bonding procedure in differing circumstances, but it does provide
consistency and eliminates potential for abuse.
In addition to the amount of the bond, the method by which it is released
will have much to do with determining its effectiveness. Virginia
has a typical bond release system. After mining and reclamation are
completed, the operator submits a report, the director of the Department
of Conservation and Economic Development makes an inspection and, if
he "is satisfied that the requirements of the operations, drainage
and reclamation plans have been fully complied with," YYTJ the bond
is released. The problem with this sort of provision is that it provides
no mechanism for encouraging early reclamation, and it releases the
bond before sufficient time has elasped to accurately assess the
success and sufficiency of the reclamation.
In Texas, by contrast, no more than 75 percent of the bond may be
released upon completion of the mining operation and reclamation. The
remainder is to be released after four years if the Railroad Commission
determines that revegetation and reclamation have been successful.
Texas 118/ and Montana 119/ provide a system of incremental bond
release which should encourage the operator to continuously reclaim.
In those states, as each portion of the mine is backfilled and graded and
drainage controls are put in place, a proportionate amount of the bond
is released. When reclamation and revegetaton are finally completed
(in Texas, four years after replanting; in Montana, when the land's
capability of supporting livestock or wildlife equals its former capacity) ,_120/
the remainder of the bond is returned. Through incremental bond
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release and delay of the final release, continuous reclamation is encouraged
and successful revegetation assured.
5.5 Permit Revocation and Denial
An enforcement technique vital to any program is permit revocation or
denial of a new permit. Most reclamation statutes provide for these
penalties. Maryland's law is typical: when a violation of either a permit
or regulation is found, the Department of Natural Resources shall give
notice, provide an opportunity for a hearing, and, if the violation is
not corrected, revoke the operator's permit.121/ An operator whose permit
has been suspended or revoked may not be issued a new permit.122/ This
provision, however, is only as strong as the inspection and reporting
requirements that would enable a regulating agent to discover violations.
If a bond is forfeited, most reclamation statutes prohibit the operator
from conducting any other mining activities in the state, unless he
completes the required reclamation himself or pays to the state a sufficient
amount for it to conduct the reclamation.123/ In order to ensure that
these provisions are effective against a changing corporate identity, a
clause such as Maryland's, which holds a corporation responsible for
previous violations of "any officer, director, or principal owner," 124/
should be included. The fear of loss of ability to mine in a particular
state provides any operator whose permanent occupation is mining a powerful
incentive to complete reclamation.
5.6 Citizen Suits
Citizen suits constitute a useful enforcement technique against a
recalcitrant regulatory agency. Frequently, however, statutes lack
any provisions for citizen suits, and when they are included, they are
often so restricted that their usefulness is limited. Montana's citizen
suit provision permits any citizen of the state, not just an aggrieved
party, to bring to the attention of the responsible officer any
violation of the Strip and Underground Reclamation Act. If the official
fails to take any action, the citizen may bring an action of mandamus
in the district court to compel the officer to enforce the act.125/
If only affected or aggrieved parties are allowed to bring suit, as in
West Virginia, then the number of potential plaintiffs is substantially
reduced.126/
5.7 Injunction
If it becomes necessary to seek judicial relief against an operator, an
injunction is the most effective remedy. However, resort to injunctive
relief may be restricted by limiting those who may seek it, the time
at which it may be sought, and the conditions under which it may be
sought. In Virginia, the director the the Department of Conservation
and Economic Development can seek injunctive relief only when "adverse
ecological disruptions or other injurious effects of mining operations
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seriously threaten or endanger health, safety and property rights
of any individual, and abatement is not feasible by application of
control techniques."127/
West Virginia provides for considerably more liberal use of injunctions.
The Department of Natural Resources, the state attorney general, or
the prosecuting attorney of the affected county may seek injunctive
relief to compel compliance with or enjoin violations of the Surface
Mine Reclamation Act before all the remedies and penalties provided in
tbe act have been pursued.128/
5.8 Penalties
There are a variety of judicial penalties that may be sought instead
of injunctions including damages, fines and criminal sanctions. In
Montana, penalties range from a civil fine of $100 to a criminal fine
of $5,000 for a willful violation. Each day of a violation may be
treated as a separate offense.129/ These penalties do not, however,
necessarily provide sufficient incentive to comply or adequate
funds for reclamation. West Virginia has a similar fine provision, but
also includes possible jail sentences of up to six months. Perhaps
the most important of West Virginia's penalties is the provision
that a person convicted of a violation shall pay, above any fine,
an amount sufficient to reclaim the area to which the conviction
relates.130/ Not only is this provision severe enough to ensure compliance,
it also provides a method of recovering a sufficient amount of money to
enable the state to carry out reclamation.
Due to the seriousness of the water pollution problems associated with
mining and the expense involved in abating them, enforcement procedures
must be effective and penalties must be strong. The options discussed
above should not be thought of individually. Rather, they should be
used in conjunction with each other to exert the maximum amount of
pressure on the mine operator to ensure that he minimizes or eliminates
water pollution. Effective reporting requirements do not eliminate
the need for frequent inspections, nor does the posting of a sufficient
bond eliminate the need for civil and criminal sanctions.
6.0 Abandoned Mines
Although not an activity, and therefore not controllable as such, one
of the most severe pollution problems from mining, particularly in
the Appalachian states, is that created by abandoned mines. Because
the problems involved in controlling pollution from abandoned mines
are so different from those involving active mines, they will be
treated separately here. As mentioned in the introduction to this chapter,
abandoned mines are the largest single source of acid mine pollution in
the United States. A major obstacle to solving this problem, in addition
to physical and technological ones, is assigning responsibility for
abatement.
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Basically, there are four entities which could assume responsibility
or to which responsibility could be assigned: (1) the original mine
operator; (2) the present mine operator; (3) the landowner; and
(4) the state. Of these, the first alternativeassignment of responsibility
to the original mine operatorhas the least potential for success. The
original operator probably no longer has any legal interest in the
mined lands and may no longer even exist. Even if he can be found,
if he has no interest in the mined lands, he cannot be held responsible
for a nuisance which was legal when he created it and over which he no
longer has any control.
Present mine operators can be made indirectly responsible for the
abatement of pollution from abandoned mines by a requirement that they
pay a sum into a general reclamation fund as a license fee for or tax
upon the operation of a mine within a state. In Montana and Pennsylvania,
all funds from license fees, bond forfeitures, cash deposits and securities
go into a fund to be used for reclaiming lands affected by surface mining.131/
In addition, present operators may be required to; abate any existing
discharge of pollutants when they reopen an old mine, as they are in
Pennsylvania under the Clean Streams Act.
Assigning responsibility for pollution abatement to the present owner
of the land where an abandoned mine exists may be legally possible.132/
A statute could declare that the discharge of pollutants from an abandoned
mine constitutes a nuisance subject to injunctive relief. This is
basically the approach taken by the Pennsylvania Clean Streams Act, but
that act's impact has been lessened by exempting mines abandoned prior
to 1966.133/ Assigning responsibility to present owners presents
the very real possibility of forfeiture, since very often the cost of
reclamation or sealing will far surpass the value of the land.
Difficult questions of equity must also be considered when the landowner
had nothing to do with construction or operation of the mine.
Assumption of responsibility by the state is probably the most likely
solution to the problem of pollution from abandoned mines. The
federal government, at least on an experimental level, has been involved
in mine sealing projects for some time.134/ Either permission is
obtained to enter upon the land or the land is purchased, and the Department
of the Interior conducts the necessary work. However, because statutes
authorizing these procedures were designed to prevent mine fires and
flooding, sealing, in the past, has not been performed in a way that would
completely abate pollution.
Pennsylvania has assumed responsibility for the construction of seals
on abandoned mines not in possession of the operator 135/ and for maintaining
seals, whether installed by the operator or the state.136/ In order to
ensure access, the Department of Mines has been authorized by statute to
"enter upon any lands where openings to abandoned mines are located
for the purposes of sealing such openings, [and] for inspecting
and maintaining such seals."137/
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The eventual solution to the problem of abandoned mines will probably
entail the sharing of the responsibility for their sealing and reclamation,
with the state assuming the bulk of the burden.138/
7.0 Legal Issues
The legal problems resulting from attempts to control water pollution
from mining activities may be divided into two distinct categories:
(1) those arising from control of present and future mining activities;
and (2) those arising from attempts to correct harm from past mining activities,
The first category raises more traditional questions regarding the
scope of permissible regulation, whereas the second raises more difficult
problems of ownership and responsibility.
The basic question involved in control of present and future mining
operations is whether the regulation constitutes a valid exercise of the
police power, as opposed to an unconstitutional taking of private property.
Perhaps the best known case in this area is Pennsylvania Coal Co. v.
Mahon, 139/ in which a statute banning any coal mining that caused
the subsidence of any structure used for human habitation was declared
an unconstitutional taking of property. Justice Holmes, in delivering
the opinion, stated that the extent of the diminution in value of
the property was the determinative factor in deciding whether or not the
act constituted a taking. He wrote:
It is our opinion that the act cannot be sustained
as an exercise of the police power, so far as it
affects the mining of coal under streets or cities
in places where the right to mine such coal has been
reserved .... To make it commercially impracticable
to mine certain coal has very nearly the same effect
for constitutional purposes as appropriating or
destroying it.140/
This opinion would appear to put in doubt a great deal of the
legislation controlling pollution from mining, but, in fact, courts
applying the diminution of value test have generally found most
statutes constitutionally valid. In Goldblatt v. Hempstead, 141/
the Supreme Court upheld a local ordinance which prohibited excavating
below two fe< t above the maximum groundwater level. The fact
that this ordinance prevented the continued operation of a sand and
gravel pit did not overcome the presumption that the regulation was
a reasonable exercise of the police power.
Simply requiring operators to take measures in their operating and
closing procedures to reduce or eliminate pollution has, for the most
part, been considered a legitimate exercise of the police power.142/
This has only been seriously questioned when the economic loss has
been severe, and the benefit derived in some doubt. This was the case
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in Reserve I lining Company v. EPA, where the U.S. Court of Appeals for
the Eighth Circuit refused to enjoin the operation of a plant that wat-
in violation of state and federal water pollution standards, and
instead gave the defendants time to bring themselves into compliance.
In refusing to enjoin the operation of the plant, the court stated
that "an immediate injunction cannot be justified in striking a
balance between unpredictable health effects and the clearly
predictable social and economic consequences that would follow the
plant closing."_143/ Even in this case, the ability to regulate water
pollution was not questioned, only the severity of the individual
application.
Statutes prohibiting mining activities altogether are, of course, subject
to very close constitutional scrutiny, OiL cm, Lf the surface an-1
mineral rights are severed, a prohibition against mining will cause
a complete loss of value to the owner of the subsurface rights. Therefore,
total prohibitions against subsurface mining ~ re extremely rare. Prohibitions
against surface mining, on the other hand, are fairly common, but
they have occasionally been found constitutionally invalid. Thus, in
Midland Electric Coal Corp. v. Knox County, a local zoning ordinance
banning strip mining was found to be unconstitutional because it imposed
extreme hardship upon the coal company and had "no real or substantial
relation to the public health, safety. moraJs comfort or general
welfare."14_4/ Once again, the question as framed by the court was whether
the harm inflicted on the individual was so great as Lo outweigu the
benefit to the public. If the landowner or mineral rights owner is
left with some reasonable use of his land or method of exercising
his mineral rights (e.g., deep mining), and the. puulic harm Lo be
prevented is substantial, then in all Jikelih.-od the regulation
will be upheld.
In Farmington River Co. v. Town _?l_an_an_d Loning CommissjLon, the
Connecticut Superior Court h^lH~tTaatr~reguTa"tlbns" requiring the
plaintiff to acquire a mining permit and to comply with certain
safety precautions were a legitimate exercise of the police power
and that " The property of the plaintiffs has not been taken without
just compensation. They may still operate, and a compliance would not
be onerous, harsh or unreasonable. Even if it would, the> governmental
agency might act in such a case."145/ The Supreme Court of Illinois
went even further by upholding a prohibition (in this case, on oil
wells) where the prohibited activity might pollute a town's drinking
water. The court held that the protection of a municipal drinking water
supply was a legitimate area for the exercise of the police power and
that "the fact that the exercise or' the police power precludes the
most profitable use of property in private hands Hoes not make
the exercise invalid as such nor render invalid as a 'taking'
of the primary use, and hence the essence of the property."14J>/
Attempts to control pollution t'coin abandoned mines present more
complex legal problems. Imposing liability on present owners
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causes difficulties since often they are not responsible for the pollution
they are being required to abate. Housing codes, however, create a similar
hardship; they require present owners to abate statutory nuisances that
they themselves did not create or which in the past were not considered
nuisances, and housing codes have long been considered acceptable exercises
of the police power.1477 In Pennsylvania v. Harmer Coal, a coal mine
operator was held responsible for the abatement of polluton from an
abandoned mine which the operator found necessary to drain in order
to construct a new mine nearby. The Supreme Court of Pennsylvania
held that although the present operator did not cause the formation
of the acid in the old mine, he had to treat the acid before he could
discharge it into the state's surface waters in connection with
the operation of his present mine.1487
The Pennsylvania Supreme Court, in Commonwealth v. Barnes and Tucker,
has also upheld the imposition of liability on the former operator for
acid drainage from an abandoned mine, even though the activity which
created the problem was legal at the time it was conducted and the
operator was no longer working the mine. In upholding this imposition,
the court stated:
[S]ince the activity involved is a public nuisance
it cannot be regulated, but must be abated. We
believe that the abatement of water pollution is
unquestionably a reasonable exercise of the police
power in the abstract. We are not swayed in this
belief by the fact that the mining activity which
gave rise to the present condition is past conduct
which cannot now be abated.149/
The Pennsylvania court reasoned that liability could be imposed
on the former operator, even absent a finding of negligence on his
part, because acid drainage constituted both a statutory and common law
public nuisance. It would seem logical to take this holding
one step further and impose liability on the present owner, even if
he is not engaged in any mining activity or in any way responsible for
creation of the mine. The court, however, tempered its holding by
suggesting that if the relief granted the state were unduly
oppressive upon Barnes and Tucker, it might constitute a taking of
property without just compensation.150/ In all likelihood, if the
cost of abatement were greater than the value of the land, imposition
of liability for abatement on an innocent landowner would be viewed
by the court as unduly oppressive.
Imposing a licensing fee or tax on present operators to pay for the
reclamation of abandoned mines raises equal protection problems. In
order that a tax or penalty imposed on a specific group not be
considered in violation of the equal protection clause of the
Constitution, it must be shown that the classification is "based
upon some reasonable groundsome difference which bears a just and
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proper relation to the attempted classificationand is not a mere
arbitrary selection."151/ The Pennsylvania Supreme Court held that
requiring operators of open pit mines to pay a registration fee
did not constitute a violation of the equal protection clause, and that
"The classification is within the power of the legislature because
the record shows substantial differences between bituminous coal mining
by the open pit method and other mining or quarrying."152/ The
distinction was based on various pollution problems and other hazards
which the court held were, taken together, unique to surface mining
of coal.
Two legal questions arise when the state assumes responsibility for
reclamation of abandoned mines: (1) Is it proper for the state to
exercise eminent domain for the purpose of reclamation; and (2) if eminent
domain is not exercised, does the state have authority to enter upon
private property to correct an acid drainage problem? In order to
exercise the right of eminent domain, it must be shown that the
property is taken for a public use or for a public purpose.153/
Urban renewal cases have held the condemnation of property for the
purposes of abating an evil to be a public use.154/ The Mississippi
Supreme Court held, in a case involving condemnation of property bordering
a reservoir, that "the land in question is to be used for pollution
control and control of access. That alone justifies the taking
insofar as the question of public use is concerned."155/ The courts
tend to defer to the legislature's determination of what constitutes
a public use, as it seems probable that the control of pollution
from abandoned mines would be a legitimate area for the exercise
of eminent domain.
Without the exercise of eminent domain, entrance by a state upon
an abandoned mine site on private land, either to place or maintain a
seal or to reclaim an abandoned mine, might present legal and constitutional
problems. To enter the property without the consent of the landlord,
there must at least be a provision, such as that in Pennsylvania's
abandoned mine sealing act, which permits state entry onto private land
to seal or maintain a seal.156/ Entry on the property even with the
consent of the owner may still raise problems of conferring a
betterment on a private landowner, and might raise difficulties in states (e.g.,
Maryland) whose constitutions prohibit state involvement in works
of internal improvement.157/ Constitutional restrictions on a state's
ability to incur debt might limit its ability to reclaim abandoned
mines, but so many judicial exceptions have been made to these
restriction^ that it is unlikely that they would pose a major
obstaclel58. / The public benefit to be derived should be great enough
to assure judicial lenience in most cases, but an amendment to the
state constitution might be necessary in some states.
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CHAPTER NINE
MINING
FOOTNOTES *
1. Federal abatement activities date back to mine seal projects
started in 1935.
2. For a description of the extent of pollution caused by coal
mining activities, see Office of Water and Hazardous Materials,
U.S. EPA, Inactive and Abandoned Underground MinesWater
Pollution Prevention and Control 5 (1975).
3. Chambers may be either supported or caved. Supported chambers
are left by many conventional extraction techniques, and are
supported either naturally by leaving pillars of unexcavated
materials, or artificially by using backfilled wastes or other
manmade supports. Caved chambers are those in which roof and
walls are permitted to collapse as the mineral is extracted.
Entryways are either updip, in which the entrance leads up to
the mineral seam; downdip, in which the entrance leads down to
the mineral seam; or shaft, in which the entrance goes vertically
down.
4. Stripping methods vary according to the nature of the mineral seam
and topography of the area where it is found. In relatively flat
places where the mineral seam is just below the surface, area
stripping is used. A rectangular cut is nade, the overburden
placed to one side, and the mineral removed. Successive cuts are
made this way, the overburden from each cut being deposited in
the preceding cut. Contour stripping is performed in mountainous
areas where there is an outcrop of the mineral seam. This seam
is cut, creating a bench and a highwall, until the overburden
becomes so deep that it is no longer economical to remove it.
5. Inactive and Abandoned Underground MinesWater Pollution
Prevention and Control, £up_ra. note 2, at 8.
6. Topsoil may be segregated by placing it in a distinct pile and
covering it with the remaining overburden. When the mine is
reclaimed, the process is reversed and the topsoil is the last
of the overburden to be replaced.
*In order to conserve space, publication information pertaining
to works included in the suggested readings for this chapter has
been omitted from the footnotes.
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IX-FN-2
7. A box cut involves the exposure of an area of constant size;
the section where the mineral has been exhausted is continuously
filled and regraded with the wastes from the section being developed,
8. In mountaintop mining operations, the new contour will often
be more gradual than the natural contour.
9. In areas where the reclaimed contours are very steep, terracing
and drainage systems may be required to reduce erosion.
10. U.S. EPA, Processest Procedures and Methods to Control Pollution
from Mining Activities 289 (1973).
11. A feasibility study on controlled atmosphere mining v?as conducted
for the Federal Water Pollution Control Administration. This
process involves replacement of normal mine atmosphere with an
oxygen-free noncombustible gas. The mineworkers must wear
complex life support and communication systems. Id_. at 196.
12. Id. at 298.
13. Flooding updip mines can produce tremendous hydrostatic pressures
on the entrance where the mine is close to an outcrop, rendering
sealing prohibitively expensive or impossible.
14. Changes in atmospheric pressure will cause an airsealed mine
to "breathe" through geologic faults or unconsolidated earth.
15. 33 U.S.C. 8 1251 et^ _£££.
16. Id. 8 1362(14).
17. Pub. L. No. 94-377.
18. 30 U.S.C. 8 201(a)(3)(A)(i).
19. Id. 8 201(a)(3)(C).
20. Id_. 8 207(c).
21. Ld. 8 8 181-287.
22. 43 C.F.R. 8 3041.
23. 30 C.F.R. 8 211.
24. 43 U.S.C. 8 291 et se^. , 8 299.
25. 30 C.F.R. 8 211.75(a).
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IX-FN-3
26. Id.
27. Id., § 211.75(b).
28. 41 Fed. Reg. 35716 (1976).
29. Id. at 39036.
30. Mont. Rev. Codes Ann. 8 50-1042; Wyo. Stat. 835-502.12(a)(v).
31. Wyo. Stat. 8 35-502.24(b)(xi).
32. 30 U.S.C. S 189.
33. Mid-Northern Oil Co. v. Walker, 268 U.S. 45 (1925); Hagood v.
Beckers, 513 P.2d 208 (Colo. 1973).
34. Texas Oil and Gas Corp. v. Phillips Petroleum Co., 277 F. Supp. 366
(1967), aff'd, 406 F.2d 1303, cert, denied 90 S. Ct. 80.
35. For more discussion of this problem, see J. Haggard, "Regulation
of Mining Activities on Federal Lands," 21 Rocky Mountain
Mineral Law Institute 349 (1975).
36. Herschler v. Kleppe, F. Supp. , ELR 65359 (D. Wyo. 1976).
37. See, ££.» Trans-Alaska Pipeline Authorization Act, 43 U.S.C.A.
88 1650-55; Regulation of Hydraulic Mining in the Sacramento and
San Joachin River, 33 U.S.C.A. 88 661-687.
38. See E. Imhoff, T. Friz, and J. LaFevers, "A Guide to State Programs
for the Reclamation of Surface Mined Areas," at table 1, Geological
Survey Circular No. 731 (1976).
39. Some States do include deep mines in their reclamation plans. The
Montana Strip and Underground Mine Reclamation Act, Mont. Rev.
Codes Ann. 8 50-1034, applies both to surface and underground mining,
In New York, a mine producing over a thousand tons a year must obtain
a permit, which requires a reclamation plan. N.Y. Envir. Conserv.
Law § 23-2713 (Consol.). Mining is defined in the statute as "the
extraction or removal of minerals from the ground." Id. 8 23-2703(8).
In Oklahoma, the Mining Lands Reclamation Act, Okla. Stat. Ann.
tit. 45, 8 721, defines mining as "the extraction of minerals from
natural deposits by any method or process." Id. 8 723(c).
40. West Virginia's mines and minerals chapter, W. Va. Code 8 22-1-1
e^t seq., requires that "when any coal mine is worked out or
indefinitely closed, such mining operations shall be properly
sealed within ninety days after the mine is abandoned." Id.
8 22.2-64(a). Ohio is a bit more exact in its description of what
constitutes adequate closing (see Ohio Rev. Code Ann. 8 4153.40),
but the sealing requirement is still a safety measure and not an
anti-pollution device.
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IX-FN-4
41. 52 Pa. Cons. Stat. 8 28.3(a).
42. Id. 8 28.2(2).
43. Md. Nat. Res. Code Ann. 8 8-1401 et seq.
44. Id. 8 8-1413(b).
45. Md. Regs. § 08.05.04.01(B)(14).
46. W. Va. Code 8 20-5A-1 et se^.
47. Id. 8 20-5A-5(b)(6).
48. Id. 8 20-6-1 et_ seq.
49. 35 Pa. Cons. Stat. 8 691.315(a).
50. Id.
51- Va. Code 8 10-187.
52. Fla. Stat. Ann. 8 380.012 et seq. (West).
53. Id. 8 380.04(d).
54. Haw. Rev. Stat. 8 205-1 et seq.
55. For further discussion of sediment control, see chapters 6 and 7.
56. Md. Nat. Res. Code Ann. 8 8-1104(a).
57. Cal. Gov't Code 8 66610 (West).
58. Id. 8 66632(a).
59. Ohio River Valley Water Sanitation Compact art. VI.
60. Acid Mine Drainage Control Measure, ORSANCO Resolution 8 5-60.
61 See E. Chary, The ORSANCO StoryWater Quality Managementinthe
Ohio Valley under an Interstate Compact 219 (Resources for the
Future, Johns Hopkins University"Press, 1967).
62. New England Interstate Water Pollution Control Compact, Pub. L.
No. 80-292, 61 Stat. 682 (1947); New York Harbor (Tri-State)
Interstate Sanitation Compact, Pub. Res. No. 74-62, 49 Stat. 932
(1935); Ohio River Valley Water Sanitation Compact (1948), Pub.
L. No. 76-739, 54 Stat. 752 (1940); Potomac River Basin Compact
(1939), Pub. Res. No. 76-93, 54 Stat. 748 (1940); Tennessee River
Basin Water Pollution Control Compact (1955), Pub. L. No. 85-734,
72 Stat. 823 (1958).
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IX-FN-5
63. Ga. Code Ann. 8 69-1207.
64. Georgia Marble Co. v. Walker, 224 S.E.2d 394 (1976).
65. Ga. Code Ann. 8 43-1401 et seq.
66. 77 A.2d 612 (Pa. 1951).
67. West Virginia's planning and zoning law authorizes local planning
commissioners, in developing a comprehensive plan, to include
"conservation of water, soil, agriculture and mineral resources."
W. Va. Code 8 8-24-17(b)(17).
68. In Wyoming, the zoning statute specifically exempts mineral extractive
industries from local regulations. The law states that "no zoning
resolution or plan shall prevent any use or occupancy reasonably
necessary to the extraction or production of the mineral resources
in or under any lands subject thereto." Wyo. Stat. 8 18.289.1.
For discussion of local controls on mining, see C. Crawford, Jr.,
"Zoning Law and Extractive Industry: The Michigan Experience,"
51 N.D. L. Rev. 341 (1974); F. Morrison, "Land Use Planning and
the Natural Resources Industry," 18 Rocky Mountain Mineral Law
Institute 135 (1972); P. Schaluch, "Tripartite Federalism: The
Emerging Role of Local Government as a Regulator of the Extractive
Industries," 20 Rocky Mountain Mineral Law Institute 359 (1974).
69. See ORSANCO enforcement limitations discussed supra.
70. For example, Virginia assigns responsibility 'for granting discharge
certificates to the State Water Control Board, while the Department
of Conservation and Economic Development is in charge of regulating
mining activities.
71. Va. Code 8 10-184.2.
72. Cal. Pub. Res. Code 8 2710 et seq. (West).
73. Id. 8 2774.
74. Tex. Civ. Code Ann. tit. 5920-10 (Vernon).
75. Id. 8 13(c).
76. Ohio Rev. Code Ann. 8 1513.01 e^t se^. (Page).
77. Id. g 1513.02(3).
78. N.D. Cent. Code 8 38-14.05.1.
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IX-FN-6
79. Md. Nat. Res. Code Ann. 8 7-505(1).
80. See section 2.1.4 supra.
81. W. Va. Code § 20-6-7.
82. Mont. Rev. Codes Ann. 8 50-1201 et_ sec[.
83. Id. 8 50-1207.
84. See Dep't of State Lands Rules and Regulations pursuant to Mont.
R.ev. Codes Ann. 8 50-1201 et s eq. (Reclamation of Mining Lands) .
85. Id. 8 50-1041.
86. 52 Pa. Cons. Stat. 8 1396.4.
87. Id. 8 1386.4(b).
88. Va. Code 8 45.1-203.
89. Va. Dep't of Conservation and Economic Development, Division of
Mines and Reclamation, Coal Surface Mining Regs. 8 9.
90. N.Y. Envir. Conserv. Law 8 23-2713 (Consol.).
91. Okla. Stat. Ann. tit. 45, 8 721 (West).
92. Mont. Rev. Codes Ann. 8 50-1039(2)(j).
93. Id. 8 50-1042(1).
94. Va. Coal Mining Reclamation Regs. 8 8, adopted pursuant to the Coal
Surface Mining Law, Va. Code 8 45.1-198 e_t seq.
95. W. Va Dep't of Natural Resources, Surface Mining Reclamation Regs.
88 5, 7, 8, 9, adopted pursuant to the West Virginia Surface Mining
and Reclamation Act, W. Va. Code 8 20-6-1 et^ seq.
96. W. Va. Surface Mining Reclamation Regs., supra note 95, 8 7.
97. Ph: 5.5 to 9.0; iron: 10 milligrams per liter or less; turbidity:
no more than 1,000 Jackson units of turbidity 4 hours following a
major precipitation event, and not more than 200 J.U. after 24
hours. Id. 8 7C.01.
98. Ky. Dep't of Natural Resources and Environmental Protection, Strip
Mine Regulation, Regs. Pt. IE, SMR-11 (1971).
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IX-FN-7
99. Ky. Rev. Stat. Ann. 8 350.010 e_t seq. (Baldwin).
100. For a discussion of this situation, see D. Hall, "Montana Coal:
The Alamo of Interstate Commerce," 51 N.D. L. Rev. 439 (1974).
101. Md. Nat. Res. Code Ann. 8 7-6A24.
102. W. Va. Code 8 20-6-9.
103. Tex. Civ. Code Ann. tit. 5920-10, 8 19 (Vernon).
104. Va. Code 8 45.1-206(a).
105. 52 Pa. Cons. Stat. 8 1396.4c.
106. Tex. Civ. Code Ann. tit. 5920-10, 8 19(b) (Vernon).
107. Land Reclamation Board of Colo., Proposed Regs. 8 VI.A.(4), at 19.
108. W. Va. Code 8 20-6-5.
109. W. Va. Code 8 20-6-8.
110. Id.
111. Md. Nat. Res. Code Ann. 8 7-6A11.
112. Florida does not.
113. Mich. Stat. Ann. 8 18.601.
114. N.M. Stat. Ann. 8 63-34-18.
115. Iowa Code Ann. 8 83A.23 (West).
116. S.D. Compiled Laws Ann. 8 45-6A-12.
117. Va. Code 8 45.1-206(b).
118. Tex. Civ. Code Ann. tit. 5920-10, 8 23 (Vernon).
119. Mont. Rev. Codes Ann. 8 50-1044.
120. Id. 8 50-1045.
121. Md. Nat. Res. Code Ann. 8 7-6A18.
122. Id_. 8 7-6A18(b).
123. Mont. Rev. Codes Ann. 8 50-1050(2); Md. Nat. Res. Code Ann. 8 7-6A23.
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IX-FN-8
124. Md. Nat. Res. Code Ann. 8 7-504(b).
125. Mont. Rev. Codes Ann. 8 50-1055.
126. W. Va. Code 8 20-6-11.
127. Va. Cod" 8 45.1-210.
128. ;/. Va. Code g 2G~6-30(c).
129. Mont. Rev. Codes Ann. S 50-1056.
130, W. Va. Code 8 20-6-30.
131. 52 Pa. Cons. Stat. g 1396.18; Mont. Rev. Codes Ann. § 50-1052.
132. Se_e section 7.0 supra.
133. 35 Pa. Cons. Stat. 8 691.315(a),
134. 30 U.S.C. S8 555, 571.
135. 52 Pa. Cons, Stat. 8 28.4.
136. JLd. 8 28.5.
137. Id. 8 28.6.
138. For a mora detailed discussion of abandoned mines, see Office of
Water and Hazardous Materials, U.S. EPA, Criteria for Developing
Pollution Abatement Programs for Inactive and Abandoned Mine Sites
(1975).
139. 260 U.S. 393 (1922).
140. _Id. at 414.
141. 369 U.S. 590 (1962).
142. Commonwealth v. Black, 69 A.2d 376 (Pa. 1949); Md. Coal and Realty
v. Bureau of Mines, 69 A.2d 471 (1949).
143. 514 F.2d 492, 536 (1975).
144. 115 N.E.2d 275, 287 (111. 1975).
145. Farmington River Co. v. Town Plan and Zoning Comm'n, 197 A.2d 653,
659 (Conn. 1963) .
146. City of West Frankfort v. Fullop, 129 N.E.2d 682, 687 (111. 1955).
See also Ex Parte Throop, 145 P. 1029 (Cal. 1915); Ex Parte Angelus.
150 P.2d 908 (Cal. 1944); Calve Bros. Co. v. Norwalk, 124 A.2d
881 (Conn. 1956); People v. Sessano, 29 N.Y.S.2d 45 (1941);
Annot., 10 A.L.R.3d 1226; 54 Am. Jur.2d Mines and Minerals
§§ 167-176.
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IX-FN-9
147. State v. Price, 151 N.E.2d 523 (Ohio 1958), 364 U.S. 855; Ajootian
v. Housing Board of Review, 201 A.2d 905 (R.I. 1964); Houston v.
Lurie, 224 S.W.2d 871 (Tex. 1949); Perepletchikoff v. Los Angeles,
345 P.2d 261 (Cal. 1959); Annot., 14 A.L.R.2d 73; 13 Am. Jur.2d
Buildings 8 3; 40 Am. Jur.2d Housing Laws and Urban Development 8 8.
148. Commonwealth v. Harmer Coal, 306 A.2d 308 (Pa. 1973).
149. Commonwealth v. Barnes and Tucker Co., 319 A.2d 871 (Pa. 1974).
150. On remand the Commonwealth Court of Pennsylvania ordered Barnes
and Tucker to treat the effluent since they had not presented suffi-
cient evidence to demonstrate that the economic burden of treatment
would be sufficiently great in relationship to the company's earnings
and assets to be an unconstitutional taking of property. No. 896-A
(Pa. Commw. Ct. March 2, 1976) (Bowman, P.J. for the entire bench),
6 ELR 20466.
151. Gulf, Colorado and Santa Fe R.R. v. Ellis, 165 U.S. 150, 165 (1896).
152. Dufour v. Maize, 56 A.2d 675, 680 (Pa. 1948).
153. Berman v. Parker, 348 U.S. 26 (1954), equates public use with the
kind of public purpose which is necessary for a reasonable exercise
of the police power.
154. Id_.
155. Pearl River Valley Water Supply District v. Brown, 156 So.2d 572,
577 (Miss. 1963).
156. 52 Pa. Cons. Stat. § 28.6.
157. Md. Const, art III, g 34.
158. For a discussion of this problem, see E. Goldberg and G. Power,
Legal Problems of Coal Mine Reclamation 116-19 (1972).
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CHAPTER NINE
MINING
SUGGESTED READINGS
Bishop, Floyd A. "Interstate Water Compacts and Mineral Development:
Administrative Aspects." Rocky Mountain Mineral Law Institute 21
(1975): 801.
Clyde, Edward W. "Coal Mining, Development and Processing: The Asso-
ciated Water Problems." Rocky Mountain Mineral Law Institute 20
(1975): 163.
Corker, Charles E. "Limits to the Petty Larceny of the Police Power."
Rocky Mountain Mineral Law Institute 20 (1974): 67.
Crawford, Clan, Jr. "Zoning Law and the Extractive Industry: The
Michigan Experience." North Dakota Law Review 51 (1974): 341.
Dempsey, Stanley. "Mine Planning to Meet Environmental Requirements."
Rocky Mountain Mineral Law Institute 21 (1975): 59.
Dietrick, Charles C. "Mined Land Reclamation in the Western United
States." Rocky Mountain Mineral Law Institute 16 (1970): 143.
Doyle, John C., Jr. Strip Mining in the Corn Belt; The Destruction of
High Capability Agricultural Land for Strip-Minable Coal in Illinois,
Washington, D.C.: Environmental Policy Institute, June 1976.
. State Strip Mining Laws--Alabama, Colorado, Kansas, Ohio, Texas
and Virginia: An Analysis of Six Selected State Statutes and
Promulgated Regulations. Washington, D.C.: Environmental Policy
Center, 1976.
Dunlap, Louise C. "An Analysis of the Legislative History of the Surface
Mining Control and Reclamation Act of 1975." Rocky Mountain Mineral
Law Institute 21 (1975): 11.
Friedman, Frank R. "The Operational Impact of NEPA and Related Environ-
mental Laws, Regulations and Orders on Mineral Operations." Rocky
Mountain Mineral Law Institute 19 (1973): 47.
Goldburg, Everett F.; Power, Garret. Legal Problems of Coal Mine Reclama-
tion: A Study of Maryland, Ohio, Pennsylvania and West Virginia.
U.S. EPA, March 1972.
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IX-SR-2
Grim, Elmore C.; and Hill, Ronald D. Environmental Protection in Surface
Mining of Coal. Cincinnati: National Environmental Research Center,
Office of Research and Development, U.S. EPA, Oct. 1974.
Haggard, Jerry L. "Regulation of Mining Activities on Federal Lands."
Rocky Mountain Mineral Law Institute 21 (1975): 349.
Hall, Daniel M. "Montana Coal: The Alamo of Interstate Commerce."
North Dakota Law Review 51 (1974): 439.
Hansen, Roger P. "Mineral Development and the Environment: Legal Reforms
for the Siting of Major Facilities." Rocky Mountain Mineral Law
Institute 20 (1974): 565.
Imhoff, Edgar A.; Friz, Thomas 0.; LaFevers, James R. A Guide to State
Programs for the Reclamation of Surface Mined Areas. Geological
Survey Circular No. 731. Washington, D.C.: Resource and Land In-
vestigations Program, U.S. Department of the Interior, 1976.
Kenna, Katherine P. "Environmental Law: Acid Mine Drainage." West
Virginia Law Review 76 (1973-74): 508.
Kidd, Thomas D. "The Effect of Zoning and Land Use Control on Mineral
Operations." Rocky Mountain Mineral Law Institute 19 (1973): 277.
Lee, James B. "The Mining Industry as a Water User and Water Polluter:
Legal Aspects." Rocky Mountain Mineral Law Institute 16 (1970): 107.
Morrison, Frank H. "Land Use Planning in the Natural Resources Industry."
Rocky Mountain Mineral Law Institute 18 (1972): 135.
Schlauch, Paul. "Tripartite Federalism: The Emerging Role of Local
Government as a Regulator of the Extractive Industries." Rocky
Mountain Mineral Law Institute 20 (1974): 359.
U.S. Department of the Interior, Federal Water Quality Administration.
New Mine Sealing Techniques for Water Pollution Abatement. Washington,
D.C., March 1970.
. Treatment of Acid Mine Drainage. Washington, D.C., Dec. 1970.
U.S. Environmental Protection Agency, Office of Water and Hazardous
Materials. Criteria for Developing Pollution Abatement Programs
for Inactive and Abandoned Mine Sites. Washington, D.C., Aug. 1975.
Inactive and Abandoned Underground Mines: Water Pollution Pre-
vention and Control. Washington, D.C., June 1975.
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CHAPTER TEN
LAND DISPOSAL OF SOLID WASTES AND SLUDGES
TABLE OF CONTENTS
1.0 Introduction; Elements of a Comprehensive Residual
Waste Management Program X-l
1.1 Statement of the Problem X-l
1.2 Coordination with Land Use Planning and
Pollution Control Systems X-2
1. 3 Waste Reduction and Resource Recovery Systems X-3
1.4 Hazardous Waste Management Systems X-6
2.0 Regulation of Sanitary Landfills X-8
2.1 Planning X-8
2.1.1 The Planning Requirement X-8
2.1.2 Implementation and Enforcement of Plans X-10
2.1.3 Site Selection and the Planning Process X-12
2.1.4 Site Selection Implications of Liner
Technology X-15
2.2 Permitting X-16
2.2.1 Permit Requirements and Issuance
Procedures X-16
2.2.2 Permit Terms and Conditions X-18
2.2.3 Operating and Performance Standards X-19
2.2.4 Elements of the Permit Application X-21
2.2.5 Permitting of Old Landfill Sites X-24
2.3 Monitoring X-25
2.4 Enforcement X-27
2.4.1 Enforcement Procedures , X-28
2.4.2 Enforcement Problems X-29
2.5 The Allocation of Functions: Appropriate Level
and Agency of Government and Public v. Private
Management X-31
2.5.1 Regional Entities X-31
2.5.2 The State Role X-34"
2.5.3 Public v. Private Operation X-36
2.5.4 Public Utility Regulation X-37
3.0 Regulation of Sludge Management X-39
3.1 Introduction X-39
3.2 The Regulation of Sludge Generators X-40
3.2.1 Regulating Municipal Treatment Facilities X-42
3.2.2 Regulating Industrial Treatment Facilities X-43
3.3 The Regulation of Sludge Disposal/Reuse
Facilities X-43
3.3.1 Regulating Landfills X-43
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3.3.2 Regulating Incineration...... X-44
3.3.3 Regulating Ocean Dumping X-44
3.3.4 Regulating Land Application X-45
3.4 The Allocation of Functions: Appropriate Level
and Agency of Government X-49
4.0 Legal Issues X-49
4.1 The Problem of the Flexible Permit X-50
4.2 The Procedural Due Process Rights of Operators X-51
4.3 The Problem of the Unrealistic Performance
Standard X-53
4.4 The Due Process Rights of Third Persons X-54
4,5 The Question of Governmental and Private
Liability X-55
Footnotes
Suggested Readings
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CHAPTER TEN
LAND DISPOSAL OF SOLID WASTES AND SLUDGES
1.0 Introduction; Elements of a Comprehensive Residual Waste Management
Program
1.1 Statement of the Problem
Human activity unavoidably entails the generation and discharge of residual
wastes into the environment. The capacity of the environment to assimilate
wastes is finite, and the quality of human life is impaired when that
capacity is exceeded.
In an inexorable progression from the initial demand for goods and services,
there follows the extraction of natural resources, production, consumption,
and ultimate disposal. But at many points in this progression, physical
measures in combination with legal and institutional arrangements may be
interposed to reduce the overall quantity of residuals, to change their form,
and/or to lessen their adverse effects on the environment. It is the
function of the planner to formulate a residuals management strategy that
will combine the best physical, legal, and institutional measures from the
standpoint of efficacy, cost-effectiveness, political acceptability, flexi-
bility, and ease of implementation and administration.iy Just this kind of
comprehensive approach to planning is required of states and localities by
section 208 of the Federal Water Pollution Control Act Amendments of 1972, 2J
and by subtitle D of the recently enacted Resource Conservation and Recovery
Act of 1976.V
The U.S. Environmental Protection Agency (EPA) estimates that Americans
currently generate approximately 135 million tons of municipal solid waste
each year. This figure represents about 3.5 pounds per person per day, or
more than 1,200 pounds per person per year of paper, glass, metals, plastics,
food wastes, and other discards from homes and businesses. Tonnage has almost
doubled in the past 20 years and is projected to reach 165 million tons a
year by 1985. Currently, the cost of municipal solid waste management nation-
wide runs about $3.5 billion per year, a rate that is expected to increase
substantially over the next five to ten years as relatively inexpensive
disposal options such as landfills continue to disappear.
The residuals problem is further complicated by the approximately 275 million
dry tons of solid waste generated each year by industry in the United States,
some 10 to 15 percent of which contains hazardous materials such as toxic
metals and organic solvents in sufficient concentrations to be potentially
hazardous to public health if disposed of improperly. While these hazardous
wastes require special procedures in handling, storage, transport, processing,
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X-2
and disposal, at present only about 4 percent of them are treated before
disposal on the land, while another 4 percent are recycled. Industrial
wastes that require land disposal are projected to increase by 50 percent
during the next decade as a result of such factors as the progressive imple-
mentation of air and water pollution control laws and ocean dumping bans.
Finally, our municipal sewage treatment plants currently generate approxi-
mately 7 million dry tons of sludge annually. That amount is also increasing,
as more communities build new and more effective wastewater treatment
facilities.j4/
1.2 Coordination with Land Use Planning and Pollution Control Systems
As noted above, the section 208 planning process must be comprehensive in
order to deal effectively with the growing magnitude of residual wastes. This
means, first of all, that since the residuals generated in a given locality
are a direct result of the lifestyle and productive activities of that
community, residuals management planning will have to be conducted as an
integral component of the broader land use and development planning process.
In some instances, the capacity of the management system to handle the
various types of residuals may have to be the leading factor in determining
not only the timing and location but also the nature of future development
(compare the controls on the timing and location of sewer extensions discussed
in chapter 4 ). Thus, for example, as a precondition to its construction and
operation, an industrial plant that will generate a particular hazardous
waste byproduct should have to assure that a satisfactory recovery or disposal
facility, public or private, will be available to receive such waste.
Similarly, development permission for a large new subdivision may have to be
withheld if the trash and garbage it is expected to generate cannot be
accommodated in an already overloaded nearby landfill, and no site for a new
facility has been approved. This principle was given legal recognition in
Natural Resources Defense Council v. Nuclear Regulatory Commission (Vermont
Yankee), 5_/ holding an environmental impact statement on the licensing of a
nuclear power plant to be deficient on the grounds that it did not adequately
consider the problem of disposing of the plant's radioactive wastes.
Moreover, residuals management planning must be coordinated with other related
pollution control systems. The scrubbers, precipitators, catalytic converters,
advanced wastewater treatment facilities, and other control devices, processes,
and procedures which contribute to the improvement of ambient air and water
quality represent at the same time entirely new sources of residuals. If the
residuals management system is not prepared to deal with these wastes, which
are often hazardous, they will find their way back into surface or groundwaters
or into the air.j>/
The Resource Conservation and Recovery Act of 1976 encourages and facilitates
the development of regional planning for solid waste management by ordering
the administrator of EPA to issue guidelines for the identification
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of those areas which have common solid waste management problems and
are appropriate units for planning regional management services. These
guidelines must consider:
the size and location of areas which should be included;
- the volume of solid waste which should be included;
the available means to coordinating regional planning with
other related regional planning and for coordination of such
regional planning into the State p~Lan.]_/
The Act also provides for interstate regional planning where deemed
appropriate.
1.3 Waste Reduction and Resource Recovery Systems
In planning for residuals management, planners should work with a broad
field of options, looking beyond the customary "end of pipe" approaches.
Methods of storage, collection, hauling, pretreatment, and disposal of
residuals should all be restudied and upgraded to reduce adverse impacts
on the environment. In addition, however, strategies must be devised
and implemented to reduce the amount of waste that is generated and,
through resource recovery programs, the volume of unreclaimable residues
that must finally be disposed of. Such strategies have the added benefit
of conserving energy and other natural resources.
The five general approaches to waste reduction are: (1) shift to cleaner
production processes (e.g., wet to dry); (2) product reuse (returnable
bottles); (3) reduced resource intensiveness (smaller autos); (4) increased
product lifetime (more durable and/or more easily repaired household
appliances); and (5) decreased product consumption (reduced consumption
of packaging and of other disposable products).8/ Implementation of any
of these options would require changes in existing production and marketing
systems of many companies, as well as in consumer habits. Since those
systems are often national in scope, state and local governments can do
little to induce waste reduction (beyond their own procurement policies) ,
despite the fact that they must ultimately bear the burden of increasing
rates of waste generation. 9_/
One approach which could be adopted on the state level 10/ would be to
provide direct economic incentives or disincentives to producers and con-
sumers. For example, a disposal charge could be collected in advance on
all nonrecyclable consumer products and the proceeds given to local solid
waste management agencies. Or refundable deposits could be required on
beverage containers and other items to provide an incentive for their
return in lieu of disposal or littering. The economic incentive approach
has the advantage of making product prices reflect heretofore "hidden"
environmental costs, while still permitting the market system to determine
final product choices.J.l_/ In addition, this approach, based on a gradual
change in consumer habits, should help avoid the hardship of immediate
large-scale economic and labor dislocations.
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Resource recovery ±s a related strategy that makes sense both as a com-
ponent of residual waste management and as a means of promoting national
independence from other countries for supplies of certain raw materials.
Mixed municipal solid waste is composed largely of combustible materials.
On the basis of weight, more than 75 percent is combustible, but over 90
percent of the volume can be eliminated by means of thermal reduction in
the process of energy recovery.12/
Studies also indicate that when two production systems are compared
one using virgin materials and the other secondary materialsthe
system using recycled wastes causes less air and water pollution,
generates less solid waste, and consumes less energy._13/ In this
connection, it is worth noting that the United States, which represents
only 6 percent of the world's population, consumes more than 40 percent of
the world's raw materials. Annually, the nation consumes over 200 million
tons of metals, paper, glass, rubber, and textiles, about three-fourths of
which comes from virgin resources and the remaining quarter from resource
recovery operations. Virtually all of the recovered materials are industrial
discards rather than post-consumer wastes. EPA has identified over 60
major metropolitan areas where energy or materials recovery seems economically
feasible. These areas account for about 180,000 tons of solid waste a day,
66 million tons annually, or more than half of the municipal waste stream.
Nevertheless, we are now recovering a lower percentage of our resources
than ever before in history.1.47
Economic factors determine whether energy and materials are recovered or
whether these resources are lost to the waste stream. The fundamental
requirement is to create incentives for use of more .secondary materials.
Short-sightedly, government procurement policies often give preferences to
virgin materials. Depletion allowances and other tax policies encourage
extractive industries, and put recycled materials at a competitive disad-
vantage. Existing freight rates also discriminate against recyclable materials,
The imposition of a waste charge on products that eventually enter the
waste stream, as mentioned above, would stimulate the market for secondary
materials. Other impediments to the implementation of resource recovery
programs by government or the private sector have been high capital costs,
the risk of obsolescence in view of a still-developing technology, and
the problems of securing an adequate long-term flow of refuse necessary to
achieve economies of scale and to assure potential buyers a reliable supply.
Connecticut illustrates one state-level response to the problems of waste
reduction and resource recovery. The Connecticut Solid Waste Management
Services Act 15/ created the Connecticut Resources Recovery Authority
(CRRA), a self-sufficient political subdivision of the state. CRRA is
empowered to contract with municipalities and regional authorities to
receive their wastes for a fee; with private companies to have them build
and operate resource recovery facilities; and with buyers of energy and
materials to sell them the output from such facilities. The authority may
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issue revenue bonds. The municipal users pay debt service on the bonds
plus service charges for waste processing-, less the sum of revenues cleared
by the authority from its sales of recovered resources. Any surplus is
passed back to the municipalities.
Federal initiatives in the field of waste reduction and resource
recovery should be briefly mentioned. The Solid Waste Disposal Act of
1965, as amended by the Resource Recovery Act of 1970, 16/ authorizes the
administrator of EPA to make grants for research, development, and demon-
stration of innovative resource recovery systems, as well as for planning
and the training of personnel. The Resource Conservation and Recovery
Act of 1976 authorizes further research, development, and demonstration
grants for new resource recovery systems and technologies, including not
only capital intensive approaches suitable for large metropolitan areas,
but also less sophisticated, small-scale approaches, better suited to
smaller cities and other less densely populated areas. Also authorized
is a study of problems and alternative methods for the use of sludge,
including agricultural applications and energy recovery.
Subtitle D of the 1976 Act calls for development and implementation of
state or regional solid waste plans pursuant to federal guidelines which
must consider, among other things:
- types of resource recovery facilities and resource conservation
systems which are appropriate; and
available new and additional markets for recovered materials.17/
The plans must provide:
that no local government within the state shall be prohibited under
state or local law from entering into long-term contracts for the
supply of solid waste to resource recovery facilities;
- for such resource conservation and recovery and for the disposal of
solid waste in sanitary landfills or any combination of practices
as may be necessary to use or dispose of such waste in a manner
that is environmentally sound.18/
To assure rapid dissemination of new ideas and technologies from research,
development, and demonstration to the state and regional level, the Act
calls for creation of Resource Recovery and Conservation Panels within EPA
to provide assistance in the financial, marketing, technical, legal, and
institutional aspects of resource recovery and conservation programs.19/
The Secretary of Commerce is directed to encourage greater commercialization
of proven technology for resource recovery by providing:
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accurate specifications for recovered materials;
stimulation of development of markets for recovered materials;
promotion of proven technology; and
a forum for the exchange of technical and economic data relating
to resource recovery facilities. J
The Act also requires that federal procurement policies give a preference
to goods and materials composed of the highest percentage of recovered
materials consistent with performance standards. 21 /
1. 4 Hazardous Waste Management Systems
The next element of a comprehensive residual waste management plan is a
set of special provisions for handling hazardous wastes. The general
categories of hazardous wastes are: toxic chemical, flammable, radio-
active, explosive, and biological. They may take the form of solids,
sludges, liquids, or gases. They derive from industry (the greatest
source); certain federal facilities (notably Department of Defense
installations); agricultural activities using pesticides; hospitals; and
laboratories, among other sources. EPA estimates that the generation of
nonradioactive hazardous waste is approximately 25 million tons per year.
Although this is only a small fraction of the nation's solid wastes,
hazardous wastes pose serious chronic and acute threats to health and the
environment . 22/
A hazardous waste program should be a subsystem of the larger residuals
management system parallel to it in many respects, but separate and
distinct. In every phase from generation through disposal, each hazardous
waste must receive the special handling called for by its peculiar
characteristics, and special procedures must be followed to assure that it
does not at any point enter the general waste stream or otherwise leak into
the environment. Subtitle C of the Resource Conservation and Recovery Act
of 1976 creates a national program for dealing with hazardous wastes. It
provides for identification of these wastes and, by means of a manifest
system, for their tracking in commerce from point of generation to final
disposition. All persons responsible for generating, hauling, treating,
storing, or disposing of hazardous wastes are majde subject to regulations
to be developed by the administrator of EPA, the broad outlines of which
appear in the Act. No treatment, storage, or disposal facility may
accept hazardous wastes except in accordance with a permit to do so.
Provision is made for competent states to take over administration of the
program. 23/
By way of further introduction, it should be noted that there are similari-
ties between the approaches recommended in the remainder of this chapter
and the regulatory scheme for hazardous wastes outlined in the Resource
Conservation and Recovery Act of 1976. These similarities should not be
surprising. In a very real sense, all wastes are "hazardous" if disposed
of improperly.
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Section 208 requires states and designated areas within states to
plan and implement programs to resolve any water-related residual
waste problems they may have. Due to this emphasis on the protec-
tion of water resources, section 208 planning deals not so much
with the waste reduction and resource recovery strategies discussed
above, as it does with programs and policies for the environmentally
sound landfilling and land application of residuals, as discussed
in the remainder of this chapter. Needless to say, however, a re-
duction in the amount of residual, non-recyclable wastes will re-
duce the threat to water as well as to land resources, and it is
for this-reason that waste reduction and resource recovery strate-
gies have been outlined here. Further references to the Resource
Conservation and Recovery Act of 1976 are based on the expectation
that this legislation will necessitate significant changes in many
existing state and local residual waste management programs.
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O
2.0 Regulation of Sanitary Landfills
Provisions for ultimate disposal will have to be included in every
residual waste management plan, for while resource recovery will greatly
reduce the volume of residues, some will always remain. Accordingly,
this section is devoted to regulation of sanitary landfills. The next
section extends the discussion to the handling and disposal of sludges.
There are some 18,500 known land disposal sites in the United States, of
which fewer than 6,000 meet existing state regulations. It is questionable
whether even sanitary landfills in compliance with current best management
practices can avoid posing threats to groundwater supplies from potential
leachate damage. J24/
Even more troublesome is the large but uncalculated number of open dumps.
Under subtitle D of the Resource Conservation and Recovery Act of 1976,
state and regional plans must provide for the closing or upgrading,
under compliance schedules, of all open dumps identified in the planning
area.^V This requirement, coupled with EPA's ban on ocean dumping of
sludge by 1981, puts new pressure on land disposal systems.
2.1 Planning
2.1.1 The Planning Requirement
The United States is in the midst of a waste disposal crisis. A study
conducted in 1973 by the National League of Cities/United States Conference
of Mayors predicted that almost half of our cities would run out of then-
existing disposal capacity within one to five years ._26/ Meanwhile,
potential sites that can meet strict environmental criteria for landfill
disposal are allowed to disappear in the path of suburban development.
This state of affairs reflects the failure of government to adopt and
implement waste reduction and resource recovery programs; to identify and
reserve sufficient disposal sites for future needs; and to coordinate
planning for development with planning for residuals management.
As already noted, section 208 of the Federal Water Pollution Control Act
Amendments of 1972 and subtitle D of the Resource Conservation and Recovery
Act of 1976 call for comprehensive solid waste management planning, both at
the state and regional levels. A number of states already have legislation
directing their department of environmental protection (DEP)* to prepare
statewide solid waste management plans that address present and projected
needs of the state, promote regionalism, and encourage implementation of
resource recovery to the maximum practicable extent. Consistent with
these policies and with regulations of the DEP, localities are then required
to draft plans for disposing of waste originating within their respective
borders. Local plans must be submitted to the DEP for its approval. Within
this general framework, two states whose planning requirements merit
examination in some detail are Connecticut and New Jersey.
*The term DEP will be used in this chapter to denominate a state's cabinet-
level agency responsible for the state residual waste management program.
Individual state's agencies will, however, be called by their actual names.
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Under the Connecticut Solid Waste Management Act, 27/ the commissioner
of the state DEP had to prepare a solid waste management plan for the
entire state. The current Connecticut plan, completed in 1973, sets forth
criteria for solid waste management, with particular stress on resource
recovery, and suggests approximate locations for regional resource
recovery plants and sanitary landfill sites. The plan is not mandatory,
nor is it site-specific. It was felt that local or regional agencies
would be in a better position to prepare site-specific plans for their
jurisdictions than more remote, state-level authorities. Connecticut
law makes each municipality responsible for disposing of its own wastes,
in accordance with either a local plan or a regional plan prepared
jointly with neighboring communities.
The recently enacted New Jersey law 28/ designates each county and the
Hackensack Meadowlands Development Commission as a solid waste management
district and vests each with the power, singly or jointly with one or
more other districts, to develop and implement a plan that meets the
needs of every municipality. District plans must meet objectives,
criteria, and standards set forth in a statewide solid waste management
plan to be prepared by the state DEP. Connecticut encourages regionalism,
particularly through the Connecticut Resources Recovery Authority but
leaves to each locality the final decision whether or not to join in a
regional program. The New Jersey act is superior inasmuch as it assures
that solid waste management is undertaken at least at the county level.
Moreover, the New Jersey law reserves to the DEP the power to order any
district to develop a joint program with one or more adjacent districts.
The scope of required planning is similar in the two states. The Connecti-
cut act defines "solid waste management plan" as "an administrative and
financial plan for an area which considers solid waste storage, collection,
transportation, volume reduction, recycling, reclamation and disposal
practices for a twenty-year period, or extensions thereof. "2_9_/ The act
envisions local plans that specifically designate future disposal sites.
Guidelines issued by the DEP to assist municipalities in developing their
plans require that these include information on the specific disposal
areas to be used, on the environmental problems associated with each site,
and on the actions proposed to remedy or avoid those problems.
The New Jersey Act specifies 10-year plans with provisions for automatic
review at least once every two years. District or regional plans must be
prepared with the assistance of advisory solid waste councils (including
mayors or their designees, persons engaged in the collection and disposal
of wastes, and environmentalists) and after consultation with county or
municipal agencies concerned with water pollution control, water policy
and supply, zoning, and land use control. Before plans can be adopted,
public hearings must be held on them. Every district plan must include
a waste inventory; future waste projections; an inventory and appraisal-
including the identity, location, and life expectancy of all solid
waste facilities within the district; and an analysis of existing collection
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and transportation routes. Furthermore, every plan must designate such
additional sites, both suitable and available, as may be needed for
solid waste disposal.
By requiring identification of prospective landfill sites, a state can
exert pressure on its local governments to confront and resolve, at the
planning stage, the major political, economic, and environmental diffi-
culty in the way of rational solid waste management: where to put the
wastes. On the other hand, once a site has been designated, the costs of
acquiring it (if it is not already publicly owned) may be pushed upward by
speculative pressures. Accordingly, statutes or regulations should permit
the designation of several potential sites, or better still, furnish state
aid for advance acquisition of the most suitable ones.
Both Connecticut and New Jersey require the submission of approvable plans
by a fixed deadline. But Connecticut law is deficient in that it provides
no action-forcing mechanisms to assure that adequate plans will be prepared
and implemented. In New Jersey, by contrast, if deficiencies in a local
or regional plan are not corrected when noted by DEP, or if no plan is
submitted to DEP, the commissioner is authorized to impose on the defaulting
district a state-prepared plan, after consultation with other interested
state agencies.
2.1.2 Implementation and Enforcement of Plans
The New Jersey act prohibits its DEP from approving the registration of
any new facility that is not in conformity with the relevant district or
regional plan. More loosely, Connecticut's Solid Waste Management Regula-
tions provide that permits for solid waste facilities may be denied if
the commissioner determines that the facility does not reasonably comply
with the municipal or regional authority's 20-year solid waste management
plan. In practice, however, the Connecticut Office of Solid Waste, like
that of Pennsylvania, is inclined to issue a permit for any landfill
that is located and will be operated according to sound environmental
principles, whether or not the location and service area are consistent
with a previously approved local or regional plan.
The practice of permitting facilities not in conformity with existing plans
reflects the limited role which solid waste agencies (SWAs)* may prefer to
play in the process of choosing among alternative land uses. Adjacent
landowners, often backed by politically sensitive municipal governments,
are stirred by the vision of malodorous and rat-infested dumps as long-
term neighbors, and succeed in delaying, if not preventing, the establishment
of new sites when and where they are needed. Under these circumstances,
a number of SWAs feel that their task is a technical, nonpolitical one:
*The term SWA will be used in this chapter to denominate an agency, usually
within a DEP, directly responsible for the state solid waste management program.
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-o issue permits for any suitable sites approved by local zoning boards,
without regard to the rigidities of any pre-existing solid waste plans.
This is a questionable practice. Planning need not inalterably fix the
course of solid waste management for 10 or 20 years, but departures from
originally adopted plans should emerge from a legislatively mandated
process for periodic reappraisal and revision. To allow the state
permitting agency to stray from existing plans on an ad hoc basis is to
undercut the efficacy of planning as a management tool.
Most states have confined themselves to a reactive role with respect to the
siting of new facilities: when local governments propose sites, the state
approves (or disapproves) them. But too few sites have been agreed upon in
this manner. Just as states may need the power in reserve to plan for non-
complying localities, so may they have to override local vetoes to implemen-
tation of plans. Provisions affording such powers to state agencies and
establishing the supremacy of state solid waste programs over the local zoning
power should be included in legislation so as to avoid unnecessary delay.30/
State DEPs should be empowered, as a last resort, to condemn sites for landfills
or other facilities and to contract out for their operation. This power could
be used to promote regionalism in situations where one locality balks at
playing host to a regional landfill. In Wisconsin, the state has title to
the solid waste, determines where it will go, and can require any municipality
to join in a regional solid waste management scheme.31/
Localities are often reluctant to join regional solid waste management arrange-
ments for fear of being stuck with the regional facility. Georgia is an
example of a state that encourages local obstruction to regionalism by
requiring approval of a receiving county's board of commissioners before
another county's solid waste may be imported for disposal. In contrast,
the New Jersey Supreme Court held in Southern Ocean Landfill v. Ocean Township
32/ that a municipality could not close down its landfill to wastes
originating in other municipalities, characterizing such an action as
"offensive to the concept of regionalization of facilities, one of the
key provisions of the Solid Waste Management Act." The New Jersey act
gives DEP the power to order any district to develop a joint program
with one or more adjacent districts providing resource recovery facilities.
Among its powers aimed at promoting regionalism, DEP is authorized to
arbitrate the location of a regional landfill. In any event, a district
must pay its fair share for facilities located in another district.
Another significant impediment to regionalism may be the ability of one
locality to pull out of a regional plan, leaving the others in the lurch.
To avoid such occurrences, state law should not only require regional plans,
but should make compliance with them mandatory. The next best solution
would be to encourage cooperating localities to sign legally binding agree-
ments as early in the planning process as possible. In addition, every
state law should include a provision preventing any locality from withdrawing
from a regional scheme unless all participants have economically and
environmentally acceptable alternatives.
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Once the guidelines for identification of regions have been drafted by EPA
pursuant to Section 4002(a) of the Resource Conservation and Recovery Act
of 1976, all states will have to take the initiative in designating solid
waste management regions, a step which some states have not taken because
of strong traditions of local independence.
A final impediment to the implementation of plans comes from the various
limitations, found in state or local law, on a locality's
power to enter into long-term contracts for the disposal of solid waste.
For example, Georgia law prevents any board of commissioners from binding
a county beyond its own term of office. Such provisions discourage the
private sector from making the large capital investments needed to open
and operate modern facilities. The Connecticut act provides that any
municipality or regional authority may make contracts for solid waste
handling for a period of up to 20 years. Section 4003(5) of the Resource
Conservation and Recovery Act of 1976 stipulates that, as one of the
minimum requirements for approval, state or regional plans must "provide
that no local government within the State shall be prohibited under
State or local law from entering into long term contracts for the supply
of solid waste to resource recovery facilities." State laws should contain
similar provisions respecting waste flows to sanitary landfills.
The George Solid Waste Grant-in-Aid Program incorporates a noteworthy
incentive to promote regionalism and resource recovery. Funds are awarded
on a 50/50 matching basis, up to a maximum of $50,000 per applicant, for
equipment costs and other items, excluding land acquisitions, planning, and
recurring costs. The limited funds are awarded to applicants on the basis
of a priority point system which favors regional facilities if supported
by interlocal agreements documenting the responsibility of each jurisdiction
for operating and financing the system; equitable user charges based on
the volume and type of garbage, if these fees provide a minimum of 50
percent of annual expenditures; and implementation of a continuous, systematic
recycling program.33/
2.1.3 Site Selection and the Planning Process
Perhaps the most important element of solid waste planning is the identifi-
cation of specific disposal sites to meet present and future needs of the
community. After projecting the types and volumes of waste that will have
to be disposed of over the life of the plan, the responsible agencies should
proceed to set aside sufficient suitable landfill capacity.347
In furtherance of their planning responsibilities, local or regional solid
waste management agencies ought to conduct reconaissance level studies
resulting in establishment of an inventory of apparently satisfactory sites.
The studies should encompass existing and projected land uses in the planning
area in order to relate waste sources to disposal locations.35/
The first set of criteria to be applied in assessing a site's suitability
for a landfill concerns its renovative properties: whether it can absorb
leachate without contamination of ground or surface water. But the science
of determining renovative capacity is still imprecise. This depends on a
number of variables, primarily the amount of rainfall, the geology and
topography of the site, the permeability of underlying soil and rock formations
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and the proximity of the water table. The amount and concentration of
leachate will also depend on operating practices, such as the types and
pretreatment of wastes accepted at the site; the mix, depth, and compactness
of wastes as buried; and the amount, compactness, and permeability of the
soil cover.
State DEPs should be authorized by statute to specify the characteristics,
whether natural or engineered, which sites must or must not possess in
order to receive operating permits. These specifications would represent
the agency's educated guess, on the basis of the best available scientific
and technical knowledge, that conforming sites operated according to best
management practices will meet the state's environmental standards.
Section 4004(a) of the Resource Conservation and Recovery Act of 1976 defines
"sanitary .landfill" as a facility which poses "no reasonable probability of
adverse effects on health or the environment." If this rather vague perform-
ance standard is interpreted to mean that the facility must discharge no
leachate, then the act sets a standard that is very difficult, if not
impossible, to meet. But the best chance of approaching it is by wise
initial siting. (For a fuller discussion of performance standards see
section 2.2.3 entitled "Operating and Performance Standards.")
In view of the imprecise state of the science, it remains to be determined
just how siting regulations should be drafted. Regardless of the
characteristics of underlying soil and rock formations, some states require
a minimum vertical distance between the maximum water table elevation and
the lowest elevation of the contemplated landfill, ranging from 2 feet in
Delaware to 10 feet in Minnesota and Wisconsin._36/ Michigan law contains
several specifications for various types of soil, bedrock, and water
situations.^/
A set standard based on any one factor, such as soil permeability or
distance from the water table might be too strict for some sites and too
lax for others. This approach may be workable in states such as Georgia
and Illinois which are blessed, virtually statewide, with relatively
impermeable natural clay and glacial till, respectively; but it may not
work in a state such as Pennsylvania with its more varied soil types and
underlying fractured bedrock, or New Jersey with its many different site
characteristics and heavy rainfall. In fact, until enough reliable data
is assembled to compute a standard which is a function of all relevant
variables, the best approach to site selection in most areas may be a
fairly general standard of maximum feasible leachate containment,
administered through a case-by-case permit system.
Pennsylvania's Department of Environmental Resources, for example, takes a
very liberal approach, rarely if ever rejecting a proposed site as
unsuitable per se, but only requiring employment of whatever engineering
and operating techniques it deems necessary to assure that operation
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will not cause water pollution or other environmental harm. Regulations
might contain only a few basic prohibitions and minimum requirements. Or
better, they might contain a nonexclusive list of the kinds of natural
characteristics that will cause rejection of a permit application unless
specifically designed around. This approach, coupled with the state's
performance standard, should provide adequate notice of requirements to
applicants and legally sufficient guidance for the exercise of administrative
discretion by the permitting agency. (The due process function of standards
is discussed in the "Le?_cil_ ^£sj££^" section below, at section 4.2.)
While proper engineering and operation can minimize pollution, initial site
selection remains the most critical factor. In assessing the suitability of
potential sites, local planners and the state permitting agency must consider
topography, hydrology, underlying soil characteristics, and geology.
Leachate is not produced until all or a sizable portion of a landfill becomes
saturated with water. Climatic conditions should accordingly be considered.
Especially in areas of high rainfall, natural features which should exclude
a site from consideration, unless specifically designed for, are hilltops and
ridges, swamps and marshes, natural channels, and drainage basins. 38j Elements
of landfill design, such as diversion from the site of surface watercourses
and runoff by means of trenches, grading, and other engineering techniques can
overcome many of these natural impediments.
Some states absolutely prohibit siting a landfill in a floodplain. Thus, the
Colorado act provides that no landfill may be located within the area covered
by the floodplain of the 50-year flood . 39 / The Michigan statute provides
minimum setback distances from bodies of water .^O/ Another precautionary site
selection practice might be to plot all aquifers in the planning area and
to reject sites located above some or all of them. Florida's regulations
prohibit the location of landfills on the banks of any stream connected to the
Floridian aquifer .41/ Alternatively, some minimal degree of groundwater
degradation might be recognized as unavoidable. Sites with subsurface
drainage towards nearby, freeflowing streams might ordinarily be preferred,
since they will pollute only limited zones of groundwater before the leachate
enters a stream. Violations of surface water quality standards should not,
however, be tolerated. Other factors bearing on a site's suitability for a
landfill include:
- Accessibility Candidate sites should have two or more all-weather access
roads .
~ Haul distance Landfill sites should be located where they are closest
to the sources of refuse, within parameters dicated by other site selection
criteria. Where a regional landfill is planned, it should be equidistant
from all point served, insofar as practicable.
- Availability of cover material A suitable and adequate source of cover
material should be available at the site or at an economical haul distance
from the site.
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- Surrounding uses Landfills should be established only where they will
be compatible with neighboring land uses, both existing and planned. From
the standpoint of aesthetics, landfills s-hould not constitute public eyesores,
especially to residents of nearby housing. One study recommends a distance
of at least 300 meters from the nearest thoroughfares unless adequate
shielding is provided by natural barriers or manmade structures. It is
also recommended that landfills be located downwind from human activity and
residences wherever possible to avoid odor and noise nuisance.42/
Site selection must also consider present and projected groundwater uses in
the vicinity. The pumping of groundwater can actually attract a leachate
plume from a landfill site. Minnesota's regulations prohibit location of a
landfill within one mile of a municipal well or water intake.4_3/ Florida
prohibits establishment of a landfill within 200 feet of a habitation or place
of business served by a public water supply or within 1,000 feet of one
that depends upon a shallow well supply.447 Still, it would also help to
have reasonable restrictions on groundwater withdrawal rights established by
state law.
Application of the foregoing criteria requires coordination of planning for
solid waste management with planning for land use development. Land in the
vicinity of projected facilities should be zoned for compatible uses only,
and, as part of an overall program of groundwater allocations, states should
also undertake to regulate the sinking of wells in the vicinity of landfills.
Coordination of solid waste planning and land use planning will also
rationalize decisionmaking as to the ultimate use of landfill sites after
closure. Finally, sites suitable for use as landfills should be acquired
for future needs. While land banking requires large outlays of public revenue
when undertaken, it has the long run benefits of lowering land acquisition
costs, improving planning, and assuring that environmentally sound sites
will be available when needed. State laws should authorize and fund government
acquisition of lands to meet long-term needs, and especially to preserve scarce
impermeable sites which are ideally suited to receive hazardous wastes.45/
(See the American Law Institute's A Model Land Development Code.)46/
2.1.4 Site Selection Implications of Liner Technology 47/
The use of impermeable liners for landfill sites is theoretically a zero-
discharge technology which is not based on natural renovation. If and when
liner technology is perfected, it could vastly increase the number of suitable
landfill sites. Higher site preparation costs might then be offset somewhat
by reduced hauling costs.
Use of this technology turns the disposal site into something like a bathtub.
The bottom of the excavation is sloped to a sump where a pump is installed,
and the resulting leachate is collected for treatment. However, while many
of the materials used as liners have been used in other similar applications
(such as reservoirs and industrial holding ponds), it is still uncertain how
they will hold up over the long term in the chemically active environment of
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a landfill. Materials that are usually considered inert, such as clay and
polymeric membrances, may react with the leachate. Liner failure, whether
from chemical degradation or from accidental puncture in the course of
installation or operation, could result in worse pollution than if no liner
had been used at all, since large concentrations of leachate would then be
channeled to one small area outside the liner. Leak detection devices have not
been perfected and do not pinpoint the location of a failure with any
precision. Even if the location of a leak were identified, the repair
process, including removal of filled waste, would be expensive and might
result in further damage to the liner. In any case, use of double liners is
therefore recommended. Leachate is exceedingly difficult to treat separately,
and if discharged into sewerage systems, it may well upset central treatment
processes.
Use of liner technology is, therefore, a controversial matter. Pennsylvania
permits the use of liners for collection and treatment of leachate. Connecticut
does not, because it is not convinced that liners are reliable over the long
term. In Connecticut, plans for landfill disposal must accordingly rely on
the natural renovative capacity of the soil.
2.2 Permitting
Subtitle D of the Resource Conservation and Recovery Act of 1976 specifies
as one of the minimum requirements for approval of state solid waste manage-
ment plans that they "provide for the establishment of such state regulatory
powers as may be necessary to implement the plan." Unlike subtitle C, which
calls for a permit system to regulate the handling and disposal of hazardous
wastes, greater latitude is afforded the states in their selection of
management strategies for other, potentially less dangerous classes of
wastes. Nevertheless, most states regulate solid waste disposal through some
form of permit program, and this is the approach recommended here. The case-
by-case permitting of individual sites puts the burden on each applicant to
show he has an acceptable site and operating plan; provides a convenient forum
for die public to participate in determining whether particular sites
should be allowed; and enables certain requirements, such as final contours
and operating plans, to be tailored to the pecularities of each site, while
reinforcing the applicability of general regulatory standards to all sites.
In fact, permits play an indispensable role in the implementation and enforce-
ment of solid waste management laws and regulations.
2.2.1 Permit Requirements and Issuance Procedures
Typically, the lavs of the more advanced states make it mandatory to secure
a permit for any solid waste facility that will be established or altered
after a statutorily fixed date. Permit issuance signifies approval by the
commissioner of the DEP of the site reconaissance plan, design plan, and
operating plans. It mayor shouldalso signify proof of financial
responsibility submitted by the applicant. (The elements of the permit appli-
cation are discussed later in this section.) It represents, moreover, the
issuing agency's considered opinion that the facility, as situated and designed,
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can be expected to meet the statutory performance standards for environmental
impact, especially on ground and surface waters, if run in accordance with
operating standards. (Operating and performance standards are discussed
later in this section.)
In Connecticut, applications for permits are considered by the Office of Solid
Waste (OSW) and the Office of Water Compliance within the DEP. A permit
from the OSW is always required to open a landfill. A permit from the
Office of Water Compliance is also required if a new site is expected to
discharge leachate to ground or surface water. To avoid entangling an
apolicant in a web of bureaucracy, however, a one-stop permit system
might be preferable. Georgia has adopted a lead agency concept, with
the Land Protection Branch of its Department of Natural Resources circulating
the application and consulting with other interested agencies.
In Connecticut, the commissioner of the DEP must inform an applicant of
the decision on his permit within 60 days of receiving it or within 120
days if the commissioner gives notice of such extension. An application may
be denied where the commissioner determines that the facility will not
be operated in compliance with law, that the location is environmentally
unsuitable, or that the facility does not reasonably conform to the
relevant local or regional authority's 20-year plan. Notice of denial
must set forth the specific reasons for the action taken, and is considered
an order of the commissioner for purposes of administrative appeal. Any
person aggrieved by an order of the commissioner is entitled to a full due
process hearing under the "contested case" provisions of the Connecticut
Administrative Procedure Act.
Connecticut's statute does not require a public hearing to be held on a
proposed issuance or denial of a permit application, and applicants usually
are not interested in having one. But local residents are likely to become
informed of the pendency of an application, and if a public hearing on the
application is demanded, the OSW will hold one. The OSW gives no notice of
this possibility. The argument against holding a hearing is that the
municipality in which the site is located must already have approved its
use as a landfill, as a matter of local land use policy and in accordance
with whatever local procedures exist for public participation. A further
hearing at the state level would therefore be redundant. On the other hand,
a public hearing before the state agency would afford interested citizens
an opportunity to challenge the permit on purely technical grounds, or on
the basis of representations made in the permit application. Moreover,
though a public hearing may not be constitutionally required, it may be good
public policy to hold one because of the controversial and politically
sensitive nature of landfill siting decisions. (Procedural due process
rights of applicants and third persons are discussed under "Legal Issues",
sections 4.2 and 4.4 below.)
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In Texas, a public hearing is required by the state water quality law before
its state water quality board can issue a discharge permit .4_8/ In
Wisconsin, environmental impact statements must be prepared on large or
controversial new landfills, and public hearings covering social and
economic as well as environmental issues are part of the EIS process.49/
But the entire procedure takes approximately 18 months to complete and
is expensive. It is worth noting here that the procedures advocated for
handling "developments of regional impact" in article 7, part 3 of the
American Law Institute's Model Land Development Code include a mandatory
public hearing at the regional planning level.
2.2.2 Permit Terms and Conditions
A permit should, and ordinarily does, confer a revocable privilege upon
the permittee to operate a landfill in compliance with all legal requirements.
Permit issuance does not give the landfill operator a vested right to
continue operations until the capacity of the site has been reached (or
until expiration of the permit, in jurisdictions where a system of
periodically renewable permits is preferred). Rather, permits may be
revoked or modified whenever facilities fail to conform to the particular
permit conditions or to the relevant statutes and regulations, which are
incorporated by reference into each permit. Furthermore, landfills must
comply with all legal requirements, including both operating and performance
standards, whether or not these are already in force at the time particular
permits are issued. In the exercise of its police power to protect the
public health and welfare, including the integrity of its natural resources,
a state cannot be estopped from changing its regulatory requirements or
even from closing down polluting landfills, regardless of what the
originally issued permits may say (see section 4.1 below.)
The commissioner of a DEP should be authorized by statute to promulgate
regulations governing solid waste management practices in the state; to impose
site-specific preconditions on approval of a landfill; to modify a noncomplying
facility's permit by ordering alteration of operating practices or addition of
remedial design features to bring the facility up to standard; and, if a
polluting condition is deemed irremediable, to order the facility's closure.
(For a fuller discussion of the commissioner's power to order modification or
revocation of a permit, see section 2.4.1 below, entitled "Enforcement Procedures.")
In the exercise of these powers, the commissioner's discretion is confined
by the legislative purpose of preventing injury to public health and environ-
mental quality and should be guided by the best scientific and technical
knowledge available.
Should permits be issued for the life of the site, or should they be periodi-
cally renewable? As we have just noted, permit issuance does not give the
landfill operator a vested right to operate. Rather, he may be ordered to
modify or cease operations whenever the facility is found to be in noncompliance
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with any legal requirement. Under these circumstances, a system of periodically
renewable permits might be redundant if continual monitoring procedures are
adequate. Even if the burden of proving compliance were placed on the
permittee, the task of reviewing renewal applications might tax the resources
of a solid waste agency to no particular advantage. In Connecticut, the
OSW issues permits for the life of the site. Permits issued by the
DEP's Office of Water Compliance are reviewed perfunctorily every five
years as required by the state water quality laws, and can be amended to
impose new operating requirements. In Wisconsin, permits are reviewable
every several years, the burden of proof being on the permittee. In
South Dakota, a conditional permit is issued for a one-year period,
after which time it is made into a permanent permit. It would appear to be
sound procedure for initial approval of a permit application to be made
conditional on development of the site in accordance with design plans. The
permanent'permit could then be granted following a satisfactory inspection.
2.2.3 Operating and Performance Standards
As noted above, permit issuance should be based on the DEP commissioner's
estimation that the facility, as it is situated and designed, will meet all
legal requirements. Retention of a permit once issued should be conditioned
on the facility's demonstrated conformity with those requirements. Specifically,
all landfills should be evaluated on the basis of their compliance with
operating and performance standards.
Operating standards, as set forth in the statute, regulations, and in each
facility's permit, comprise the management practices which must be followed
at the site itself. One notable example of an operating standard is the
requirement that the landfill's active working face be covered at the close
of each day. This practice is so basic to the operation of a sanitary landfill
that it should be required by a generally applicable regulation, as one of
many best management practices (BMPs). (For a fuller discussion of the BMP
concept see chapter 6 , dealing with stormwater, section 2.1). The practice
of incorporating the whole body of solid waste agency regulations into
operating permits is a convenient way of subjecting all facilities to a
range of BMPs. Depending on their subject matter, they may be in the form
of universal requirements and prohibitions, or they may be general statements
of principles to be applied on a site-specific basis. In addition, particular
operating requirements may be imposed on a facility because of peculiar
characteristics of the site. (Operating standards are also covered in the
discussion of elements of the permit application later in this section.)
Performance standards, as prescribed in the statute and regulations, specify
how the site as a whole should perform with reference to its impact on the
environment. The site selection process, design elements, and operating
standards are all aimed at assuring that the facility meet the legal perfor-
mance standard. Conceivably, performance standards might be met even if not
all operating standards are met, but the reverse is more likely; despite com-
pliance with all operating standards, the landfill still may discharge
unacceptable quantities of leachate. Dealing with this type of problem is a
difficult matter, but before exploring it, the concept of the performance
standard itself merits some discussion.
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The question of how co define the performance standard is the single most
important and difficult question in the field of landfill regulation. At a
minimum, statutes should prohibit operation of any landfill whichperhaps
beyond some mixing or attentuation zone designated in the permitwill
result in degradation of ground water quality beyond the physical, biological,
and radiological levels for raw or untreated sources of drinking water supply
specified in the National Drinking Water Standards (including future additions
and modifications) adopted pursuant to the Safe Drinking Water Act.50/
Most states have adopted a strict policy of nondegradation of ground and
surface water as their official performance standard. j>l_/ Nevertheless, it is
generally recognized that few, if any, landfills which rely on natural
renovation will perform at the zero-discharge level. Connecticut, for example,
applies a more flexible standard. It incorporates a leachate allowance into
each facility's permit. Expressed in terms of gallons per day of leachate,
the allowance is set with an eye to keeping groundwater quality above the
federal drinking water standard.
Pennsylvania has also adopted the nondegradation standard. In practice,
however, that state's Solid Waste Management Division of the Department of
Environmental Resources allows each naturally renovating landfill a "mixing"
zonean area beneath and around the active portion of the landfill in
which leachate can (at least in theory) be assimilated and renovated as it
passes into and through waterbearing strata. The Solid Waste Management
Division allows groundwater degradation within the bounds of the mixing zone.
Where BMPs are followed and leachate is found beyond the mixing zone, enforce-
ment action may still not be taken if groundwater meets the drinking water
standard. And even some level of degradation below that standard may be
tolerated if no existing water withdrawal use is impaired or threatened.
Unfortunately, neither the leachate allowance nor the mixing zone approaches
are really satisfactory. As noted, Connecticut's leachate allowance is
expressed in terms of gallons per day, but this is an impossible standard
to monitor. A naturally renovating landfill is not a point source, and there
is no single place at which to measure the volume of leachate produced.
Secondly, the negative impact of leachate is a function of both volume and
concentration, and any leachate allowance should comprise both elements, not
volume alone. The Pennsylvania mixing zone approach runs into the same
problems noted earlier with reference to site selection. Each landfill has
its own natural mixing zone, depending on the natural physical characteristics
of the site, climatic conditions, engineered site modifications, the characteris-
tics of the wastes disposed of, operating practices employed, the extent of
groundwater use outside the landfill, and other imponderables. The impreci-
sion of current scientific knowledge makes the determination of the extent of
a natural mixing zone an exercise in educated guessing. It is possible that
some sites will have no mixing zone at all. Moreover, even if its extent
could be determined, monitoring problems will arise. Since no one can know
exactly where a leachate plume will break out, it cannot be assumed that
monitoring wells on the periphery of the site will necessarily detect ground-
water pollution beyond the zone.
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Of the two approaches discussed, the use of mixing zones appears to be the
more realistic alternative to the nondegradation standard. Once given legal
status, natural mixing zones might be determined for each site, with a
margin for error. The operator would then be obliged to acquire a buffer
coextensive with the zone by purchasing the necessary marginal lands or
easements. For its part, the state would have to regulate withdrawal of
groundwater in order to assure that leachates continue to be quarantined
within the zones allowed for their assimilation.
Another approach to the performance standard problem would simply require
maximum practicable containment of leachate, whether by natural or arti-
ficial means, for every facility. The rationale underlying this approach
is that the myth of zero discharge must first be dispelled (except where
full collection and treatment of leachate are feasible) before sites can
be selected, designed, and operated with a view to minimizingnot
eliminatingenvironmental damage. For example, a site with subsurface
drainage toward a nearby free-flowing stream might be the environmentally
least harmful alternative, because it limits groundwater pollution to the
space between the site and the stream. Of course, state water quality
standards would still have to be met, and serious objections may also be
posed to locating new landfills on riparian wetlands or flood plains. But
at least some sensible alternatives might become available if state officials
and operators were no longer bound by unattainable zero-discharge and anti-
degradation standards. To hold that no degradation can be tolerated is
tantamount to saying that virtually all landfills should be closed down and
no new ones createda possibility clearly envisaged by the new federal
act, but not likely to be realized until resource recovery and recycling
have reached the point of supplanting land disposal of wastes.
2.2.4 Elements of the Permit Application
Applicants for permits to operate landfills, whether public or private,
should be required to submit complete site reconaissance plans covering
the elements discussed in the preceding section on site selection. Where
land-capability studies and inventories have already been conducted by
the responsible local or regional agency in consultation with the solid waste
agency, the application process will be expedited. All applications
should conform to regulations specifying required form and content. The
regulations should also require applicants to conduct tests, take samples,
sink wells, and make borings. EPA's Manual of Laws, Regulations and
Institutions for Control_of Ground Water Pollution includes regulations out-
lining specific data to be included in this element of the permit application.52/
In addition, advisory guidelines of the DEP can facilitate the process by
informing applicants how to go about it, without compelling them to do so
in a particular way. Thus, guidelines are more flexible than regulations and,
unlike the latter, can easily be amended from time to time to take account of
scientific or technical developments without going through the formal amending
process typically prescribed in a state's administrative procedures act.
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Preparation of a complete permit application can be a costly and time-
consuming undertaking. Guidelines should encourage consultation with
the solid waste agency before any engineering work is committed. In
Connecticut, applicants may request that the OSW conduct a preliminary
site survey. If the site looks favorable, the applicant is given a
conditional approval contingent on the preparation, submission, and
approval of a complete application, including a fully detailed site
plan, and of the requisite design and operating plans.
The next element of a permit application consists of a proposed design
plan for the landfill site. Drafting regulations on this subject is
difficult because not much is yet known about the effectiveness of various
design features in preventing or minimizing leachate. Uniform design
regulations, which ignore the uniqueness of each site, may not be cost-
effective, but different specifications for different types of sites may
not be warranted either, and may constitute regulatory overkill. Recog-
nizing this problem, Massachusetts provides a formal variance procedure
from design regulations in order to accommodate individual cases. Case-
by-case evaluation of each facility in light of more general statutory
performance standards may well be the most reasonable approach, because
it allows greater flexibility in design and operation. But a high level
of engineering expertise is required in order to make this approach work
fairly and effectively over a range of cases. The more detailed the
regulatory specifications, the easier they are to apply in reviewing
applications and to enforce in the courts. Perhaps a set of minimum specifi-
cations can be defined for all sites or for particular classes of sites, to
be supplemented by whatever further measures may be iiecessary to meet
performance standards.
Another critical element of a permit application is the proposed operating
plan. Certain operating procedures may be generally appropriate for all
landfills, and these BMPs should be enacted as solid waste agency regulations
and incorporated by reference into every landfill permit. Operating
plans should be required by regulation to cover such topics as daily
flow control; measuring and unloading procedures; designation of specific
disposal areas and methods of handling and compacting various solid
wastes; placement and characteristics of daily and intermediate cover
material; procedures for self-monitoring and reporting ground and surface
water quality; procedures for litter, erosion, and vector control;
contingency plans for fire and bad weather; staffing requirements and
standards for the training of the various levels of personnel; and
schedules for equipment maintenance. The operating plan should also
include a closure plan specifying final cover and contours, ultimate
land use if known, a continuing site monitoring program, and placement
of vents for decomposition gas.53/
Several of the foregoing points are worth emphasizing. First, the operating
plan should be required to specify exactly what wastes a particular landfil]
will be permitted to receive. Final authority to restrict the types of
material that may be placed in an approved landfill should be granted by
statute to the SWA. This practice will prevent hazardous wastes from being
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disposed of at sites not certain to contain their highly dangerous properties.
It will also conserve the capacity of the few highly impermeable landfill
sites for the disposal of hazardous wastes by keeping out ordinary municipal
wastes, incinerator ash, or inert construction wastes, except as may be
required as foundation or mix for hazardous wastes. The solid waste agency
should also be empowered to specify a volumetric ratio of solid to
liquid wastes for each site. Permits should specify what categories of
waste a particular site may accept, and should indicate, whether by
reference to regulations or by site-specific permit terms, how each
category is to be handled. The California Hazardous Waste Management
Act, for example, provides for differentiating between categories of
wastes and classes of landfill sites, and a classification system was
accordingly formulated by that state's Department of Water Resources.547
Another aspect of a facility's operating plan concerns the closure of the
site when its design capacity has been reached (or earlier if the site cannot
be made to meet performance standards). Since buried wastes will continue
to decompose for years after disposal operations have ceased, it is important
to assure that facilities are closed in such a way as to discourage saturation
or erosion, or other conditions favoring the formation of leachate and its
escape into the environment. A good closure plan will respond to regulations
requiring the placement of vents for decomposition gas, the application of
final cover, seeding, grading, and contouring, and other reclamation work.
The plan will also furnish guaranteesthrough performance bonds, escrow
accounts, or otherwisethat sufficient funds will have been set aside to
meet closure and post-closure requirements. (For a discussion of the
monitoring aspects of the closure plan see section 2.3, below.)
The final elements of the permit application relate not to the site itself,
but to the qualifications of the operator and his employees, and to the legal
and financial responsibility of the owner or operator of the facility.
To assure that the operation will be run professionally, by people
trained in the field of sanitary engineering, prospective operators
should be required to prove that they and a sufficient number of supervisory
personnel have the requisite qualifications. Connecticut's regulations
provide that a certified operator or his designee must be at the site
whenever it is open. The Connecticut act makes the qualifications of
operators subject to the approval of the commissioner.55 / Operators are
required to pass an examination testing their knowledge of approved
operational procedures. Operator certificates are valid for a two-year
period and are revocable, following a hearing, for noncompliance with
state laws and regulations. To renew an expired certificate, operators
must have completed an ongoing training course. A combined training and
certification program should help promote environmentally sound operations
and job safety, noL only by disseminating technical information but by
instilling in personnel a sense of pride in and responsibility for their
work.
The permit application is also the best vehicle for assuring that the
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owner or operator is financially solvent and able to meet both regular
and extraordinary operating expenses. Private operators, especially,
might well be expected to insure against the risks that are inherent in
their business and to post performance and closure bonds guaranteeing some or all
of the following: indemnification of those who may be injured by landfill
operations; clean-up or provision of alternate water supply to injured well
owners; other remedial action on or off the site as required; and full
performance of the closure plan. The operator should be held responsible
not only for compliance with the initial engineering aspects of the site
closure plan including grading, final cover, and seeding but also for
the cost of post-closure monitoring, remedial work, and any damages
which result. Operators might also be asked to agree, as part of the
permitting procedure, to remain personally subject to state court
jurisdiction. Alternatively, some of the foregoing financial responsibilities
and liabilities could be met by means of a state environmental fund. Statutes
might provide that part of current operating revenues be used to purchase
ongoing performance and closure bonds, or be deposited in a state environmental
fund on which the state or injured parties could draw to correct or compensate
for damages arising from landfill operations.
Under Pennsylvania's Clean Streams Act, 56/ landfills with leachate collection
and treatment must post a 10-year collateral bond for closure. The bond is
collected either at the time the permit is issued or piecemeal during
operation. For sites without leachate collection and treatment, the act
requires only a one-year closure plan. This period is not only unrealis-
tically short, but also has the practical effect of making the Solid Waste
Management Division wary of demanding remedial measures which the operator
will not certainly be able to afford, lest he abandon the site leaving the
state with the full cost of curing the defects. (Closure procedures are
further discussed in section 2.3, below, "Monitoring.")
Finally, some form of no-fault insurance would be desirable to protect
operators or owners who may be held strictly liable for injuries even if
they are not to blame (e.g., injuries occasioned by surreptitious nighttime
dumping of hazardous wastes at the site). Georgia holds the owner of a
leased site secondarily liable for damages resulting from the landfill
operation. Where this is the law, the owner's potential liability should
be clearly spelled out beforehand, perhaps by making him a copermittee with
the operator.
2.2.5 Permitting of Old Landfill Sites
Subtitle D of the Resource Conservation and Recovery Act of 1976 specifies,
as another minimum requirement for approval of state plans, that they
"provide for the closing or upgrading of all existing open dumps within the
State . . . ." The act directs the administrator of EPA to promulgate
regulations containing criteria for distinguishing between sanitary landfills
and open dumps: "At a minimum, such criteria must provide that a facility
may be classified as a sanitary landfill and not an open dump only if there
is no reasonable probability of adverse effects on health or the environment
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from disposal of solid waste at such facility." 57/ The administrator is
further required to compile and publish an inventory of all facilities in
the United States that are open dumps within the meaning of the act. Each
state plan will have to contain a requirement that all listed open dumps be
upgraded to sanitary landfills if not closed down. Where no waste disposal
alternatives exist, then upgrading or closure of open dumps must be governed
by a timetable "which specifies a schedule of remedial measures, including
an enforceable sequence of actions or operations, leading to compliance
with the prohibition on open dumping of solid waste within a reasonable
time (not to exceed five years from the date of publication of this
inventory . . .)." 58/ These provisions are bound to raise substantial
regulatory problems for states with old "landfills" that are suddenly
reclassified as "open dumps" under the federal law.
In Connecticut, landfills which antedate passage of the state act are not
ordinarily required to apply to the OSW for permits unless they are planning
to expand operations. If the OSW finds that the expansion will result in
significant new discharges, it will refer the application to the Office
of Water Compliance (OWC) for issuance of a water quality permit. Or if a
landfill violates water quality standards or otherwise interferes with
existing water uses, a permit may be issued to the operator requiring him
to upgrade his operating practices or to make such remedial design changes
as will minimize pollution. Only if the violation of water quality standards
or the interference with withdrawal uses cannot be corrected will the DEP
take action to close down the site. Otherwise, neither the OSW nor the
OWC seeks to regulate discharges from old landfills. Connecticut, like many
other states, will probably have to amend its act to comply with the federal
statute.
All state solid waste management programs should regulate pre-existing land-
fills through a comprehensive permit system. In this way, environmentally
sound sites can be distinguished from both remediable and irremediable
noncomplying sites. In all cases, permits can incorporate operating practices
that are tailored to the particular site and can restrict the types of wastes
they will henceforth be allowed to receive, thereby minimizing further damage
to the environment. Design plans can be incorporated into permits, specifying
remedial engineering actions and the final contours of the landfill. Except
for the worst sites, immediate closure may prove to be counterproductive and
will not be necessary if a state has in place a regulatory program sufficient
to take advantage of the five-year compliance period in the federal act (see
above). Where a locality or region makes a showing of necessity or hardship,
even an irremediable site may be issued a variance indicating a definite date
on which the facility will be closed. But in no event should such a variance
extend beyond the five-year period permitted under the federal act.
2.3 Monitoring
Even the best-conceived regulations for site selection and permitting will
prove ineffective in preventing environmental damage unless provisions are
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also made for the monitoring of permitted facilities by a sufficient number
of trained personnel. Monitoring responsibilities can be shared between
agents of the solid waste agency (SWA) and the landfill operators themselves.
Regulations should provide that authorized agents of the SWA may enter at any
reasonable time for the purpose of inspecting any facility and conducting any
tests to assure compliance with relevant laws, regulations, and terms of the
permit. Records which landfill operators are specifically required to maintain
pursuant to SWA regulations should likewise be open to inspection. In
accordance with their permits, operators should be required to sink monitoring
wells where and as the SWA deems necessary; to collect and analyze samples
periodically for leachate, running tests more frequently at hazardous waste
disposal sites; to keep records of all testing data and to forward results
periodically to the SWA; and to report at once to SWA any significant changes
in water quality, or any special occurrences, including fires, explosions,
flooding, injury, and incidents causing or threatening damage to life or
property. To supplement and verify self-monitoring reports, the SWA ought
to conduct its own periodic tests of groundwater.
Pennsylvania requires at least one well in each dominant direction of ground-
water movement.59/ An additional monitoring well, installed and main-
tained in such a location as to provide comparative data on the background
quality of the groundwater, is also advisable.
Responsibility for assuring that only permissible wastes are received for
disposal at the site should be placed on the operator, who can be obliged
to provide for inspection of wastes before disposal. Pursuant to the
requirements of subtitle C of the Resource Conservation and Recovery Act of
1976 60/ hazardous wastes must not be accepted unless accompanied by a
properly completed manifest indicating the name of the source; the process
by which they were generated; a description of the wastes, including their
type, composition, and hazardous properties; and special handling instructions.
Operators should be required to maintain records of the type, volume, and
origin of wastes received. They may have to do so anyway if, as may shortly
be the case in New Jersey, they must pay "tipping fees" to the state in
amounts based on the types and volumes of wastes received at the site. Record-
keeping requirements for hazardous wastes should be even more exacting,
including all information on the manifest, precise manner of handling, and
ultimate location of disposal at the site.
Other requirements, aimed at helping the operator to keep out impermissible
waste and to maintain adequate records of wastes accepted for disposal, should
specify that the hours of operation be indicated at the facility gates, that a
certified operator be present whenever the facility is in operation, and
that adequate security measures be adopted to prevent surreptitious dumping.
To assure that all aspects of the closure plan are carried out, time-phased
certificates of closing might be advisable. Under this system, an inspector
would visit the site, list deficiencies, and give the operator a specified
number of days to correct them before a second inspection. Following
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correction of the deficiencies, the operator would be given a temporary
certificate of closure. Subsequently, the solid waste agency would
perform another inspection. The operator' would be required to correct
any further problems that might have arisen since the facility had
closed or that had not previously been detected and remedied. Then
a final certificate of closure would be issued. The closure bond would
still provide funds to correct any deficiencies uncovered after issuance
of the final certificate. Operators should be required to maintain
monitoring wells throughout the closure period. These procedures would
encourage operators to exercise care not only in the final site-closing,
but also in their day-to-day operations during the life of the site.
Having in mind the various effects of waste decomposition which may manifest
themselves after site closure, a number of states (including Connecticut)
provide that when a permit is issued, a certified copy of it, including a
detailed description of the site and a plat, must be filed on the land
records of the county in which the site is located.61_/ Copies of closure
certificates, including cescriptions of the wastes buried at the site, should
similarly be filed. This practice would provide future owners with adequate
information regarding the previous use of the site. The SWA might also be
authorized to warn present and future owners of neighboring sites that the
pumping of groundwater may attract a leachate plume.
The Oregon statute tries to avoid the problems of subsequent use of a hazardous
waste site by requiring its conveyance to the state before permission will be
given to operate it for that purpose. The statute prohibits disposal of
hazardous wastes upon real estate not owned by the state.6_2_/ In general, it is
a good idea for the state to own or to regulate future uses of sites that have
ended their useful lives as landfills, whether for hazardous or supposedly non-
hazardous wastes.
2.4 Enforcement
The primary objective of enforcement in this context must be the expeditious
correction of landfill violations that threaten public health and environmental
quality or, if necessary, the closure of facilities that fail or are unable to
correct such violations. Enforcement procedures should be designed to promote
consultation and cooperation between noncomplying operators and the solid waste
agency as a first-line response to violations, and to avoid recourse to
expensive and time-consuming adversary proceedings wherever possible. This
amicable mode of law enforcement, aimed primarily at problem-solving rather
than punishment, is particularly appropriate in view of the many unknowns and
imponderables which persist in the field of landfill management. Thus, an
operator may be in full compliance with BMPs and all other conditions of his
permit imposed by the SWA, and yet still discover that his facility has failed
to meet the performance standard. Under these circumstances, the best course of
action would be for the operator and the SWA to pinpoint the source of the
poblem and work out a solution together.
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Even where an operator is guilty of a negligent violation of operating
standards, penalties may not necessarily be in order. For example, where a
facility has accepted an impermissible category of waste in violation of its
permit, the appropriate response might be for the SWA to send an expert to
train the operator, his supervisory personnel, or other employees in the
means of distinguishing between various types of waste. Of course, this
would not relieve the operator of liability for any damages sustained by third
persons as a result of his negligence. Neither would it free him from the
burden of undertaking whatever remedial action the SWA deems necessary. But,
especially in those situations where a financially strapped operator is faced
with costly corrective work, the imposition of penalties may prove counter-
productive by reducing the operator's ability to retain qualified personnel
and to repair equipment. Therefore, punitive actions should only be
taken in cases of willful or repeated negligent violations of the law.
While punitive measures should be reserved as a second-line response,
their incorporation into the law is necessary as a disincentive to
operators who persistently fail or refuse to bring themselves into
compliance.
As we have noted, the Resource Conservation and Recovery Act of 1976
mandates the closure or scheduled upgrading within five years of all
facilities identified as open dumps. 63_/ This provision can be expected
to put new pressure on existing enforcement systems while some affected
operators resort to delay and evasion. Compliance schedules should be
backed by enforcement 'orders, and these backed in turn by the threat of
closure and fines. Irremediable sites should be ordered closed as soon
as practicable. Only in this way will public nuisances be abated and
local governments truly compelled to consider regional approaches and
resource recovery alternatives.
2.4.1 Enforcement Procedures
The state of Connecticut has adopted an effective enforcement system which
combines the cooperative and punitive elements discussed above. When
an Office of Solid Waste (OSW) inspector detects a violation, whether in
the course of the routine inspection of a facility and its records or in
response to a citizen complaint, he gives the operator a solid waste
disposal area inspection report on which he has checked off the items
in need of correction and has added his own evaluation and recommendations
for remedial action. At the same time, he issues a notice of Violation
which, in addition to the information contained in the first form, cites
the legal authority of the OSW and demands that the operator correct the
violation by a specified date and notify the OSW when the facility is once
again in compliance. The notice warns that a formal order will be
issued if remedial action is not taken, but also invites the operator to
consult with the OSW before the deadline date.
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Continued noncompliance results in the issuance of an enforcement order
by the commissioner of DEP on advice of the OSW.64/ The order sets a
deadline for compliance and informs the operator that he has 30 days within
which to request a formal hearing. Failure to make a timely administrative
appeal will mean that the facts recited in the order cannot be challenged in
any subsequent judicial proceeding to enforce the order. If the operator
requests a hearing, an informal prehearing conference is first held. The
terms of any settlement reached are incorporated into a final consent order
which again enumerates the remedial actions required and a deadline for their
completion. In the event no settlement is reached informally, a full
adjudicatory hearing is held before an examiner appointed by the director
of the OSW, who submits this proposed decision to the commissioner of the DEP.
The commissioner may reject or adopt the proposed decision in whole or in
part or may hold his own additional hearing before issuing his final order.
Final orders of the commissioner may be appealed to the courts, which apply
the usual standards for judicial review of this type of administrative action.
Thus, appeals will be limited to allegations that there is no substantial
evidence in the record to support the finding of the administrator or that
the decision was otherwise arbitrary or capricious. An aggrieved owner or
operator might also allege denial of procedural due process, lack of
authority, or unconstitutionality of the act on its face, or as applied
in the particular instance.
If a final consent order or adjudicatory order of the commissioner is
violated, the case may be referred to the attorney general for enforcement
action in the courts. The typical remedy sought is injunctive relief. Where,
as noted above, the operator has failed to make a timely request for a formal
hearing, the doctrine of res judicata will operate to bar any challenge to
the facts recited in the order. Since questions of fact are fairly clear cut
in the usual case, temporary restraining orders, based on allegations of
irreparable harm to public health and environmental quality, are relatively
easy to obtain.
California has eased the legal requirements for issuance of all forms of
equitable relief (injunctions) by eliminating, at any stage of the proceedings,
the need to allege or prove either irreparable injury or the inadequacy of
monetary remedies .^>5/ Due to the general lack of controversy over
factual issues, the typical case does not go to trial in California but results
in a stipulated order or consent decree which is issued by the court as a
permanent injunction. Violation of the court order would, of course, subject
the operator to contempt proceedings.
2.4.2 Enforcement Problems
Establishing proof of alleged violations can occasionally present difficulties.
To facilitate proof of performance standard violations, wells should be
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sunk and samples of water analyzed prior to operations to establish background
water quality. Results can then be compared with samples taken in the course
of operations both up and down gradient from the landfill to establish the
presence and cause of the pollutant. Reliable proof that an operating
standard has been violated is generally easier to establish and, where possible,
prosecutors will base legal action on these grounds. Nevertheless, investi-
gators may have to make several visits to establish a pattern of violation or
to catch the operator in the act.
In Pennsylvania, an inspector who detects a violation must find a police officer
to issue a citation. The better alternative would be for state law to invest
solid waste agency inspectors with the status of law enforcement officers,
with the legal power to issue notices of violation.
Operators of noncomplying facilities confronted with orders to undertake
expensive remedial action or to cease operation will pursue all available
administrative and judicial remedies, simply as a means of delaying the inevita-
ble and obtaining the last possible dollar from their landfills. Accordingly,
the DEP should be empowered to issue cease and desist orders suspending or
barring expansion of operations during the appeals period. The state should
also institute a system whereby the operator is fined for each day he
remains in violation. In New Jersey, a noncomplying operator may be issued a
notice of prosecution, which gives him the option of paying a fine and taking
remedial action, or of having the state bring suit to assess a larger fine. The
amount of the administratively requested fine is set to be somewhat less
than the amount the operator would have to spend for legal defense. If paid,
the fine proceeds are held in escrow, and when the operator makes the demanded
corrections and remains in compliance for at least six months, the state remits
to him 90 percent of the fine.
While, as noted above, the punitive aspects of an enforcement program should be
secondary to the primary goal of bringing facilities into compliance, a schedule
of civil penalties for a variety of violations can be an effective deterrent,
especially in cases where the threat of closure seems unrealistic. In Connecti-
cut, the comissioner of the DEP is authorized to adopt schedules of civil
penalties which may be assessed after hearing in amounts up to $25,000 for the
most serious violations.j>6/ In addition, pernalties of up to $10,000 per offense
may be imposed for the willful or negligent violation of provisions relating to
environmental quality.67/
State statutes should clearly preserve the right of political subdivisions to
abate nuisances, and the right of any person to maintain an appropriate action
for abatement of nuisances or for damages. The Michigan Environmental Protection
Act goes even further and gives every public or private entity the right to sue
any other public or private entity in the state courts to protect the environ-
ment.^/ The Act grants each citizen the standing to sue as a "private attorney
general," that is, without having to show particular personal injury or other
interest greater than that held by the public at large.
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2.5 The Allocation of Functions; Appropriate Level and Agency of
Government: and Public v. Private Management
The provisions of the Resource Conservation and Recovery Act of 1976 place a
large measure of the responsibility for the planning and regulation of solid
waste management on state governments. Much of the foregoing discussion has
been based on the assumption that this legislation will shape future developments
within a state.
States commonly invest their subdivisions (counties, cities, towns, special
districts) with authority to perform particular governmental functions, including
collection and disposal of solid wastes. Substate governments must then decide,
in light of community resources and needs, how best to provide these services.
They must choose between public and private operation, or elect some combination
of the two (e.g., lease of publicly owned sites to private operators). Since
the siting of landfills is still considered, by and large, a question of
local land-use, the power to veto a siting proposal usually existsand is all
too frequently exercisedat the local level. Localities also regulate by ordi-
nance the form and quality of services to be provided, the obligations of users
of the services, and the fees to be charged or taxes levied for them.
Due to the vast growth in volume of residuals, the growing scarcity of
acceptable sites for disposal, and the increasing costs of handling wastes
consistently with standards of public health and environmental quality,
local governments have found themselves hard pressed to maintain satisfactory
levels of service. The Council of State Governments reported in 1974 that
probably less than 40 percent of this nation's population lives in areas
with governments of sufficient size to provide solid waste collection and
disposal services at reasonable cost.j>9_/ Many localities lack not only the
fiscal resources but also the requisite levels of technical and managerial
expertise to administer all aspects of a sound solid waste management program.
2.5.1 Regional Entities
Part of the solution to the problem of providing adequate services lies in
the regional approach to solid waste management, which allows several locali-
ties to accomplish together what they cannot do alone. Regionalization permits
economies of scale, and costs can be fairly allocated among the participating
jurisdictions. An intergovernmental entity created for the regional manage-
ment of solid waste can operate larger, properly run and adequately equipped
landfills, as well as resource recovery facilities of economical size. There
are several types of regional organizations that may be used for solid waste
management, including public authorities, nonprofit public corporations,
multicommunity cooperatives, and special districts. The choice among the
alternatives will depend on the characteristics and needs of the participating
communities and on the pecularities of state law.70/
A public authority is a corporate body, chartered by the state legislature
and functioning largely outside the regular structure of government, with
powers to finance, construct, and operate revenue-producing public facilities.
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It may exercise regulatory powers limited to its own operations, if so
stated in its charter. It raises capital funds by issuing long and
short term notes that are met by levying charges on users of the authority's
services. Public authorities are useful where participating localities have
run up against constitutional limits on their debt ceilings, where it is
difficult to obtain voter approval for financing through the tax base, or
where political activity related to the service has hampered previous programs.
Run by boards of directors, public authorities offer greater autonomy and
freedom from municipal budgetary and administrative control. The danger
arises, however,that this independence will make authorities remote,
unresponsive, and self-serving.
Nonprofit public corporations derive their powers from articles of incorpora-
tion approved by member jurisdictions and the secretary of state. Dependent
on local governmental action for regulatory functions, the corporation is
nevertheless useful for shifting financing requirements outside the immediate
municipal bureaucracy. To gain tax-exempt status, the corporation must
satisfy the following Internal Revenue Service criteria:
- the city council must approve the project and accept the assets
after the bonds are paid.
- the corporation must agree to give its assets to the city after bonds
are paid.
- the city must provide all easements to the corporation at no cost.
- the directors of the corporation must be city or state officials.
- the corporation must provide a public service.71/
Local governments thus have more control over a nonprofit public corporation
than they do over a profit-making firm.
The multicommunity cooperative is a system developed by one community to
provide service to itself and several other communities on a contractual
basis. Regulatory functions are borne entirely by the individual local
governments. The ability to raise capital under this approach depends on the
lead community's debt capacity and financial strength.
The special district is an agency of government which operates outside the
regular structure of government to perform a single function and which relies
for financial support primarily on special tax levies. In some states
special districts can regulate, levy assessments, operate, contract, or do
whatever is necessary to perform their single function. The special district
has an advantage over the public authority in that the district has a
distinct constituency of residents, not merely a group of bondholders living
in widely scattered places. Coordination of special district functions with
the activities of general-purpose local governments can be furthered by having
local elected officials serve on the governing body of the special district.
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The Des Moines Metropolitan Area Solid Waste Agency (DMSWA) is one example of
an intergovernmental entity, the creation of which was promoted by favorable
state legislation. The legal authority to' establish DMSWA rests in chapters
28E and 236 of the Iowa State Code. Chapter 28E is typical of state "inter-
governmental cooperation acts" generally, which provide that units of federal,
state, and local governments may exercise jointly any powers, privileges, or
authority that they are authorized to exercise independently. Chapter 236
specifically provides the authority to issue revenue bonds for capital
improvements and operating equipment. DMSWA operates as a "quasi-municipality",
a legal and administrative entity separate from the twelve cities and towns
and two counties which joined together to create it. It has exclusive
authority to handle waste management planning and service delivery as outlined
in the intergovernmental agreements signed in 1969 by the official representa-
tives of the cooperating political entities and registered with the Iowa
Secretary of State. The agency is run by a sixteen-member board. It operates
enough collection equipment to collect the solid waste from more than 60,000
residential units and has enough heavy equipment to dispose of the residential,
commercial, and industrial solid waste generated in a metropolitan area of
280,000 population. In 1970, after consultation with responsible metropolitan
officials and agencies and reconaissance of several sites, including engineering
and geological studies, DMSWA was issued a special use permit for its new
400 acre landfill site by the Polk County Zoning Board of Adjustments.72/
The Hackensack Meadowlands Development Commission (HMDC) in New Jersey is an
example of a special purpose subdivision with potential to handle the wastes
generated within and without its own boundaries. HMDC has a combination of
powers relating to solid waste management not ordinarily found in supra-local
governments in the east. The Hackensack Meadowlands Development Act of
1969 73/, designed primarily for the control of development in the meadowlands,
also gave HMDC express powers over solid waste management, including authori-
zation to sell bonds, to promulgate codes and standards, and to exercise the
power of eminent domain to provide for solid waste disposal. The land use
decisions of the Commission override any local zoning to the contrary. One
provision of the act obliges HMDC to continue receiving wastes from all
municipalities that had been disposing of their solid waste in the meadlowlands
in 1969. The Commissioner is currently seeking a franchise from the Public
Utility Commission to secure a monopoly on disposal of wastes from those 114
municipalities, most of which are located outside its own jurisdiction. HMDC
contends that if it must dispose of the wastes, the municipalities ought to
guarantee that their wastes will in fact be delivered for disposal. Long-
term contracts with the municipalities would enable HMDC to undertake
construction of facilities and to procure advanced waste handling equipment.
(Public utility regulation of solid waste handling is discussed below in
section 2.5.4)
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The regionalization of solid waste management may be accomplished by
state mandate, or induced by state pressure (e.g., the closure of several
substandard landfills, leaving neighboring communities little choice
but to cooperate). Where such direct state measures are not authorized
or are not politically feasible, regionalization may be promoted by state
incentives (e.g., grant-in-aid programs for regional planning and plan
implementation),^/ or by amendment of state constitutions and statutes
to remove impediments to the voluntary creation of regional entities. By
whatever methods regionalization is fostered, the resulting improvement
of services should greatly reduce the impetus for more direct state involve-
ment in the business of solid waste management.
Nevertheless, some states have opted for a more active role in service
delivery. (See the discussion of the Connecticut Resource Recovery
Authority above, section 1.3). The Maryland Environmental Service (MES)
created in 1970 was given the function of constructing and operating solid
and liquid waste disposal facilities. 75/ MES is a public corporation within
the Department of Natural Resources which functions like a statewide
sanitary district in that it takes a service delivery approach to residual
waste management, rather than a purely regulatory one. It has specific
authority and funds to draft and implement solid and liquid waste facilities
plans, in order to promote regional approaches to waste management. As
described by a Council of State Governments' study entitled The States and
Solid Waste Management; Our Effluent Society:
MES can assume its waste control function in three ways:
(1) through implementation of the five-year regional plans
for solid and liquid wastes, which are drafted by the
service and outline a mutually agreed upon division of
services between state and local governments; (2) when a
local government or industry request aid, MES must provide
the desired facilities or services; (3) if an industry
or municipality violates a compliance order to conform
to water quality standards or regulations governing
solid waste disposal, the Secretary of Natural Resources
or the Secretary of Health and Mental Hygiene can direct
the Service to take over the violator's waste treatment
and disposal facilities until compliance is achieved.76/
Local governments retain a veto over the location of MES facilities and over
its regional waste management plans.
2.5.2 The State Role
States should not simply delegate to their political subdivisions the responsi-
bility for providing certain services, but should retain an interest in seeing
that services of a particular quality, or meeting a set of minimum criteria,
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are delivered. In addition, states should retain those functions which
they deem to be of statewide rather than of chiefly local concern.
State governments have come to appreciate their obligations to assure that
local governments provide environmentally sound solid waste management for
their inhabitants. Protecting environmental quality is now seen as a state
trust. Since leachate from poorly sited and operated landfills pollutes the
"waters of the state," the disposal aspects of solid waste management are of
particular statewide concern. State governments are also more likely than
their localities to command the requisite technical expertise to draft and
administer regulations for environmentally sound planning, site selection,
design, and operation of disposal facilities. Also, since local governments
are the principal providers of solid waste collection and disposal services,
they are not in the best position to monitor their own performance and may
be politically unable to improve it unless some higher level of government
takes enforcement action against them. Even when an offending facility is
privately operated, a municipality may refuse to close it down voluntarily
unless an immediate and politically acceptable alternative exists.
However, the logic of having state agencies do the monitoring and enforcement
is compromised by serious resource limitations. Many state SWAs have
insufficient budgets to take on these tasks entirely and convincingly. Inter-
governmental cooperation may therefore be sought. The New Jersey statute, 111
for example, authorizes the state DEP to contract with county and municipal
boards of health for monitoring compliance by solid waste facilities with
state standards. DEP may also provide for the training of local health
officers detailed to this work, and if it does so, the training experience
and state certification should give them some degree of professional
reliability and independence from local political pressures.
Particular facets of solid waste management call for a high degree of state
involvement. At the top of the list is the management of toxic and
hazardous wastes. Because of the substantial threat to public health and
environmental quality posed by these wastes, the relative scarcity of
appropriate disposal sites, and the need for long-distance hauling between
producers, pretreatment facilities, and disposal sites, a leading state role
is advisable. This does not mean that state governments should necessarily run
all disposal facilities for such special wastes. Localities or private
concerns may well operate the necessary facilities, but only under detailed
regulatory supervision by the state governments (in accordance with federal
standards, or by the federal government itself, under the Resource Conservation
and Recovery Act of 1976). Most local governments do not have the technical
expertise to establish and oversee procedures for the safe handling and
disposal of special wastes. The necessary capability is more likely to be
found at the state level. Also, a local government might find it politically
difficult to take enforcement action against a large employer in the community
who mishandled his hazardous effluent.
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State programs are also needed to promote resource recovery, which depends on
availability of generous capital financing, long range sources of supply,
extensive service areas (perhaps assured through monopoly franchises), and
removal of legal obstructions to the marketing of recovered productsall
conditions that cannot be met by a multiplicity of local governments acting
on their own.
The state should also use its resources and expertise to train landfill
operators and other local government personnel involved in solid waste manage-
ment. In general, relations between state and local officials should be
characterized by ongoing patterns of consultation, cooperation, and problem-
solving. These are particularly important in the field of solid waste manage-
ment, where the state of the art is still in flux and many unknowns are still
to be resolved.
As argued above, states must exercise their regulatory powers over aspects of
solid waste management that affect public health or environmental quality.
This does not mean, however, that state laws should not also empower localities
to adopt and enforce solid waste regulations of their own, in addition to but
not in conflict with those of the state. Because of local conditions, some
communities may wish to regulate more strictly than the state, and might well
be allowed to do so. Local obstruction is, however, another matter. Because
landfills make unpopular neighbors, many localities have tried to use their
zoning powers to keep them out. The risk of localities or regions imposing
unnecessary impediments to the permitting of new landfills should be reduced
where they are charged by statutes, as they should be, with the responsibility
of meeting their own disposal needs. But it may be necessary to have laws
in place under which state agencies, despite local objections, can designate
sites, issue permits, and decree service areas.78/ Solid waste management
is not, after all, a matter of purely local concern.
2.5.3 Public v. Private Operation
Local governments have the option of providing solid waste disposal services
themselves or of relying, in whole or in part, on the private sector for that
purpose. Among the advantages of a public operation are that it provides
services on a nonprofit basis and may be eligible for low interest rate loans
or government grants for construction and equipment. Performance and closure
bonds are not ordinarily required of publicly operated facilities since, as a
last resort, the public tax base can be used to fund remedial action.
On the other hand, many local governments cannot command the necessary
resources to operate sophisticated modern facilities. Skimpy local budgets
compromise equipment maintenance and perpetuate non-compliance with standards.
It is necessary to go through the town meeting or city council every time
an appropriation is needed for repairs or purchase of new equipment, and
localities have many higher priorities for use of their tax revenues. Civil
service restrictions may prevent governments from hiring the best operators
available and from firing incompetent ones. Moreover, it is politically
difficult to enforce DEP orders against local governments. States have been
hesitant to assess civil fines against them, even for persistent violations.
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The chief advantage of private operation of facilities is that the
community will not have to finance the system nor bear the entire cost
of implementing new technologies. By and large, private owners also
have greater expertise to operate technically advanced facilities than
the typical local agency. Private operators will generally move quickly to
repair or replace equipment as needed. They have far more reason than
local governments to fear enforcement action by the state if they fail
to meet standards. Disadvantages of private operation may include
lack of community control over fees in the absence of public utility
regulation; the risk that an operator will cut corners to increase
his profits at the expense of environmental quality and service to the
community; and the taint of corruption that has traditionally infected
some segments of this industry. Since financially irresponsible
operators may be unable to meet the cost of expensive remedial action,
performance and closure bonds should routinely be required of them. 79/
2.5.4 Public Utility Regulation
In some states, the "free market" for waste disposal services has
spawned various abuses, such as collusive bidding on public contracts,
rate gouging, inequitable rate structures, arbitrary refusal of service,
and financial irresponsibility. The reaction of a number of states,
beginning with New Jersey, has been to classify landfill disposal
operations as public utilities and to bring their rate structures and
service areas within the scope of public utility regulation. For example,
New Jersey's Solid Waste Utility Control Act of 1970 80/ provides that no
person shall engage in the business of solid waste collection or disposal
until found by the Board of Public Utility Commissioners (PUC) "to be
qualified by experience, training, or education to engage in such
business;" until he has furnished "proof of financial responsibility;" and
until the PUC has issued him a certificate of public convenience and
necessity.&L/ All rates charged by landfill operators are made subject to
PUC approval. The New Jersey PUC is further authorized to designate
franchise areas to be served by one or more operators. For purposes of
the present inquiry; the major problem with regulation by the New Jersey
PUC is how to coordinate its regulatory powers and concerns with those of
the DEP's Solid Waste Administration (SWA). The mission of the PUC is to
assure that services are provided where needed at reasonable cost; the
overriding concern of the SWA is protection of environmental quality.
Conflict may arise between these two objectives.
The New Jersey act eliminates most problems of coordination at the
permitting level by providing that the PUC can issue a certificate for a
landfill only after it has been approved by the SWA. Still, in their
deliberations over issuance of a certificate or permit, it is not yet
clear to what extent environmental issues should be considered by the PUC
and questions of public convenience and necessity by the SWA. Further
clarification of their respective responsibilities would improve the permitting
process and reduce the risk of legal challenges to government actions.
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A more serious problem is whether the PUG will recognize the rising costs
of complying with the DEP's regulations by permitting rates for service to
rise accordingly. Disagreements may arise over an operator's ability
to absorb those costs without a rate increase and still realize a
reasonable return on his capital. While the matter drags on through rate
proceedings and judicial review, compliance with environmental standards
may be delayed. State laws ought to make clear the primacy of such
standards and the necessity for meeting them on schedule, regardless of
any disputes that may be pending over rates. There should also be a
provision in the state law that any long-term contract for the delivery
of solid waste services must be made subject to adjustment in the event of
higher costs imposed by the SWA for environmental protection.
The greatest problems of interagency coordination arise over the question
of facility closure. In several court actions initiated by the SWA to
enforce closure orders, the PUG has intervened, arguing that closure was
inconsistent with public convenience and necessity in the absence of
feasible alternative sites or means for disposal. But alternatives
usually are available, or can be found within prescribed deadlines,
if it is determined that the costs of environmentally sound disposal
will be paid. In New Jersey the SWA and the PUG have begun to conduct joint
hearings in closure cases, a salutary innovation. Still, it needs to be
made clear as a matter of state law that closure of a polluting facility
may not be put off indefinitely until an inexpensive, locally acceptable
alternative can be developed. Powers to decree mandatory regionalization
of facilities may aid the closure of hopeless ones, while longer-range
plans for resource recovery move towards implementation.
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3.0 Regulation of Sludge Management
3.1 Introduction
One aspect of this nation's residual waste management crisis is
the spiralling quantity of sludge, the by-product of municipal and
industrial wastewater treatment, that must be disposed of in a
manner consistent with public health and environmental quality.
This increase reflects not only the growth in population and in
the rate of waste generation generally, but also the more stringent
wastewater treatment requirements that have been imposed under the
Federal Water Pollution Control Act Amendments of 1972 (FWPCA).
The upgrading of treatment levels prescribed under the FWPCA is
anticipated to result in increased volumes of sewage sludges, in
many cases a two or three-fold increase.^2/ The challenge to re-
sidual waste management agencies is further heightened by the fact
that sludges resulting from advanced treatment operations are more
difficult to handle than some of the common biological sludges.83/
The greater efficiency of wastewater treatment facilities in remov-
ing pollutants, particularly heavy metals, is reflected in the con-
tent of the sludge residue. Moreover, some wastewater treatment
technologies may themselves contribute to the problem. Much of the
increase in the amount of sludge generated has occurred with the use
of chemical precipitants for nutrient control and the upgrading of
secondary treatment facilities. EPA is currently seeking new tech-
nologies for the recovery and reuse of these chemical additives.84/
Section 208 makes it incumbent upon the designated state and area-
wide agencies to plan for the management of these quantities and
qualities of sludge.
Sludge management should be undertaken as a distinct component of
the overall residual waste management program. One characteristic
that justifies this special consideration is the relatively high
water content of sludges, which distinguishes them from other solid
wastes and presents a potentially greater threat to ground and sur-
face water if sludges are mishandled. Also, due to the likely pre-
sence of pathogenic organisms and heavy metals, sludges may require
special treatment prior to ultimate disposal or reuse to prevent ad-
verse public health or environmental affects. The contents and spe-
cial properties of all sludges must be ascertained to assure that
sludges of a particular quality are directed to the disposal or re-
use alternative best suited to prevent adverse impacts on the envi-
ronment and also to avoid the unnecessary waste of recyclable resources,
Even though all sludges, irrespective of type, will not meet the
criteria for inclusion on state or federal hazardous waste lists,
the regulatory approaches discussed in this section bear a close
resemblance to those of th.; federal hazardous waste program as out-
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lined in subtitle C of the recently enacted Resource Conservation
and Recovery Act of 1976. (See the discussion in section 1.4,
above, and in note 23). In particular, the sludge program discussed
in this section places on the generators of the sludge a greater
responsibility (a) for accurate identification of components, prop-
erties, and characteristics, and (b) for appropriate intermediate
handling and ultimate disposal or reuse than is typically the case
for generators of nonhazardous solid wastes. An adequate regula-
tory program will follow the sludge from point of origin to point
of disposal or reuse by means of a manifest system which alerts all
handlers along the way to use the special management practices re-
quired to protect the environment and to satisfy government regula-
tions.
In other respects, the sludge management program is not dissimilar
to that for other solid wastes, many elements of which have been
covered in the preceding sections. For example, as discussed in
the planning section, 2.1, above, all state DEPs should be directed
by statute to prepare state-wide sludge management plans as a com-
ponent of their residual waste management plans. Also, local or
regional authorities should be required to submit to the DEP long-
term plans of their own for the management of the quantities and
qualities of sludge that will be generated in their jurisdictions.
These plans, prepared in coordination with larger land development
objectives, should specifically identify sufficient disposal or
reuse capacity for the life of the plan, at existing or projected
sites which meet or can be developed to meet state permitting cri*-
teria.
As we will see, the technical, administrative, and legal aspects of
permitting, monitoring, and enforcement under the sludge program
discussed in this section are also similar or identical to those
for other solid wastes.
3.2 The Regulation of Sludge Generators
Primary responsibility for the appropriate disposition of sludge
might well be placed on the generator. The best administrative
mechanism for affixing this responsibility is to require every gen-
erator of sludge, public or private, to obtain a permit from the
state water quality agency (WQA) as a precondition to operation.
To be issued an operating permit, all sludge generators should have
to submit a detailed sludge disposal plan to the WQA for approval.
WQA regulations and guidelines covering plan preparations should
require generators to provide the following kinds of information:
1. As regards the sludge
(a) a description of the processes by which it is produced
and treated;
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(b) a description of the sludge including its composition
(e.g., minerals, heavy metals); characteristics (e.g.,
water content, presence of pathogens); and properties
(e.g., corrosiveness, toxicity, flammability, explo-
siveness); and
(c) a prediction of the volume to be produced annually
and seasonally.
2. As regards intermediate sludge handling
(a) if the sludge is to be stored at the facility, a de-
tailed description of the storage facilities including
provisions for emergency storage capacity;
(b) if the sludge is to be hauled from the facility for
advanced treatment or disposition, the identity of the
permitted haulers and waste handlers.85/
3. As regards the ultimate disposition of the sludge
(a) if the sludge is to disposed of at a landfill, the
identity of the specific landfill to be used;
(b) whether the landfill is permitted by the SWA to receive
that type of sludge;
(c) and whether sufficient appropriate disposal capacity
has been reserved for at least a one-year period; and
(d) if the sludge is to be disposed or reused by any other
means, whether all government regulations (state or fed-
eral), if any, will be met.
The operating permit for sludge generators should include all the
information contained in the approved sludge disposal plan. The
operating permit should also incorporate by reference the following
operating requirements as found in the relevant statute or WQA reg-
ulations:
1. Periodic self-monitoring of sludge for consistency with the
description found in the disposal plan;
2. Record-keeping of all test results;
3. Immediate suspension of sludge shipments and notification to
the WQA of all breakdowns in the sludge treatment operation,
or of all test results showing variations in the sludge beyond
set parameters;
4. Compliance with the manifest system which informs subsequent
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handlers as to the composition, characteristics, properties,
and volumes of any given sludge shipment, and which alerts
them to use the appropriate management practices; and
5. Maintenance of liability insurance covering damages from im-
properly handled sludge.
The state statute should give the WQA the authority to run tests
and inspect required records and operations when and as deemed
necessary. As regards the manifest system, the WQA must devise
a system to process the data contained in the bills of lading, so
that their value as a monitoring tool is not lost.
As discussed for sanitary landfills in section 2.2.2 above, permits for
generators of sludge should not be considered as giving a vested
right to continue operation for the term of the permit. Rather,
permits should be conditioned on compliance with all terms and
conditions, regulations, and relevant statutes. Due to the great
number of possible contingencies (e.g., loss of operating permits
by the landfill operator, hauler, or other intermediate handler),
operating permits for generators of sludge should be reevaluated
periodically. Generators should be advised to notify the WQA in
advance of any anticipated change in production or treatment that
will affect the quality of the resulting sludge, so that the agen-
cy can review the permit accordingly.
A full range of enforcement tools, including the authority to
issue enforcement orders and impose civil penalties, should be
available. A schedule of fines is especially important when deal-
ing with municipal treatment facilities since the threat of closure
for violations of the permit is not convincing. The commissioner
of DEP should impose fines when warranted, even upon municipal
facilities. (See section 2.4, above, "Enforcement.")
3.2.1 Regulating Municipal Treatment Facilities
The residue of municipal sewage treatment facilities is essentially
organic in nature, although measurable quantities of heavy metals,
minerals, and other components may also be present. Industrial ef-
fluents, especially if not pretreated, frequently contain substan-
tial amounts of inorganic residuals such as metals and chemicals.
Thus, where industrial wastewater is treated together with munici-
pal sewage, the potential for additional foreign materials in the
resulting sludge is increased. Moreover, because the presence in
sewage of concentrations of particular heavy metals can upset some
wastewater treatment technologies, pathogenic organisms may survive
and remain in the residue.J56/ Herein lies the importance, from
the standpoint of the sludge management program, of the industrial
pretreatment requirements specified, or to be specified, under §307
of the FWPCA. These inorganic components of sludge are more easily
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isolated at their source, where treatment for specific components
can be undertaken, than at the municipal facility. Furthermore,
the expense involved in treating and disposing of these often
hazardous industrial sludges is properly placed on their producers.
The permitting of the sludge management operations of municipal
sewage treatment facilities should be undertaken as a component
of the larger NPDES program. The sludge program should be admin-
istered by the state agency charged with responsibility for the
NPDES program, or by EPA where the federal government retains con-
trol over NPDES functions.
One common weakness in existing programs for the regulation of
sludge management at municipal treatment facilities is the failure
to require identification of the specific disposal or recycling
facility to which the sludge will be sent. There are commendable
exceptions to this rule. Pennsylvania's Bureau of Water Quality
Management, for example, will not issue a permit for the operation
of a municipal facility unless it designates a specific landfill
or other disposal or recycling facility approved by the Solid Waste
Management Division of the Department of Environmental Resources.
Another common gap in existing programs is an inadequate monitoring
requirement. Many states require the analysis of sludge when a
treatment facility is applying for its permit. But the content of
sludge can change radically depending on the season, new industrial
hookups, or breakdowns. Routine testing at the facility for heavy
metals, pathogens, and other potentially dangerous components should
be backed up by periodic monitoring by the WQA.
3.2.2 Regulating Industrial Treatment Facilities
All industrial generators of sludge, whether or not they discharge
their effluent into the municipal sewage system, should be required
to receive operating permits from the WQA.
Connecticut is an example of a state that has had in affect rigor-
ous pretreatment requirements for industrial users of municipal
systems since before the promulgation of the federal regulations
on the subject. Industrial facilities that are not hooked up to
the municipal system must provide full treatment for their own
wastes before discharging treated effluents directly to surface wa-
ters. Both categories of industrial sludge generators must be per-
mitted by the Office of Water Compliance. All such permits should
incorporate the sludge management provisions discussed above.
3.3 The Regulation of Sludge Disposal/Reuse Facilities
3.3.1 Regulating Landfills
The regulatory program for landfills is fully discussed in section
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2.0 of this chapter. Provisions of special importance as regards
the disposal of sludge are discussed below.
State SWAs should be authorized by statute to set standards con-
cerning the liquid and pathogen content of sludges that may be
disposed of at landfills. Regulations might simply provide that
landfills accept only sludges that have been dewatered and sta-
bilized. Connecticut excludes liquid sludges from landfills by
regulation, but this is occasionally overlooked when dewatering
equipment breaks down.
Because of the high biological content of many sludges, odor be-
yond the boundaries of the landfill may present a problem. New
Jersey requires landfills to apply a daily cover of no less than
12 inches in depth over sludge. The stabilization of sludge will
also minimize odor problems.
Landfills permitted to receive sludge should be especially care-
ful to meet the requirements of the manifest system and to comply
with all special handling instructions. No sludges should be ac-
cepted from a hauler without the required documentation and a cur-
rent hauling permit. Care should be exercised to maintain re-
quired records properly.
3.3.2 Regulating Incineration
While incineration of sewage sludge or solid waste is often con-
sidered a disposal alternative, it is in fact only a volume re-
duction technique since this process leaves a residue that requires
disposal. Incineration reduces the quantity of sludge that must
be disposed of to three to five percent. If sludge ash is to be
landfilled it should be remembered that while the residue is bio-
logically inert it may still contain heavy metals. The most ser-
ious problems associated with incineration are the cost and air
pollution.^?/ All facilities should be required to meet all rel-
evant state and federal air pollution statutes and regulations.
3.3.3 Regulating Ocean Dumping
EPA is currently trying to phase out the ocean dumping of sludge
by 1981, but operators of treatment facilities now using this
method may continue doing so in the meantime. EPA's regula-
tions and criteria to govern this method of disposal are set forth
at 40 C.F.R. §§220-227. The agency controls such disposal by a
system of permits for the discharge, transportation, and dumping
of all sludge into the marine environment.
Since all cities presently using this alternative are dumping
sludges which exceed the EPA criteria, the agency has issued them
interim permits. One of the conditions of these interim permits
is the requirement for an implementation plan to either reduce the
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toxicity of the materials to meet the criteria or find another
method of disposal. Interim permits are issued for one year only,
and extensions are based on the progress demonstrated by the per-
mittee on this implementation plan.88/
3.3.4 Regulating Land Application
One reuse alternative that has been receiving increased attention
in recent years is the application of sludge on land as a soil con-
ditioner and low grade fertilizer. Sludge can be applied to crop
and forest land to maintain or restore depleted soil fertility lev-
els and to reclaim abandoned strip-mined and marginal lands. Other
potential uses of sludge include erosion control projects and appli-
cation on golf courses, cemeteries, highway median strips, parkland
and airports, and for turf grass and ornamental shrub production.89/
Sewage sludges contain macro plant nutrients (e.g., nitrogen, phos-
phorous, and potassium) at levels that are about 20 percent of those
found in commercial fertilizer. Biological sludges also contain
necessary micro nutrients, at levels which are also below those of
commercial chemical fertilizers. SK)/ Sludges with comparatively low
available nutrient concentrations can be enriched with chemical fer-
tilizers. The relatively high water content of sludge can serve as
supplemental irrigation.
Sludge may be applied in the liquid, dewatered, or dried states.
The two most common methods are liquid application and open dumping
followed by plowing. Other less common methods include burial in
trenches, ridge and furrow irrigation, spray irrigation, plow in-
jection, and irrigation by flooding.91/
The primary drawback to the widespread land application of sludge
is the fact that the long-term effects on soils are not known con-
clusively at this time. Heavy metals, pesticides, and polychlori-
nated biphenols (PCBs) are present in sludges and these substances
are toxic to plants and tnicrobial life at low concentrations in the
soil solution. Cadmium and lead, among other possible heavy metal
components of sludge, may be particularly hazardous if allowed to
enter the food chain.92/
The objectives of the regulatory program for the land application
of sludge must be, therefore, the prevention of damage to soil and
crops; the prevention of adverse public health effects from the
entry of toxic substances into the food chain; and the prevention
of ground and surface water pollution from infiltration and runoff
of sludge contaminants, both biological and chemical.
The best administrative mechanism for meeting those objectives is
to require every operator of a land application facility to obtain
a permit from the SWA (in consultation with the WQA and the state
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public health and agriculture agencies). This lead agency approach
should avoid entangling applicants in a bureaucratic web while as-
suring that all legitimate state concerns are addressed by the agen-
cy best equipped to handle them.
The problems involved in drafting a set of regulations for the land
application of sludge include the many scientific and technical
questions that remain to be answered and the variables that must be
considered in evaluating any given project. As a consequence, reg-
ulations governing land application should generally be directed
toward procedure and performance, rather than being detailed, speci-
fic standards.93/
To be issued an operating permit, all operators of land application
facilities should have to submit detailed plans to the SWA for eval-
uation and approval. SWA regulations and guidelines covering plan
preparation should require operators to provide the following kinds
of information:^/
1. A site reconnaissance plan covering
(a) General Descriptionincluding the location, boundaries,
and dimensions of the site, and the compatibility of the
proposed project with existing land development plans;
(b) Climateincluding seasonal information on precipitation,
temperature, wind, and evapotranspiration (i.e., the
evaporation of water from the soil surface and vegeta-
tion, plus the transpiration of water by'plants);
(c) Topographyincluding elevation, ground slope, and ero-
sion and flood potential of the site and adjacent land;
(d) Soil Characteristicsincluding physical characteristics
(e.g., gravel, sand, silt, clay), chemical characteris-
tics (e.g., pH, salinity, nutrient levels, and adsorption
and fixation capabilities for various inorganic ions), in-
filtration and percolation potential, soil profile;
(e) Geologic Formations;
(f) Groundwaterincluding quality, depth, direction and rate
of flow, location and volume of current, and planned with-
drawal uses;
(g) Surface Waterincluding quality, proximity of the facil-
ity, and location and vclume of current and planned uses.
(Where the project will involve discharge into a receiv-
ing surface water body, the operator would also require a
permit from the WQA under the NPDES.)
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(h) Regulations should clearly provide that applicants are
required to conduct tests, take samples, sink wells,
and make borings where and as the SWA deems necessary
to determine the background quality of soils, ground
and surface water.
2. A design and operating plan covering
(a) Method of application to be used;
(b) Site engineering to prevent ground and surface water
pollution from runoff and infiltration; and the provi-
sion of buffers for odor and mixing zone, where necessary;
(c) A description of the composition, characteristics, prop-
erties, sources, and volumes of sludge to be applied sea-
sonally;
(d) The particular crops or other vegetation to be cultivated,
their uptake of various sludge components, and their ulti-
mate use or disposition;
(e) Application rates and the schedule of application periods;
(f) Contingency plans for bad weather, including provisions
for adequate onsite storage capacity;
(g) Periodic self-monitoring schedule by the operator for
crops, soil, ground, and surface water; and record-keeping
and notification to the SWA;
(h) Compliance with the manifest system;
(i) Proof of liability insurance covering damages from im-
properly handled sludge.
In evaluating this data, the SWA and the other consulting agencies
must check for compatibility of the method of application with the
characteristics of the particular site. Application rates will
likewise depend on site characteristics, sludge type, and the crops
or other vegetation to be cultivated.
No permit should be issued for a facility that will result in ground
or surface water quality becoming inferior to the physical, biologi-
cal, and radiological levels for raw or untreated drinking water sup-
ply sources as specified in the National Drinking Water Standards,
including future additions and modifications.^/
Pretreatment standards for sludge to be applied to land should be
set. Standards may vary depending on the soils and crops involved
and on whether the crops will enter the food chain. In any event,
all sludges should be stabilized. Until more data can be evaluated,
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it would seem prudent to bar all industrial sludges from land ap-
plication facilities, and certainly from disposition on agricul-
tural land.
The operating permit for operators of land application facilities
should be issued for the life of the facility but conditioned on
compliance with all terms and conditions, regulations, and rele-
vant statutes. Agents of the SWA should be authorized to enter
the facility and run tests and inspect required records and oper-
ations. Enforcement mechanisms should include a full range of rem-
edies, including the power to issue enforcement orders and impose
civil penalties. (See the "Enforcement" section, 2.4, above).
A number of states are currently drafting standards and regulations
for the land application of sludge, but few seem to have instituted
a comprehensive program. In California, the Department of Agri-
culture regulates the use of sludge for commercial purposes, while
the Department of Public Health controls the noncommercial appli-
cation. Under the California Hazardous Waste Act of 1972, DPH
could have considered sludge a hazardous waste, but it has not done
so. Neither agency has set special pretreatment standards for
land application or application rate standards. No monitoring
of land application projects is conducted.
Oregon has a specific regulation for the spreading of sewage
sludge.9h5/ It requires either that sewage sludge disposal be ade-
quately covered by specific conditions of a waste discharge permit,
or that a special permit be obtained based upon detailed plans and
specifications. Spreading of raw sewage sludge is prohibited unless
it is specifically determined by the Department of Environmental
Quality or the state or local health agency that such disposal can
be conducted with assured adequate protection of public health and
environmental quality. If non-digested sludge is spread on land
within 1/4 mile of a residence, community, or public use area, it must
be plowed into the ground, buried, or otherwise incorporated into
the soil within five days after application.?^?/
Some states cover land application of sludge in their specifications
for the operation of municipal wastewater treatment facilities. For
example, the criteria for review of facilities of the Colorado De-
partment of Health9_8/ allows land spreading of stabilized sludge only.
Plans must be submitted containing a detailed description of the proc-
ess and design data.99./ The Illinois criteria for wastewater treatment
plantslOO/ requires that ultimate disposal of sludge wastes not cause
air, land, or water pollution, including pollution of ground and sur-
face waters. A permit must be obtained from the Division of Land Pol-
lution to dispose of non-liquid sludges, or from the Division of Wa-
ter Pollution Control to dispose of liquid sludges. Basic feasibil-
ity study information is required to be submitted for review prior
to submitting the detailed project design.101/
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3.4 The Allocation of Functions: Appropriate Level and
Agency of Government*
The highly specialized and technical nature of the regulatory
functions required for an effective sludge control program would
seem to dictate the assignment of this responsibility to the state
level. Also, the objectivity of local or regional authorities
in taking enforcement action against a facility operated by itself
or by a locally important industrial generator is open to question.
Since primary responsibility for administering the NPDES program
is placed in the WQA (unless the function is performed on the fed-
eral level by EPA), this agency is the best placed to regulate the
generators of sludge. In order to cover the sludge handling re-
quirements discussed above, the WQA need only expand the criteria
for permit issuance for point sources and for industrial dischargers
into municipal systems.
Since many of the considerations regarding the evaluation of land
application facilities are similar or identical to those for regu-
lating landfills, the SWA would seem to be the logical candidate
for lead agency to regulate this reuse alternative. The state ag-
riculture agency might be authorized to set application rates, and
the public health agency to set standards for permissible crop con-
tent of heavy metals and other potentially toxic substances. The
SWA would consult with these agencies on questions involving their
particular areas of expertise. Pursuant to the NPDES program, all
disposal and reuse facilities discharging effluent into surface
water would require a permit from the WQA.
4.0 Legal Issues
Numerous questions of law calling for the services of competent
legal counsel may arise in the course of planning and implementing
programs for residual waste management. Some of the more salient
ones will be addressed in this section.
There is, first, a range of legal issues concerning the allocation
of powers between state governments and their political subdivi-
sions. Will a permit from a state agency override local larid use
restrictions? (See the discussion of this issue in section
2.1.2 above and at note 30). May the state compel localities to
enter into agreements for regional solid waste management with their
neighbors, or to initiate resource recovery programs? Do the poli-
tical subdivisions of the state possess the requisite powers to
create intergovernmental entities on their own initiative, or to
enter into long-term contracts with the private sector for the pro-
*For further discussion of these issues see section 2.5, above.
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vision of solid waste services? Questions of this sort can usually
be answered by reference to statutes and judicial precedents of the
state, and the answers will vary considerably from one state to the
next. As a rule, whatever powers may be exercised by a state may
be delegated by it to its political subdivisions, or may be with-
held from them, as it sees fit.
A second category of legal issues, which we will discuss presently
in greater detail, goes to constitutional limitations on the manner
in which state powers are exercised. These issues are identified
by such legal catchphrases as "due process of law" and "equal pro-
tection." With respect to solid waste management, constitutional
problems largely reflect the fact that, while ours is a legal sys-
tem founded on the principle of clear and reasoned rules fairly and
uniformly administered, the scientific and technical pool of know-
ledge upon which the rules in this particular field are based is
still imprecise, filled with unknowns, and constantly changing as
a result of ongoing research. The challenge in this context is to
draft laws and regulations which are at once demanding and realis-
tic, flexible and yet precise enough to give notice to the regulated
and to guide the exercise of discretion by the regulators.
4.1 The Problem of the Flexible Permit
A permit to operate a landfill typically incorporates by reference
the relevant statutes of the state and the regulations of the SWA,
including operating and performance standards. Additionally, the
enabling statute may empower the SWA to write into permits, origin-
ally or by subsequent amendment, such additional terms and condi-
tions as it deems necessary for the protection of public health
and environmental quality. Suppose, then, that a permit is issued
requiring six inches of daily cover over the working face. The
operator calculates his costs and concludes a contract with the city
to take its wastes at $4 per ton. Then the SWA discovers that the
site is leaching badly, and accordingly raises the cover require-
ment to twelve inches. The city refuses to renegotiate the price.
The operator loses money. Has he a legal claim against the state
for changing, to his detriment, the rules on which he originally
relied? It is generally accepted that a permittee under a regula-
tory program must comply with all laws, whether enacted before or
after the issuance of his particular permit. Thus it was held in
Yellow Cab Taxi Service v. City o_f Twin Falls ,102/ a case involving the
revocation of a license to use a taxi stand, that since the police
power of a city is a continuing one, a permit did not exempt the
applicant from the operation ordinances subsequently enacted in
the exercise of that power. In general, a government cannot be
equitably estopped from increasing the restrictions it imposes on
activities that may be detrimental to public health, safety, or
welfare. Permits are not contracts. Nor do they grant property
rights that can withstand legitimate exercises of the police power.
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Moreover, it has been held repeatedly that while the scope of admin-
istrative discretion in the field of licensing and permitting must
be guided by standards found in the enabling statute, the enactment
need not cover every detail nor fix every condition. In Moyant v;.
Borough of Paramus,103/ a case involving an ordinance for the li-
censing of solicitors and canvassers, the court observed that where
discretionary power to grant or deny a license reposes in an admin-
istrative body, adequate standards to guide discretion must be found
in or be inferrable from the ordinance. The court added, however,
that the standards need not be minutely detailed, and that the whole
ordinance may be looked into in light of its context and objectives
for the purpose of deciding whether sufficient standards exist.
Nevertheless, legal challenges to solid waste programs can best be
avoided by statutes that clearly guide the exercise of administrative
discretion by the SWA and that put operators on adequate notice of
the standards they will be called upon to meet. The scope of the
agency's discretion should be defined by the statutory purpose of
protecting public health and environmental quality, and should be
further circumscribed by requiring all administrative action to re-
flect the best available scientific and technical knowledge. The
writing and amendnent of permit conditions should be governed by
clearly formulated standards and objectives set forth in state en-
abling laws and regulations. Moreover, it is advisable to provide
by statute that if a permitted facility subsequently develops a
pollution problem, its operator may be required, by order or amend-
ment, to do whatever is necessary to solve it: dig trenches and
collect leachate, divert the flow of impacted ground or surface wa-
ter, increase cover, stop receiving a particular class of wastes,
or, if need be, cease operations entirely.
It is permissible to treat different sites differently where the
distinctions can be explained by reference to the best available know-
ledge and particular site characteristics. Thus the court held in
Tom's Tavern v. City of__ Boulder» 104/ a liquor licensing case, that
classifications in the municipal code are permissible if founded upon
distinctions which are natural, reasonable, intrinsic, and germane
to the exercise of the police power. In states with widely varied
soils, hydrology, and geology, it may be impossible to create regula-
tory classifications for all the different kinds of sites that may be
encountered. But some distinctions are bound to be justified by ref-
erence to those variables, and others can emerge in the course of well-
reasoned permit determinations, case by case. What is important in the
eyes of the courts is that all decisions be made rationally, not in an
arbitrary or capricious manner.
4.2 The Procedural Due Process Rights of_ Operators
The greater the degree of administrative discretion allowed in a per-
mit program, the greater the need to afford permit applicants and
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operators a full measure of procedural due process in actions affecting
their facilities. For while a permit is not property and does not cre-
ate a contract or vested right, still it may give to its possessor some-
thing of value that resembles a defeasible property right.105/
The provisions of the state's administrative procedure act will govern
both rulemaking and adjudication unless specifically superseded by the
solid waste management act or other relevant statute. Generally speak-
ing, state administrative procedure acts require that interested parties
be given notice of proposed rulemaking by publication and that they be
afforded an opportunity to be heard either by timely appearance or sub-
mission of written comments. This is not to say that such opportunity
is a constitutional right. Professor Davis has written that, except
when a trial-type hearing is required because adjudicative facts are
in dispute, due process probably does not require a hearing.106/ But
the trend is evident in the field of administrative rulemaking for leg-
islatures to require public hearings and for courts to review whether
administrative agencies have based their discretionary decisions on some
rational and legally permissible basis. Thus the court held in Environ-
mental Defense Fund v. Ruckelshaus:
Judicial review must operate to ensure that the
administrative process itself will confine and
control the exercise of discretion. Courts
should require administrative officers to arti-
culate the standards and principles that govern
their discretionary decisions in as much detail
as possible.107/
Professor Davis comments in his administrative law text that this is
the best protection against the arbitrary exercise of discretionary
power. It is his opinion:
. . . that the hope for better protection lies
not in better statutory standards but in admin-
istrative standards and safeguards, that the
best instrument for providing administrative
standards is the rulemaking power, and that the
courts should require clarification of standards
through rules.108/
While procedural due process does not require trial-type "adjudicatory"
hearings to resolve nonfactual issues of law, policy, and discretion
(such as are involved in making rules of general applicability to gov-
ern landfill operations), such hearings are probably required to solve
disputed issues of fact which directly affect a party's rights or interests.
Under the traditional "privilege" doctrine, which still has vitality
in some state jurisdictions, the holder of a permit or license did not
possess the requisite interest to demand an adjudicatory hearing. His
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interest, having been created by the grace of government, was char-
acterized as a privilege, and as such it was held not to merit the
same legal protection as an interest characterized as a right.109/
However, the "privilege" doctrine has been substantially eroded by
a more recent line of cases. For example, in People v. Gottelieb,HQ/
it was held that where a state confers a license to engage in a
profession, trade, or occupation, not inherently inimical to public
welfare, such license becomes a valuable personal right which cannot
be denied or abridged in any manner except after due notice and a
fair and impartial hearing before an unbiased tribunal.
Many jurisdictions have come to recognize that while a person may
not have a legal right to a permit or license, he is nevertheless
entitled to fair treatment from government. Thus, landfill operators
are probably entitled to adjudicatory hearings where the denial, mod-
ification, or revocation of their permits turns on a disputed factual
issue. For example, in Connecticut, the commissioner of the DEP must
set forth in the notice of permit denial the reasons underlying the
decision. The notice of denial is considered an order of the com-
missioner for purposes of administrative appeal, entitling the ag-
grieved applicant to a full due process hearing under the "contested
case" provisions of the Connecticut Administrative Procedures Act.
Similarly, issuance by the commissioner of an enforcement order for
alleged violations entitles the operator to a formal hearing
4.3 The Problem of the Unrealistic Performance Standard*
Performance standards, as prescribed by statute and regulation, spec-
ify how landfills must perform with reference to their impact on the
environment in order to merit issuance and retention of their opera-
ting permits. As we have noted, a number of states, including Connecti-
cut and Pennsylvania, have adopted a strict nondegradation standard
in their water quality statutes. At the same time, however, it has
generally been recognized that the goal of zero discharge of leachate
can rarely if ever be attained by landfills relying on natural renova-
tion. While courts would hesitate to strike down a statutory standard,
they might be compelled to do so on due process grounds if it can be
demonstrated that the standard is not only difficult, but impossible,
to meet. Strict adherence to the nondegradation standard would have
the result of closing down all conventional landfills and requiring a
wholesale shift to facilities equipped with liners for the collection
of leachate. When reliable liners are developed and when the volume
of residuals is reduced following implementation of a resource recovery
program, this course of action may well prove to be both desirable and
economically feasible. But in the meantime, some states, including
Connecticut, remain unconvinced that liners are in fact reliable and
do not permit them. Other states, including Pennsylvania, permit but
do not require their use.
*(See the discussion of performance standards in section 2.2.3)
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X-54
Unwilling to order closure of most existing disposal facilities and
to require implementation of a still unproven liner technology, SWAs
have adopted more flexible standards for application to particular
cases. In Connecticut, a leachate allowance is incorporated into the
permit of each facility, despite the nondegradation requirement of
state law. The Pennsylvania mixing zone standard has no legal status
but is used de facto as a device for determining which cases to refer
for enforcement action. In both instances, the adoption of administra-
tive standards which are below the standard prescribed by statute is
subject to legal challenge, particularly by third persons, on the ground
that the agencies are failing to enforce statutory standards and that
they are exceeding the authority delegated to them by their legisla-
tures. The solution to this problem would be for state legislatures
to adopt realistic performance standards in the first place to guide
the exercise of administrative discretion by their solid waste agen-
cies. It is especially important to have a workable statutory standard
in a state like Connecticut, whose courts have traditionally allowed
administrative agencies little freedom to engage in the kind of inter-
pretive rulemaking commonly practiced by federal regulatory agencies.
Performance standards are particularly important in that they alert the
SWA to the need to take enforcement action. In this regard, not only
should standards be realistically set, but they should be amenable to
measurement in the field. Furthermore, to satisfy notice requirements,
standards should be so drafted as to include all factors which are ac-
tually considered by the agency in making decisions to grant, deny, or
enforce permits. As noted earlier, it is virtually impossible to moni-
tor compliance with the Connecticut-type leachate allowance. In general,
the Connecticut OSW has taken the expedient course of tolerating ground-
water pollution so long as the operator complies with BMPs and leachate
from the landfill does not interfere with current or planned water uses.
If such interference does occur or is imminent, the operator is ordered
to take whatever corrective measures are necessary, including closure as
a last resort. Such enforcement action would be taken even if the com-
plainant's polluted well, for example, were sunk after the landfill
commenced operation and the rate of water withdrawn from the well were
so great as to attract the leachate plume. In fact, enforcement action
is taken whenever interference with a competing water use occurs, even
though the landfill might actually be operating in accordance with all
applicable engineering and performance standards. An operator ordered
to close his facility under these circumstances, however, could defend
on the ground that he is in full compliance with the law. If he is nonethe-
less ordered to close because of interference with another water use, he
could challenge the closure on the due process ground that this factor
is not an element of any performance standard found in the applicable
statute, regulations, or permit issued to him.
4.4 The Due Process Rights of Third Pearsons
The next question is whether third parties, such as neighboring land-
owners, have rights to be heard at the various stages of the regulatory
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process when decisions indirectly affecting their property are made.
The answer seems to be that, in the absence of specific statutory
provisions giving them that right, they probably cannot demand a
hearing as a constitutional matter.III/ If the agency holds a hear-
ing, however, persons with sufficient interest at stake may intervene
as a matter of right. The aggrieved landowner may seek judicial re-
view of a rulemaking or adjudicatory decision of the SWA, on the
ground that the decision was based on an unconstitutional statutory
provision, amounted to a taking without compensation, otherwise vio-
lated due process, or lay beyond the authority delegated to the ad-
ministator. But judicial review is conducted on relatively narrow
grounds and is no substitute for an opportunity to be heard before the
challenged administrative action is taken or becomes final.
States are free to grant "affected" persons, as defined by statute,
such rights to be heard in the administrative process as they deem
advisable. In general, it seems only fair to afford affected land-
owners an administrative forum in which to present their views. More-
over, procedures that expose administrative decision-making to differ-
ent opinions and points of view can only enhance the quality of the
process.
A wide variety of such procedural safeguards may be found among the
states . In Wisconsin, public hearings covering social and economic
factors as well as environmental issues are part of the environmental
impact statement process which is required before a permit decision
is made. Texas holds wide open hearings on all proposed permit deter-
minations, and in Connecticut public hearings are required by the state
water quality law before the Office of Water Compliance can issue a
discharge permit. A public hearing is not required by the Connecticut
act, however, on proposed issuance or denial of an operating permit by
the Office of Solid Waste. It will hold a hearing if demanded, but
notice of this possibility is not given. As a result, the affected
landowner may be deprived of a forum in which to raise scientific and
technical issues bearing on the decision to permit. In line with the
trend toward openness in government proceedings, Connecticut's act and
others like it should be amended to afford greater participation in
siting decisions on the part of the affected or interested public. Such
a practice would not only reduce the pressure for judicial review, but
would tend to increase political acceptance of whatever decision is
reached, since no interested person could then argue that he was not
given a fair opportunity to be heard.
4.5 The Question of Governmental and Private^ Liability
The final question we confront is whether a permit may be seen as an
implicit warranty by the state to the public that the operation will
not interfere with anybody's right to clean water or to an otherwise
beneficial environment. In other words, does the permit system expose
the state and its individual permitting officers to liability in the
event that a permitted facility pollutes someone's water supply, devalues
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X-56
his adjacent property, or causes him bodily injury? Here again, the
answer would seem to be in the negative. The general rule may be set
forth as follows:
. . . [In] the absence of constitutional or
statutory provision therefor, a state exer-
cising governmental functions cannot be made
to respond in damages for tort, and such sov-
ereign immunity may not be waived or abrogated
except by an express statutory enactment or by
necessary inference from a statute.112/
Thus, a New York court held in Van Buskirk v. State 11_3/ that riparian
landowners were not entitled to recover for property damages allegedly
caused by negligence of the state Water Resources Commission in grant-
ing a permit for construction of a dam and in failing to inspect and
insure compliance with conditions of the permit. Permit issuance was
held to be a governmental function of a quasi-judicial nature which
did not give rise to any rights and obligations with respect to any
private individual.
Next, suppose that leachate from a landfill does pollute the ground-
water beneath an adjacent property, with the result that the adjacent
property suffers a decline in value. What liabilities would arise?
If state-regulated facilities pollute beyond their boundaries, then
the state should require the purchase of sufficiently large buffer
zones or of easements covering that use of groundwater. Alternatively,
the state should enact legislation allocating or authorizing allocation
of groundwater among competing uses. If no such action is taken, the
owner of the adjacent site might have an argument to the effect that
his property has been taken for a public purpose without compensation,
or that the landfill owner should compensate him for damages in tort.
For if the cost of providing environmentally sound solid waste disposal
includes restrictions on the use of more surrounding property than has
been recognized heretofore, then the burden should fall either on the
one who engages in and profits from the polluting activitiesthe land-
fill operatoror on the state itself for permitting a facility that
serves the public at the expense of one or more adjacent property owners.
Under the laws of most states, neighboring landowners can sue the facil-
ity operator or owner for damages or for abatement of a nuisance. Pri-
vate operators enjoy no immunity from liability to third persons, and
in fact, are likely to be held strictly liable upon proof of proximate
cause. And where, in the case of a publicly owned or operated facility,
sovereign immunity is not available or has been waived for torts com-
mitted in performance of a governmental function, that government may
likewise beheld liable. Nor can the operator count on the fact that he
is in complete compliance with all legal requirements and conditions
of his permit as a defense in an action against him for damages or abate-
ment.114/ Many state acts specifically reserve the right of injured
third parties to take legal action to redress private grievances. On
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X-57
the other hand, a landfill is not considered to be a nuisance per se^ -
though it may become one as a result of the manner in which it is op-
erated - and courts will act with extreme caution where granting in-
junctive relief would result in interference with an operation of
government.115/
Questions of potential governmental and individual liability also arise
in the context of the land application of sludge. Would the state be
liable under a theory of implied warranty to farmers or to consumers
for injury resulting from the use of toxic sludges from state-permitted
facilities? It is tempting to cite cases such as Van Buskirk, above,
and answer in the negative. But the sovereign immunity argument seems
to lose much of its force and the warranty argument appears particularly
strong where, as in Pennsylvania, the state actually surveys the farm
and writes out specifications for the farmer. Isn't the state implying
that the farmer, if he follows specifications, will be in no danger of
injuring his property or the health of ultimate consumers? It is also
questionable whether the supplying of sludge for use as fertilizer can
really be considered a governmental as opposed to a proprietary function
of government. Even if the state is not held liable, a chain of poten-
tial liability may run from the injured consumer, through the distribu-
tor and farmer, to the municipal treatment plant. It is beyond the
scope of this paper to resolve these serious legal questions. They
are mentioned to underscore the importance of standards for land appli-
cation of sludge and for adequate sludge monitoring and enforcement sys-
tems, as discussed above in section 3.0.
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CHAPTER TEN
LAND DISPOSAL OF SOLID WASTES AND SLUDGES
FOOTNOTES*
1. These concepts are fully explored in Richard S. Howe and Nicholas L.
White, Development of Residuals Management Strategies (Office of
Research and Development, U.S. EPA, 1975).
2. 33 U.S.C. § 1251 et seq.
3. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580,
ELR 41901-18 (1976) (to be codified in 42 U.S.C. §§ 6901-6987)
[hereinafter cited as RCRA].
4. Address by EPA Administrator Russell E. Train, "Solid Waste Management:
Horizons Unlimited," International Waste Equipment and Technology
Exposition, in Chicago (June 2, 1976).
5. 6 ELR 20615 (D.C. Cir. 1976).
6. Address by EPA Ass' t Administrator Roger Strelow, "Engineering for a
Better Environment," National Waste Processing Conference of the
American Society of Mechanical Engineers (May 24, 1976).
7. RCRA, supra note 3, § 4002(a).
8. Post-consumer solid waste resulting from the discard of packaging
material (including beverage containers) was estimated at between
40 and 50 million tons in 1971, or somewhere between 30 and 40 per-
cent of municipal solid waste. In 1971, packaging accounted for
approximately 47 percent of all paper production, and approximately
29 percent of plastic production. At that time, energy used for
production of packaging materials represented an estimated 5 percent
of total United States industrial energy consumption. Shipments of
containers and packaging were valued at $19.5 billion in 1975, an
increase of 82 percent since 1960. On a per capita basis, packaging
material consumption and waste generation increased by over 63 per-
cent between 1958 and 1976. In addition to the reusable package,
industry must reinvestigate the utilization of larger package sizes
when appropriate; the utilization of easily recyclable package con-
figurations and materials; the elimination of potentially hazardous
packaging materials; and the elimination of packaging materials whose
production creates more pollution than would reasonable alternatives.
*Publication information pertaining to works included in the suggested
readings for this chapter has been omitted from the footnotes.
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X-FN-2
Address by Thomas F. Williams of the U.S. EPA Office of Solid Waste
Management Programs, "Conservation and Common Sense," National
Conference of the Soil Conservation Society of America: Land
Application of Waste Materials, in Des Moines (March 17, 1976).
9. Office of Solid Waste Management Programs, U.S. EPA, Decision-Makers
Guide in Solid Waste Management 118 (2d ed. 1976) [hereinafter
cited as Decision-Makers Guide].
10. Two examples of state legislation encouraging returnable bottles
are Vermont's mandatory container return deposit act (Vt. Stat.
Ann. tit. 10, §§ 1521-1525) and Oregon's tax on nonreturnables
that pays the cost of litter cleanup while encouraging the expanded
use of returnables (Or. Rev. Stat. § 459.810-.890), upheld in
American Can v. Oregon Liquor Control Comm'n, 4 Envir. Rep. Gas. (BNA)
1584 (Or. Cir. Ct. 1972), 6 Envir. Rep. Gas. (BNA) 1350 (Or. Ct. App.
1973). Both states have experienced significant reductions in their
container litter counts, ranging between 60 and 80 percent. A city
ordinance requiring a refundable deposit was upheld in Bowie Inn v.
City of Bowie, 3 Envir. Rep. Gas. (BNA) 1502 (Md. Cir. Ct. 1971),
7 Envir. Rep. Cas. (BNA) 2083 (Md. Ct. App. 1975). Likewise, a
county bill prohibiting sale of "throwaways" was upheld in Allview
Inn v. Howard County, 3 Envir. Rep. Cas. (BNA) 1863 (Md. Cir. Ct.
1972). But see Society of Plastics Indus, v. New York City, 3 Envir.
Rep. Cas. (BNA) 1370 (N.Y. Sup. Ct. 1971), wherein a city tax on
plastic containers enumerated in state taxing enabling act was found
to exceed state authorization and to violate the due process clause
of the Fourteenth Amendment because it would result in the destruc-
tion of the plastic container industry without any legitimate public
reason.
11. Address by John F. Skinner of the U.S. EPA Office of Solid Waste
Programs, Resource Recovery Division, "Reduce the Incentive to Waste,"
80th National Meeting of the American Institute of Chemical Engineers,
in Boston (Sept. 8, 1975).
12. Decision-Makers Guide, supra note 9, at 88.
13. Address by Thomas F. Williams of the U.S. EPA Office of Solid Waste
Management, "Environmental Protection: The People's Choice,"
Second Northeast Regional Conference of the National Audubon Society,
in New Paltz, N.Y. (June 8, 1974).
14. "Solid Waste Management: Horizons Unlimited," supra note 4. Of the
13 basic raw materials required by our modern economy, we depended in
1970 on imports for more than half of our supplies of 6 of these,
including all our chromium and manganese, vital to steel-making, and
most of our bauxite. It has been projected that by 1985 we will be
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X-FN-3
primarily dependent on imports for supplies of 9 of those 13, in-
cluding iron ore and tin. Meanwhile, it has been estimated that
7 percent of the iron, 8 percent of the aluminum, 5 percent of the
copper, 3 percent of the lead, 19 percent of the tin, and perhaps
half of the paper consumed each year could be supplied from what
is now waste. In addition, the mixed municipal waste from our larger
urban areas could be made to generate 830 trillion Btu's of energy.
15. Conn. Gen. Stat. ch. 361a § 19-524a et seq.
16. 42 U.S.C. § 3251 et seq.
17. RCRA, supra note 3. § 4002(c)(10)-(11).
18. Id. § 4003(5)-(6).
19. Id. § 2003.
20. Id. § 5001.
21. Id. § 6002(c).
22. Decision-Makers Guide, supra note 9, at 122-24.
23. The administrator of EPA is directed to develop criteria for identify-
ing hazardous waste and to promulgate a list of these substances.
Generators of these wastes are required to keep accurate records and
to submit reports on demand of EPA or the authorized state agency,
detailing the quantities of hazardous wastes generated during a par-
ticular period of time and the disposition of the same; to use ap-
propriate containers for their storage, transport, or disposal, and
labeling to identify the contents; to furnish information on their
chemical composition to persons transporting, treating, storing, or
disposing of them; and to use a manifest system to assure that all
the hazardous waste generated is designated for treatment, storage,
or disposal in facilities which have been issued permits to handle
them.
Transporters of hazardous wastes are, likewise, required to keep
accurate records of the source and delivery points of all wastes
transported; to transport only properly labeled wastes; and to comply
with the manifest system, delivering the wastes only to the designated
facilities. Regulations for the transport of wastes which are also
subject to the Hazardous Materials Transportation Act (49 U.S.C.
§ 1801 et seq.) are to be coordinated with the U.S. Secretary of
Transportation.
All facilities for the treatment, storage, or disposal of hazardous
wastes must be issued a permit as a precondition to operation. Ap-
plications for permits must specify such detailed information as
required by regulations promulgated by the administrator, including
estimates of the kinds, quantities, and concentrations of wastes
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X-FN-4
they propose to handle; the rate at which they propose to handle
them; and the site at which such handling is to take place.
Issuance of permits will depend, among other things, on compliance
of the sites with the criteria for their location, design, construc-
tion, and operation; and on additional qualifications as to ownership,
continuity of operation, training for personnel, and financial
responsibility; as detailed in regulations developed by the admin-
istrator. Permits are subject to revocation for noncompliance with
the regulations. The act requires owners and operators of hazardous
waste treatment, storage, and disposal facilities to keep records
of all wastes handled, detailing the manner in which they were
handled; and to comply with the manifest system and with prescribed
operating methods.
24. "Conservation and Common Sense," supra note 8.
25. RCRA, supra note 3, § 4003(3).
26. "Environmental Protection: The People's Choice," supra note 13.
27. Connecticut Solid Waste Management Act, Conn. Gen. Stat., § 19-524a et seq.
28. New Jersey Solid Waste Management Act, N.J. Stat. Ann. § 13:1E-1 (West) et seq.
29. Conn. Gen. Stat. § 19-524a(m).
30. In Ringlieb v. Township of Parsippany-Troy Hills, 59 N.J. 348, 283
A.2d 97 (1971), the court held that the New Jersey statutes adopting
a plan to control all facets of the solid waste industry preempted
the field and invalidated a township ordinance regulating solid waste
disposal and collection. Decided on somewhat narrower grounds
O'Connor v. City of Rockford, 3 111. App. 3d 548, 279 N.E.2d 356
(1972), held that the Illinois statute empowering municipalities
to acquire land outside their corporate limits for disposal of
refuse superseded the zoning power conferred on counties by the
relevant zoning enabling legislation. The court in Waterford
Processing & Reclaiming Co. v. Township of Waterford, 25 Mich. App.
507, .181 N.W.2d 675, 677, was faced with the Garbage and Refuse
Disposal Act, which provided in part that local governments could
adopt more stringent regulations than those in the state act, and
which required prospective operators to secure proper zoning permits.
The court nevertheless ruled: "Once the [state health] commissioner
has approved a certain site and imposed operating conditions, the
local governing body may impose any additional reasonable regulations
designed to eliminate any foreseeable health hazard. However, these
local regulations may not exclude what the state has permitted."
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X-FN-5
The decision in Town of Oronoco v. City of Rochester, 197 N.W.2d 426, 429
(Minn. Sup. Ct. 1972), makes reference to the general rule (101 C.J.S.
Zoning § 135) that a governing body is not subject to zoning restric-
tions where property is to be used for governmental as opposed to
proprietary purposes. But, citing the need for reasoned land use
planning, which "serves as foundation for the exercise of police
power in the area of zoning," the court rejected this traditional
freedom from regulation in favor of a balancing-of-interests test.
The court found that the need for the immediate establishment of a
new facility, coupled with the fact that the state Pollution Control
Agency had issued a permit and was invested with the power to regulate
the future operation of the landfill, adequately outweighed the town's
fear that the site would be an environmental hazard. But see Township
of Haring v. City of Cadillac, 35 Mich. App. 260, 192 N.W.2d 384
(1971), holding that the Michigan DNR lacked authority to grant city
permission to use state-owned land located within the township for
a landfill facility, where that use did not conform with local zoning.
This case may be distinguished by the fact that the legislature had
never mandated the issuance of permits by the department. The policy
of the department regarding landfills was set forth in a forestry
division policy manual.
31. Wis. Stat. Ann. § 144.445 (West); and see Solid Waste Recycling Act,
id. § 499.01 et_ seq.
32. 64 N.J. 190, 314 A.2d 65 (1974).
33. Environmental Protection Division, Georgia DNR, "Guidelines for
Fiscal Year 1977, State Solid Waste Grant-in-Aid Program"
(Memorandum to All Mayors and Chairmen of Boards of County Commis-
sioners) .
34. It has been estimated that given a solid waste density of 1,000 pounds
per cubic yard in place, and one part (volume) earth cover to four
parts solid waste, a population of 10,000 generating approximately
3.5 pounds of waste per day would require on the order of 10 acre-
feet of space per year for residential and commercial waste. Actual
densities may vary from about 800 to 1,200 pounds per cubic yard,
and cover ratios may vary from 1:1 to 1:4. This volume requirement
may be significantly reduced where wastes are processed for volume
reduction (i.-_e. > incineration, shredding, baling) prior to disposal
in the landfill. Decision-Makers Guide, supra note 9, at 112. To
take advantage of economies of scale, planners should favor large
sites over a number of small sites, even if the former may require
slightly higher haul expenses.
35. D. MacDonald >et jil_. , Residual Waste: Model State Legislation 3-18
(1976).
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X-FN-6
36. Delaware Water Pollution Control Regulations; Minnesota Pollution
Control Agency, Division of Solid Waste Regulation SW 1 et seq. ;
and Wisconsin DNR, Regulations ch. NR 151 (Solid Waste Management).
37. Mich. Stat. Ann. § 14.435(4).
38. J. Wyatt and P. White, Jr., Sludge Processing, Transportation and
Disposal/Resource Recovery; A Planning Perspective 84 (1975) .
39. Colo. Rev. Stat. § 30-20-101.
40. Mich. Stat. Ann. § 14.435(4).
41. Environmental Land-Water Management Act of 1972, Fla. Stat. Ann. § 380.012
et seq. (West) .
42. Wyatt and White, supra note 38, at 84-85.
43. Minnesota Pollution Control Agency, Division of Solid Waste Regulation
SW 1 ^ seq.
44. Environmental Land-Water Management Act of 1972, Fla. Stat. Ann. § 380.012
et seQ. (West) .
45. B. Weddle and G. Garland, "Dumps: A Potential Threat to Our Ground-
water Supplies," Nation's Cities (National League of Cities), Oct.
1974, at 21-26.
46. American Law Institute, A Model Land Development Code (Proposed
Official Draft 1975).
47. A. Geswein, Liners for Land Disposal Sites: An Assessment (1975).
48. Tex. Water Code Ann. tit. 2, § 21.080.
49. Wis. Admin. Code, Solid Waste Management, § NR 151.01 et seq.
50. 42 U.S.C. § 300f e_t se£. ; 40 C.F.R. Part 146.
51. See, e.g. , Connecticut Water Pollution Control Act, Conn. Gen. Stat. § 25-54a.
52. J. Lehr et al. , A Manual of Laws, Regulations and Institutions for
Control of Ground Water Pollution IV-9 to IV-12 (1976) .
1. The permit application shall contain an economic
and environmental analysis of the proposed system
and comparative consideration of one or more al-
ternative solutions.
2. The permit application shall identify the location
of the proposed disposal site on the latest avail-
able topographic quadrangle map or maps of the
United States Geological Survey, on a scale of
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X-FN-7
1:24,000. If no such maps are available, equivalent
alternatives shall be supplied with the application.
The permit application shall include a detailed map,
on a scale of one inch equals 200 feet, or larger,
showing:
(a) topography within the area of the disposal site,
with a contour interval not exceeding two feet,
(b) the area at least one-half mile beyond the site
limits, which shall show contours on five-foot
intervals,
(c) detailed survey boundaries and dimensions of
the proposed project,
(d) cultural features, streams, springs, sinkholes,
swamps, mines, pits, quarries, and other natural
and man-made features as may be pertinent to
ground water quality,
(e) existing wells, test borings, excavations, per-
colation test sites, etc.,
(f) roads, pipelines, power lines,
(g) location of proposed monitoring wells,
(h) details of ground water flow,
(i) location and thickness of glacial, colluvial,
alluvial, and lacustrine deposits,
(j) bedrock depth, or outcrop, and lithology;
depth to highest impermeable clay.
The permit application shall include a description
of regional and local structural geology. Regional
information shall include an area of five miles by
five miles centered on the proposed site.
The permit application shall include a complete and
detailed description of the hydrology, geology, and
soils at the proposed site. This shall include, but
not be limited to, description of ground water con-
ditions; rock types, structural conditions such as
faulting, folding, jointing, etc.; type and thickness
of materials overlying bedrock, including soil classi-
fication; permeability and percolation rates of soils;
flooding frequency; soil ion exchange capacity; grada-
tion analyses to a depth five feet below the lowest
proposed fill; and other existing conditions such as
may be present at the site. A cored soil sample shall
be taken and permanently retained to show initial
soil characteristics.
The permit application shall include complete data
establishing the background, or indigenous, ground
water quality, including analyses for at least the
following conditions:
(a) temperature, pH, specific conductance,
(b) hardness, alkalinity,
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X-FN-8
(c) BOD 5 day,
(d) COD 25 w K2Cr207,
(e) dissolved solids, suspended solids,
(f) total iron (Fe),
(g) manganese (Mn),
(h) sulfate (S04),
(i) chloride (Cl),
(j) fluoride (F),
(k) Nitrogen - Kheldahl (N)
(1) nitrogen - ammonia (Nlfy),
(m) nitrogen - nitrate (N03),
(n) chromium (Cr),
(o) nickel (Ni),
(p) zinc (Zn),
(q) copper (Cu),
(r) mercury (Hg),
(s) phosphorus (P),
(t) aluminum (Al),
(u) lead (Pb),
(v) methylene blue active substances (MBAS),
(w) other constituents as indicated by the nature
of the material being disposed.
The permitting agency may require additional samples
before issuing the permit.
53. U.S. Environmental Protection Agency, Sanitary Landfill Design and
Operation 31 (Washington, D.C.: Government Printing Office, 0-470-
406, 1972).
54. Cal. Health and Safety Code § 25100 et seq. (Deering); State Water
Resources Control Board, "Waste Discharge Requirements for Waste
Disposal on Land," Disposal Site Design and Operation Information
(Oct. 1974).
Class I disposal sites, as defined in the regulations,
are those which are expected to provide complete pro-
tection for all time, for the quality of ground and
surface waters occurring in that area. These sites
are deemed safe for all wastes to be deposited therein,
and the site represents no hazard to public health or
wildlife resources. Geological and hydrological cri-
teria for site classification are set forth in the law.
Group 1 wastes, defined as containing toxic substances
and substances which could significantly impair the
quality of usable waters, may be deposited only in
Class I sites. The regulation lists the wastes which
are considered to fall into the Group 1 category.
California regulations also formally establish Class II
sites, to receive Group 2 waste category, and these
are primarily ordinary municipal solid wastes. A
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X-FN-9
Class III site and Group 3 waste category accommodates
disposal of inert solid wastes. These are not considered
to have as significant an impact on water quality as
residual wastes deposited in the Class I and Class II
sites.
MacDonald _e_t aL_. , supra note 35, at 5-16 to 5-17.
55. Connecticut State Agencies Regulations, Solid Waste Management
Regulation § 19-524-5; Conn. Gen. Stat. § 19-524(b)(b).
56. Pa. Stat. Ann. tit. 35, § 691.1 et seq. (Purdon).
57. RCRA, supra note 3, § 4004(a).
58. Id. § 4005(c).
59. Pennsylvania Department of Environmental Resources, Rules and
Regulations, Solid Waste Management, ch. 75.
60. RCRA, supra note 3, § 3001 et seq. See note 23 supra for a summary of
the hazardous waste provisions of the federal act.
61. Conn. Gen. Stat. § 19-524(b) (d).
62. Or. Rev. Stat. § 459.590.
63. RCRA, supra note 3, § 4005.
64. Conn. Gen. Stat. § 19-524(b); and jL
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X-FN-10
In 1970 roughly 90 percent of all municipal cor-
porations and about 60 percent of all counties had
populations of fewer than 25,000 inhabitants. Most
municipal corporations in the United States, about
66 percent, had populations of fewer than 2,500
inhabitants in 1970. Various studies have shown
that adequate collection or disposal services can
be directly provided by government at reasonable
cost when the local solid waste service area in-
cludes a population approximating 30,000 inhabitants.
Local governments with smaller populations and
economic bases can provide adequate services by in-
creasing per capita costs, but reductions in the
levels of services provided are more common. Many
local governments are too small to justify the costs
of directly providing solid waste services. However,
when the local population base approaches 50,000
persons, economies of scale can normally be expected.
Council of State Governments, The States and Solid Waste Management;
Our Effluent Society 10 (1974).
70. Decision-Makers Guide, supra note 9, at 8-12.
71. Id.
72. Robert C. Porter, "Regional Solid Waste Management Authority: A
Case Study," in Solid Waste Demonstration Projects: Proceedings
of a Symposium, Cincinnati, May 4-6, 1971, at 149-56 (U.S. EPA,
SW-4p, 1972). See also Goreham v. Des Moines, 1 Envir. Rep. Cas.
(BNA) 1649 (Iowa Sup. Ct. 1970), upholding the constitutionality
of DMSWA's authority to issue bonds.
73. N.J. Stat. Ann. § 13:17-1 ^seq^. (West).
74. See the discussion of the Georgia Solid Waste Grant-in-Aid Program
in section 2.1.2, "Implementation and Enforcement of Plans."
75. Md. Nat. Res. Code Ann. § 3-101 ^t seq.
76. The States and Solid Waste Management: Our Effluent Society, supra
note 69, at 23-24.
77. N.J. Stat. Ann. § 13:lE-6b(5) (West).
78. Wis. Stat. Ann. § 144.445 (West); and see Solid Waste Recycling Act,
id. § 499.01 ^t seq.
79. See, for example, the Nejedly-Z' berg-Dills Solid Waste Management and
Resource Recovery Act of 1972, Cal. Gov't Code §§ 66700-66793 (Deering)
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X-FN-11
80. N.J. Stat. Ann. § 48-.13A-1 et_ se£. (West).
81. Id. § 13A-6.
82. Decision-Makers Guide, supra note 9, at 132.
83. Wyatt and White, supra note 38, at 1.
84. Municipal Sludge Management: Environmental Factors, 41 Fed. Reg.
22532 (1976).
85. The details of a regulatory program for residual waste haulers and
other intermediate handlers are not discussed in this report, except
as regards compliance with the manifest system. But note the follow-
ing:
Transportation of residual wastes in equipment that
is not suitable for the job or in defective equip-
ment can be highly dangerous, e.g., acid leakage or
sludge spills on highways. Specifications for the
equipment and procedures for its use should be re-
viewed, and maintained at the state level because
of mobility of the equipment. Where states have
thus far failed to provide regulations specific to
this problem, the Motor Vehicle or Health Depart-
ment should have some authority to do so. The State
should have an agency to set standards, which would be
applied against the source of the wastes. For example,
if a piece of transportation equipment fails to meet
the standards, the waste producer would be prohibited
from placing his wastes aboard it.
Routing of intransit wastes of either the special,
hazardous or toxic classes, should be controlled in
such a manner that a traffic accident or equipment
malfunction (including leakage) will not endanger
water supplies in the area. Permissible routing
should also take into account direct hazards to
large numbers of people (downtown areas) and parti-
cularly children (schools should be avoided). Move-
ment of particularly hazardous wastes may also be
restricted to daylight hours that do not coincide
with peak traffic congestion, as a further effort
to reduce the probability of accidents.
Hauling permits should prohibit use of roads in the
vicinity of reservoirs, rivers and streams. Trucks
bearing hazardous or toxic waste should be required
to display an appropriate sign on front, rear and
both sides as a warning to other vehicles and to
alert law enforcement patrol cars, in the event a
truck uses a prohibited route.
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X-FN-12
Accidents in transporting hazardous wastes can lead
to serious problems of toxic impact on the public and on
wildlife, pollution of ground and surface waters, air
pollution, fire, explosion, etc. (These problems can
also stem from illicit dumping.) Here, also, the plan-
ning agency should encourage waste haulers and manaagement
agencies to work out contingency plans with highway de-
partments, fire and police departments, hospitals and
similar groups to minimize the adverse consequences of
accidental dumping of hazardous wastes. Preventive
action in the form of licensing programs and generating
awareness among waste producers, transporters, and site
operators, as already mentioned, should help minimize
such episodes.
MacDonald ejt ja^L. , supra note 35, at 3-24 to 3-25.
A Pennsylvania regulation [Pennsylvania Department of
Environmental Resources, Rules and Regulations, ch. 101],
for instance, requires individuals responsible for a
spill to immediately notify the regional office of the
Department of Environmental Resources. If the spill
may affect ground water, the Regional Geologist of the
state's Ground Water Section attempts to respond within
a maximum of two hours to make a technical appraisal
and enable prevention of ground water effects, if pos-
sible. Certain industries in Pennsylvania are required
to develop a Pollution Incident Prevention Program
which establishes a specific procedure for informing
the state of spills or other major pollution problems.
Lehr ert al. , supra note 52, at 11-136.
86. Municipal Sludge Management: Environmental Factors, supra note 84,
at 22533.
87. Decision-Makers Guide, supra note 9, at 133-35.
88. Municipal Sludge Management: Environmental Factors, supra note 84,
at 22536.
89. Decision-Makers Guide, supra note 9, at 132.
90. Wyatt and White, supra note 38, at 104-05.
91. Decision-Makers Guide, supra note 9, at 132.
92. Wyatt and White, supra note 38, at 105-06.
93. Lehr et al., supra note 52, at IV-31.
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X-FN-13
94. Metcalf & Eddy, Inc., Evaluation of Land Applications Systems 31-39
(1975).
95. Lehr et_ al. , supra note 52, at IV-34.
96. Oregon Department of Environmental Quality, Regulations Pertaining
to Solid Waste Management K, Special Rules Pertaining to Sludge
Disposal Sites.
97. Lehr ejt_ al. , supra note 52, at 11-118 to 11-119.
98. Colorado Department of Health, Criteria Used in the Review of Waste
Water Treatment Facilities (1973).
99. Lehr et al. , supra note 52, at 11-119.
100. Illinois Environmental Protection Agency, Design Criteria for Waste
Treatment Plants and Treatment of Sewer Over-flow, Technical Policy
20-24 (rev. July 1971).
101. Lehr et_ al_., supra note 52, at 11-119.
102. 190 P.2d 681 (Idaho Sup. Ct. 1948).
103. 30 N.J. 528, 154 A.2d 9 (N.J. Sup. Ct. 1959).
104. 526 P.2d 1328 (Colo. Sup. Ct. 1974).
105. 53 C.J.S. Licenses § 42a.
106. Kenneth Gulp Davis, Administrative Law Text 170 (St. Paul: West
Publishing Co., 3d ed. 1972).
107. 439 F.2d 584, 598 (D.C. Cir. 1971).
108. Davis, supra note 106, at 147.
109. An example of this philosophy is Darling Apartment Co. v. Springer,
22 A.2d 397 (Del. Sup. Ct. 1941), a case involving licensing for the
sale of alcoholic beverages, wherein the court held that a license
to sell liquor is not property in any legal or constitutional sense,
no right being conferred on the licensee, but is a mere temporary
permit issued under authority of the state to do that which otherwise
would be unlawful. Hence, the court reasoned, the right of the
licensee can rise no higher than the terms of law under which the
license is issued. The licensee accepts his privilege subject to
such conditions, including the cause and manner of revocation or
suspension, as the legislature may see fit to impose. See Davis,
supra note 106, at 175 ff.
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X-FN-14
110. 190 N.Y.S.2d 39, 19 Misc. 2d 524 (1959).
111. Davis, supra note 106, at 170, 206 ff.
112. 81 C.J.S. States § 130.
113. 329 N.Y.S.2d 381, 38 App. Div. 2d 349 (1972).
114. People v. Reedey, 66 Gal. App. 409, 226 P. 408 (1924).
115. Wood v. Town of Wilton, 240 A.2d 904 (Conn. Sup. Ct. 1968)
-------
. CHAPTER TEN
LAND DISPOSAL OF SOLID WASTES AND SLUDGES
SUGGESTED READINGS
American Law Institute. A Model Land Development Code. Proposed Offical
Draft. Philadelphia, 1975.
Brunner, Dirk R.; and Keller, Daniel J. Sanitary Landfill Design and
Operation. Washington, D.C.: U.S. EPA, Office of Solid Waste
Management Programs, 1972. (SW-65ts)
Christman, R. F. et al. The National Environment: Waste's and Control.
Pacific Palisades, Cal.: Goodyear Publishing Co., 1973.
Council of State Governments. The States and Solid Waste Management;
Our Effluent Society. Lexington, Ky., 1974. (reprinted with
permission by EPA, 1974)
Geswein, Allen J. Liners for Land Disposal Sites: An Assessment.
Washington, D.C.: U.S. EPA, Office of Solid Waste Management
Programs, 1975. (SW-137)
Lehr, Jay H. et al. A Manual of Laws, Regulations, and Institutions for
Control of Groundwater Pollution. Washington, B.C.: U.S. EPA, 1976.
(EPA-440/9-76-006)
Lowe, Robert A. et al. Energy Conservation Through Improved Solid Waste
Management. Washington, D.C.: U.S. EPA, Resource Recovery Division,
1974. (SW-125)
MacDonald, Don et al. Residual Waste; Model State Legislation. Washingtor
D.C.: U.S. EPA, Water Planning Division, 1976. (WPD3-76-01)
Metcalf & Eddy, Inc. Evaluation of Land Application Systems. Washington,
D.C.: U.S. EPA, Office of Water Programs Operations, 1975. (EPA-
430/9-75-001)
National Association of Counties. Basic Issues on Solid Waste Management
Affecting County Government. Washington, D.C.: U.S. EPA, Office of
Solid Waste Management Programs, 1973.
Page, A. L. Fate and Effects of Trace Elements in Sewage Sludge When
Applied to Agricultural Lands. Cincinnati: U.S. EPA, Office of
Research and Development, 1974. (EPA-670/2-74-005)
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X-SR-2
Schneider, William J. Hydrologic Implications of Solid Waste Disposal.
Geological Survey Circular 601-F. Washington, B.C.: U.S. Geological
Survey, 1973.
Skinner, John H. "Reduce the Incentive to Waste." Paper presented at
the 80th Annual Meeting of the American Institute of Chemical Engineers,
Sept. 8, 1975, in Boston. Mimeographed. (available from EPA)
Strelow, Roger. "Engineering for a Better Environment." Paper presented
at the National Waste Processing Conference of the American Society
of Mechanical Engineers, May 24, 1976. Mimeographed. (available
from EPA)
Stump, Patricia L., ed. Solid Waste Demonstration Projects; Proceedings
of-a Symposium, Cincinnati, May 4-6, 1971. Washington, D.C.: U.S.
EPA, 1972. (SW-4p)
Toftner, Richard 0. Developing a Local and Regional Solid Waste Manage-
ment Plan. Washington, D.C.: U.S. EPA, Office of Solid Waste
Management Programs, 1973. (SW-101ts.l)
Toftner, Richard 0.; and Clark, Robert M. Intergovernmental Approaches to
Solid Waste Management. Washington, D.C.: U.S. EPA, Office of Solid
Waste Management Programs, 1971. (SW-47ts)
Train, Russell E. "Solid Waste Management: Horizons Unlimited." Paper
presented at the International Waste Equipment and Technology Expos-
ition, June 2, 1976, in Chicago. Mimeographed. (available from EPA)
U.S. Environmental Protection Agency, Office of Solid Waste Management
Programs. Decision-Makers Guide in Solid Waste Management. Washing-
ton, D.C., 1976. (SW-500)
Weddle, Bruce; and Garland, George. "Dumps: A Potential Threat to Our
Groundwater Supplies." Nation's Cities (National League of Cities),
Oct. 1974. (reprinted with permission by EPA, 1974)
Williams, Thomas F. "Environmental Protection: The People's Choice."
Paper presented at the Second Northeast Regional Conference of the
National Audubon Society, June 8, 1974, in New Paltz, N.Y.
Mimeographed. (available from EPA)
. "Conservation and Common Sense." Paper presented at the National
Conference of the Soil Conservation Society of America: Land Applica-
tion of Waste Materials, March 17, 1976, in Des Moines. Mimeographed,
(available from EPA)
Wyatt, Michael J.; and White, Paul E. Sludge Processing, Transportation
and Disposal/Resource Recovery: A Planning Perspective. Washington,
D.C.: U.S. EPA, Water Planning Division, 1975. (WPD12-75-01)
-------
CHAPTER ELEVEN
WELL INJECTION OF RESIDUAL WASTES
TABLE OF CONTENTS
1.0 Introduction XI-1
2.0 Authority XI-2
2.1 Federal Statutory Authority Over Injection Wells XI-2
2.1.1 The Safe Drinking Water Act XI-2
2.1.2 The Federal Water Pollution Control
Act Amendments of 1972 XI-3
2.2 State and Local Authority Over Injection Wells XI-4
2.2.1 State Authority XI-4
a. Pollution Control Statutes XI-4
b. Environmental Impact Statements XI-5
2.2.2 Local Authority XI-6
3.0 Planning and Standards XI-6
3.1 Consideration of Alternative Methods XI-6
3.2 General Considerations of Feasibility XI-7
4.0 Permit Procedures XI-9
4.1 Application Information XI-9
4.2 Standards for Review XI-10
4.3 Permit Conditions XI-11
4.3.1 Monitoring XI-11
4.4 Enforcement XI-12
4. 5 Controls on Abandonment XI-12
5.0 Institutional Considerations XI-12
5.1 Appropriate Level and Agency of Government XI-12
5.2 New Institutional Arrangements
The Public Alternative XI-14
6.0 Legal Issues XI-14
Appendix; Nebraska Department of Environmental Control Rules and
Regulations for the Control of Disposal Wells to
Protect Groundwater and Other Subsurface Resources
of the State of Nebraska
Footnotes
Suggested Readings
-------
CHAPTER ELEVEN
WELL INJECTION OF RESIDUAL WASTES
1.0 Introduction
As a method of disposing of municipal and industrial wastes, well injection
is a relatively recent development. Although at least one waste injection well
was operating as early as 1931, by 1960 there were only 30 such wells in
existence.JY As federal and state controls on surface emissions of polluting
effluents grew more stringent, however, the use of injection wells increased
rapidly. By 1967 there were at least 110 wells in service, ^/and by 1974
there were 333 well sites in 25 states._3/ This rate of development is likely
to continue, if not increase, in the future.
Apart from federal permits issued under the National Pollutant Discharge
Elimination System (NPDES), what regulation of well disposal has occurred to
date has been undertaken at the state level. Those states that have dealt
with the issue have adopted one of the following three approaches: (1) imposed
a ban on all well injection of wastes; kj (2) allowed it, but only as a
last resort where all other methods fail or are considered too impractical; 5j
(3) accepted it as a viable waste disposal method to be treated on
an equal basis with other methods.^/
Well injection of industrial or municipal wastes should not be confused
with oil field brine injection. The latter is commonly practiced in oil
and gas producing areas to dispose of the saltwater byproducts of oil production
or to increase the pressure in the oil-bearing strata in order to force
more oil to the surface. Brine injection usually involves the return
of a natural subsurface liquid to the stratum of its origin or at least
to oil-bearing strata where it poses little threat of freshwater contamination.
Industrial and municipal waste injection, on the other hand, generally
entails the injection of highly toxic or polluted liquids into a receiving
aquifer that is occupied by existing waters. Although referred to as a
disposal method, underground injection does not really dispose of the
pollutants since the conditions underground are seldom conducive to the degradation
of the pollutants. With the exception of acids injected into carbonate
minerals and radioactive materials with short-lived isotopes, pollutants
underground are likely to retain their undesirable characteristics indefinitely.^/
The difficulty in monitoring these liquids once they are injected and the
uncertainty concerning the effects of the increased pressures, changes
of chemistry, and possible migration of the liquid add to the concern
over the desirability of the method. The more obvious risks involved
are best exemplified by the seismic activity that followed, and is generally
attributed to, two events. One was the construction and operation of the
Rocky Mountain Arsenal well, and the other was the spectacular blow-out
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XI-2
of the Hammermill Paper Company well in Erie, Pennsylvania that threw
equipment 30 feet in the air and spilled waste liquid into Lake Erie at the
rate of 200 gallons per minute for several days.^5/ Although the method has had
a low rate of failure to date, these examples demonstrate the nature of its
potential hazards.
Even if the unknown risks of well injection are accepted, certain known
problems remain. The method requires the irrevocable commitment of certain
potential resources, and poses a threat to existing resources by the injection
of liquid wastes. Although the aquifer into which the liquid is injected
may not be of any other present or foreseeable use, changing needs of society
might someday find a use for that aquifer in an uncontaminated state. In
addition, valuable freshwater aquifers may be endangered by well leakage
or unexpected migration of the injected liquids. Unlike surface water,
groundwater, once contaminated, is very slow to decontaminate itself once
the polluting source is removed, j?/
On the positive side, well injection does constitute a relatively inexpensive
method of dealing with particularly pernicious wastes. It also has positive
environmental aspects; it consumes less energy, causes less deterioration
of surface water quality, and results in less aesthetic damage (by eliminating
the need for extensive treatment facilities) than many other pollution abatement
methods.
2.0 Authority
2.1 Federal Statutory Authority Over Injection Wells
For the most part, well injection of liquid residuals has been controlled
at the state level. The federal role, however, is increasing as the practice
becomes more widespread. Most federal activity is limited to supervision of
state programs, with little direct regulatory authority. Under the Atomic
Energy Act, IQ/the Safe Drinking Water Act, 11/ the Refuse Act, 12/ and the
Federal Water Pollution Control Act Amendments of 1972, 13/ some direct
regulatory authority exists or has been exercised. The Atomic Energy Act,
through the Nuclear Regulatory Commission's Standards for Protection Against
Radiation, \J\J controls the disposal of radioactive materials. The Refuse
Act was applied once in 1971 to exercise control over well injection, but the
circumstances were unusual and it is unlikely that the act could be used as
authority for any substantial federal programs.JJ5/ This application of the
Refuse Act preceded adoption of the Safe Drinking Water Act of 1974 and of the
Federal Water Pollution Control Act Amendments of 1972, which provide more
substantive federal controls over injection wells.
2.1.1 The Safe Drinking Water Act
Under section 1424(e) of the Safe Drinking Water Act, if the administrator of
EPA determines that an aquifer is the primary source of drinking water for a
given area, no federal financial assistance may be given for a project which
the administrator determines may contaminate, that aquifer. Indirectly,
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XI-3
the act will exert a great deal of influence, since under section 1421 the states
are required to establish underground injection programs pursuant to EPA-promulgated
regulations. The proposed regulations have been published 16/ but have
not yet been approved. They will provide minimum standards with which state
underground injection control programs must comply, and should be used as
the basic guidelines for state regulation of injection wells.17/
The scope of the Safe Drinking Water Act is far wider than the material
on well injection covered in this chapter. The proposed regulations' definition
of "well injection" includes "a subsurface emplacement through a bored, drilled,
or driven well, or through a dug well where the depth is greater than the largest
surface dimension, whenever a principal function of the well is the subsurface
emplacement of fluids."18/
According to the introduction to the proposed regulations,
As well as including what is normally referred to as the
"deep well" injection of industrial or municipal wastes, the
proposed definition of "well injection" also includes a number
of well injection practices other than "deep well" waste disposal,
including the subsurface emplacement of fluids generally, not
just waste disposal.19/
This chapter does not attempt to cover so broad an area; it is restricted
to the well injection of industrial or municipal wastes, as described in
the introduction.
2.1.2 The Federal Water Pollution Control Act Amendments of 1972
Substantive federal regulatory authority over well injection also exists
under the Federal Water Pollution Control Act Amendments of 1972. Although
NPDES permits are required for discharges of pollutants into "waters of the
United States," 20/ that language has not been broadly interpreted to
include groundwaters.T\J EPA does exercise jurisdiction over well disposal
systems when they are part of an activity requiring an NPDES permits or
are replacing an activity that required an NPDES permit. The regulation
describing this jurisdiction states:
If an applicant for a permit is disposing or proposes to
dispose of pollutants into wells as part of a program to
meet the proposed terms and conditions of a permit, the Regional
Administrator shall specify additional terms and conditions in the
permit which shall (i) prohibit the disposal, or (ii) control the
disposal in order to prevent the pollution of ground and surface
water resources and to protect the public health and welfare.22/
The FWPCA extends federal influence over state programs in two ways.
First, it requires that, in order to be approved, state NPDES programs contain
authority "to control the disposal of pollutants into wells. "23_/ This
means that under a state-approved program all disposal wells require a
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XI-4
permit and must be controlled to protect groundwater and surface water.24/
For the most part, in complying with this provision, the states have included
groundwater as water of the state to be protected under their NPDES programs,
rather than establishing specific programs to regulate well injection.
Second, and more important to this handbook, pollution from injection wells
must be controlled as a condition of approval for section 208 water quality
management plans. Section 208(b)(2)(K) of the act requires that such plans
include "a process to control the disposal of pollutants on land or in
subsurface excavations within such areas to protect ground and surface water
quality."
2.2 State and Local Authority Over Injection Wells
There are a number of sources of authority that a state or areawide water
quality planning agency might draw upon to fulfill its obligation under
the FWPCA to provide for control of pollution from injection wells. This
section will briefly discuss those sources that are or could be used by
state and local governments.
2.2.1 State Authority
A very few states, including Texas 25/ and Michigan, 26/ have adopted
statutes specifically for the control of well injection of liquid wastes.
Texas has had a long history of regulating the injecton of oil field
brines and in 1961 was the first state to adopt a law directly concerned with
the control of injection of industrial wastes.
More frequently, injection wells are regulated under a broader statutory program
that has been made specifically applicable to the injection of wastes. Ohio's
oil and gas law is make applicable to the injection of all wastes, regardless
of whether the injection is connected with the production of oil and gas.27/
Hawaii's statute covering the drilling of wells in general is made specifically
applicable to well injection.28/
a. Pollution C on t ro1 S t a tut es
General pollution control laws often include well injection as a source of
pollution subject to regulation. Oregon's water pollution control statute
is a good example of this sort of control. It requires that a permit be
obtained to "[c]onstruct, install, modify or operate any disposal system
or part thereof or any extension of addition thereto."Z9/ The statute
defines a proposal system as "a system for disposing of wastes, either by
surface or underground methods, and includes municipal sewerage systems,
domestic sewerage systems, treatment works, disposal wells and other systems."30/
Pollution control laws that do not specifically mention pollution from" disposal
wells will generally constitute sufficient authority to establish a regulatory
program if they cover groundwaters as well as surface waters. Difficulty
may arise, however, if a general pollution control law defines pollution
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XI-5
in terms of adverse effect on other water uses. California, for example,
defines pollution as the "alteration of the quality of the waters of the
state by waste to a degree which unreasonably affects: (1) such waters
for beneficial uses, or (2) facilities which serve such beneficial
uses. "_31/ California further specifically prohibits the injection of
wastes into a "subterranean water-bearing stratum that is used or intended
to be used as, or is suitable for, a source of water supply for domestic
purposes. "_32/ Even if California's two provisions were combined, it
might be difficult to regulate well injection into a saline aquifer
since, for the time being, saline aquifers offer no beneficial uses. Of
course, it might be argued that the potential migration of pollutants
into useful waters is a sufficient basis on which to regulate injection
wells, even in states with no more authority than a general pollution law
that defines"pollution in terms of damage to its waters' usefulness.
b. Environmental Impact Statement^
State environmental impact statements (EIS) requirements constitute
another general statutory method that can be used in a well injection
regulatory program. As of January 1975, 32 states had adopted, either
legislatively or administratively, some form of environmental impact
statement requirement.^33/ The applicability of these requirements
to injection wells varies from state to state. Some states' EIS
requirements are limited either geographically or by activities covered.
Thus Delaware, under its Coastal Zone Act, 34/ requires impact statements
only for industrial activities taking place in the coastal zone, and Arkansas
requires impact statements only for utility plant siting.35/
Even state EIS requirements of general applicability may be limited
in their usefulness for control of well injection if they apply just
to projects undertaken by the state itself. Connecticut's EIS
requirement is limited to projects undertaken by state agencies or
funded in whole or in part by the state, 36/ and Indiana specifically
exempts state actions which merely involve the granting of a liceflse
or permit.37/
The California Environmental Quality Act of 1970 defines a "project"
requiring an impact statement as including "activities involving the
issuance to a person of a lease, permit, license, certificate, or
other entitlement for use by one or more public agencies."38/
That act, therefore, ensures that impact statements will be prepared
for injection wells requiring permits. Other states, such as Wisconsin,
have followed the language of the National Environmental Policy Act,
which requires impact statements for "proposals for legislation and other
major federal [in state laws, "state"] actions significantly affecting
the quality of the human environment."^/ This has been defined as
including projects involving "lease, permit, license, certificate or
other entitlement for use," 40/ and would include injection wells
which require a permit.
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XI-6
In states that do not require a permit to be obtained for the construction
of an injection well, such construction might still be subjected to
the EIS process under a provision such as Minnesota's which requires
an impact statement for major private actions "of more than local
significance . . . where no governmental permit is required."41/
2.2.2 Local Authority
Local sanitation codes or even zoning laws might give local governments
the statutory authority to regulate well injection, but, as will be
discussed later in the section entitled "Institutional Considerations,"
injection wells are an unlikely candidate for local control. If local
regulatory authority is exercised, it is important that it be accompanied
by an environmental impact statement requirement to ensure that adequate
consideration is given to the environmental advantages and disadvantages
of the process. Only California, Massachusetts, Puerto Rico, and
Washington currently impose EIS requirements on the actions of local
governments.^2.1 Depending on the state constitution, however, local
governments may be able to adopt their own EIS requirements as a part
of their zoning ordinance 43/ or subdivision ordinance, 44 / or they may
be able to do so pursuant to an EIS enabling statute such as those
of North Carolina 45/ and Montana.46/
3.0 Planning and Standards
The general consensus among writers on the subject and among states
that have adopted extensive legislative or administrative controls for
injection wells is that there are five basic areas with vhich regulation
should be concerned: (1) at the planning stage, consideration should
be given to alternative methods and comparative advantages and disadvantages
of the well disposal technique; (2) preliminary studies should be made
concerning the nature and feasibility of the site and its compatibility
with the proposed injection liquids; (3) standards for the design, construction,
and operation of the well should be established; (4) once the well is
constructed, procedures for reporting and monitoring should be spelled
out; and (5) abandonment should be regulated when the well has exhausted
its usefulness.
3.1 Consideration of Alternative Methods
Before any other issue is broached, an initial determination should
be made as to whether well disposal is a desirable technique for dealing
with a particular waste disposal problem. This includes considering
the other available techniques and weighing their hazards and costs
against those of well injection. Several states, including Missouri 47/
and North Carolina, 48/ have simply prohibited the construction of
injection wells altogether. Obviously, this approach avoids the
potential hazards of the method, but it also eliminates the possible
advantages and benefits.
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XI-7
If injection wells are to be permitted, it is important that due
consideration be given to their environmental desirability in each
instance. A provision such as that recommended by the EPA, requiring
that injection wells be approved only after "[a]ll reasonable alternative
measures have been explored and found less satisfactory in terms of environmental
protection," 49/ provides some incentive to explore alternatives. It
would be more effective, however, to require that an environmental
impact statement be prepared before an injection well is approved. An
impact statement, in the proper form, will ensure that alternative
methods and potential hazards are thoroughly investigated and considered.
It provides an opportunity (one not available in subsequent regulatory
procedures affecting injection wells) to compare other methods of waste
disposal with the proposed injection method and evaluate the relative
merits and potential for environmental harm.
Probably the best format for an impact statement is the one required by
the National Environmental Policy Act, which requires that a statement cover:
(i) The environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term
uses of man's environment and the maintenance
and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should
it be implemented.50/
Following NEPA's language removes much of the uncertainty that might
surround a state's EIS requirements, since many of the questions
concerning the adequacy of federal impact statements have been resolved
in the courts. Indiana, Maryland, Montana, New Mexico, Puerto Rico,
and Washington have adopted NEPA's five requirements, 51/ and by
doing so have ensured that the environmental effects of and alternative
solutions to a proposed injection well will be considered.
3.2 General Considerations of Feasibility
If injection wells are accepted as a reasonable alternative method
of waste disposal, procedures should be adopted to ensure that a proposed
well be constructed in such a location and manner as to minimize the
potential risk. Following are some of the key criteria:
1. Geologic feasibility - Of primary concern in deciding on a site for
an injection well is the presence of a suitable injection aquifer or
receptor zone. The aquifer must be of sufficient size and permeability
to accept the quantity of waste liquid to be injected without the use
of excessive hydraulic pressures that might cause fracturing. Sand,
sandstone, limestone, and dolomite formations generally make good receptor
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XI-8
zones. Within the zone, the existing water should be too highly mineralized
to be usable as a present or potential resource.
The receptor zone should be contained by an impermeable layer, or
aquaclude. This may be relatively thin or thousands of feet thick,
but it is essential that it provide a watertight seal in order to prevent
the upward migration of contaminated waters. This zone may be of clay,
shale, or other substance of low permeability.
Ideally there should be no underground resources, such as freshwater,
oil, gas, or valuable mineral deposits near the well which might
become contaminated by the injection fluid. Since this will not
always be the case, particularly with respect to potable water, areas
with active or abandoned wells, frequent geologic faults, or high
seismic activity should be avoided since they might provide channels
through which the liquid could escape.
2. Chemical feasibility - Also important to the potential for well
injection is the chemical relationship between the injection liquid and
the receptor aquifer. The ideal situation arises when an acid waste
is injected into a carbonate or limestone aquifer. This not only tends
to neutralize the injection liquid, but the chemical reaction also
increases the permeability and, therefore, the capacity of the
receptor aquifer. Situations to be avoided arise when the injected
and interstitial fluids combine to produce a precipitate that might clog
the well or at least substantially reduce its capacity.
3. Hydraulic feasibility - Perhaps the most difficult quality to
determine in analyzing the feasibility of a disposal site is the hydraulic
character of the receptor zone. A site is most desirable when the
aquifer is completely stagnant. This makes the migration of the
injection liquid more predictable and helps to ensure that it will stay
within the confines of the injection zone. However, there is usually a
certain degree of natural hydrodynamic gradient in the injection
zone which will cause an uneven and often rapid dispersion of the injection
liquid. The unpredictibility and lack of understanding of the causes
of subsurface hydraulic movement suggest that injection wells should
be placed farther from other wells or geologic faults than might ordinarily
be thought necessary.
4. Design of the well - The proper design of the well will vary grea*-. ,
depending on the nature of the fluids to be injected, well depth, injection
pressures, and geologic character of the site. In general, a well will
consist of a surface casing installed to below the depth of the deepest
freshwater aquifer, and one or more smaller casings set all the way to the
injection zone. The liquid waste is injected through a separate
interior tubing which should be made of, or lined with, a material that
will not be corroded by the injection fluid.52/
5. Regulatory coverage - The Environmental Protection Agency, in
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XI-9
Ground Water Pollution from Subsurface Excavations, published pursuant
to section 304(e)(2)(D) of the FWPCA, 53/ lists 10 control methods
that should be employed:
1. Evaluation of hydrogeologic framework and restriction
on unsuitable locations and aquifers for waste injection.
2. Evaluation of fluids for injection including estimation of
nature and extent of chemical reactions between injected fluids
and aquifer fluids and minerals and of heat generation and
its effects in the case of radioactive wastes, with restrictions
on those deemed suitable.
3. Requirement, of proper design and construction of injection
wells including hardware and sealants.
4. Requirement of thorough hydrogeologic evaluation during
construction and testing of wells.
5. Determination of aquifer response to injection, and direction
and rate of movement of injected fluids and aquifer fluids.
6. Restriction on operating programs for injection wells.
7. Surface equipment and programs for emergency procedures in the
event of a malfunction, including rapid shutoff and standby
facilities and programs for long term decontamination.
8. Abandonment procedures for all wells.
9. Monitoring programs for injection wells.
10. Monitoring programs for aquifers.54/
4.0 Permit Procedures
4.1 Application Information
The most frequently used and perhaps most effective method for ensuring
both that sufficient information is gathered and considered
and that the well is properly located and constructed is the permit
application and review process. A requirement that the applicant include
extensive information relating to the feasibility of his proposal
is an integral part of many regulations or statutes concerned with
injection wells. The Idaho injection well law describes in general
terms the kind of information that should be provided:
Such application shall be upon forms furnished by the director
which shall require information concerning the location and
description of the waste disposal and injection well, the quantity,
quality, and nature of the material being or proposed to be
injected, the description of the underground formation
and aquifer into which the material is proposed to be or is
being injected, the availability of alternative sources of
disposal, and such other information as will enable the director
and the director of the department of health and welfare to
determine the effect of the injection of the material
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XI-10
upon the quality of the ground water, the effect upon the
beneficial uses of said ground water, the effect upon
the public health and the effect upon public benefits derived
therefrom, if any.55/
Other regulations, such as Nebraska's (portions of which are reproduced
in the appendix to this chapter), give much more detailed lists of
information required to be submitted. Combining detailed application
requirements with an environmental impact statement requirement is
probably the safest method of making certain that all environmental
information is disclosed. The application should provide information to
determine the feasibility of the proposed well, and the EIS should ensure
that alternative disposal methods are adequately explored.
These information requirements have a substantial drawback, however.
They leave the administrative agency entirely at the mercy of the
applicant or his consultant for the provision of adequate and accurate
information. Although the applicant is often in the best position to
provide this information, his role as an interested party may tend to make
his information less than objective. To put the burden of gathering this
information entirely on the administrative agency, on the other hand,
would be both administratively and economically impractical. A compromise,
such as having a state or regional authority provide the areawide
geologic information and the applicant provide the specific site
information, would constitute a more reasonable distribution of
responsibility. Another method of ensuring the objectivity of the information
is to require that the applicant employ an independent expert. Colorado's
Rules for Subsurface Disposal Systems authorize the Water Quality
Control Division of the Colorado Department of Health to require that
an applicant obtain an independent expert, satisfactory to the division,
to verify any of the data.J56/ In practice, this has meant that the division
has selected the expert, and the applicant has paid him.
4.2 Standards for Review
A problem with existing information requirements is that they are
seldom combined with clear standards or criteria for evaluating the
proposal. Considerations such as the thickness of the confining
strata, the permeability of the injection aquifer, and maximum permissible
injection pressures, are left to the discretion of the administrative
agency.
In some states, however, there are standards governing the minimum dissolved
mineral content of the injection aquifer and well design. The permissible
minimum dissolved mineral content in the injection zone varies from state
to state, but a number of states have accepted the standard of 10,000 mg/1.57 /
Well design and construction standards range from a flexible case-by-case
approach coupled with recommended standards, as in Texas, 58/ to
the detailed minimum design standards set out by Nebraska covering casing,
injection tubes, safety valves, and emergency surface equipment.59/
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XI-11
Giving the administrative agency a high degree of discretion may work
well in a state like Texas which has had a great deal of experience
in regulating injection wells, but in a state where there has been
little or no experience with the method, minimum standards such as
those required by Nebraska would reduce possible error.
4.3 Permit Conditions
When a permit is issued it should, obviously, be conditioned on the
permittee adhering to his proposed plans. There should also be a
provision, such as that contained in Michigan's rules governing well
operations,^)/ which requires that after a well is constructed it
cannot be operated^ until it is tested and approved by the administering
agency. EPA, in its proposed rules for state underground injection
programs, requires that state permit procedures include "plans for
monitoring both well head and annular fluid pressure, fluids being injected
in injection zone and other aquifers."61/
4.3.1 Monitoring
Monitoring techniques that might be used consist of monitoring the
pressure at the well head, the annulus, and the injection aquifer.
Changes in pressure in any of these would provide warning that problems
may be developing in the well. A provision like Michigan's would
require the operator to report anomalous behavior to the supervising
agency, which would then order cessation of the operation and require
additional testing.62/
Even in the absence of anomalous behavior, periodic testing should
be carried out by the operator and reported to the supervisor.
Methods of inspecting wells consist of pulling of the tubing and inspecting
it above ground; inspecting the tubing or casing in-place using magnetic,
caliper, or teleview logs; pressure testing; and inspection of casing
cement with cement bond logs.63/
Monitoring injection wells by the use of observation wells is often
recommended, but is a controversial and somewhat questionable method.
Although observation wells constitute the most accurate method for
determining movement and changes in the injection aquifer and nearby
freshwater aquifers, they present a number of substantial disadvantages.
The irregularity of underground hydrographies makes the installation
of more than one well necessary if accuracy is to be achieved. These wells
are expensive to construct, and to impose this cost on the operator might
render the whole process economically infeasible.
Monitoring wells present another problem that is perhaps more serious than
their expense. Most of the danger of migration of the disposal liquid
and contamination of freshwater aquifers comes from the well itself
or from other nearby wells. A well, if it leaks, provides a channel
of escape for the injected wastes; therefore drilling a number of
monitoring wells substantially increases the possibility of pollution.64/
-------
XI-12
This danger can be reduced by not extending the monitoring wells all
the way to the injection aquifer, and instead only using them to monitor
the freshwater aquifers in the vicinity of the injection well. This
would provide a warning of contamination without drilling into the
injection zone and thereby providing a potential escape route for
the waste liquid.
4.4 Enforcement
To make sure that permit provisions are being complied with and the injection
well is being properly operated, the supervising agency should have
the authority to enter the permittee's premises, have access to records,
inspect the facilities, and sample injection fluids.J55/ Should
the supervising agency discover any violation of a permit's provisions
or possible danger from the well, it should be able to shut down the well
and revoke the permit (as, for example, the Idaho injection well law
provides.)66/
A requirements such as Michigan's, that the operator post a bond or
a surety as a prerequisite to permit approval 67/ would be a useful
enforcement mechanism. The sum, however, would have to be sufficient
to encourage to operator to comply or to pay for sealing and abandonment
if the operator failed to comply.
4.5 Controls on Abandonment
Since wells provide the greatest danger for escape of pollutants, it is
necessary that procedures for their abandonment be adopted. States
that have abandonment procedures usually require that a permit be
obtained providing that the well be plugged in accordance with certain
minimum requirements. In Oklahoma, detailed regulations for the cementing
of wells at the surface, the bottom, and through freshwater aquifers are
provided. 68^/ In Nebraska, the whole well must be cemented. 69_/ In Michigan,
the regulatory agency sets the plugging requirements on a case-by-case
basis ._70/ The varyirg requirements of different types of wells suggest
that the flexibility of the Michigan approach might be the most practical.
At the same time, Nebraska's requirement that the well be totally cemented
would seem to be the safest and most permanent way of ensuring that no
leakage will occur.
The location of abandoned wells should be recorded by the appropriate
regulatory agency so that future drilling operations in their vicinity
can be conducted with that knowledge. The abandonment permit should
be sufficient to satisfy this need. In addition, the plugged well should
be permanently marked, as required by Oklahoma.7I/
5.0 Institutional Considerations
5.1 Appropriate Level and Agency of Government
Because of its technological complexity, well disposal is not, nor
is it likely to be, controlled at the local level. The degree of
expertise necessary to evaluate a well injection proposal, and the
-------
XI-13
infrequency with which these proposals are made, would make it
virtually impossible to develop an adequate program at the local level.
Control of injection wells does lend itself to regional administration,
particularly at the interstate level, since the geologic formations
that are used as injection aquifers are often not confined within the
boundaries of a single locality or state.
The only interstate agency presently concerned with injection wells
is the Ohio River Valley Water Sanitation Commission (ORSANCO). That
commission has assumed no direct regulatory authority over injection
wells, but it has taken three steps towards the establishment of an
areawide program. First, it maintains a registry of injection wells
in the Ohio River Valley Region which includes information concerning
the location of the well, geological and geophysical logs, test results,
operational characteristics, and chemical characteristics of the injected
waste.12J Second, it is undertaking an evaluation of the Ohio River
Basin to determine the physical feasibility of injection. Finally,
ORSANCO has adopted a statement of policy towards well injection
with recommendations to the member states. Briefly stated, the policy
is that injection wells should be used when they are the best available
alternative under the specific circumstances of the case.73/
Determining which agency or agencies should have authority over the
regulation of well disposal depends primarily on the availability of
expertise and resources. In states such as West Virginia, where
authority over disposal wells rests entirely in one agency (the
Department of Natural Resources), 74/ there might be a tendency to
ignore other agencies with additional expertise for analyzing a
proposed injection well. This problem is avoided in West Virginia
by requiring that when a determination is made on an application for
an injection well permit, the chief of the Division of Water Resources
must consult with the director of the state Geological and Economic
Survey and the deputy director of the Oil and Gas Division of the
Department of Mines. T5_l An environmental impact statement review process
will also ensure that there is interagency cooperation and participation.
The review procedures should provide that all concerned agencies have
the opportunity to review the statement.76/
Perhaps the best situation exists in states where several agencies
are concerned with the actual, final decisionmaking process. This
is the case in Ohio, where approval is required by the chief of the
Division of Oil and Gas, the director of the Environmental Protection
Agency, the chief of the Division of Geological Survey, and, if it
is a coal-bearing area, the chief of the Division of Mines.77/
Application is made only to the director of the Environmental
Protection Agency who then submits it for approval to the other
agencies. Hearings are not required by statute, but are frequently
held if there is sufficient public interest. A reviewing agency
may deny approval only on the basis of its particular area of concern.
This multiple agency review process may seem excessively complicated,
-------
XI-14
but because the lines of administrative responsibility are clearly
spelled out in the statute, a permit application in the proper form
may be processed in as few as 30 to 45 days. Multiple review may be
the only way to guarantee review by all relevant disciplines.
5.2 New Institutional ArrangementsThe Public Alternative
Arthur M. Piper, in his paper, "Disposal of Liquid Wastes by Injection
UndergroundNeither Myth nor Millennium," 78/ has proposed an entirely
new approach to the control of well injection. He suggests that
rather than leaving site selection, construction, and operation to
individual industries with waste disposal needs, a public agency should
be created with the authority to select desirable sites and construct
and operate the disposal wells. Industry would then be charged
by volume for the use of the well. This would put complete control
of the operation in the hands of the public, and any tendency toward
incomplete disclosure or illegal operation of the well would be
avoided. Furthermore, a public agency would have an interest in
efficient utilization of underground space, and waste-producing
industries would have an interest in reducing the amount of their wastes
since they would be charged for the use of the well on a volume
basis.
This approach would require substantial institutional rearrangement and
perhaps federal financial and technical assistance, but in the long
run it might provide the most practical solution to the problems of
protecting the public from the pollution of underground resources and
of providing industry with a practical method for disposing of particularly
difficult wastes.
6.0 Legal Issues
The issue of legal ownership of underground space is far from firmly
resolved. It has not been generally determined to be in the public
domain, nor is it the exclusive property of the surface owner. Idaho's
injection well law declares that the groundwater of the state is
"a public resource which must be protected against unreasonable contamination," 797
but even in states where groundwater and underground space have not
been legislatively determined to be in the public domain, absolute
private ownership cannot be assumed. Cases dealing with air space
have rejected the doctrine of infinite ownership, 80/ and much the
same reasoning could be applied to underground space, i.e., that ownership
extends only to that which can be occupied or reasonably be made use
of in connection with the land.
Assuming that the question of ownership of underground space has not
been resolved by statute, then the problem becomes how and to what
degree its use can be regulated. Regulation of the use of other underground
resources such as oil and gas, 81/ and subterranean water 82/ has
long been upheld as a legitimate exercise of the police power if the
regulation involved prevention of waste of the resource. By analogy, it
-------
XI-15
could be argued that injection of pollutants into an underground aquifer
has the potential of wasting a resource and therefore should be subject
to police power regulation. There is the possibility that aquifers so
highly mineralized as to render them suitable for well injection might
not be considered a resource deserving of protection. However,
there can be no doubt that freshwater aquifers that might be contaminated
as a result of a faulty injection well are a natural resource which can
be protected by regulation.83/
Most cases, though, uphold such regulation on the ground that other
surface owners with rights in the particular resource regulated are
entitled to legislative protection of their common asset. The Uni: ~>d
States Supreme Court, in Ohio Oil Co. v. Indiana, upheld a state regulation
prohibiting the waste of natural gas by oil wells. However, the Court
refused to adopt the position argued by Indiana that these subterranean
assets were the same sort of public property as wild animals and
hence could be absolutely protected by the state. The Court instead
based its decision on the state's right to protect one property owner
from being divested of his property by another.J347 This case was erroneously
cited by the California Court of Appeals in upholding a statute regulating
waste from artesian wells._85/ The California court suggested that the
Supreme Court supported the position that underground resources
were public property, which it specifically did not. Thus, while
regulatory statutes which control well injection on the basis that
they are protecting a public resource could run into some constitutional
difficulty, the protection of private rights in subsurface waters has
been generally accepted as a legitimate area for state regulation.
The regulation of injection wells based on the state police power to
protect public health would also appear to be constitutionally valid.
In United States v. 531.13 Acres of Land, the U.S. Court of Appeals for
the Fourth Circuit held that a state statute barring the dumping of
wastes into the waters of the state was "undertaken as a health measure
well within the State's police power" and that "[cjontrol of this kind
by the State is unassailable. "8j3/ This case was concerned only with surface
waters, but its reasoning could be applied to the protection of groundwaters
since they are an integral part of the hydrologic cycle and are usually
included in state water pollution laws as waters of the state.87/
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shall erect, modi f y , commence , alter, or operate an^
sposal of waste into the subsurface of the State,
stes derived in association with oil and gas product
under the jurisdiction of the Nebraska Oil and Gas
immission pursuant to Chapter 57, Article 9, Reissue
s of Nebraska, 1943, As Amended , without first secui
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so from the Department . Di sposal we 11s in operatior
the adoption of these regulations shall be required
mi t to continue operations . Such permit is issued
;suod by the Department in technical consul tation wil
>n and Survey Division, University of Nebraska, and 1
morvjtion Commiss ion . Such conditions, shall be des:
ic purposes of the Nebraska Environment a 1 Protection
, Article IS, Re issue Revised Statutes of Nebraska,
d, and the Water Quality Standards Applicable to
; adopted thereunder. Such permit shall not be issue
not i ce to owners as defined herein and pursuant to
and shal 1 bo issued in two Darts , name ly constructic
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ition: Rule 2, CDW, Nebraska Department
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Consultation with the Conservation and Surve-
Nebraska , and the Oil and Gas Conservation
ions to these regulations when the pol icy
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vriting, the reason for requesting such
wh ich shal 1 be incorporated as part of the
Department .
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Division, University of
Commiss ion grant except:
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CHAPTER ELEVEN
WELL INJECTION OF RESIDUAL WASTES
FOOTNOTES*
1. E. Donaldson, "Subsurface Disposal of Industrial Wastes in the
United States" (U.S. Bureau of Mines Information Circular 8212, 1964).
2. D. Warner, Deep Wells for Industrial Waste Injection in the United
StatesSummary of Data (Dep't of Interior Federal Water Pollution
Control Admin. 1967).
3. U.S. EPA, Compilation of Industrial and Municipal Injection Wells
in the United States. 2 vols. (1964).
4- See, &,£., Mo. Ann. Stat. § 564.025 (Vernon); N.C. Gen. Stat. § 143-214.2;
Wis. Nat. Res. Admin. Code § 712.12.
5. See, £_.&., New York State Dep't of Environmental Conservation, "Industrial
Waste-water Deep Well Injection," Policies and Procedures Manual ch. 9200.
6. See e.g., Idaho Code § 42-3901 et seq.
7. While natural processes such as filtration and dilution
can in some cases help to reduce the seriousness of
groundwater pollution, many wastes remain essentially
unchanged in composition after they enter a groundwater
body, and relentlessly travel through the earth until
they enter someone's water well or are discharged into a
stream or river.
Geraghty and Miller, Inc., Ground-Water Contamination, An Explanation
of its Causes and Effects (1972).
8. For a more complete description of these two accidents, see E.
Cleary and D. Warner, "Some Considerations in Underground Wastewater
Disposal," 62 J. Am. Water Works Ass'n 489.
9. "There is little evidence to suggest that conditions underground are
conducive to the degradation or dilution of most pollutants to the
point where they might be regarded as becoming innocuous."
Id. at 490.
10. 42 U.S.C. § 2011 et seq.
11. Id. § 300h et_ seq.
12. 33 U.S.C. § 407.
*In order to conserve space, publication information pertaining to works
included in the suggested readings for this chapter has been omitted from
the footnotes.
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XI-FN-2
13. Id. § 1151 et_ seq.
14. 10 C.F.R. § 20. 1 eiL seq.
15. The situation that gave rise to use of the Refuse Act was a suit
brought by the United States to enjoin Armco Steel Corporation from
discharging toxic wastes into the Houston Ship Channel. United
States v. Armco Steel Corp., 333 F. Supp. 1073 (S.D. Tex. 1971).
The United States relied upon the act as authority for the injunction.
The steel company proposed, and the state of Texas authorized,
disposal of the waste by well injection, causing the United
States to amend its complaint to seek an additional injunction against
the use of the injection well system. The U.S. District Court for the
Southern District of Texas decided to hear the amended complaint
based on pendant jurisdiction, but qualified its decision by
stating:
The statutory basis for this suit arises strictly from
constitutional federal authority over the nation's navi-
gable rivers and waterways. The phenomenon of subsurface
disposal for industrial waste might well give rise to
Congressional legislative control under the federal
commerce power or other designated federal Constitutional
powers. In the present posture of legislation on the
subject, both as to territorial and subject matter jurisdiction,
it is now primarily the responsibility of the several states.
Id. at 1079.
16. 41 Fed. Reg. 36730 (1976).
17. For further discussion of the Safe Drinking Water Act, see J.
Hemphill, "Section 1424(e) of the Safe Drinking Water Act:
An Effective Measure Against Groundwater Pollution?" 6 ELR 50121 (1976)
18. 41 Fed. Reg. 36737 (Aus. 31, 1976), § 146.2(r).
19. 41 Fed. Reg. 36731 (Aug. 31, 1976).
20. Federal Water Pollution Control Act Amendments of 1972, Pub. L.
No. 92-500, § 402 [hereinafter cited as FWPCA].
21. The report from the House Committee on Interstate and Foreign
Commerce Accompanying H.R. 13002 (The Safe Drinking Water Act)
states:
[W]hile it appears that EPA may prescribe its own
program to control the disposal of pollutants into
wells if it disapproves a State's permit authority
application, this conclusion has not yet been reached
in any judicial decision. Moreover, the Federal Water
Pollution Control Act's restrictive definition
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XI-FN-3
of pollutant may pcevent any Federal control system from
adequately protecting underground drinking water sources.
Finally, it appears that the Federal Water Pollution
Control Act may not authorize any regulation of deep well
injection of wastes which is not carried out in conjunction
with a discharge into navigable waters.
This suggestion has been fortified by a decision by the U.S. District
Court for the Southern District of Texas which held that groundwater
was not included in the definition of waters of the United States
covered by the Federal Water Pollution Control Act Amendments
of 1972. U.S. v. GAF Corp., 389 F. Supp. 1379, ELR 20581 (S.D.
Tex. 1975).
22. 40 C.F.R. § 125.26(a)(l).
23. FWPCA, § 402(b)(1)(D).
24. 40 C.F.R. § 124.81.
25. Tex. Water Code Ann. § 22.001 et seq. (Vernon).
26. Mich. Stat. Ann. § 13.141(1) et seq.
27. Ohio Rev. Code Ann. § 1509.01 et^ se^. (Page).
28. Haw. Rev. Stat. § 178-1, 178-5.
29. Or. Rev. Stat. § 468.740(2).
30. Jtd. § 468.700(1).
31. Cal. Water Code § 13050(1) (West).
32. Id_. § 13540.
33. R. Burchell and D. Listokin, The Environmental Impact jjandbook 8
(Rutgers Univ. Center for Urban Policy Research, 1975).
34. Del. Code tit. 7, § 7001 et seq.
35. Ark. Stat. Ann. § 73-276.4(5).
36. Conn. Gen. Stat. § 22a-lc.
37. Ind. Code Ann. § 13-1-10-6 (Burns).
38. Cal. Pub. Res. Code § 21065(c)(West).
39. National Environmental Policy Act of 1969, Pub. L. No. 91-190, § 102
[hereinafter cited as NEPA].
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XI-FN-4
40. See CEQ Guidelines, 40 C.F.R. § 1500, § 1500.5(a)(2).
The interim guidelines assume inverse importance for
state acts because they were adopted prior to the en-
actment of any of the state laws. The definitions in
the federal act and in these regulations became part
of the legislative history of the state laws and must
be considered in interpreting them.
N. Yost, "NEPA's Progeny: State Environmental Protection Acts,"
3 ELR 50090, 50094 (1973) [hereinafter cited as Yost].
41. Minn. Stat. Ann. § 116D.04 (West).
42. The Environmental Impact Handbook, supra note 33, at 10.
43. This has been done in Hawaii County. Haw. County Ordinance 1002.
44. This has been done in Blain County. Idaho Ordinance No. 71, § 15.
45. N.C. Gen. Stat. § 113A-1 et seq.
46. Mont. Rev. Codes Ann. § 11-3861 et seq.
47. Mo. Ann. Stat. § 564.025 (Vernon).
48. N.C. Gen. Stat. § 143-214.2(b).
49. Administrator's Decision Statement No. 5, "Policy and Program Guidance,"
§ 2(a).
50. NEPA, § 102(2) (c).
51. Yost, supra note 40, at 50094.
52. For a more detailed discussion of the technical aspects of well in-
jection, see Office of Air and Water Programs, U.S. EPA, Ground
Water Pollution from Subsurface Excavations (1976); and D. Warner,
Monitoring Disposal Well Systems (Las Vegas: U.S. EPA Office of
Research and Development, 1975).
53. Section 304(e)(2)(D) requires that the administrator of EPA provide
information including processes and procedures and methods to control
pollution resulting from the disposal of pollutants into wells or in
subsurface excavations.
54. Office of Air and Water Programs, Water Quality and Non-Point Source
Control Division, U.S. EPA, Ground Water Pollution from Subsurface
Excavations 40-49 (1973).
55. Idaho Code § 42-3904.
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XI-FN-5
56. Colo. Dep't of Health, "Rules for Subsurface Disposal Systems," § 7.2.4(11)
(1974).
57. See W. Walker and W. Cox, Deep Well Injection of Industrial Wastes:
Government Controls and Legal Constraints 57 (Blacksburg, Va.:
Virginia Water Research Center, 1976).
58. Tex. Water Code Ann. § 22.055 (Vernon); Tex. Water Quality Board,
"Subsurface Waste Disposal in Texas" (agency publication 72-05), at
21-22.
59. Neb. Environmental Control Council, "Rules and Regulations for the
Control of Disposal Wells to Protect Groundwater and Other Subsurface
Resources of the State of Nebraska," Rule 4 (June 25, 1975) [herein-
after cited as Nebraska Rules]. (Sgg. Appendix).
60. Mich. Dep't of Natural Resources, "General Rules Governing
Mineral Well Operations," R229.2216 (1972) [hereinafter cited
as Michigan Rules].
61. 41 Fed. Reg. 36740 (Aug. 31, 1976), § 146.24(1)(8).
62. Michigan Rules, R299.2216.
63. See Monitoring Disposal Well Systems, supra note 52, at 75-84.
64. Id., at 85.
65. Section 146.32 of EPA's proposed rules under the Safe Drinking Water
Act requires that state procedures insure that the terms and
conditions of a permit contain provisions for such authority. 41
Fed. Reg. 36742 (1976).
66. Idaho Code § 42.3910.
67. Mich. Stat. Ann. § 13.141(17)(2).
68. Okla. Water Resources Board, "Industrial Waste Disposal Well
Rules and Regulations" (Technical Release 200-1), § 12-1 through
12-14 [hereinafter cited as Oklahoma Rules].
69. Nebraska Rules, Rule 6. (See Appendix).
70. Michigan Rules, R299.2282(3).
71. Oklahoma Rules, § 12.13.
72. Ohio River Valley Water Sanitation Commission, "Registry of Wells
for Use in Underground Injection of Wastewater in the Ohio Valley
Region" (1974).
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XI-FN-6
73. Ohio River Valley Water Sanitation Commission, "Underground
Injection of Wastewaters in the Ohio Valley Region" (1973).
74. W. Va. Code § 20-5A-1 et seq.
75. Id. § 20-5A-7(b).
76. A clause may be used such as that in the Connecticut Environmental
Policy Act requiring that all impact statements be "submitted for
comment and review to the council on environmental quality, the
department of environmental protection and other appropriate
agencies." Conn. Gen. Stat. § 22a-ld.
77. Ohio Rev. Code Ann. § 1509.08.1 (Page).
78. Dep't of Interior, Geological Survey Circular 631 (1969).
79. Idaho Code § 42-3901.
80. United States v. Causby, 328 U.S. 256 (1946); Hinman v. Pacific Air
Transport, 84 F.2d 755 (1936).
81. F.C. Henderson Inc. v. R.R. Comm'n of Texas, 56 F.2d 218 (D.C. Tex.
1932), appeal dismissed, 287 U.S. 672; Danciger Oil & Refining Co.
v. R.R. Comm'n, 49 S.W.2d 837 (Tex. 1932).
82. Lindsley v. Natural Carbonic Gas Co.,
Elam, 91 P. 811 (Cal. 1907); Hathorn v. Natural Carbonic Gas Co.,
87 N.E. 504 (N.Y. 1909).
83. ^ee Annot. , 24 A.L.R. 312; 78 A.L.R. 842.
84. Ohio Oil v. Indiana, 177 U.S. 190 (1899).
85. Ex parte Elam, 91 P. 811 (Cal. 1907).
86. 366 F.2d 915, 919 (1966).
87. For a more extensive treatment of the legal and institutional
issues discussed in this chapter, see Deep Well Injection of
Industrial Wastes: Government Controls and Legal Constraints,
supra note 57 from which much of the background information
used in writing this chapter was drawn. For a general discussion
of control of groundwater pollution, see J. Lehr, W. Pettyjohn,
J. Hanson, and L. Sturtz, A Manual of Laws, Regulations and Institutions
for Control of Groundwater Pollution (U.S. EPA 1976).
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CHAPTER ELEVEN
WELL INJECTION OF RESIDUAL WASTES
SUGGESTED READINGS
Burchell, R.; and Listokin, D. The Environmental Impact Handbook. New
Brunswick, N.J.: Rutgers University Center for Urban Policy Research,
1975.
Cleary, E.; and Warner, D. "Some Considerations in Underground Wastewater
Disposal." Journal of the American Water Works Association 62: 489.
Donaldson, E. C. "Subsurface Disposal of Industrial Wastes in the United
States." Information Circular No. 8212. U.S. Bureau of Mines, 1964.
Geraghty and Miller, Inc. Ground-Water Contamination; An Explanation of
Its Causes and Effects. Port Washington, N.Y., 1972.
Lehr, J.; Pettyjohn, W.; Bennett, T.; Hanson, J.; and Sturtz, L. A Manual
of Laws, Regulations and Institutions for Control of Ground Water
Pollution. Washington, D.C.: U.S. EPA, 1976.
U.S. Environmental Protection Agency. Compilation of Industrial and Muni-
cipal Injection Wells in the United States. 2 vols. Washington, D.C.,
Oct. 1974.
U.S. Environmental Protection Agency, Office of Air and Water Programs.
Ground Water Pollution from Subsurface Excavations. Washington, D.C.,
June 1976.
Walker, W.; and Cox, N. Deep Well Waste Disposal: Institutional, Physical
and Economic Considerations. Blacksburg, Va.: Virginia Water Resources
Center, 1976.
Warner, D. Monitoring Well Disposal Systems. Las Vegas: U.S. EPA, Office
of Research and Development, July 1975.
. Deep Wells for Industrial Waste Injection in the United States:
Summary of Data. Washington, D.C.: U.S. Department of the Interior,
Federal Water Pollution Control Admin., 1967. (Publication No. WP-
20-10)
Yost, N. "NEPA's Progeny: State Environmental Protection Acts." Environ-
mental Law Reporter 3 (1973): 50094.
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