E" A -440/9-75-011
COMPILATION OF FEDERAL, STATE
AND LOCAL LAWS CONTROLLING
NONPOINT POLLUTANTS
AH ANALYSIS OF THE LAW AFFECTING AGRICULTURE,
CONSTRUCTION. MINING AND SILVICULTURE ACTIVITY
U.S. ENVIRONMENTAL PROTECTION AGENCY
Washington, B.C. 20460
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This report is issued under Section 304(e)(1)(A,B,C) of
Public Law 92-500. This Section provides:
"The Administrator, after consultation with
appropriate Federal and State agencies and other
interested persons, shall issue to appropriate
Federal agencies, the States, water pollution
control agencies, and agencies designated under
Section 208 of this Act, within one year after the
effective date of this subsection (and from time
to time thereafter)...information including
guidelines for identifying and evaluating the
nature and extent of non-point sources of
pollutants resulting from -
(A) agricultural and silvicultural activities,
including runoff from fields and crop and forest
lands;
(B) mining activities, including runoff and
siltation from new, currently operating, and
abandoned surface and underground mines;
(C) all construction activity, including runoff
from the facilities resulting from such construc-
tion; .. . . "
This publication is the second in a series issued under
Section 304(e)(1)(A,B,C) of Public Law 92-500 concerning the
control of water pollution from nonpoint sources. The
initial report, "Methods for Identifying and Evaluating the
Nature and Extent of Non-Point Sources of Pollutants," was
issued in October 1973 (Publication No. EPA-430/9-73-014).
This report provides information on selected Federal,
State and local regulations for the control of pollutants
associated with agricultural, silvicultural, mining and
construction activities.
Mark A. Pisano, Director
Water Planning Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
1 3 APR 197B
SUBJECT: Compilation of Federal, State and Local Laws Controlling
Nonpoint Pollutants
FROM :kMarkAy Pi sano^NDi rector
u Water Plannin4_Dj>vision
TO : All Regional Water Division Directors
Technical Guidance Memorandum: TECH - 1
Purpose
The enclosed guidance manual has been prepared pursuant to Section
304(e) of P.L. 92-500. It is intended for use by "208" agencies in the
development of the regulatory programs required by Section 208 for the
control of nonpoint sources of pollution.
Guidance
This volume collects and evaluates selected Federal, State, and local
laws being used or capable of being used to control nonpoint pollution.
Emphasis is placed on laws affecting agriculture, construction, mining,
and siIvicultural activities. The information contained in this report
is intended to serve as a starting place and a research aid for the
development of nonpoint source regulatory programs. It is not intended
to reflect all possible options for such programs, but rather to present
and evaluate some of the legislative approaches currently being employed.
Enclosure
cc: State and Areawide Agencies
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COMPILATION OF FEDERAL, STATE
AND LOCAL LAWS CONTROLLING
NONPOINT POLLUTANTS
AN ANALYSIS OF THE LAW AFFECTING AGRICULTURE,
CONSTRUCTION, MINING AND SILVICULTURE ACTIVITY
Prepared for
Office^of Water and Hazardous Materials
United States Environmental Protection Agency
Washington, D.C. 20460
SEPTEMBER, 1975
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ACKNOWLEDGMENTS
This report was prepared by Aspen Systems Corporation,
Rockville, Maryland, for the Nonpoint Sources Branch, Water
Planning Division, Office of Water and Hazardous Materials
(Contract No. 68-01-2945) . The Project Officer for EPA was
Charles P. Vanderlyn. Principal investigators in this study
were Widmon Butler, Sheila Maloney, Anne Mehringer, Jeffrey
Norman, Gerald Seifert and Victor J. Yannacone, Jr., Esq.,
consultant.
The assistance and cooperation received from represent-
atives of Federal, State and local agencies is gratefully
acknowledged.
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TABLE OF CONTENTS
Page No.
Introduction 1
Chapter I Water Pollution Control Statutes 9
Footnotes . . . . 1-1
Chapter II Selected Federal Statutes 24
Agriculture 24
Construction 28
Mining 31
Silviculture 37
Soil Erosion and Sedimentation Control 44
Coastal Zone Management 49
Flood Plain Regulation and Flood Prevention 51
Wetlands Protection 53
Special Pollution Controls 54
Footnotes II-l
Chapter III Agriculture 56
Soil Erosion . 59
Grazing 70
Economic Poisons, Pesticides and Herbicides 70
Spraying and Dusting 78
Fertilizers 80
Agricultural Liming 81
Footnotes III-l
Chapter IV Building and Construction 82
Statutes Controlling Water Pollution 84
Statutes Not Controlling Water Pollution 96
Construction of Roads/ Highways, Streets and Bridges . . 96
Building Code Provisions 106
Miscellaneous 112
Footnotes IV-1
Chapter V Mining 123
Surface Mining 123
Strip and Surface Mining 127
Coal Mining 145
Sand and Gravel 148
Oil and Gas 150
Water Wells and Salt Wells 160
Miscellaneous 161
Plugging 165
Disposal 169
Footnotes V-l
Chapter VI Silviculture 171
Forest Management 175
Harvesting 185
Incentives 192
Footnotes VI-1
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Page
Chapter VII General Category .............. 198
Authorization of Citizen Suits to Protect the
Environment ...................... 198
Coastal Zone Protection ................ 200
Critical Areas Protection ............... 204
Financial Incentives .................. 206
Flood Plain Regulations ................ 206
General Health and Welfare Controls .......... 207
General Pollution Controls ............... 208
Planning, Zoning and Other Land Use Regulations .... 215
Nuisances — Obstructions ............... 219
Prevention of Loads Spilling on Highway ........ 220
Removal of Ice and Snow: Salting of Roads ....... 222
Soil Erosion and Sedimentation Control ......... 224
Special Pollution Controls ............... 237
Wetlands Protection .................. 239
Footnotes ....................... VII-1
Appendix A Selected Provisions from Water Pollution
Control Statutes
Table 1 Water Pollution Control Laws
Table 2 Federal Appropriations
Summary Tables
Agriculture
Building and Construction
Mining
Silviculture
General Category
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INTRODUCTION
Under §304 (e) (1) (A,B,C) of Public Law 92-500,
the Federal Water Pollution Control Act Amendments of
1972, the Administrator of the Environmental Protection
Agency was directed, after consultation with appropriate
Federal and State agencies and other interested persons,
to:
"issue to appropriate Federal agencies, the States,
water pollution control agencies, and agencies de-
signated under §208. ..[].. .information in-
cluding guide lines for identifying and evaluating
the nature and extent of nonpoint sources of pollutants
resulting from
(A) agricultural and silvicultural activities,
including runoff from fields and crop and forest
land;
(B) mining activities, including runoff and
siltation from new, currently operated and abandoned
surface and underground mines;
(C) all construction activity, including runoff
from the facilities resulting from such con-
struction; ..."
Pursuant to this statutory mandate, a number of reports
were prepared under contract from the Environmental Protection
Agency and summarized in October of 1973.
The general consensus of these studies is that the principal
contaminant responsible for water pollution from nonpoint sources
is sediment resulting from erosion. Sediment is transported to surface
waters by runoff. Most of the sediment (on a total mass
basis) can be attributed to agricultural activities, but it
was found that construction and surface mining accounted
for large quantities of sediment in some local areas.
Sediment was found to adversely affect water quality conse-
quently increasing the cost of water supply and storm
water management.
The studies reaffirmed the observation that well-managed
forests are generally not susceptable to erosion unless disturbed
by poor timber harvest practices or natural disasters such as
fire, while contamination of surface waters and ground water by
heavy metals and minerals, largely results from the weathering
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of mining refuse and ore formations exposed by mining
activities.
Nutrients, chiefly nitrogen and phosphorus, in the run-
off from agricultural lands can lead to eutrophication of
surface waters. Infiltration of nutrients, particularly
nitrates, can lead to contamination of ground water and may
reach toxic levels under certain conditions. The studies
indicated that lands managed for intensive crop production
contributed most of the nutrients. This contribution was
attributable principally to the synthetic fertilizers.
Pesticides represent another significant contaminant which
can be attributed to agriculture, silviculture, construction,
and mining activities. Transport mechanisms for pesticides
are perhaps the most complex for any contaminant, since
pesticides can contaminate atmospheric systems as a result
of spray drift, and ultimately reach surface waters by
means of fallout, washout and other precipitation processes,
followed by runoff and enter groundwater through seepage,
or infiltration.
Organic materials including crop debris, livestock
waste, forest litter, and solid waste enter surface waters
chiefly by means of runoff. Certain organic wastes of
animal and human origin can be a source of biological con-
tamination and can become a significant factor in public
health considerations.
Control of water pollution from nonpoint sources raises
complex legal problems. The first consideration is the definition
of "pollution" itself and the distinction that must be drawn
between "contamination" and "pollution." Although legislation
may seek to maintain water quality by controlling water pollution,
practical administration of water "pollution" laws depends upon
limitation of contamination to levels below some established
standard.
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The second major area of legal concern involves
identification of the polluting agent responsible for the
pollution, and leads to a paradox:
If the particular source of pollution can be identified,
is not that source of pollution a "point" source?
And conversely, if a specific source of pollution cannot
be identified with reasonable certainty, how can legal
sanctions be imposed?
The significance of this paradox becomes more meaningful
since the proximate causal agent of water pollution from
nonpoint sources is runoff, a natural process which occurs even
in the absence of human activity.
The Environmental Protection Agency commissioned this
study to investigate direct and indirect legal means of controlling
water pollution from nonpoint sources in agriculture, silviculture,
construction and mining. The purpose of this study is to look
at selected legislation at the Federal, State and local levels
in order to determine the potential for controlling pollution
from nonpoint sources through existing statutory practices and
procedures.
A general survey of the basic water pollution control
statutes of the fifty states and the Federal Government as well
as a full text computer search of all the statutes of twelve
states revealed little direct legislation suitable to control
water pollution from nonpoint sources. This can be understood in
light of the fact that many state water pollution control laws
have been patterned after the Federal Water Pollution Control Act
in response to the mandate of Congress to control water pollution
from point sources.
EFFECTIVE INDIRECT LEGISLATIVE CONTROL
The control of water pollution from nonpoint sources
necessarily involves regulation of the use of land, a
matter traditionally left to the States and delegated by
the States to local municipalities. Although there are many
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different forms of local government, the powers of local
government are derived from the essential sovereignty of
the people through a variety of means.
If the sovereignty of the people were to be expressed
by direct grant of power to local political subdivisions
such as county, city, town, village, or borough, all the
demands of the people for clean water could and would be
addressed directly to what will be referred to as a
"municipality," in this report. However, the existence of
sovereign municipalities ceased, for all practical purposes,
with the decline of feudalism in the western world, and the
benefits, if any, of the city-state have not been enjoyed
for centuries. What remains is the subdelegation of
popular sovereignty to the United States by means of the
Constitution. v
The development of the Federal system of government
in the United States and its accompanying concepts of re-
served, retained, implied and express powers, coupled with
the demands of the industrial revolution to homogenize
governmental form to comport with the needs of commerce, led
inevitably to consolidation of power at the state, and
ultimately, the national level, assuring the eventual demise
of independent municipal governmental power.
It is, however, appropriate to recognize the several
classes of municipal organization and the source of whatever
sovereignty each has been granted in order to suggest
effective approaches to legislative action at the local level,
If a local municipality has, or should have, the power to
regulate the use or abuse of land within its geopolitical
jurisidiction, then it may be inappropriate, unnecessary and
perhaps politically naive, to seek state legislation to con-
trol a pollution problem which will ultimately have to be
addressed at the municipal governmental level.
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Generally, municipalities fall within one of four
classes based on the extent of their authority to request
their own actions.
Strict home rule municipalities are those whose power
derives directly from the people within the jurisidiction
of the political unit. Generally such municipalities may
take all action necessary to provide those services and im-
pose those restrictions on individual activity which are
considered necessary and appropriate for the governance of
the political unit. Where such jurisdictions are found,
any attempt to address a problem such as abatement of water
pollution from nonpoint sources would have to be made at
the municipal level and the entire gamut of benefits,
restrictions, licenses, and penalties would be the province of
the legislative branch of the local government. While this
may be the purest form of home rule, none such exists, and
it is presented here only as a basis for comparison.
Modified home rule exists in several states and
usually takes a form such as that described in the Wisconsin
Constitution, where municipalities are granted, by the people
of the state by way of a constitutional provision, the power
to determine their local affairs, subject only to the state
constitution and to those enactments of the legislature
which prescribe requirements, powers and benefits to be
uniformly applied to all municipalities. Such a grant of
power would ordinarily require an examination of state
statues to determine which, if any, legislation of general
application has been enacted which would affect the ability
of the municipality to act in a "governmental way." In the
absence of such a retention of legislative power by the
state, the local municipality would, theoretically at least
be the governmental unit to address in seeking to control
water pollution from nonpoint sources.
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Modified home rule is probably the most common appli-
cation of the principles of self-government seen in the
United States. Whether the Wisconsin example is used, or
whether the charter form of organization as seen in Califor-
nia is employed, most states place some specific limitations
on the power of municipal governments, which usually, but
not always, include: maximum indebtedness (which is the
only express limitation in Wisconsin), prescribed methods
for election of officers, disposition of property and granting
of franchises.
Express and comprehensive home rule as declared
by the people via an instrument, such as the local government
Bill of Rights contained in the New York Constitution, leaves
no doubt as to reserved or restrained powers. A reading of
the constitutional grant to municipalities in New York
would enable one to determine with assurance whether the
legislative initiative to control nonpoint sources of water
pollution should be taken by the state or by the municipalities.
The "no home rule" states are typified by Indiana,
in which local, general purpose governments may do only those
things which the state legislature specifically permits by
grant of authority to the municipality. Such grants do
not have the protection of Constitutional mandate, but may
be amended, repealed, or otherwise modified by state legis-
lative action. A modification of this absolute power of
the state which provides that the state legislature exercises
such power only as a trustee for the people of the municipal-
ities, is found in several states; Vermont provides one such
example. Typically, in those states in which the municipality
looks to the state for its powers, the statutes will be
replete with grants and procedures so specific as to leave
no doubt which unit of government should be addressed to meet
a given problem.
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There are certain subtleties which should be looked for
when determining the extent to which an express power gives
rise to implied powers which may, in turn, be exercisable
by local municipalities. The language which follows is a
limitation on implied power in a section of law dealing with
general powers:
"Any such power may be exercised by a city under
authority only if, and to the extent that, such power
is not by express provision denied by law or by
express provision vested by any other law in . . ."
The above grant of power could be expanded if one
substitutes the following language:
"Any such power may be expressed by a city under
authority of this chapter only if, and to the extent
that, such power is not denied or preempted by any
other law or is not vested by any other law in a state
agency."
Existing state enabling acts permit many local municipal-
ities to regulate certain activities which can become nonpoint
sources of water pollution. Although such authority has
traditionally been limited to construction activities, to a
lesser extent, agriculture and silviculture can also be
regulated by local government.
If it can be demonstrated that agriculture, silviculture,
construction or .mining activities directly affect water
quality, regulations can be promulgated to limit those acti-
vities for under such circumstances, the general police
powers inherent in local government to protect the public
health safety and welfare are sufficient authorization.
This study, in addition to compiling and analyzing
legislative techniques which may be used to abate nonpoint
sources of pollution measures, to the extent possible, the
effectiveness of various statutory means. These measurements (or
comparisons) are based on certain assumptions that have come to
be considered axiomatic. For example, at the upper end of an
effectiveness measurement would be a statute which creates an
administrative agency having the power to determine standards,
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promulgate guidelines, employ monitoring and enforcement personnel,
prosecute on its own violations both civil and criminal, and
which is given the budget necessary to carry out its functions.
At the lower end is a statute which declares an (pollution) activity
to be contrary to public policy but creates no duty or responsibility
for any branch of government. In between are a variety of techniques
and procedures which may prove to be quite effective. It is, of
course, of vital importance to consider these measures of
effectiveness as exemplary since it is only in practice that
actual effectiveness can be determined.
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WATER POLLUTION CONTROL STATUTES
The responsibility for controlling water pollution is
distributed among the Federal, State and municipal govern-
ments. In each of the fifty States there is statutory
authority for controlling water pollution. When this legis-
lation was enacted, many legislators were concerned with
controlling point sources of water pollution, such as sewage
treatment plants or industrial complexes, and nonpoint sources
had not yet become a major concern. Since legislation for
the direct control of water pollution can be readily identified
in all fifty States, the scope of each State's water pollution
control legislation was examined and categorized as to
whether or not the language used in the legislation is broad
enough to control both point and nonpoint source pollution.
State water pollution control legislation generally
falls into four main categories: (1) those statutes which
deal only with point source pollution and which are not
drawn broadly enough to include pollution from nonpoint
sources; (2) legislation which specifically covers both
point sources and nonpoint sources of water pollution; (3)
legislation which does not specifically consider point or nonpoint
sources of pollution, since no specific reference is made to
the source of the pollution; (4) statutes which are more
narrowly drawn and which define point sources but do not include
a definition of nonpoint sources. Statutes in the last category
of legislation may or may not be broad enough to include pollution
from both point source and nonpoint sources. For these statutes
the effective language is probably the purpose clause which usually
indicates a legislative intent to abate and control water
pollution, without addressing the source of pollution. It
is likely that the water pollution control acts of this
type may be construed to cover both point sources and non-
point sources of water pollution although the legislation
does not specifically consider nonpoint sources.
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One state explicitly limits enforcement of its water
pollution control legislation only to point sources. Although
the Nevada Water Pollution Control Law defines pollutant
and pollution broadly enough to include pollution from non-
point sources as well as point sources, the only unlawful
act for which sanctions may be imposed, however, makes it
"unlawful for any person to discharge from any point source
any pollutant into any waters of the state."
Water pollution control legislation in two other states,
2 3
Iowa and Kansas, while not expressly limited to the
regulation of pollution from point sources considers only
specific instances or types of pollution so that it is
doubtful that there is any authority for control of water
pollution from other than point sources.
The Iowa legislation provides that the Water Quality
Commission shall adopt rules necessary to implement the
water pollution control program and to establish standards
for water quality and effluents under which permits may be
granted for some activities, but permits are required only
for the construction of waste disposal systems and new
outlets for waste discharges. The only nonpoint source
of pollution covered by the statute is animal farm waste,
since the Commission may require operators of feed lot
operations to obtain permits under certain conditions.
No other direct controls over nonpoint sources of water
pollution are provided for in the statutes, and it appears
from the language of the statute that the Commission lacks
broad authority to control other nonpoint sources of water
pollution.
The Kansas legislation provides that the State Board
of Health may make such regulations as it deems necessary
to protect surface and subsurface waters of the State from
pollution caused by oil, gas, or salt water injection wells,
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or underground storage reservoirs. The State Board of Health
is also empowered to control the discharge of sewage and to
establish water quality standards. The specificity of the
Kansas statute as to what kinds of water pollution may be
controlled can be construed to imply that the legislature did
not intend the State Board of Health to have the power to
control any other kinds of pollution.
Legislatures in only two states, Georgia and Mass-
achusetts, specifically addressed the problem of nonpoint
source pollution in the statutes they enacted. The Georgia
Water Quality Control Act defines "pollution," and "waste"
in very broad simple terms:
"(f) 'Pollution,1 means the man-made or man induced
alteration of the chemical, physical, biological and
radiological integrity of water.
11 (g) 'Sewage,1 means the water-carried waste pro-
ducts or discharges from human beings or from the
rendering of animal products, or chemical or other
wastes from residences, public or private buildings,
or industrial establishments, together with such
ground, surface or storm water as may be present.
"(h) 'Industrial Waste,1 means any liquid, solid or
gaseous substance or combination thereof resulting
from a process of industry, manufacture, or business
or from the development of any natural resources.
"(i) 'Other Waste,' means liquid, gaseous, or solid
substances, except industrial waste and sewage,
which may cause or tend to cause pollution in any
water of the State.
* * *
11 (n) 'Point Source,1 means any discernable, confined
or discreet conveyed including, but not limited to,
any pipe, ditch, channel, tunnel, conduit, well,
discreet feature, container, rolling stock, con-
centrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be
discharged.
"(o) 'Nonpoint Source,' means any source which dis-
charges pollutants into the water of the State other
than a point source."
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and then goes on to say:
"it shall be unlawful to use any water of the
State for disposal of sewage, industrial waste,
or other waste, except in such a manner as to
conform to and comply with all rules, regulations,
orders, and permits established under the pro-
visions of this act."8
The Georgia Water Quality Control Act gives the Georgia Water
Waste Commission broad powers to control all kinds of pollution
in the state's waters. Nonpoint sources are specifically pro-
vided for, and the Commission is given the power to promulgate
rules and regulations as it deems necessary to carry out the
intent of the act.
The legislation^ establishing the Massachusetts Division
of Water Pollution Control contains only one broad definition
of "Pollutant":
"Pollutant", any element or property of sewage,
agricultural, industrial or commercial waste, runoff,
leachate, heating effluent, or other matter, in what-
ever form and whether originating at a point or major
nonpoint source, which is or which may be discharged,
drained or otherwise introduced into any sewage
system treatment works of waters of the Commonwealth."^
The definition expressly mentions both point sources and nonpoint sources.
The legislation also goes on to provide penalties for:
"Any person who, directly or indirectly, throws,
drains, runs, discharges or allows the discharge of
any pollutants into waters of the Commonwealth, except
in conformity with a permit. . ."*•*-
The Division of Water Pollution Control is empowered to pro-
mulgate the rules and regulations necessary for carrying
out the purposes of the statute as well as providing
penalties for violation of the statute or any of the rules
and regulations promulgated pursuant to the act.
The water pollution control legislation in Georgia and
Massachusetts are examples of legislation which is broadly
drawn, authorizing the responsible state agency to exercise
the powers necessary to regulate all pollution from both
point and nonpoint sources.
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The water pollution control legislation in the re-
maining forty-seven States contains no specific restrictions
with respect to nonpoint sources but neither does it con-
tain any explicit provisions for the regulating of pollution
from nonpoint sources. The statutes in these states fall into
two categories.
The first consists of those statutes which are broadly
drawn but contain no reference to point source or nonpoint
source pollution. Because 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 man-
date to regulate and abate pollution from both point sources
and nonpoint sources.
The second category consists of legislation which, while
the general definitions are sufficiently broad to include
pollution from both point sources and nonpoint sources, the
legislation addresses itself specifically to certain types of
pollution or includes a definition of point source pollution
but no corresponding reference to nonpoint source in the legislation,
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 source of pollution. However, it is also arguable
that when the legislatures enacted statutes which specifically
mention one or more types or sources of pollution, the
legislative intent was merely to control pollution from those
sources which were specifically identified.
Water pollution control legislation of more than half
the States falls into the first of these two categories. The
water pollution control legislation of South Carolina-^ and
of Pennsylvania^ are examples and, although nonpoint sources
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of water pollution are not specifically addressed in either
of these states' statutes, the statutory language is broad
enough to include the regulation of both point sources and
nonpoint sources.
14
The South Carolina Pollution Control Act, selected
provisions of which appear below, is a good example of this
type of broadly drawn water pollution control act. The
definitions of "industrial waste" and "other waste" are so
broad as to cover almost any contaminant including heat
which might enter the waters of the state. The legislature
did not stop with these comprehensive definitions.
The legislation went on to include not only sewage,
industrial waste, and other waste but also any substance
which may cause or tend to cause contamination of the en-
vironment or which may be injurious to public health or welfare
or which may damage property, plant, animal or marine life,
or which interferes with the enjoyment of life or use of
property in its definition of pollution. When taken together
with the legislative policy declared in £63-195.1 of the
statute, this appears to be a sufficiently broad grant of
statutory authority for controlling both point sources and
nonpoint sources of water pollution.
S.C. Code Ann. (Supp. 1974)
"63-195. Citation of chapter; definitions.-This
chapter may'be cited as the 'Pollution Control Act1
and, when used herein, unless the context otherwise
requires:
* * *
"(4) 'Sewage1 means the water-carried human or
animal wastes from residences, buildings, in-
dustrial establishments or other places, together
with such ground 'water infiltration and surface
water as may be present and the admixture with
sewage of industrial wastes or other wastes shall
also be considered 'sewage';
"(5) 'Industrial waste' means any liquid, gaseous,
solid or other waste substance or a combination
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thereof resulting from any process of industry,
manufacturing, trade or business or from the
development of any natural resources;
"(6) 'Other wastes' means garbage, refuse, decayed
wood, sawdust, shavings, bark, sand, clay, lime,
cinders, ashes, offal, oil, gasoline, other
petroleum products or by-products, tar, dye stuffs,
acids, chemicals, dead animals, heated substances,
and all other products, by-products or substances
not sewage or industrial waste which may cause or
tend to cause pollution of the waters of the State;
"(7) 'Pollution1 means the presence in the
environment of any substance, including but not
limited to sewage, industrial waste, other waste,
air contaminant, or any combination thereof in
such quantity and of such characteristics and
durations as may cause, or tend to cause, the
environment of -the State to be contaminated, un-
clean, noxious, odorous, impure or degraded, or
which is, or tends to be, injurious to human
health or welfare; or which damages property,
plan, animal or marine life; or which interferes
with enjoyment of life or use of property;
* * *
11 63-195.1. Declaration of policy.-It is declared
to be the public policy of the State to maintain
reasonable standards of purity of the air and water
resources of the State, consistent with the public
health, safety and welfare of its citizens, maximum
employment, the industrial development of the State,
the propagation and protection of terrestrial and
marine flora and fauna, and the protection of physical
property and other resources. It is further declared
that to secure these purposes and the enforcement
of the provisions of this chapter, the Pollution
Control Authority shall have authority to abate,
control and prevent pollution.
" 63-195.12. Unlawful to cause or permit pollution
of waters; liability for damages.-(a) It shall be
unlawful for any person, directly or indirectly,
negligently or willfully, to throw, drain, run, allow
to seep or otherwise discharge into any of the waters
of the State organic or inorganic matter that shall
cause or tend to cause a condition of pollution.
"(b) Any person who discharges organic or inorganic
matter into the waters of this State as described
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in subsection (a) to the extent that the fish, shell-
fish, aquatic animals, wildlife or plant life in-
digenous to or dependent upon the receiving waters
or any property are damaged or destroyed shall be
liable to the State for such damages as may be proved.
The action shall be brought by the State in its own
name or in the name of the Authority.
"The amount of any judgment for damages recovered
by the State, less cost, shall be remitted to the
agency, commission, department of political sub-
division of the State that has jurisdiction over the
fish, shellfish, aquatic animals, wildlife or plant
life damaged or destroyed.
"The civil remedy herein provided shall not be ex-
clusive, and any agency, commission, department or
political subdivision of the State with appropriate
authority may undertake in its own name an action
to recover such damages as it may deem advisable
independent of this subsection."
The Pennsylvania Clean Streams Act is another example
of legislation which has been broadly written and may provide
control of water pollution from both point sources and non-
point sources. The definitions found in the Pennsylvania
legislation are not as broad as those found in the South
Carolina statute. However, the declaration of legislative
policy, taken together with §691.402 which provides that
any activity not otherwise requiring a permit which is found
to create danger of pollution may be regulated, grant a
sufficiently broad mandate to the Sanitary Water Board
to regulate nonpoint as well as point sources of water
pollution.
Under the statutory authority of the Clean Streams
Act, the Pennsylvania Sanitary Water Board has promulgated
comprehensive regulations controlling the most common types
of nonpoint sources pollution-sedimentation. The regu-
lations apply to any construction or agricultural activity
involving more than twenty-five acres of land. The rules
and regulations go on to set forth various means of con-
trolling erosion and runoff, and provide for diversion
terraces, interceptor channels, channels of conveyance, or
16
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sedimentation basins. The regulations also provide for
restoration of the land at the end of all earth moving
activities.
The regulations issued under the Clean Streams Act
of Pennsylvania illustrate the scope of regulatory
activities which may be undertaken under a broad statutory
grant. The Pennsylvania legislation makes no reference to
nonpoint sources of pollution; yet the Sanitary Water
Board has promulgated detailed regulations aimed at mini-
mizing runoff and sedimentation from any construction or
agriculture project involving earth moving.
Tit. 35 §691.4 Declaration of policy
11 (1) Clean, unpolluted streams are absolutely
essential if Pennsylvania is to attract new manu-
facturing industries and to develop Pennsylvania's
full share of the tourist industry;
"(2) Clean, unpolluted water is absolutely
essential if Pennsylvanians are to have adequate
out of door recreational facilities in the decades
ahead;
•^^_^
"(3) It is the objective of the Clean Streams Law
not only to prevent further pollution of the waters
of the Commonwealth, but also to reclaim and restore
to a clean, unpolluted condition every stream in
Pennsylvania that is presently polluted;
"(4) The prevention and elimination of water pollution
is recognized as being directly related to the economic
future of the Commonwealth; and
"(5) The achievement of the objective herein set
forth requires a comprehensive program of watershed
management and control."
Tit. 35 §691.301 Prohibition against discharge of industrial
wastes
"No person or municipality shall place or permit to
be placed, or discharged or permit to flow, or continue
to discharge or permit to flow, into any of the water
of the Commonwealth any industrial wastes, except as
hereinafter provided in this act."
Tit. 35 §691.401 Prohibition against other pollutions
"It shall be unlawful for any person or municipality
to- put or place Into any of the waters of the
17
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Commonwealth, or allow or permit to be discharged from
property owned or occupied by such person or municipality
into any of the waters of the Commonwealth any substance of any
kind of character resulting in pollution as herein defined.
Any such discharge is hereby declared to be a nuisance."
Tit. 23 §691.402. Potential pollution
"(a) Whenever the board finds that any activity,
not otherwise requiring a permit under this act,
including but not limited to the impounding,
handling, storage, transportation, processing or
disposing of materials or substances, creates
a danger of pollution of the waters of the
Commonwealth or that regulation of the activity
is necessary to avoid such pollution, the board
may, by rule or regulation, require that such
activity be conducted only pursuant to a permit
issued by the department or may otherwise establish
the conditions under which such activity shall be
conducted, or the board may issue an order to a
person or municipality regulating a particular
activity. Rules and regulations adopted by the
board pursuant to this section shall give the
persons or municipalities affected a reasonable
period of time to apply for and obtain any per-
mits required by such rules and regulations.
"(b) Whenever a permit is required by rules and
regulations issued pursuant to this section, it
shall be unlawful for a person or municipality
to conduct the activity regulated except pursuant
to a permit issued by the department. Conducting
such activity without a permit, or contrary to the
terms or conditions of a permit or conducting
an activity contrary to the rules and regulations
of the board or conducting an activity contrary
to an order issued by the department, is hereby
declared to be a nuisance."
18
The Minnesota Water Pollution Control Act is a good
example of the kind of statute which falls into the fourth
category of legislation. The language used to define
terms in the Minnesota Water Pollution Control Act is similar
to that found in South Carolina's legislation, and the
definitions of "Industrial waste," "other wastes" and
18
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"pollution of water" are so broad as to include both point
source and nonpoint source pollution, however, the legis-
19
lation goes on to define point source but does not define
nonpoint source.
The Minnesota Water Pollution Control Act requires a
person to obtain permits only when operating or in-
stalling a "disposal system or other point source," and
the provisions dealing with violations or prohibitions re-
fer only to the construction, installation or operation of
the disposal system without having submitted to plans or
obtained a written permit for such construction, install-
ation or operation. Thus, the Water Pollution Control Act
of Minnesota, although its definitions are broad enough to
encompass nonpoint sources of water pollution, only
authorize regulation of point sources. The pollution
control agency which was established under the Minnesota
statutes is authorized to coordinate pollution control
activities involving water, air and land, but is given no
additional powers other than those noted previously to
control water pollution.
Minn. Stat. (1964), as amended, (Supp. 1974)
115.01 Definitions
"Subdivision 1. The following words and phrases
when used in chapter 115 and, with respect to the
pollution of the waters of the state, in chapter
116, unless the context clearly indicates otherwise,
shall have the meanings ascribed to them in this
section.
"Subdivision 2. 'Sewage' means the water-carried
waste products from residences, public buildings,
institutions or other buildings, or any mobile
source, including the excrementitious or other
discharge from the bodies of human beings or
animals, together with such ground water in-
filtration and surface water as may be present.
"Subdivision 3. 'Industrial waste1 means any
liquid, gaseous or solid waste substance resulting
from any process of industry, manufacturing trade
19
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or business or from the development of any natural
resource.
"Subdivision 4. 'Other wastes' mean garbage,
municipal refuse, decayed wood, sawdust, shavings,
bark, lime, sand, ashes, offal, oil, tar, chemicals,
dredged spoil, solid waste, incinerator residue,
sewage sludge, munitions, chemical wastes, bio-
logical materials, radioactive materials, heat,
wrecked or discarded equipment rock, cellar dirt
or municipal or agricultural waste, and all other
substances not included within the detentions of
sewage and industrial waste set forth in this
chapter which may pollute or tend to pollute the
waters of the state.
"Subdivision 5. 'Pollution of water1, 'water pollution',
or 'pollute the water' means: (a) the discharge of any
pollutant into any waters of the state or the contamination of
any waters of the state so as to create a nuisance
or render such waters unclean, or noxious, or impure
so as to be actually or potentially harmful or
detrimental or injurious to public health, safety
or welfare, to domestic, agricultural, commercial,
industrial, recreational or other legitimate uses,
or to livestock, animals, birds, fish or other
aquatic life; or (b) the man-made or man-induced
alteration of the chemical, physical, biological,
or radiological integrity of waters of the state.
"Subdivision 6. "Sewer system1 means pipe lines or
conduits, pumping stations, and force mains, and all
other constructions, devices, and appliances
appurtenant thereto, used for conducting sewage or
industrial waste or other wastes to a point of
ultimate disposal.
"Subdivision 7. 'Treatment works' means any plant,
disposal field, lagoon, dam, pumping station, con-
structed drainage ditch or surface water intercepting
ditch, incinerator, area devoted to sanitary land
fills, or other works not specifically mentioned
herein, installed for the purpose of treating,
stabilizing or disposing of sewage, industrial waste,
or other wastes.
"Subdivison 8. 'Disposal system' means a system for
disposing of sewage, industrial waste and other
wastes, and includes sewer systems and treatment
works.
20
-------
"Subdivision 9. 'Waters of the state1 means all
streams, lakes, ponds, marshes, watercourses, water-
ways, wells, springs, reservoirs, aquifers, irrigation
systems, drainage systems and all other bodies or
accumulations of water, surface or underground, natural
or artificial, public or private, which are contained
within, flow through, or border upon the state or
any portion thereof.
"Subdivision 10. 'Person1 means the state or any
agency or institution thereof, any municipality,
governmental subdivision, public or private cor-
poration, individual, partnership, or other entity,
including, but not limited to, association,
commission or any interstate body, and includes
any officer or governing or managing body of any
municipality, governmental subdivision, or public
or private corporation, or other entity.
"Subdivision 11. 'Agency1 means the Minnesota
pollution control agency.
"Subdivision 12. 'Discharge1 means the addition of
any pollutant to the waters of the state or to any
disposal system.
"Subdivision 13. 'Pollutant' means any 'sewage,'
'industrial waste,' or 'other wastes,' as defined
in chapter 115, discharged into a disposal system
or to waters of the state.
"Subdivision 14. 'Toxic pollutants' means those
pollutants, or combinations of pollutants, including
disease-causing agents, which after discharge and
upon exposure, ingestion, inhalation or assimilation
into any organism, either directly from the
environment or indirectly by ingestion through food
chains, will, on the basis of information available
to the agency, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physio-
logical malfunctions, including malfunctions in
reproduction, or physical deformation, in such
organisms or their offspring.
"Subdivision 15. 'Point source' means any dis-
cernible, confined and discrete conveyance, including
but not limited to, any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which pollutants
are or may be discharged.
21
-------
"Subdivision 16. 'Standards' means effluent
standards, effluent limitations, standards of per-
formance for new sources, water quality standards,
pretreatment standards, and prohibitions.
"Subdivision 17. 'Schedule of compliance1 means a
schedule of remedial measures including an en-
forceable sequence of actions or operations leading
to compliance with an effluent limitation, other
limitation, prohibition, or standard."
115.04 Disposal systems and point sources
"Subdivision 1. Information. Any person operating
or installing a disposal system or other point
source, or portion thereof, when requested by the
agency, or any member, employee or agent thereof,
when authorized by it, shall furnish to it any in-
formation which he may have or which is relevant
to the subject or chapter 115 and, with respect to
the pollution of waters of the state, of chapter 116.
"Subdivision 2. Examination of records. The agency
or any member, employee or agent thereof, when
authorized by it, upon presentation of credentials
may examine and copy any books, papers, records or
memoranda pertaining to the installation, maintenance
or operation or discharge, including, but not
limited to, monitoring data, of disposal systems or
other point sources, in accordance with the purposes
of chapter 115 and, with respect to the pollution
of waters of the state, chapter 116.
"Subdivision 3. Access to premises. Whenever it
shall be necessary for the purposes of chapter 115
and, with respect to pollution of waters of the
state, chapter 116, the agency or any member, em-
ployee, or agent thereof, when authorized by it,
upon presentation of credentials, may enter upon
any property, public or private, for the purpose
of obtaining information or examination of
records or conducting surveys or investigations."
115.07 Violations and prohibitions
"Subdivision 1. Obtain permit. It shall be un-
lawful for any person to construct, install or
operate a disposal system, or any part thereof,
until plans therefore shall have been submitted
22
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to the commission unless the commission shall
have waived the submission thereof to it and a
written permit therefore shall have been granted
by the commission."
The state legislation discussed has been included by
way of example. A number of other states have similar
legislation. An appendix with citation to each, state's
water pollution control legislation with selected sections
from that legislation appears in Appendix A.
The general purpose clause and general definition of
pollution in most states are sufficiently broad to in-
clude regulation of point and nonpoint sources of pollution.
However, it is arguable that where the legislature has
enacted statutes which specifically referred to one or
more types of pollution, or one or more sources of pollution,
the legislature intended only to control pollution from
those sources which were specifically mentioned.
23
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FOOTNOTES
WATER POLLUTION CONTROL STATUTES
a-Nev. Rev. Stat. $$ 445.131-445.354 (1973).
2Iowa Code Ann. $$ 455B.1-455B.107 (1971), as amended. (Supp. 1974).
3Kan. Stat. Ann. U 65-161 to 65-171F (1972), as amended, (Supp.
1974).
4Iowa Code Ann. $ 455B.32 (Supp. 1974).
5Kan. Stat. Ann. $ 65-170 (Supp. 1974).
. Code Ann. H 17-501 to 17-530 (1974), as amended, (Supp. 1974).
. at t 17-503 (Supp. 1974).
8ld. at $ 17-510 (Supp. 1074).
9Mass. Gen. Laws Ann. ch. 21, $$ 26-53 (1972), as amended. (Supp. 1974),
ld. at $ 26A (Supp. 1974).
jd. at i 42 (Supp. 1974).
12s. C. Code Ann. U 63-195 to 63-195.36 (Supp. 1974).
. Stat. Ann. U 691.1-760.2 (1964), as amended. (Supp. 1974).
C. Code Ann. H 63-195 to 63-195.36 (Supp. 1974).
15id. at $ 195.12 (Supp. 1974).
l-Spa. Stat. Ann. H 691.1-760.2 (1964), as amended. (Supp. 1974).
17pa. Rules and Regs. Tit. 25, $ 102.10-102.61 (1972).
. stat. Ann. U 115.01-115.82, 116.01-116.41 (1964), as amended.
(Supp. 1974).
19ld. at $ 115.01(15) (Supp. 1974).
1-1
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SELECTED FEDERAL STATUTES
The following is a discussion of selected Federal laws,
identified by a Federal Legal Information Through Electronics
(FLITE) search, which might be used to reduce water pollution
from nonpoint sources. FLITE is a computerized data bank and
retrieval source for Federal law operated by the U.S. Air Force.
AGRICULTURE
Congress has enacted two pesticide acts and two grazing
statutes which could have an impact on efforts to limit water
pollution from nonpoint sources.
Pesticide use is controlled in only one of the two pesticide
acts — the Federal Environmental Pesticide Control Act of 1972.
The other act, the Federal Insecticide, Fungicide, and Rodenticide
2
Act (FIFRA) is intended to control manufacture, sale and transport
of pesticides rather than their use. The means of regulation is
through registration and labeling requirements. Although restric-
tions on use provide a more direct and immediate curb on chemical
pollution, registration and labeling requirements may also con-
tribute to water quality maintenance. Label warnings must include
instructions on the proper method of application, and allow a
content check to insure that the product is neither adulterated
nor mislabeled.
FIFRA requires that all economic poisons (pesticides)
be registered with the Environmental Protection Agency and the
Act makes it unlawful to transport or offer for sale any economic
poison that is unregistered, adulterated, or misbranded. An eco-
nomic poison is misbranded if the label fails to include proper
directions for use or if, when applied as directed, it may be
injurious to man or animals or to vegetation, except weeds, to
which it is applied.
Registration is also required under the Federal Environ-
mental Pesticide Control Act of 1972, and under the terms of
this act, a pesticide may be approved for registration only if
it will not cause unreasonable adverse effects on the environment.
24
-------
The Act allows restrictions to be placed on the manner of appli-
cation and the type of equipment needed in order to avoid damaging
the environment. The prohibitions found in this Act resemble
those in FIFRA and makes it unlawful to deal in or transport pesti-
cides that are unregistered, adulterated or misbranded. Misbranding
is defined in both acts to include the failure to give proper
instructions for use. The Environmental Pesticide Control Act
goes one step further and declares it unlawful to fail to follow
these instructions for use when applying pesticides.
Under both acts the Administrator of EPA is given the power
and authority to promulgate rules and regulations to carry out
the purposes of the acts. Regulations promulgated under the
Federal Environmental Pesticide Control Act may pertain to the
disposal or storage of pesticide containers and pesticides. Packaging
standards are to be set to protect persons from accidental contact,
and authority exists to prohibit leakage or spillage into water
supplies.
The Environmental Pesticide Act requires that a national
monitoring plan be formulated and revised by the Administrator
in cooperation with other Federal, state or local agencies, and
include soil and water monitoring. Other non-regulatory functions
of the EPA include research and experimentation.
The Agency may delegate certain of its enforcement powers
to the states, which are also given some enforcement authority.
A state may regulate the sale or use of pesticides and devices
within its borders provided the regulation does not permit sales
or uses prohibited in the Act. A state may also require that
pesticides sold in the state meet special local needs as a pre-
requisite to state registration. Federal labeling requirements
apply in all states and the Act specifically excludes state action
in the area of labeling requirements. Under both statutes, the
Administrator may require that books and records be kept and made
available for agency inspection.
25
-------
One of the dangers of pesticide use is damage to or
destruction of plant life. Certain types of economic poisons
may act as defoliants or plant desiccants or may retard matur-
ation of plants. Debris, soil erosion, sedimentation and water
pollution are potential results of defoliation and loss of vege-
tation.
Another cause of vegetation loss is the unrestricted grazing
of livestock, and the search revealed two Federal statutes which
attempt to regulate grazing. The Grazing Land chapter of the
Public Lands Title authorizes the Secretary of the Interior
to establish grazing districts on vacant, unreserved, unapprop-
riated lands in the United States in an effort to promote the
P
"highest use of public lands." The chapter is composed of one
9
subchapter governing Alaska and another subchapter governing
the rest of the United States. Both sets allow the Secretary
to lease grazing privileges. In Alaska, the term of a lease
may extend to fifty years. Elsewhere the limit is ten years.
In either case, there may be an option to renew.
The right to graze in any^district is subordinated to the
12
protection and development of the land and its resources. In
the Alaska subchapter, use for grazing is subordinated more speci-
fically "to the development of their mineral resources; ...to
the protection, development, and utilization of their forest [and
water resources,] ... to their use for agriculture; and ... to
the protection, development, and utilization of such other resource
which may be of greater benefit to the public." All of these
legislatively determined higher uses may be promoted in rules
and regulations of the Secretary of the Interior.
The Forest Service and Management chapter of the Conservation
14
Title Code has two grazing provisions. Permits for grazing
livestock on national forest lands may be obtained from the
26
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Secretary of Agriculture. Permits are limited to a ten-year
renewable term and may contain conditions as the Secretary deems
proper. In addition, grazing is limited by means of rules and
regulations promulgated by the Secretary which relate to use of
forest land, seasons of use, grazing capacity and other matters.
Enforcement
To protect the public and the environment from the dangers
of pesticides, the two Federal pesticide acts authorize swift
agency action against violations of the acts' provisions, or the
rules and regulations promulgated by EPA under the acts. Adult-
erated, unregistered, mislabeled, or misbranded goods may be seized
for confiscation in a condemnation proceeding before the District
Court. Under the Federal Environmental Pesticide Control Act,
seizure is allowed when pesticide use endangers the environment.
If a pesticide, economic poison or device is condemned, it is to
be disposed of by destruction or sale as directed by a court.
A second administrative remedy available under both acts is
cancellation or suspension of registration. Cancellation must
be preceded by notice of non-compliance with provisions of the
Act, refusal to comply, and a 30-day waiting period during which
time the registrant may comply, or object and request a public
hearing.
Suspension proceedings, although authorized under both acts,
are detailed only in the Environmental Pesticide Control Act.
Under the provisions of that Act, if suspension "is necessary to
prevent an imminent hazard during the time required for cancellation
or change in classification proceedings," the Secretary may immediately
19
order the registration suspended. Except in cases of emergency,
notice and opportunity for a hearing must still be granted, but
20
the hearing will be expedited. A final order of cancellation
or suspension issued under either act is subject to judicial review
21
(also expedited in the case of suspension). A "stop sale, use,
or removal order" is a remedy available under the Environmental
27
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22
Pesticide Control Act but is not specifically provided for
in FIFRA.
The extent of agency enforcement authority under the two
grazing statutes is unclear. Although permits or leases are
required under both, neither statute expressly authorizes revo-
cation or suspension. However, it is within the express authority
of the Secretary of the Interior to refuse to renew a permit issued
23
under the Grazing Lands chapter.
Of the four agriculture-related statutes, only the Federal
Environmental Pesticide Control Act provides both civil and
24
criminal fines in addition to administrative remedies.
Private applicators or other persons violating the Act,
subsequent to receiving a warning from the Administrator or
after already receiving one citation, may be assessed a civil
penalty of up to $1000 per offense. Again, if the violation was
knowingly committed, the violator is guilty of a misdemeanor,
punishable upon conviction by a fine of up to $1000 or up to 30
days in prison or both.
The Federal Insecticide, Fungicide, and Rodenticide Act punish
violations criminally. The failure to register an economic poison
according to the terms of §135a (a) (1) is a misdemeanor punishable
upon conviction by a maximum fine of $1000. Any other violation
of the Act is a misdemeanor punishable upon conviction the first
time by a maximum fine of $500 and subsequently by a fine of up
25
to $1000 and/or up to one year in prison.
The final penalty provision occurs in the Alaska subchapter
of the Grazing Lands chapter. The willful grazing of livestock
without a lease or the permission of the Secretary of the Interior
subjects the violator, upon conviction, to a fine of not more
than $500.26
CONSTRUCTION
Four Federal statutes, identified by a FLITE search, require
that environmental impact be considered before construction pro-
jects are approved for funding, but all of the statutes relate
in some way to transportation systems.
28
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27
The environmental protection section of the Transpor-
tation Title declares it to be the national policy that, a special
effort is to be made to preserve the natural beauty and histori-
cal and cultural assets of the countryside, park lands, and wild-
life refuges. As a prerequisite to funding, project applications
are to contain an environmental impact statement; an account of
adverse environmental effects which might result, especially
irretrievable and irreversible effects; and alternatives to the
proposed project.
Before the Secretary of Transportation makes a decision on
the eligibility of a project for assistance, opportunity must be
given for interested persons to present their views on the environ-
mental effects, and "fair consideration [must be] given to the
28
preservation and enhancement of the environment." If an adverse
environmental effect is likely to result from the project, approval
is to be withheld unless no reasonable and prudent alternative
exists and all reasonable steps have been taken to minimize the
adverse effects; however, the statute offers no guidelines as to
what would constitute a reasonable and'prudent alternative or
reasonable steps to minimize environmental hazards.
Somewhat more serviceable criteria for judging the acceptability
of construction projects are given in another section of the Transpor-
29
tation Title, which provides that Federal water and air quality
standards are to be complied with during construction and operation
of airport development projects, under the terms of this particular
act if reasonable assurance of compliance is not forthcoming,
the Secretary of Transportation may withhold approval of the project
application. To insure that the Secretary is adequately informed,
the statute requires that he consult with the Secretary of the
Interior and the Secretary of Health, Education and Welfare about
the environmental impact of the proposal prior to approving or
disapproving it, and the act applies to airport development projects
29
-------
A third statute, the Department of Transportation and Related
Agencies Appropriation Act of 1974, applies specifically to
airport development in parts of Florida, and provides that no
Federal funds may be appropriated unless it has been shown that
the airport will have no adverse environmental effect on the
ecology of the Everglades. Where the other airport development
statute requires approval of the application by the Secretary of
Transportation after consultation with the Secretaries of Health,
Education and Welfare (HEW) and Interior, this appropriations
Act requires actual site approval by the Interior Department as
well as the Department of Transportation. Where the former
statute requires compliance with specific air and water quality
standards, this act generally prohibits adverse effects on the
ecology of a specific area — the Everglades. In this respect
it is comparable to the environmental protection provisions of
the Transportation Title, yet the Everglades measure is a bit
stronger in that there is no provision allowing otherwise unaccep-
table projects to be approved simply because no alternative
exists.
The Federal-Aid Highways ActJ1 is administered bv
the Secretary of Transportation. Specifications and plans for
proposed projects on any Federally aided highway system may not
be approved unless they are designed and constructed in accor-
dance with standards and guidelines approved by the Secretary in
cooperation with state highway departments. In particular, the
Secretary is required to issue guidelines for minimizing the soil
erosion which can result from highway construction. Final approval
of projects must also await consideration of the costs of mini-
mizing water pollution.
A number of these provisions may represent effective
means of controlling water pollution from nonpoint sources.
Standards may be set which can serve as a basis for judging the
30
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acceptability of proposals and promote the protection of the
environment once a project is approved. Since cooperation with
state officials is required in promulgating guidelines, such guide-
lines could be responsive to the needs of each state. The Federal-
Aid Highways Act expressly addresses the problems of soil erosion
and water pollution, conditioning receipt of financial assistance
upon approval of erosion and pollution control plans.
These four statutes are concerned solely with project
approval, and those projects which fail to meet environmental
requirements must be disapproved. None of the statutes regulate
post-approval conduct or penalize violations of project plans.
MINING
Federal regulation of mining most frequently occurs
when operations are carried out by lease or patent on Federal
lands, particularly when on forest lands.
Congress has enacted four statutes in its efforts to
reconcile both the need to utilize mineral resources and conserve
forest resources, all of which authorize limited mining operations
on Federal forest lands to be conducted according to the rules
and regulations of the Departments of Agriculture and Interior.
32
The Wilderness Act creates a national wilderness
preservation system composed of Federally owned areas designated
as wilderness areas and administered for the enjoyment, use and
protection of these areas. Although the use of motorized equip-
ment, construction and other activities are restricted in these
areas, mineral leasing may continue through 1983, subject to the
rules and regulations of the Department of Agriculture. Prospecting
for water resources may also be permitted.
The second mining statute authorizes the Secretary
of Agriculture to permit prospecting for, and development of,
mineral resources located in the national forests in Minnesota.
Again, the operations must be conducted in compliance with regu-
lations and terms prescribed by the Secretary, and receipts derived
from permits and leases are to be paid into the Treasury.
31
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Title to mineral deposits in certain other national forests
may be conveyed, under the National Forests chapter, to persons
holding patents after the enactment of the chapter provisions.
Timber may be cut and removed from the mineral lands only if
necessary to mining operations and then in accordance with sound
forest management practices as required by national forest land
rules and regulations.
35
The Protection of Timber chapter creates mineral
districts and authorizes necessary timber cutting during mining
operations conducted within the districts, provided sound cutting
practices are utilized to protect forest resources and minimize
the danger from soil erosion and lessen the potential for water
pollution.
While loss of vegetation during mining operations is a major
contribution to water pollution from mining as nonpoint source,
there are more direct ways in which mining operations threaten
water, resources. The disturbance of soil by dredging, drilling
or excavation contributes substantially to the likelihood of soil
erosion, and construction activities may release contaminants to
surface waters during the development or operations stage of a
mine or well. The most direct mine-related cause of water pollution,
however, is acid drainage which may occur at any stage of mining
operations, even after abandonment of active mining at the site.
Five of the relevant Federal statutes deal with these
direct effects of mineral development. The Saline Water Conversion
Act of 1971 is primarily planning legislation. The Secretary
of the Interior is directed to study methods for the prevention
of brine discharge into lakes, streams and other waters, and
although saline conversion demonstration projects may be constructed,
no substantive action against discharges and no regulation of
mining is authorized in the act.
Mining operations are regulated, however, under the
provisions of the other four mining laws, the most comprehensive,
of which is that creating the California Debris Commission to
32
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regulate hydraulic mining in the Sacramento and San Joaquin
37
River System, under the supervision of the Chief of Engineers
and under the direction of the Secretary of the Army. "Hydraulic
mining directly or indirectly injuring the navigability of [the
•3 g
rivers]. . . is prohibited," and the Commission is expressly
directed to plan for the "protection of [the] navigable rivers by
preventing deposits therein of debris resulting from mining
operations [and] natural erosion."
A number of other provisions in this act may effectively
control mining activities which may become nonpoint sources of
water pollution. Hydraulic miners must file petitions or appli-
cations to mine, and these petitions must include an agreement to
comply with the rules and regulations of the Commission; to surren-
der to the United States the right to regulate debris; and plans
and specifications, including descriptions of dumping grounds.
Before a petition can be accepted it must be approved by a majority
of the Commission. Upon approval, the Commissioner is to issue
an order prescribing the method and manner of mining operations
and the safeguards to be used to protect "the public interests
and . . . the navigable rivers." If the Commission determines
the safeguards such as impounding dams or other restraining works
are necessary to protect the rivers, commencement of mining
operations must be postponed until work on the safeguards has
progressed to a functional stage. Federal standards on debris
disposal are rather strict.
40
The Trans-Alaska Pipeline Authorization Act is another
Federal mining law which provides comparably extensive control
over potentially polluting activities. A permit or right-of-way
must be obtained before oil or gas may be transported. Several
of the act's provisions constitute amendments to the Mineral Lands
41
Leasing Act. These amendments authorize the Secretary of the
Interior to promulgate rules and regulations for the restoration
and re-vegetation of the land; to insure compliance with water
33
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quality standards; and to protect the environment. Bonds may be
required to secure these and other obligations imposed as terms
and conditions of the permit or right-of-way. In general, the
responsibilities of the Secretary with respect to regulation of
activities which can lead to water pollution seem to be largely
supervisory as opposed to the more direct involvement of the
California Commission. The Alaska Act provides that "the control
and total removal of [any] pollutant" [threatening] "to damage
aquatic life or wild life; or public or private property" is the
42
permit holder's responsibility; all expenses incurred as a result
of pollution control and abatement procedures must be borne by
the permittee. Any administrative expenses incurred by the Federal
Government is successful pollution investigation or abatement
upon failure of the permittee to do so are also charged to the
43
permit holder. in addition to recovering costs expended, the
Department or persons injured by the permit holder may also recover
damages.
The last two mining statutes are far less detailed.
The first act regulates sand and gravel mining on tidelands,
submerged lands or filled lands near Guam, the Virgin Islands or
44
American Samoa. Mining is by permit only, and the Secretary of
the Interior has certain authority to place any conditions deemed
appropriate on the mining permit. All permits are revocable,
although specific grounds for revocation are not indicated in the
statute.
Finally, the Geothermal Energy Research, Development,
45
and Demonstration Act of 1974 permits the Secretary of the
Interior to issue leases for the development and utilization of
geothermal steam and other geothermal resources. The exploitation
of geothermal resources involves well drilling and operation and
represents a serious threat of ground water contamination as well
as substantial potential for surface water quality degradation.
34
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This statute authorizes the Secretary to prescribe rules
and regulations regarding production and utilization of geo-
thermal steam, water and other resources and protect the quality
of the geothermal steam and water as well as the quality of surface
and other subsurface waters.
Enforcement
Injunctive relief is not among the remedies expressly
provided for in any of the mining and mineral exploitation
statutes.
The California Debris Commission chapter has the most
extensive enforcement section of all the acts discussed. The
Debris Commission has broad authority to enforce its orders, in-
cluding by implication injunctive relief. Intentional violation
of conditions of the mining order which prescribe method and manner
of mining operations can result in a forfeiture of the privileges
granted in the orders, including the mining privilege itself.
Two distinct criminal offenses are designated in the
statute and are punished rather severely- Hydraulic mining so as
to injure directly or indirectly the navigable waters of the United
States in violation of this act is a misdemeanor. Upon conviction
the violator may be fined up to $5000 and/or be imprisoned for up
to one year. The second offense is also punishable as a mis-
demeanor. Persons convicted of the willful or malicious injury
or destruction (or attempted injury or destruction) of any dam or
restraining work may receive fines of up to $5000 and/or up to
five years imprisonment.
The remaining statutes either contain no enforcement
provisions or less extensive ones. The Saline Water Conversion
Act of 1971 is primarily planning legislation and contains no
enforcement provisions.
The Wilderness Act, the National Forests chapter and
the National Forests in Minnesota provision of the National Forests
chapter all require permits or leases to mine or cut timber, yet
35
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none of these measures discuss the issue of permit revocation or
suspension.
Permits issued for sand and gravel mining in certain
Island protectorates are revocable, and although the act itself
does not specify grounds for revocation these may include breach
47
of permit terms or conditions.
Right-of-way and permit termination or suspension are
also among the remedies available for non-compliance with the Trans-
48
Alaska Pipeline Authorization Act, but the most effective relief
offered in this act seems to be the provision of civil liability
49
for damages. with a few exceptions (acts of war, contributory
negligence, governmental negligence), strict liability is imposed
on permit holders for damage to public or private persons, without
regard to fault or onwership of property, subject to a limit for
strict liability claims arising out of any one incident of $50,000,000,
part of which may be paid from the Trans-Alaska Pipeline Liability
Fund created by the act and financed by mandatory contribution
of all permit/right-of-way holders. If damage exceeds this limit,
the excess liability may be recovered in accordance with ordinary
rules or negligence.
A higher ceiling is fixed when damage results during the
transport of oil or gas by vessel, where the limit on strict liability
52
for all claims arising out of a single incident is $100,000,000.
In either case, claims may be determined by arbitration or judicial
proceeding.
Bonds may also be required under the Trans-Alaska
Pipeline Authorization Act. If the permit/right-of-way holder
fails to control or remove pollutants threatening aquatic life or
wildlife or public or private property, the Secretary may do so
at the holder's expense, however, no criminal or civil fines are
prescribed for any violation of the Act.
The Protection of Timber Chapter criminally punishes
violators of its provisions or the rules and regulations promulgated
36
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thereunder. These violations are misdemeanors. Upon conviction,
the offender may be fined up to $500 and may receive up to six
monthfe imprisonment.
SILVICULTURE
The FLITE search indicates that fourteen Federal statutes
have been enacted to promote the use of sustained yield forest
management practices on Federal lands or private lands bordering
Federal forests. Sustained yield forestry practices contribute
to the prevention of soil erosion, sedimentation and water pollution.
National Forests are designated and established by the
President and administered by the Secretary of Agriculture. Two
chapters of the United States Code are devoted to regulation of
these Forests. The National Forest chapter deals primarily
with the establishment of National forests, while the Forest
54
Service and Management chapter contains more of the administrative
and regulatory details.
Congress has declared the purpose of the national
forests to be to improve and protect the forest ... to secure
favorable conditions of water flows and to furnish a continuous
supply of timber. . ." The Secretary of Agriculture may take no
action which will impair the "productivity of the land." Rather,
the duty of the Secretary is to provide for the "intensive multiple
use, protection, development and management of these lands under
principles of multiple use and sustained yield."
To preserve living and growing timber, the Secretary
may sell dead timber for cutting, provided sound forestry practices
58
are used. Merchantable timber may be cut only if the cutting
59
will not detrimentally affect the "purity" of the water supply.
Congress has delegated to the Secretary the authority to promul-
gate rules and regulations to protect the national forests from
excessive cutting and other dangers.
37
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To promote timber protection and to regulate the flow of
navigable streams, the Secretary is authorized to purchase and
maintain, with the approval of the National Forest Reserve
Commission, "forested, cutover or denuded lands" within the water-
sheds of navigable streams.
Cooperation between the Secretary and state and local
governments is encouraged in both chapters, and cooperative
services may include financial aid and the distribution of planning
stock for state and local forests.
There are two relevant forestry management statutes
dealing with Federal jurisdiction and authority over forests on
Indian lands, and while the Secretary of Agriculture has some
responsibility in this area, primary responsibility rests with
the Secretary of the Interior. The Indian Reorganization Act
directs the Secretary of the Interior to make rules and regulations
for the operation and management of Indian forestry units in accordance
with sustained yield management principles, with special emphasis
on protecting the land from deterioration and erosion. To accomplish
this purpose, the Department of the Interior is given broad authority
to promulgate rules and regulations and to take other actions as
deemed necessary — including placing restrictions on grazing of
livestock in or near Indian Forests.
The Klamath Termination Act has to do with one
particular Indian Forest, the Klamath Indian Forest, which, although
owned communally by the Klamath Indian Tribe, is subject to some
vestiges of Federal authority in the Interior and Agriculture
6 2
Departments. Persons wishing to withdraw from the tribe have
the right to demand that a portion of the forest be sold and the
proceeds be paid to the withdrawing parties. The Secretary of
the Interior offers the land for sale and sets the terms and conditions
of all sales, and the Secretary of Agriculture prescribes the
specifications and minimum requirements to be included in invitations
38
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to bid. Bid plans must be submitted for approval by the Secretary
of Agriculture and must include provisions for the conservation
of soil and water resources. In addition, all purchasers are
required to manage the forest lands in accordance with sustained
yield procedures so as to furnish a continuous supply of timber.
Although prevention of water pollution is not an express condition
of purchase, it should be an indirect result of soil and water
conservation efforts and sustained yield practices. Responsibility
for enforcement of all conditions has been delegated to the
Secretary of Agriculture, although no specific enforcement powers
are enumerated in the statute.
In certain circumstances, the Federal government may
exercise authority not only over Indian owned lands but also
over other privately owned or operated lands. The purchase of a
patent or lease of Federally owned land may result in an extension
of the authority of the Departments of Agriculture or Interior to
regulate forestry practices thereon. The Alaska Native Claims
Settlement Act requires that all patents issued to native Alaskan
individuals, groups, or villages under this act, and relating to
land located within the boundaries of a national forest, are to
contain the conditions necessary to insure sound management. Sustained
yield procedures are to be implemented along with management practices
designed to protect and enhance environmental quality which are
no less stringent than the practices carried out on adjacent national
forest lands. The Secretary of the Interior may publish in the
Federal Register any rules and regulations necessary to carry out
the purpose of the act.
Persons cutting timber from patented or leased lands in
64
a number of national parks and battlegrounds are also subject
to the rules and regulations of the Secretary of the Interior.
39
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The use and management of parklands and the sale and cutting of
timber are to be regulated by the Secretary in such a way as to
prevent soil erosion and produce a sustained yield of forest products.
Under the terms of several other statutes, the Secretary
of the Interior may extend his jurisdiction over certain private
landowners by means of cooperative agreements. One of these laws
places the revested Oregon and California Railroad grant lands
and the reconveyed Coos Bay Wagon Road grant lands under the jurisdiction
of the Interior Department — to be managed according to sustained
yield methods to achieve permanent forest production. Recognizing
that the management of privately owned lands within the grants
could have an effect on the management of the grants themselves,
Congress authorized the Department of Interior to enter into
agreements with the private owners with respect to the time, rate
and method of cutting and with respect to sustained yield practices
-- all of which may serve to abate water pollution from nonpoint
sources.
Some of the land within Federally designated "sustained
yield units" is also privately owned. Cooperative agreements between
private owners and the Federal agency controlling the unit (either
the Department of Interior or the Department of Agriculture) may
be executed. The Sustained Yield Forest Management Act empowers
both Secretaries to severally establish the units, which consist
of Federally owned or administered forest land and private land
covered by cooperative agreements. Among the benefits of sustained
yield management which the units are created to obtain are a
"continuous supply of timber. . . maintenance of water supply regulation
6 8
of streamflow [and] prevention of soil erosion." in return for
a landowner's use of sound forestry practices, the agency may agree
to share the cost of such practices. Funds for such programs are
to come from monies appropriated for Federal forest protection
40
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and management. Rules and regulations necessary to carry out the
purposes of the statute may be. promulgated for a unit by the Secretary
who created it. The abatement of water pollution from silviculture
as a nonpoint source should be the almost inevitable result of
regulations restricting activities which lead to soil erosion or
interfere with stream flow.
Forest practices conducted on land neighboring Federal
forests may have an adverse affect on park lands, and Congress
has authorized the Secretary of the Interior to enter into agreements,
in order to prevent or abate such effects with landowners on the
gq
periphery of Redwood National Park. AS in the Sustained Yield
Forest Management Act, the Secretary may share the costs of proce-
dures designed to protect timber, soil and other resources within
the Park.
In certain circumstances, cooperative agreements with
adjacent landowners might prove less than adequate to protect the
park, so Congress in enacting the Redwood National Park Act
extended the scope of authority of the Secretary to include the
power to acquire an interest in lands on the periphery of the
park if this would assure that management of the lands would not
"adversely affect the . . . park." This is similar to the power
granted the Secretary of Agriculture in the National Forests chapter
to purchase land necessary for the protection of watershed areas.
72
The Federal statute governing Sleeping Bear Dunes
National Lakeshore directs the Secretary of the Interior to imple-
ment a land and water use plan that would protect the natural resources
of the lakeshore area, and provide assistance to neighboring towns
and counties wishing to establish appropriate land use regulations.
In this act, acquisition of neighboring lands — through condemnation
— is not a remedy available to the Secretary "so long as ...
use of improved property is in compliance with [zoning bylaws or
73
standards for land use]."
41
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The Secretary of Agriculture is responsible for the
administration, protection and development of the Oregon Dunes
74
National Recreation Area. To promote the sound management and
use of area lands and waters, the statute creates an inland buffer
zone, within which forest practices may be regulated. Timberland
located within the zone is to be managed according to sustained
yield practices comparable to the standards of practices imposed
by the Secretary on national forest land. As long as these standards
and practices are complied with, privately owned timberland may
not be acquired by the Secretary without the consent of the property
owner.
An inland buffer zone was also established at
Pictured Rocks National Lakeshore in Michigan to stabilize and
protect the character and uses of the lands and waters within the
zone. The intent of Congress in providing for that zone was to
contribute to the preservation of the shoreline and lakes and the
protection of watersheds and streams while at the same time allowing
the fullest economic utilization of renewable resources through
sustained yield timber management and other resource management
techniques. As in the case of the Sleeping Bear Dunes National
Lakeshore Statute, the Secretary of the Interior administers this
act and is authorized to assist counties and towns in establishing
appropriate land use regulations. Land already being used for
growing and harvesting timber under a scientific program of selec-
tive cutting and forest management may not be acquired for the
buffer zone by the Secretary through condemnation.
The final silviculture statutes concern mining opera-
tions and their effect on forest resources. Mineral districts
are designated and regulated under several sections of the Protection
of Timber chapter of the Code. Recognizing the scarcity of timber
in such districts, and in an effort to promote mining and home-
steading, Congress has authorized the waiver of certain prohibitions
42
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78
against timber cutting in the areas. Subject to the rules and
regulations of the Secretary of the Interior for the protection
of timber, the cutting of timber on mineral lands in a mineral
district, by residents of the state in which the district is located,
is permitted — provided the land is used for domestic or mining
79
purposes. Permits to cut may also be granted to corporations,
p f\
other than railroads, incorporated in the particular state involved.
Inspections of operations may be made by an officer designated by
the Secretary to insure compliance with timber protection rules
and regulations. Such rules and regulations could be an effective
means of protecting water quality from mining and construction
activities as well as unsound silviculture practices.
81
The National Forests chapter permits timber cutting
in certain national forests if necessary to mining operations
there, provided the person involved holds a patent issued under
mining laws. Any cutting must be conducted in accordance
with sound principles of forest management as in required by national
forest land rules and regulations.
Enforcement
None of the statutes discussed under the general de-
signation, silviculture, provide the injunctive relief to restrain
violations. Agency action is the primary enforcement method afforded.
Bonds may be required as a condition precedent to
cutting timber in certain national forests and national parks,
and failure to comply with rules and regulations concerning cutting
and debris disposal practices may result in.bond forfeiture.
Three statutes contain provisions regarding condemnation
of timberland in or bordering national forests. The Sleeping Bear
Dunes National Lakeshore Act authorizes the Secretary of Interior
to condemn property that does not conform to zoning bylaws or standards.
The Oregon Dunes National Recreation Area Act and the
Pictured Rock National Lakeshore Act prohibit condemnation if sustained
yield practices are being carried out, implying that condemnation
is an appropriate action when such practices are not being conducted.
Fines of up to $500 and/ or up to six months imprisonment for vio-
43
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lations of forest laws, rules or regulations are provided in three
sections of the Code. The Forest Service and Management chapter
contains a provision prescribing such penalties for violations of
certain provisions of the National Forests chapter or rules and
regulations promulgated thereunder (including the section on cutting
83
of timber).
84
The statute establishing mineral districts designates as
misdemeanors any violation of the timber cutting provisions or
the rules and regulations issued thereunder. Violators are punished
85
upon conviction by fines and/or imprisonment.
The same penalty is prescribed in the National Parks chapter
for violations of rules and regulations of the Secretary of the
Interior regarding the use and management of national parks and
p £
battlegrounds or the sale and cutting of timber.
SOIL EROSION AND SEDIMENTATION CONTROL
The FLITE search identified eight statutes enacted
by Congress which seek to prevent soil erosion and sedimentation
by encouraging agricultural producers to practice soil and
water conservation techniques. Incentives vary from government
cost sharing to loans and tax relief.
Five of the statutes grant contractual authority to the
Secretary of Agriculture to enter into agreements for a term of
years with agricultural producers whereby in return for Federal
financial assistance, producers would take preventive measures
pertaining to soil erosion and minimize water pollution from agri-
0 "7
cultural activities. Each of these statutes condition payment
on the producer's conformity with certain soil conserving farm
practices either promulgated or approved by the Secretary, and
each statute allows the Secretary to promulgate the regulations
necessary to implement its provisions.
Under the Soil Conservation and Domestic Allotment Act,
the payment of benefits may not only be conditioned on conformity
with practices approved by the Secretary, but also on conformity
44
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with state arid local laws restricting land use and preventing
soil erosion. The Secretary may even require that the producer
enter into agreements determining the permanent use of the land.
The act has as its purpose "diminution of exploitation
and wasteful and unscientific use of national resources. . . the
protection of rivers and harbors . . . [and the] prevention and
88
abatement of agricultural-related pollution." To promote these
purposes, aid may be given not only to agricultural producers but
also to other agencies and local governments in return for their
treatment or use of land for soil conservation. On Federal lands,
soil conservation and other measures such as engineering operations,
methods of cultivation, the growing of vegetation, and changes in
the use of the land are to be conducted by the Secretary. To fund
the conservation efforts, the act authorized annual appropriations
of up to $500 million.
The Rural Environmental Conservation Program was
enacted to grant contractual and purchasing authority to the Secre-
tary of Agriculture to "carry out the purposes of the [Soil Conser-
vation and Domestic Allotment Act] and to preserve, restore, and
improve the wetlands of the nation." The Secretary of Agriculture
may enter into agreements with landowners and operators providing
for a grant of Federal funds or other assistance in return for
conformity with practices prescribed by the Secretary.
Under the Soil Conservation and Domestic Allotment Act aid
could be further conditioned on conformity with state and local
land use and erosion prevention laws. Under the Rural Environmental
Conservation Program, farming and land use plans approved by the
Secretary form the basis for all contracts, and the land use plans,
all applicable environmental regulations, and any conditions included
in the contract must be complied with as a prerequisite to assistance.
Both acts place certain restrictions on the scope of
the Secretary's contractual authority. The Soil Conservation and
45
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Domestic Allotment Act prohibits the Secretary from entering into
contracts in the Great Plains Area unless erosion is so serious
as to make the contract necessary to protect ranches and farms.
Contracts in North Dakota, South Dakota and Minnesota may not provide
assistance for wetlands drainage if the Secretary of the Interior
feels that wildlife preservation will be materially harmed. The
act creating the Rural Environmental Conservation Program requires
that all wetlands contracts include a provision forbidding the
destruction of the wetlands character of an area.
Soil conservation is an important environmental concern.
In watershed areas, it is critical. Runoff and erosion cannot
only lead to water pollution but can also result in local flooding.
89
The Watershed Protection and Flood Prevention Act was enacted
for the purpose of "preventing [erosion, floodwater, and sediment
damages in watersheds], furthering the conservation, development,
utilization, and disposal of water, and the conservation and utilization
of land . . . ." The Secretary of Agriculture may enter into cooperative
agreements with local organizations, landowners, or land operators
whereby, in return for changes in cropping systems and land use
and for the implementation of soil and water conservation practices,
the Secretary is authorized to share the cost of such measures
with the contracting party.
90
The Croplands Adjustment Act was an early grant
of contractual authority to the Secretary- Although the act is
no longer in force, some of the agreements made under the act may
still be.
The final statute authorizing cost sharing agreements
to promote soil conservation is the Appalachian Regional Development
91
Act of 1965. under which ten-year cooperative agreements may be
undertaken "to provide for the control and prevention of erosion
and sediment damages. . . and to promote the conservation and
46
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development of the soil and water resources of the region." This
act, like the others, calls for direct Federal assistance to land-
owners who comply with the terms of the agreements, some of which
are prescribed by the act, such as those which obligate the land-
owner to provide "land stabilization, erosion and sediment control,
and reclamation through changes in land use, and . . . measures
for the conservation and development of soil, water [and] wood-
92
lands ..." Rules and regulations necessary to carry out the
provisions of the act may be promulgated by the Secretary of
93
Agriculture. up to $19 million may be appropriated every two
years to allow the Secretary to administer the cost sharing program.
The Appalachian Regional Development Act and the act creating
the Rural Environmental Conservation Program both stress the contri-
bution that sound forestry practices make to soil conservation
and control of erosion. Financial and technical assistance to
landowners engaged in forest conservation and management practices
is available under both statutes.
The Appalachian Act also provides that financial
assistance of up to $30 million could be appropriated from the
Secretary of the Interior to states in the region for use in
filling and sealing abandoned mines and wells and for rehabilitating
94
mined lands. Further, funds up to $2 million — may be appro-
priated to allow the Secretary of the Army to prepare a plan for
the prevention of water pollution by mining — a nonpoint source"
A plan by the Appalachian Regional Commission for the control and
elimination of pollution from acid mine drainage may also be funded
under the terms of the Act.
Direct grants of Federal funds may be made under the
terms of one other soil conservation measure, the Agricultural
qg
Credit Chapter; however, no contractural agreement with agri-
cultural producers is involved. Public and quasi-public agencies
47
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wishing to establish soil conservation practices and develop
drainage and waste disposal facilities may apply to the Secretary
of Agriculture for grants. Distribution of funds under this statute
is conditioned on the certification by the state water pollution
control agency that contaminant levels in excess of state standards
will not result from proposed facilities or practices. As an alter-
native to a direct grant, agencies may request loans for the purposes
mentioned above, and individuals also may be eligible for loans
under the chapter. As an incentive, the loan may be somewhat
less attractive than a direct grant of funds; nevertheless, it is
still a useful tool in encouraging soil conservation practices.
The Agricultural Credit chapter permits the Secretary of Agriculture
to offer loans to farm owners or farm tenants who agree to develop,
97
conserve and properly use their land and water resources.
Q O
The Bankhead-Jones Farm Tenant Act resembles
certain provisions of the Agricultural Credit Statute in that it
allows loans to be made to Federal, state and local organizations
and agencies to assit them in executing plans for the conservation
of soil and water resources. However, among the other projects
for which loans may be granted are two which are directly related
to control of water pollution from nonpoint sources. Loans may
be used "for installing measures and facilities for water quality
management [and] for the control and abatement of agriculture-
99
related pollution." Although the statute calls for loan contracts
with thirty year terms, the Secretary may set any other conditions
of the contract.
The final type of incentive used to encourage soil
and water conservation is the income tax deduction. The Soil and
Water Conservation Expenditures provision of the Internal Revenue
100
Code allows taxpayers engaged in the business of farming to
take an income tax deduction for expenditures incurred for soil
48
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and water conservation measures. The deduction for any one year
may not exceed 25% of the gross income from farming. Among the
measures for which expenditures are deductible are leveling,
grading, terracing, contour furrowing, drainage ditch construction,
and planting of windbreaks.
Enforcement
All of the statutes authorizing direct assistance or cost
sharing by the Secretary also authorize the Secretary to terminate
payments by mutual consent in the public interest. All but
the Croplands Adjustments statute also authorize unilateral
termination by the Secretary in the public interest. A lien or
mortgage may be required to secure a loan under either the
Agricultural Credit chapter or the Bankhead-Jones Farm Tenant Act.
Whether financial assistance is rendered in the form
of grants or loans, a contract or agreement would likely
precede payment, and conventional remedies for breach of contract
including equitable remedies such as specific performance, seem
to be available, even though not expressly granted in any of the
statutes. The contract might provide for particular remedies in
the event of breach, since only the Agricultural. Credit statute
fails to authorize the Secretary to set the terms and conditions
of contracts and agreements.
Criminal penalties in one fo the incentive measures, the
Bankhead-Jones Act, punishes violations of rules and regulations
by fines of up to $500 and/or imprisonment for up to six months.
Fines are imposed after conviction in a U.S. Commissioner's Court
(as provided in 18 U.S.C.A. §3401 (b) to (e). Violations of the
income tax deduction provisions are punishable under the Internal
Revenue Code.
COASTAT. ZONE MANAGEMENT
Just as protection of watersheds near rivers and streams
can reduce the potential for pollution of those waters, so the
proper management of the coastal zone can reduce contamination
of coastal waters.
49
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102
The Coastal Zone Management Act of 1972 authorizes the
Secretary of Commerce to make annual grants to any coastal
state to assist in the development and execution of a management
program for the land and water resources of the coastal zone. As
defined in the act, the coastal zone includes coastal waters and
adjacent shoreland.
Like the Soil Conservation and Domestic Allotment
Act, the Coastal Zone Management Act conditions the extension
of benefits to the state on the existence of certain provisions
in the management program and of certain authority in the state
to carry out the program. Specifically, the program itself must
make provision for the designation of certain areas "for the purpose
of preserving or restoring them for their conservation, recreational,
ecological or esthetic values." The state must have the authority
"to administer land and water use regulations, control develop-
ment in order to ensure compliance with the management program,
104
and to resolve conflicts among competing uses ..." There must
also be provision for state or local government administration
of land and water use regulations and designation of certain areas
to be permanently used for preserving and restoring conservational
resources. The statute prescribes three methods for the control
of land and water use in the coastal zones, one or more of which
must be a part of the state programs receiving Federal aids:
(1) state establishment of criteria and standards
of management for local implementation;
(2) direct state land and water use planning and
regulation; and/or
(3) state administrative review of all state or
local plans, projects, or regulations for
consistency with the coastal zone management
program.
Under this statute, states are authorized to "control land
and water use" within their boundaries. However, each state must
50
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comply with the rules and regulations promulgated by the Secretary
of Commerce when developing individual coastal zone management
plans. The state plans must also comply with the provisions of
the Federal Water Pollution Control Act107 and the Clean Air Act.108
Failure to incorporate these minimum Federal standards will result
109
in withholding of Federal funds.
But within these guidelines, as far as the Federal Government
is concerned, states may control, direct, supervise and enforce
laws relating to land and water use in the coastal zone.
States which fail to meet the statutory prerequisites to funding
may be denied Federal assistance. After grants have been made,
states must file progress reports with the Secretary and maintain
records and files for Department of Commerce inspection.
FLOOD PLAIN REGULATION AND FLOOD PREVENTION
Soil erosion and flooding are two phenomena closely intertwined.
Flooding may be a direct result of erosion, while conversely, one
of the effects of the inundation of any land by flood waters is
soil erosion on a large scale. Congress has enacted three measures
which may lead to significant efforts to abate the water pollution
which can be attributed to flooding.
The Flood Disaster Protection Act of 1973, while primarily
providing for flood insurance, also encourages flood prevention
measures. The purpose clause of the act enables the Federal
Government, through rules and regulations issued by the Secretary
of Housing and Urban Development to require that states and localities
receiving Federal reconstruction funds for flood damage adopt adequate
"flood plain ordinances."
Two other flood prevention measures concentrate on maintaining
112
watershed areas. The Flood Control Act divides control responsi-
bilities between the Department of the Army and the Department of
Agriculture. Plans, investigations and improvements for flood
control and allied purposes are to be developed and implemented
51
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by the Department of the Army, upon approval by Congress.
Improvement of watersheds and measures for the retardation of
runoff, waterflow and soil erosion on watersheds are to be carried
114
out by the Department of Agriculture. Emergency measures for
runoff retardation and soil erosion prevention may be taken by
the Secretary of Agriculture when a "sudden impairment" of the
watershed - caused by fire, flood, or other natural element occurs.
Before the Department of the Army may begin to construct
flood control works on non-Federal land, however, assurances must
be received from the state or the local political subdivision
involved that they will provide without cost all lands, easements
and rights of way necessary for the project and will maintain and
operate the works after completion.
As a condition to the extension of any benefits by the Secretary
of Agriculture with respect to "runoff retardation" or soil erosion,
the Secretary may require (1) the enactment and enforcement of
state and local laws restricting land use and otherwise preventing
runoff and soil erosion; (2) agreements as to the permanent use
of such land; and (3) contributions to any operations conferring
such benefits.
The Watershed Protection and Flood Prevention Act resembles
the Flood Control statute in that Federal assistance may be extended
to individuals and groups who protect the watershed. The Secretary
of Agriculture may enter into agreements providing direct financial
assistance to local organizations and individual land owners or
operators who agree to practice soil and water conservation —
including if necessary, changes in cropping systems and land use
in watershed areas. The Watershed Protection and Flood Prevention
Act allows the Secretary of Agriculture to terminate the cooperative
agreements and payments thereunder if such action would be in the
*.
public interest.
52
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The Flood Disaster Prevention Act of 1973 and the Flood Control
Act both condition receipt of Federal funds on the taking of certain
flood prevention measures. Failure to comply with these conditions
117
may result in a denial of funds. No other penalty provisions
are included in any of the statutes.
WETLANDS PROTECTION
Two Federal statutes primarily concerned with soil erosion
contain provisions for the protection of wetlands. The Soil
118
Conservation and Domestic Allotment Act prohibits the Secretary
of Agriculture from sharing the costs of wetland drainage in North
or South Dakota or Minnesota unless the Interior Department finds
that wildlife preservation will not be materially harmed, and the
119
act creating the Rural Environmental Conservation Program requires
that all conservation contracts between the Secretary of Agriculture
and eligible owners and operators of land include a provision forbidding
the destruction of the character of an area as wetland.
These measures have a somewhat tenuous connection with nonpoint
source pollution, but a more direct relationship between wetlands
protection and control of water pollution from nonpoint sources
exists in one Federal statute, the Water Bank Program for Wetlands
120
Preservation Act, which was enacted to "reduce runoff, soil
and wind erosion ... [and] to contibute to improved water quality
and reduce stream sedimentation" thereby preserving, restoring
121
and improving the wetlands, and under which, the Secretary of
Agriculture is directed to formulate and carry out a program to
conserve and improve the wetlands in accordance with these purposes.
The program may include cooperative agreements with landowners
whereby the Secretary would share the costs of the landowner's
wetlands conservation measures. In carrying out the program the
Secretary may promulgate necessary rules and regulations and must
coordinate the program with wetland programs administered by the
122
Department of Interior. Cooperation with other local, state,
53
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of Federal agencies and committees of farmers established under
123
the Soil Conservation and Domestic Allotment Act is encouraged.
The Water Bank Program for Wetlands Preservation Act allows
the Secretary of Agriculture to terminate assistance payments for
124
violations of the agreement. The wetlands provisions of the
Soil Conservation and Domestic Allotment Act and of the Rural
Environmental Conservation Program allow termination of contracts
125
"in the public interest."
Although not expressly authorized in any of the wetlands acts,
conventional remedies for breach of contract including equitable
remedies such as specific performance might be available to the
appropriate agency.
SPECIAL POLLUTION CONTROLS
12 6
According to the FLITE search, three Federal laws provide
controls, over nonpoint source water pollution in limited geo-
graphical areas. Congress consented to the Arkansas River Basin
127
Compact between Arkansas and Oklahoma in 1973. The Compact
obligates the states, inter alia, to "cooperate ... to investigate
and abate sources of alleged interstate pollution within the
128
Arkansas River Basin," and establishes a commission to administer
the agreement and to collect, analyze and report on data as to
water quality. The Compact, however, gives no details as to the
methods of elimination and abatement contemplated or the kind of
pollution endangering the River Basin.
129
The National Parks Chapter contains a number of provisions
aimed at the protection and conservation of renewable and nonrenewable
resources. The Secretary of the Interior is directed to adopt
and implement a land and water use management plan for certain
designated national parks which would provide for proper utilization
and preservation of resources for recreational, scenic, scientific,
and historic purposes. The abatement of water pollution from nonpoint
sources would seem to be within the power of the Secretary of the
54
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Interior to manage the use of forest, mineral and other resources.
In exercising jurisdiction over the King Range National
Conservation Area, the Secretary of the Interior has been directed
by Congress to promote soil and water conservation and abate
water pollution caused by mining operations. Suggestions as
to the type of activities in which the Secretary may engage to
accomplish these goals are included in the measure. In all conservation
and pollution abatement ventures, the Secretary is authorized to
seek the cooperation of the California state and local governments
and nonprofit agencies.
With respect to mining operations, the Secretary is given
broad statutory authority to issue reasonable regulations to carry
out the purposes of the subchapter. However, all regulations must
provide for such measures as may be necessary among others, "to
protect the scenic and esthetic values of the Area against undo
impairment, and to assure against pollution of the streams and
waters within the Area."
All three of these special pollution control measures are
examples of enabling legislation, by which authority is delegated
to Federal agencies or states to abate water pollution. The statutes
do not themselves regulate, prohibit or penalize any specific activities
which can lead to water pollution; consequently there are no enforce-
ment provisions in these particular measures.
55
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FOOTNOTES
SELECTED FEDERAL STATUTES
17 U.S.C.A. tt 136-136y (Supp. 1974).
27 U.S.C.A. n 135-135R (1964), as amended. (Supp. 1974).
37 U.S.C.A. t 135(z)(2)(g)(h) (1964), as amended, (Supp. 1974).
47 U.S.C.A. t 136j(a)(2)(G).
57 U.S.C.A.'* 135d (1964), $ 136w (Supp. 1974).
67 U.S.C.A. $ 136v (Supp. 1974).
743 U.S.C.A. tt 315-316o (1974), as amended. (Supp. 1974).
843 U.S.C.A. $ 315 (1964).
943 U.S.C.A. $ 316 et se^. (Supp. 1974).
1043 U.S.C.A. t 315 et se£. (1964), as amended. (Supp. 1974).
U43 U.S.C.A. H 315m to 315m-4 .(1964); 43 U.S.C.A. $ 3l6b (Supp. 1974).
1243 U.S.C.A. $ 315a (1964), $ 3l6b (Supp. 1974).
1343 U.S.C.A. $ 316 (Supp. 1974).
1§16 U.S.C.A. t 580k, 5801 (1974).
1516 U.S.C.A. $ 580k(c)(2) (1974).
167 U.S.C.A. H 135g(a), 136k(b) (Supp. 1974).
177 U.S.C.A. i 136k(b)(3) (Supp. 1974).
187 U.S.C.A. tt 135b, 136d (Supp. 1974).
197 U.S.C.A. $ 136d(c)(l); (Supp. 1974).
See also the Administrative Procedure Act $ 558 (Cum. Supp. 1974).
207 U.S.C.A. H 136d(c)(2), (3) (Supp. 1974). See also the Administrative
Procedure Act $ 558.
217 U.S.C.A. U 135b(d), 136d (c)(4)(Supp. 1974).
227 U.S.C.A. t 136k (Supp. 1974).
2343 U.S.C.A. t 315b (1964).
II-l
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247 U.S.C.A. $ 1361(a), (b) (Supp. 1974).
257 U.S.C.A. $ 135f (1964), as amended, (Supp. 1974).
2643 U.S.C.A. $ 316k (Supp. 1974).
2749 U.S.C.A. $ 1610 (Supp. 1974).
2849 U.S.C.A. $ 1610(c) (Supp. 1974).
2949 U.S.C.A. $ 1716 (Supp. 1974).
30P.L. 93-98, 87 Stat. 329, August 16, 1973.
31U.S.C.A. $ 101 &t_ se^. (1966), as_ amended, (Supp. 1974).
3216 U.S.C.A. $ 1131-1133 (1974).
3316 U.S.C.A. $ 508b (1974).
3416 U.S.C.A. $ 482a, 482c, 482h-2. 482k, 482n-l, 482p (1974)
3516 U.S.C.A. $$ 604, 606, 607 (1974).
3642 U.S.C.A. 00 1959-1959h (1974).
3733 U.S.C.A. $$ 661-687 (1970).
3833 U.S.C.A. 0 663 (1970).
3933 U.S.C.A. $ 665 (1970).
4043 U.S.C.A. n 1651-1655 (Supp. 1974).
4130 U.S.C.A. $ 185 (Supp. 1974).
4243 U.S.C.A. $ 1653(b) (Supp. 1974).
4343 U.S.C.A. $ 1653(a) (Supp. 1974).
4448 U.S.C.A. $ 1702 (Supp. 1974).
4530 U.S.C.A. $ 1023 (Supp. 1974).
4642 U.S.C.A. n 1959-1959h (1974).
4748 U.S.C.A. g 1702 (Supp. 1974).
4843 U.S.C.A. $ 1652(c).
4943 U.S.C.A. $ 1653 (Supp. 1974).
5043 U.S.C.A. $ 1653(a)(2).
Slid.
II-2
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5243 U.S.C.A. i 1653c(3).
5316 U.S.C.A. $ 471 et se^. (1974), as amended, (Supp. 1974).
5*16 U.S.C.A. $ 551 et se$. (1974), as amended. (Supp. 1974).
5516 U.S.C.A. $ 475 (1974).
56i6 U.S.C.A. t 531 (1974).
U.S.C.A. $ 532 (1974).
58A further condition is placed on cutting timber in the Rougue River
National Forest.
U.S.C.A. $ 487a (1974).
6025 U.S.C.A. $ 466 (1963).
6125 U.S.C.A. 2 564 to 564w-l (1963).
6225 U.S.C.A. $ 564w-l (1963).
6343 U.S.C.A. i 1621 (Supp. 1974).
64-rhe parks and battlefields covered by this chapter are too numerous
to include at this point, and each is the subject of its own code section.
The Code should be consulted to determine which parks and battlefields are
included and the axtent of authority granted under each.
65i6 U.S.C.A. n 3, 53, 167, 195, 203, 425b, 430f, 430h, 4301, 430q (1974)
6643 U.S.C.A. t 1181a-1181b (1964).
67 16 U.S.C.A. n 583-583i (1974).
6816 U.S.C.A. $ 583 (1974).
69 16 U.S.C. i 79c (1974).
70id.
71 16 U.S.C.A. i 515 (1974).
72 16 U.S.C.A. $ 460x to 460x-l4 (1974).
73 16 U.S.C.A. $ 460x-8(b) (1974).
74 16 U.S.C.A. $ 460z-l, 460z-2, 460z-5 (1974).
75 16 U.S.C.A. i 460z-5 (1974).
II-3
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7616 U.S.C.A. n 460s-8 to 460s-ll (1974).
7716 U.S.C.A. $ 593 et^se£. (1974).
78i6 U.S.C.A. $i 604, 606, 607 (1974).
7916 U.S.C.A. $ 604 (1974).
SOid.
8116 U.S.C.A. $ 482a, 482c, 482h-2, 482k, 482n-l, 482p (1974).
8216 U.S.C.A. $ 551 (1974).
^Persons charged with violations of the rules and regulations may be
tried and sentenced by any U.S. magistrate specially designated for that pur-
pose by the court by which he or she was appointed. Proceedings before the
magistrate are to be conducted in the same manner and subject to the same
conditions as provided for in $ 3401(b) to (e) of Title 18, Crimes and Crim-
inal Procedure.
8416 U.S.C.A. H 604, 606, 607 <1974).
8516 U.S.C.A. $ 606 (1974).
8616 U.S.C.A. t 3 (1974).
87soil Conservation and Domestic Allotment Act, 16 U.S.C.A. $$ 590a to
590q-2 (1974); Rural Environmental Conservation Program Act, 16 U.S.C.A.
$$ 1501-1510 (1974); Watershed Protection and Flood Prevention Act, 16
U.S.C.A. $$ 1001-1004 (1974); Croplands Adjustment Act, 7 U.S.C.A. $ 1838
(1973); Appalachian Regional Development Act of 1965, 40 U.S.C.A. App. $$
203-206, 302 (1969), as amended, (Supp. 1974).
8816 U.S.C.A. $ 590g (1974).
S9l6 U.S.C.A. $ 1001 (1974).
90This Act ceases to be in effect on July 1, 1975.
9140 U.S.C.A. App. $ 203 (1969).
92id.
93id.
9440 U.S.C.A. App. g 205 (1969).
9540 U.S.C.A. App. $ 206 (1969).
967 U.S.C.A. U 1921-192% (1973).
977 U.S.C.A. $ 1923 (1973).
987 U.S.C.A. t$ 1010-1013a (1964), as amended. (Supp. 1974).
II-4
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"7 U.S.C.A. $ 1011(e)(2) (Supp. 1974).
10026 U.S.C.A. $ 175 (1967), as amended. (Supp. 1974).
10126 U.S.C.A. £2 7231 etse^. (1967), as amended, (Supp. 1974).
1026 U.S.C.A. n 1451-1464 (1974).
10316 U.S.C.A. $g 590a-590q-2 (1974).
10416 U.S.C.A. H 1455(c)(9), 1455(d)(l) (1974).
10516 U.S.C.A. $ 1455(e)(l) (1974).
10616 U.S.C.A. $ I455(c)(l) (1974).
10733 U.S..C.A. n 1251 et se£. (Supp. 1974).
10842 U.S.C.A. $$ 1857 et^ se^. (1969), as amended, (Supp. 1974).
10916 U.S.C.A. $ 1456f (1974).
11042 U.S.C.A. H 4001-4003 (1973), as amended. (Supp. 1974).
m42 U.S.C.A. $ 4002(b) (Supp. 1974).
11233 U.S.C.A. $$ 701-701u (1970), as amended, (Supp. 1974).
11333 U.S.C.A. U 701-l(a), 701b (1970).
11433 U.S.C.A. $ 701b-l (1970).
11516 U.S.C.A. U 1001-1004 (1974).
11616 U.S.C.A. t 1003(6) (1974).
11716 U.S.C.A. $ 4002(b) (Supp. 1974); 42 U.S.C.A. $ 701c (1970).
11816 U.S.C.A. t$ 590a-590q-2 (1974).
11916 U.S.C.A. H 1501-1510 (1974), Title X of the Agriculture and Con-
sumer Protection Act of 1973.
12016 U.S.C.A. n 1301-1311 (1974).
12116 U.S.C.A. * 1301 (1974).
12216 U.S.C.A. $ 1309 (1974).
12316 U.S.C.A. $ 590h(b) (1974).
12416 U.S.C.A. t 1306 (1974).
II-5
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12516 U.S.C.A. $$ 590h(b), 1503c (1974).
126Arkansas River Basin Compact, P.L. 93-152, 87 Stat. 569, Nov. 13, 1973;
National Parks Chapter, 16 U.S.C.A. $$ 460o-4, 460q-3, 460s-5, 460w-5, 460x-5 $1974);
King Range Conservation Area Act, 16 U.S.C.A. $$ 460Y-4 to 480y-5 (1974).
127P.L. 93-152, 87 Stat. 569 (Nov. 13, 1973).
12916 U.S.C.A. U 460o-4, 460q-3, 460s-5, 460w-6, 460x-5 (1974).
13016 U.S.C.A. $t 460y-4 to 460y-5 (1974).
13116 U.S.C.A. $ 460y-4(7) (1974).
132 16 U.S.C.A. $ 460y-5(a).
II-6
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AGRICULTURE
Almost one billion acres or one-third of the available land
area of the United States is committed to some kind of agricul-
tural activity. Agricultural uses of water include irrigation
which accounts for more than 35% of the water consumed in the
United States each day; this figure becomes even more significant
when the geographic distribution of the use is considered. Ir-
rigation is limited primarily to seventeen western states where
more than 86% of the irrigated land in the country is located.
Recent agricultural development in the United States has
been characterized by rapid development of modern technology
including widespread use of synthetic fertilizers, chemical
pesticides, complex irrigation systems and confined animal
feeding areas. These activities release substantial quantities
of contaminants including sediment, salts, nutrients, pesticides,
organic materials, and pathogens to the surface waters and ground-
water systems of the country. A Soil Conservation Survey study
in 1971, estimated that cropland is responsible for approximately
50% of the total sediment contaminating inland waterways in the
United States. Approximately 25% of that sediment eventually
reaches the oceans carrying with it significant quantities of
plant nutrients, pesticides, organic and inorganic materials,
pathogens, and other contaminants.
Contaminants from agricultural activities reach surface
waters by runoff, and enter underground water systems through
infiltration and percolation. Atmospheric processes such as
fallout, washout and other precipitation processes permit con-
taminants to reach surface waters and groundwater systems far
removed from the original source. Contaminants may be dissolved
in water and transported with water or water vapor, and they
also may be absorbed and transported with sediment. Although
runoff from agricultural activities is a major transport mode
by which contaminants can reach surface waters, subsurface
56
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drainage also represents a significant cpntaminant transport
system. Groundwater contamination from a large number of. point
sources, or as a result of infiltration over a wide area, must
be recognized as a serious threat to public health, safety,
and welfare, although it was not a part of this study.
Irrigation represents a significant mechanism for the
transport of contaminants from agricultural activities since
the irrigation process involves leaching and transport of
dissolved minerals from the soil. Although more than half of
the water used in irrigation re-enters the atmospheric phase
of the hydrologic cycle as a result of evapotranspiration from
plants, the remainder is immediately returned by runoff to sur-
face waters, and through infiltration or percolation to ground-
water storage. These return flows carry large amounts of con-
taminants and can substantially degrade the quality of the
receiving waters. Many synthetic chemical pesticides and other
toxic materials can enter the atmospheric cycle of the biosphere
as a result of physiochemical processes such as codistillation
with water or during evapotranspiration.
When contaminants are transported in the aqueous phase of
the hydrologic cycle, the extent of contamination can be pre-
dicted from hydrologic analysis of the water transport systems
connecting the source to the receiving body of water. However,
when contaminants are transported as sediment or adsorbed upon
sediment, other factors must be considered although hydrologic
analysis can still assist in predicting the extent receiving
waters may be contaminated. When several sources of contami-
nation are combined or when the source of contamination is widely
distributed throughout a watershed, the overall effect of the
interactions among multiple sources or the effect of a diffuse
nonpoint source on a particular receiving body of surface water
or groundwater system can be very complex and may not be pre-
dictable in a quantitative sense.
57
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Nutrient transport systems have been investigated in a
number of areas, but sufficient information is not yet available
to completely describe the transport system from a number of
point sources or from a diffuse nonpoint source to a particular
receiving body of water.
Wind is a significant agent of erosion in some areas and
may assist in the detachment, transport and deposition of sedi-
ment and the contaminants adsorbed upon sediment. Wind erosion
leads to effects both local and remote from the site of initial
action depending upon meteorological and climatic conditions.
The characteristics of the soil and soil surface affect the
degree of wind erosion. Soil erodability is primarily deter-
mined by soil moisture, soil texture, soil structures and stability.
One of the most significant problems in the legal control
of water pollution from agricultural activities as a nonpoint
source is that there is as yet no accurate scientific way of
determining the precise extent of the contribution of particular
agricultural activities in a watershed to the overall contamin-
ation of the surface waters and groundwater system dependent upon
that watershed. In order to make such a determination a formal
input-output inventory of contaminants at the boundaries of
each source would have to be made and the reaction rates of each
contaminant transport process determined. If water pollution
from agricultural activities is to be controlled, agricultural
practices which permit soil erosion must be regulated.
Agricultural activities have been divided into four general
categories for purposes of our discussion. The first section is
concerned with soil erosion in general and included in this
section are state statutes controlling grazing. The second
and third sections discuss state laws dealing with economic
poisons, pesticides, and herbicides; the first deals with the
actual toxicants used for pest control, and the second with controls
on the application of such substances. The final section considers
fertilizers and agricultural liming. In this study the statutes of
fourteen states and two municipalities were searched.
58
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SOIL EROSION
Soil erosion and the resulting sedimentation have been
characterized as a major nonpoint source of water pollution.
Soil erosion results from natural processes as well as agricul-
ture, silviculture, construction and mining activities. However,
the effects of those natural processes which contribute to soil
erosion such as weathering, dissolution, abrasion, corrosion and
material transport may be minimized by appropriate soil conser-
vation measures.
The statutes of fourteen states and two municipalities
were searched for statutes relating to control of soil erosion
and sedimentation as they relate to agriculture. Neither
of the municipalities, Montgomery County, Maryland and the City
(
of Bellevue, Washington, had statutes relevant to the control
of erosion from agricultural activities. All fourteen states
have soil conservation district statutes which are applicable
to agricultural activities.
The soil conservation statutes in all fourteen states are
substantially similar and will therefore be discussed generally
and by specific example from selected statutes. Most of the
soil conservation district statutes grew out of the Dust Bowl
disasters of the 1930's. The statutes in all fourteen states
were originally enacted in the late 30's; however, many of those
states have amended this legislation to reflect current concerns,
primarily that of water pollution resulting from erosion. Min-
nesota is one of such states. In 1973 the purpose clause of the
Soil and Water Conservation District Act was amended to acknow-
ledge that improper land use practices have caused and contributed
to serious erosion of farm and grazing lands by wind and water
and had contributed to the deterioration of underground water reserves,
The legislature went on to declare that it was in the interest
of the public welfare, health and safety to provide conservation
2
of the soil and soil resources and to prevent soil erosion.
59
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The idea behind the soil conservation district was to set
up a local voluntary governmental entity with corporate powers
which would educate, encourage, and undertake soil conservation
projects. The districts have a variety of names depending
on the state in question, the most common being "soil conser-
vation district," but they are also called "soil and water con-
servation districts," "resource conservation districts" or simply
"conservation districts."
The statutes delegate the following powers to the dis-
tricts:
1. The power to develop a soil conservation plan
for their district.
2. The power to carry out preventive and control measures
including engineering operations, revegetation,
methods of cultivation, or changes in land use.
3. The power to furnish financial or other aid including machin-
ery, equipment, fertilizer, seeds and other mater-
ials to land owners wishing to embark on soil con-
servation projects.
4. The power to require land owners to use certain methods
of cultivation, range practices and other land use
practices to contribute money and services and
materials as a condition for participating in
the soil conservation district.
5. The power to adopt land use regulations.
The fifth power of soil conservation districts, the promulgation
of land use regulations, is a relatively new power to these dis-
tricts. The original soil conservation district legislation did
not provide for enforcement of plans adopted by the districts.
The early function of the district was to develop a plan, to edu-
cate landowners within the district about the plan and then to
offer assistance to individual landowners for the implementation
of the plan. The districts did not have the power, except upon
the express permission of a landowner, to enter upon privately
owned land and embark on a soil conservation proj,ect. The dis-
trict did, however, have the power to own land and to undertake
soil conservation projects on land which is either owned in the
60
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name of the district or by the state or county. With the advent
of the power to adopt land use regulations, many of the districts
were granted powers to enforce the land use regulations.
Michigan, New Jersey, North Dakota, Texas, Utah, Virginia,
West Virginia, and Wisconsin have enacted legislation which auth-
orizes soil and water conservation districts to adopt regulations
for the use of land lying within the district in the interest
of conserving soil and water resources and controlling erosion,
runoff and sedimentation. The regulations may specify completion
of necessary engineering projects, the observance of particular
methods of cultivation including contour cultivating, stripseed-
ing and the planting water conserving plants. The regulations
may also specify cropping programs. Provisions may also be
made to protect lands exposed by grading, filling, clearing,
mineral extraction and similar activities.
The regulations adopted under the Wisconsin legislation
may limit the:
"Size of the area to be exposed, the length of time in
season during which it may be exposed, require the
establishment of temporary water waste, storm drains,
temporary debris basin, terraces and other structural
and nonstructural methods to control erosion, runoff,
and sedimentation."
The Wisconsin legislation goes on to provide that the regulations
may be enforced by other landowners within the district or by
the county, all of whom may seek injunctive relief from the
local circuit court. There is no provision, however, for the
district supervisors to enforce their own regulations.
The soil conservation district legislation in six other
states with land use authority provides for enforcement of the
regulations promulgated. West Virginia and Virginia legis-
lation provides that the district supervisors may sue: in equity
for nonconformance with land use regulations. The supervisors
also have the right to enter and inspect for compliance.
Texas amended its soil conservation district statutes to
authorize the promulgation of land use regulations. The
district supervisors are empowered to enter privately owned
land to investigate for compliance with land use regulations.
61
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The enforcement provisions in the Texas legislation are similar
to those found in West Virginia. When the supervisors find
a landowner in noncompliance, they may petition a court with
jurisdiction to either order the landowner to undertake neces-
sary work or to cease from improper activities. The court may
order the district to undertake the required work itself and
then to assess costs against the landowner.
The Michigan legislature did not enact legislation author-
izing district soil conservation supervisors to promulgate
land use regulations; however, the Michigan legislature has
enacted a Soil Erosion and Sediment Control Act which auth-
orizes regulations to be promulgated on the state level to
control all major earth-moving activities except logging and
mining. Agricultural activities come within the scope of this
act, and enforcement is left primarily to the counties. Desig-
nated county agents may enter lands to inspect for compliance
with soil erosion and sediment control regulations. The state
or county may seek injunctions to bar inappropriate activities.
Permits may be obtained at the county level. Persons guilty
of violation of the sediment and erosion control regulations
p
are guilty of a misdemeanor, but the exact penalties are
not specified in the act.
Two states have enacted statutes specifically controlling
wind erosion. The Kansas Wind Erosion Statute imposes a duty
Q
upon landowners to prevent dust from blowing from land.
Where the landowner fails to fulfill this duty, the county
may order cultivation of the land in the specific manner and
restrict the times of the year during which the land may be
cultivated. The board may also order specific projects to
be undertaken to prevent or to minimize the blowing of dust.
If the county bears the initial cost for this project, the
landowner may then be assessed amounts sufficient to reimburse
the county-
The Texas Wind Erosion Statute10 is modeled upon
soil conservation district statutes, and wind districts •
62
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are empowered to prevent undue damage to the land from the un-
necessary movement of sand, dust, and soil from lands within or
without the district. To achieve this end the districts are author-
ized to construct improvements to prevent erosion caused by wind,
and the district's commissioners have the right to enter
upon any lands within the district for the purpose of treating
the land to prevent soil erosion. The governing body of each
district may charge the owners of the benefitted land for a
portion of the total cost of any projects undertaken.
Pennsylvania is not one of the states which was sur-
veyed for all purposes; however, the Clean Streams Law
in Pennsylvania was explored thoroughly. Under the provisions
of the Clean Streams Act which authorized the Pennsylvania
Department of Environmental Resources to regulate any activity
which creates a danger of pollution or has a potential for pol-
lution, regulations for controlling soil erosion and sedimenta-
12
tion from agricultural activities have been promulgated.
The following operations are considered agricultural activities
within the scope of the Clean Streams Law: Production of
vegetables, fruits, seeds, nuts, and nursery crops for sale,
production of field crops, tame hay or pasture, applicable
portions of state game lands, production of woodlot products
and crops in livestock research areas. The regulations per-
taining to agricultural activities promulgated under the Pennsyl-
vania Clean Streams Law require that each farmer with more than
twenty-five acres of land must prepare a conservation plan
which will be implemented upon all disturbed land surfaces.
The conservation plans for agricultural activities must be imple-
mented by July 1, 1977. These plans must reflect the current
agricultural operation. Technical assistance is available through
the conservation districts. Site inspections may be made at any
time by inspectors 'designated by the Department of Environmental
Resources.
The regulations under the act go on to provide basic plans
and standards for erosion and sedimentation control. Permits
63
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are required for most earth-moving activities conducted within
14
the Commonwealth of Pennsylvania; however, earth-moving activ-
ities involving the plowing or tilling for agricultural pur-
poses are exempt from the requirement of a permit. The regula-
tions do go on to provide that an activity, which does
not require a permit, must still comply with all other provisions
of the act and the regulations.
The Department of Environmental Regulation may delegate
administrative and enforcement duties to counties and other
local governments provided the unit of local government has
implemented an acceptable plan for administering the program.
The local government must supply an adequate and qualified
staff for the review of erosion and sediment control plans and
for the surveillance and enforcement of this chapter. The
Department retains the ultimate responsibility for the admin-
istration of the program. Agricultural activities apart from
plowing and tilling came within the scope of this act on Jan-
uary 1, 1974; plowing and tilling activities will not be con-
trolled under this act until July 1, 1977.16
All of the various soil conservation district statutes
and wind erosion statutes authorized the district or state
agency with responsibility for implementation to hire staff.
None of the legislation contains specific requirements or
limitations on staffing. Regulations promulgated under the
Pennsylvania Clean Streams law require local units of govern-
ment which wish to undertake enforcement of the act to hire
a qualified and sufficiently large staff to administer and
enforce the act effectively.
All soil conservation districts and the wind erosion
conservation districts in Texas are empowered to accept contrib-
utions, grants, state and Federal funds for the expenditure
of carrying out their purposes. 7 The Hawaii, Massachusetts,
New Jersey, North Dakota, Virginia and West Virginia statutes
provide only for the acceptance of Federal grants, contribu-
tions, and gifts to the soil conservation districts.18 There
are no provisions for other funding except as may be provided
64
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under specific charter grants or the constitution of the state.
Legislation in California, Minnesota, and Texas provides
the most generous fund for soil conservation activities.
California authorizes the soil conservation districts to raise
money by assessing landowners within the district on an annual
19
basis. The assessment which the districts may impose is
not to exceed two cents per one hundred dollars of assessed
value. The Minnesota legislation authorizes the state to
bear the regular administrative cost of the district and the
counties in which projects are undertaken to bear the cost of
the portion of each project carried out within its boundaries
The Texas legislation for soil conservation districts
allows the districts to retain any income from lease or sale
of lands and allows them to issue notes for a period of up to
21
one year in order to undertake projects. The wind conser-
vation districts in Texas have the greater powers in that they
may issue assessments based on the benefit to various landowners.
The districts are also entitled to receive a portion of special road
22
taxes, and they may issue bonds for up to periods of ten years.
Kansas authorizes the supervisors of each district to
prepare a budget request each year which is to be presented
23
to the county boards. The county is then to impose assess-
ments on landowners in order to raise the funds needed by the
district. Indiana, Michigan, and Wisconsin leave the
financial support of soil conservation districts unspecified
except for such state and county funds as which may be appropri-
24
ated on an annual basis.
The assessment provisions such as found in California
are the most effective means of providing funds on a regular
basis to the soil conservation districts. The imposition
of a ceiling on the assessment which the districts may make pro-
tects landowners from unexpected tax burdens. The assessment
mechanism which allows for collection of the district funds
through the property tax system provides a reasonably efficient
administrative design. Provisions such as those in Indiana
65
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which do not provide a steady and predictable source of income
to the districts severely limit the effective planning of pro-
jects which those districts may undertake. The budget submission
mechanism provided for under the Kansas legislation falls some-
where in between the provisions of California and Indiana in
terms of assuring the effectiveness of the soil conservation
districts. When the soil conservation district statutes were
enacted, the prevailing idea was to set up a voluntary struc-
ture which would provide some direction to soil conservation
efforts within the district. The acts were only intended
to authorize the voluntary banding together of individuals
into a district, in order to develop a conservation plan for
the district. Then the district, through its supervisors, would
undertake various activities with the consent of landowners to
implement the conservation plan. Landowners within the dis-
trict would be encouraged to undertake conservation measures
on their property. The encouragement of soil conservation measures
took the form of offering equipment and technical assist-
ance to landowners willing to undertake various soil conser-
vation projects.
Six of these states have not changed their soil conser-
25
vation district legislation since its inception. Thus,
the statutes in these states provide no mechanism for enforcing
the conservation plans developed in the district. Pennsylvania's
soil conservation district legislation has not been amended
2 6
to provide an enforcement mechanism, but with the enactment
of the Clean Streams Law the State Legislature did provide
a mandatory mechanism for controlling soil erosion and sedimen-
tation.27
x 28
Eight states amended their soil conservation district
legislation to authorize the district supervisors to promulgate
land use regulations for the district. In each of these cases
a mechanism was provided to insure compliance with the land use
regulations. Michigan legislators did not provide the power
to enact land use regulations to soil conservation districts.
66
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However, the legislature enacted the Soil Erosion and Sediment
29
Control Act which provided for mandatory controls.
The legislation in the nine states with enforcement pro-
visions authorizes the district supervisors of the responsible
agency to enter privately owned lands to inspect for compliance
with regulations issued under the statutes, Michigan and Pennsyl-
vania being the exceptions in this case. Having established the
mechanism for an initial determination of compliance and noncom-
pliance with the regulations, we now come to the question of
an enforcement mechanism.
Six state legislations provide for injunctions against
landowners who are in violation of the land use regulations.
The legislation in North Dakota, Texas, Virginia, and West
Virginia authorizes the district boards to go into court and
seek an injunction or a bill of equity. Activities con-
ducted in violation of land use statutes may be enjoined. Where
positive action must be taken to prevent soil erosion, the
districts in these States may petition the court for an order
directing the landowner to undertake the necessary work or for
an order authorizing the district to enter upon the land and
perform the required project. In all of the states where
the district undertakes the performing of a project under court
order on the land of a private landowner, the district may re-
cover the co'sts of the project and the legal proceeding.
Legislation in Michigan and Wisconsin empowers counties
to enforce the soil erosion .control regulations. The
Wisconsin legislation also allows private landowners to seek
injunctions to enforce land use regulations. In Pennsylvania
any activity, for which a permit is required and not obtained,
conducted in violation of the permit, is declared by the statute
32
to be a nuisance. Such a legislative declaration permits
the local law enforcement officer to stop such activities without
resorting to the court for a legal determination.
The criteria used for judging the effectiveness of various
penalty provisions is discussed in this report in
67
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the introduction and the following discussion will use the intro-
ductory material as a framework. Injunction and bill of equity
provisions which allow the promulgating and inspecting body to
seek the legal remedy are deemed to be more effective than
provisions which require another governmental entity to
seek legal action. Thus, under our system for judging effective-
ness, the legislation of North Dakota, Texas, Virginia, and
West Virginia is judged to be more effective for preventing
violation of land use regulations than that of Wisconsin. Under the
Michigan Soil Erosion and Sediment Control law, the counties
have the power to inspect and enforce. Therefore, the Michigan
style of statute falls into the first category.
The Wisconsin legislation provides for the seeking of
injunctions by private persons. This is on the surface a par-
icularly effective way of insuring the carrying out of regulations
since persons who would be at all harmed by the failure of the
landowner to comply with land use regulations would have a
speedy legal remedy at their disposal. However, no provision
is made for the cost to be borne by the party violating the
statute or by a specific fund. Therefore, private persons who
would seek such legal remedy would have to be suffering from a
substantial harm to undertake the economic burden of pursuing
the legal remedy. The Wisconsin legislation, while it allows
private persons to seek an injunction, does not provide for
33
the recovery of damages by the same persons. Legislation
in New Jersey and Utah authorizes landowners, who suffer damage
due to another landowner's failure to comply with land use
regulations, to recover damages for the failure to comply.
The Utah legislation is slightly more difficult for a landowner
to recover than under New Jersey's. In addition to establishing
damage to his property through failure to comply with land use
regulations, the landowner must also establish that the failure
to comply resulted in increased erosion. In New Jersey this
extra proof is not required, damages may be awarded simply
68
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for the failure to comply with land use regulations and
subsequent damage to a landowner's property.
Only three states which were searched provide for criminal
penalties under its soil conservation district statute.
Utah provides that persons found guilty of violating land use
statutes are guilty of a misdemeanor which is punishable by
a fine of $100 to $500 per offense.36 Erosion and sediment
control legislation in Michigan provides for a criminal
penalty. The Michigan legislation does not specify the actual
penalties but does say "the person found guilty of violating
regulations promulgated under the act or failing to secure
a permit when required for the conducting of land moving
37
operations is guilty of a misdemeanor."
The Pennsylvania Clean Streams Law provides that any
person or municipality who violates any provision of the act
or any rule or regulation is guilty of a summary offense and
upon conviction shall be subject to a fine of $100 to $1000 for
each offense and upon default in paying such fine may be subject
38
to imprisonment for a period of sixty days. The legislation
also goes on to provide that if within two years following
such a conviction, the person or municipality again violates
any provision of the act, rule, regulation or order of the
department, such person or municipality is guilty of a misde-
meanor and shall be subject to a fine of $100 to $5,000 for
39
each offense. The period of possible imprisonment in the
case of a second offense may be for as long as one year. The
Pennsylvania legislation also provides for the imposition of
40
civil penalties which are payable to the state. Civil
penalties assessed for violation shall not exceed ten thousand
dollars plus five hundred dollars for each day of continued
violation. In determining the amount of civil penalty the
willfulness of the violation, the damage or injury to waters of
the Commonwealth, the cost of restoration and any other relevant
factors shall be considered.
The penalties, both criminal and civil, which are imposed
by legislation in various states are all of a similar nature.
69
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The imprisonments or fines imposed under the legislation are
of a reasonable nature, and it is really not possible to say
whether a five-hundred dollar fine is more effective than a
thousand-dollar fine. The real key to the effectiveness of
penalties of this type is the manner is which the courts apply
them. It is not impossible to make this determination from
a reading of the statutes.
GRAZING
An agricultural activity which may be overlooked but
which can contribute signficiantly to problems of soil erosion
is the grazing of animals. North Dakota is the only one of
41
the states which was searched which has a grazing law.
The North Dakota legislation provides for the organization
of cooperative grazing associations which are authorized to
coordinate with the Federal and state government in conserving
restoring and developing forage resources and granting grazing
permits in order to assure a safe policy of forage conserva-
tion. The North Dakota legislation specifies no public or
private remedies or provisions for civil or criminal penalties
It is merely a cooperative effort to coordinate and encourage
wise grazing practices. In terms of measuring such legislation
as a possible tool for helping in the control of nonpoint source
pollution, all that can be said is that it would be a vehicle
for educating members of grazing associations to the problems
and possible solutions of pollution growing out of grazing
activities. However, the legislation as it stands now provides
no effective mechanism for helping abate nonpoint source pollution,
ECONOMIC POISONS, PESTICIDES AND HERBICIDES
Economic poisons and pesticides are often used interchange-
ably; however, some states, such as New Jersey and Utah, have
enacted legislation for both economic poisons and for pesticides.
An economic poison is any substance or mixture of substances
labelled or designed for use in preventing, destroying, repelling
or mitigating insects, rodents, predatory animals, fungi, weeds,
70
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and other forms of plant, animal life or viruses, except viruses
on or in living man or other animals, and any other substance
intended for use as a defoliant or deflorant. Pesticides have
been defined simply as chemicals or other substances which were
used to destroy plant and animal pests. Herbicides are chemicals
used to prevent, destroy or repel the growth of unwanted plant
life.
Water pollution attributable to the use of economic poisons,
pesticides and herbicides are really the same. There may be
runoff immediately following application of such substances,
or there may be delayed runoff when such substances settle in
the soil and do not decompose. If soil containing such sub-
stances is disturbed, runoff can occur at that time. The run-
off of such substances may affect plant and animal life, includ-
ing human beings, at any stage of the hydrologic cycle.
In this section we are examining only the pesticide statutes
from California, Hawaii, Indiana, Kansas, Massachusetts, Michigan,
Minnesota, New Jersey, North Dakota, Texas, Utah, Virginia,
West Virginia and Wisconsin. Since the legislation dealing
with economic poisons, pesticides and herbicides is so closely
related, laws dealing with all these topics will be discussed
together; the specific subject of each statute will be identified.
Most states have more than one statute which deal with the
regulation of economic poisons, pesticides, and herbicides.
For example California has a statute dealing with economic
poisons and a statute dealing with restricted materials. Where
there is more than one statute in a particular state, it will
be noted; however, the statute which has the most potential for
controlling adverse water contamination resulting from the use
of such substances will be emphasized and discussed in greater
detail.
All fourteen states searched have some kind of legislation
dealing with the regulation of economic poisons or pesticides.
71
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Most of that legislation, when it was conceived of and enacted,
was concerned with the proper labeling of economic poisons
and with preventing the sale and distribution of adulterated
products. Much of this legislation has been amended to include
control over use and restriction on substances employed in
the control of pests.
Seven states, California, Hawaii, Kansas, Massachusetts,
New Jersey, Utah and Virginia, have enacted legislation which
controls the use of pesticides and/or economic poisons and
which provides for the restricted use or banning of such sub-
stances where their continued use will be damaging to the environ-
42
ment or would contaminate the State's waters. The Kansas Pest-
icide Use Law was enacted with the express purpose of preventing
43
injury to men and the environment through the use of pesticides.
The New Jersey legislature noted that although great benefit had
been derived from the use of pesticides, indiscriminate use
44
threatens the environment and therefore should be controlled.
The New Jersey Pesticide Control Act empowers the Department of
Environmental Control to promulgate regulations and issue orders
controlling the sale and use of pesticides which might have an
adverse effect on the environment or on man. The Department is
empowered to conduct inspections in order to determine compliance
with its regulations and orders. The Department is also empowered
to enforce its authorizing legislation by seeking injunctions
45
from any court of competent jurisdiction. Courts with juris-
diction to issue injunctions may also, after final determination
impose fines of up to $3000 per offense.
The California Restricted Materials legislation speci-
fically addresses immediate water contamination from drift or
runoff of pesticides and subsequent contamination from persistent
residues in soils. The California legislation empowers the De-
partment of Agriculture to promulgate detailed use regulations
for restricted materials, including pesticides with adverse
72
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environmental effects. Permits are required for any application
of restricted material; however, farmers are exempt from the per-
mit requirement when applying restricted materials on their own
farms. Since agriculture is one of the major users of pesticides,
this exemption of farmers prevents the Restricted Materials legis-
lation from having as great an impact as it might have had, had
farmers been regulated in the same way as any other persons em-
ploying restricted material.
47
The Massachusetts pesticide legislation authorizes
regulations controlling methods of application and use of pesti-
cides in order to protect the public health and the public in-
terest in wildlife and water resources. It also requires anyone
applying regulated materials by aircraft to be licensed. Under
this legislation, however, farmers are exempted from the licens-
ing requirement when applying pesticides by aircraft, although
they must register on each occasion of aerial pesticide applica-
tion.
With the exception of California and Massachusetts, whose
pesticide statutes specifically limit the application of re-
strictive regulations to individual farmers, the pesticide
statutes which specifically acknowledge prevention of environmen-
tal damage as a goal have similar provisions. All the state
legislation considered requires the registration of pesticides
or economic poisons. The agency with regulatory responsibility,
usually the State's department of agriculture, is empowered to
promulgate regulations restricting the sale, the time of sale,
the method of application and the uses to which specific pesti-
cides may be put. California, Hawaii, Kansas, Massachusetts,
and Utah all require the licensing of individuals who apply
economic poisons or pesticides for hire. The statutes, which
provide not only a regulatory scheme for pesticide use and methods
of application but also license commercial applicators, provide an
effective means of controlling water pollution from the use of
pesticides and economic poisons.
73
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Three states, Indiana, Michigan and North Dakota, while not
addressing themselves directly to the adverse environmental
effects of economic poisons or pesticides, establish criteria
for restricting their use. When an economic poison is placed
on the restricted list the legislation provides for the limiting
of uses and methods of application. Indiana has two laws
regulating the use and sale of economic poisons: the Indiana
49
Herbicides Law and the Pesticides Act. The Herbicide legis-
lation is primarily a registration and labeling act, and does
not provide for restricting the use or sale of herbicides. Su-
pervision of both the Herbicide Law and the Pesticide Act is
within the Office of the State Chemist. The Chemist may seize
or issue stop sale orders to dealers in herbicides who are selling
products which are improperly labelled or have not been registered
in the State.
The Indiana pesticide legislation is similar to that State's
herbicide legislation in that all pesticides must be registered
with the State and must meet certain labeling requirements.
However, after a hearing by the Pesticide Review Board, which
is established under the legislation, the State Chemist may issue
regulations restricting the sale, time of sale, method of appli-
cation, and the use to which restricted pesticides are put.
The State Chemist is authorized to promulgate regulations in
order to carry out his duties. The State Chemist or his agents
are also authorized to conduct inspections in order to assure
compliance.
The actual enforcement under the pesticide legislation
resides in the office of the prosecuting attorney of the county
in which the violations occurred. Conviction of a violation
under the Pesticide Act is a misdemeanor punishable by a max-
imum fine of $1000 for the first offense. Subsequent offenses
are punishable by maximum fines of $5000. The State Chemist
may also seek injunctions in order to prevent violation of the
Pesticide Act.
Michigan also has two acts which regulate the sale and
application of economic poisons. There is the Insecticide,
74
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Fungicide, and Rodenticide Act which is similar to the legis-
lation in Indiana, and there is legislation regulating the sale and
52
distribution of economic poisons. Economic poisons must
be registered with the State and the Department of Agriculture
may place economic poisons on a list of restricted pesticides
after a hearing has been held. Regulations may be adopted
restricting the time and conditions of sale and the use of
restricted pesticides.
Special licenses are required for dealers selling re-
stricted pesticides. Applicants for a license to sell restricted
pesticides must establish their knowledge of the laws and rules
governing the use and sale of restricted economic poisons
and their responsibilities in carrying on the business of a
restricted use pesticide dealer. Violations of the act are pros-
ecuted by the local prosecuting attorney. Michigan legislation
regulating the application of economic poisons requires persons
who are in the business of applying such poisons to be licensed
by the State. In order to obtain a license applicants must
pass an examination demonstrating their knowledge and understanding
of the effects of economic poisons, the susceptability of econ-
omic poisons to wind drift and knowledge of the use of equipment
employed in the application of economic poisons. This legislation
however, does not apply to farmers when applying economic poisons
on their own or on neighboring farms in exchange for other services.
North Dakota's Insecticide, Fungicide, and Rodenticide
54
Act of 1947 requires the registration of economic poisons with
the State Food Commissioner and Chemist. The legislation specifies
labeling requirements and registration of manufacturers or dis-
tributors. The legislation does provide for the State Food Com-
missioner and Chemist to hold hearings during which they may deter-
mine whether an economic poison should be placed on the restricted
use list. The Commissioner may promulgate regulations specifying
the use and method of application for restricted economic
75
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poisons. Violations of the Indiana legislation are misdemeanors
punishable by a maximum fine of $300.
The legislation in Indiana, Michigan and North Dakota pro-
vides statutory framework which could be used to control adverse
environmental effects resulting from the use of various pesticides,
While environmental considerations are not specifically included
within the considerations which allow the restricting of various
economic poisons, such considerations are not too far removed
from the language of the statutes, usually to protect the public
health and welfare. Protecting the public health and welfare
can be read to include protecting the environment and thus pro-
tecting the public interest. The Michigan legislation spe-
cifically exempts farmers when using restricted use pesticides
for their own use or on a neighboring farm. Since agricultural
activities are a major source of contamination from pesticides
such an exemption seriously weakens the effectiveness of the
legislation as a means of controlling water pollution from
pesticides.
Wisconsin's legislation regulating the use of pesticides
provides for the registration of all pesticides sold within
the State. Registration may be revoked by the Department
of Agriculture if it finds a particular pesticide to be an exces-
sive hazard. The department may also issue regulations govern-
ing the use and method of application when granting registration
to a pesticide in order to reduce the hazards which might result
from its use. The penalties in Wisconsin provide for minimum
fines of $100 to $200 and/or thirty days imprisonment for the
first violation and ninety days imprisonment for subsequent vio-
lations.
Two states, Minnesota and Texas, have legislation which
merely requires the registration of economic poisons sold within
the State and sets minimum labeling requirements. Minne-
sota and Texas both have additional legislation which requires
76
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the licensing of individuals who apply economic poisons or pesti-
cides for hire. The Minnesota legislation provides that the
Commissioner of Agriculture may issue regulations prescribing
the methods to be used in the custom application of pesticides.
"The regulations may relate to the time, place, manner
and method of application of pesticides, may restrict
or prohibit the use of materials in designated areas
during specified periods of time and may encompass
all reasonable factors which the Commissioner deems
necessary to prevent damage or injury to: (1) Plants,
including forage plants, on adjacent or nearby lands;
(2) Wildlife in the adjoining or nearby areas; (3)
Fish and other aquatic life in waters in reasonable
proximity to the area to be treated; (4) Pollinating
insects, animals, or persons."
The language of the Minnesota statute appears specific enough to
provide a satisfactory statutory framework for controlling
contamination of waters resulting from the application of
pesticides by licensed commercial operators; however, the
Minnesota legislation specifically exempts farmers applying
pesticides to their own property or for hire within fifteen
miles of their own farm.
59
The Insecticide, Fungicide, and Rodenticide Act of Texas
requires the registration of all economic poisons sold within
the State. The legislation is similar to others previously
discussed. It prescribes minimum labeling requirements and
prohibits sale of adulterated economic poisons.
In 1971 the act was amended to authorize the Commissioner
of Agriculture, after a hearing and notice, to cancel the
registration of or refuse to register any economic poison
which has been demonstrated to have serious uncontrollable
adverse effects "within or without" the agricultural environ-
ment where the use of the economic pesticide is of less public
value or greater detriment to the environment than the other
benefits received by its use even when properly applied.60
Texas also has special legislation regulating the sale,
use and application of herbicides. This act, however, is
limited only to applications of herbicides and applies only,
77
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in specified counties. In other counties there are no speci-
fic controls on herbicides except for the provisions of the
Insecticide, Fungicide, and Rodenticide Act. The herbicide
legislation requires all persons applying herbicides to a
total acreage of ten or more acres in any calendar year to ob-
tain a permit. All custom appliers of herbicides must be
licensed. Each application of a herbicide requires the acqui-
sition of a permit, except where the application is to a lawn.
The Herbicide Act however does not specifically authorize the
regulation or restriction of certain herbicides, the method of
application or the use. Violations of the Herbicide Act are
punishable by fines of $100 to $2000 and/or thirty days impri-
sonment .
The only state which was searched which did not have some
legislation regulating the application of pesticides or those
commercially applying pesticides was West Virginia. West Vir-
fi 2
ginia's Pesticide Act of 1961 provides for the registration
of economic poison and sets labeling requirements for those
sold within the state. There are no provisions for restricting
the sale, or for limiting the use of specific poisons. The
Department of Agriculture is authorized only to seize adulter-
ated, mislabelled or unregistered economic poisons which are
sold within the State. There appear to be no provisions in
the West Virginia legislation which could in any way be con-
strued to authorize the regulation of the sale or use of pesti-
cides in order to prevent environmental contamination.
SPRAYING AND DUSTING
Only three of the states searched, Minnesota, North
Dakota, and Utah, have legislation regulating the spraying
and dusting of crops apart from legislation regulating the
sale of economic poisons. The Minnesota Spraying and Dusting
Act, requires the crop spraying to be done with chemicals
which have been approved by the Commissioner of Agriculture.
78
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The Commissioner of Agriculture is also authorized, to promulgate
rules and regulations with respect to the spraying and dusting
of crops. Among the considerations which the Commissioner
is to keep in mind when promulgating regulations is the
need to prevent damage to aquatic plants and animals by restrict-
ing the use of specific chemicals. A license is required for
crop dusting, with particularly stringent controls in effect
when spraying is to be undertaken near public waters. The Com-
missioner is also authorized to inspect for the use of proper
equipment and chemicals.
An applicator's license may be revoked after notice and
hearing for violation of any provisions of the statute. The
Commissioner may also seek injunctions to prevent violation of
rules and regulations as well as provisions of the statute.
The spraying and dusting legislation authorizes individuals whose
crops have been damaged by the application of a pesticide to
file a statement with the Commissioner of Agriculture.
North Dakota legislation providing for the regulation of
crop spraying places such activities under the jurisdiction of
64
the Aeronautic Commission. Individuals wishing to spray
crops from an aircraft must obtain a license from the Commission.
The Commission has the authority to promulgate rules and regu-
lations with respect to the spraying of crops in order to insure
the safety and protection of persons and property. Any person
violating the statute authorizing the Aeronautic Commission to
regulate aerial spraying or any rule or regulation promulgated
by the Commission shall be punished by a fine not to exceed
$100 and/or imprisonment for not more than thirty days.
The Utah legislation declares it unlawful for anyone
to spray crops with a poisonous material without giving written
notice to property owners or public officials. The statute
does not proivde for any controls on the spraying of crops.
While neither the Minnesota nor North Dakota statutes
specifically provide for consideration of the environment in
the regulating of crop spraying and dusting, the language
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of both statutes is sufficiently broad that such considerations
could be taken into account in promulgating regulations which
control or restrict the manner in which pesticides are applied
by aerial spraying and dusting.
FERTILIZERS
Another major source of water pollution from agricultural
activities comes from the use of fertilizers and soil condi-
tioners. Twelve of the fourteen states searched have legis-
lation dealing with the sale, registration and manufacture of
fertilizers. The primary concern of all of the legislation
dealing with regulation of commercial fertilizers is to require
registration of dealers or manufacturers of commercial ferti-
lizers, to set minimum standards for analysis and labeling
and to assure appropriate branding and packaging of the ferti-
lizers.
Only three of the twelve statutes which were analyzed
have any mention at all of restricting the use or sale of in-
appropriately labeled and registered commercial fertilizers.
In California, Massachusetts, and New Jersey, the Department
of Agriculture is authorized to refuse registration to fertili-
zers which may be injurious to beneficial plant life when pro-
perly used.
The legislation in the other nine states is primarily
labeling legislation. There are no provisions in those statutes
which might be construed to authorize restricting the use of
various fertilizers in order to prevent nonpoint source water
pollution. Therefore, these statutes will not be discussed.
The legislation in all twelve states pertaining to the
regulation of commercial fertilizers provides for a system of
nominal fines and/or revocation of registration of licenses
to distribute fertilizer.
None of these penalties are aimed at preventing or con-
trolling activities which might result in water pollution.
80
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AGRICULTURAL LIMING
The problems associated with agricultural liming are
similar to those associated with respect to fertilizers. Mass-
achusetts and California include agricultural liming under the
68
same legislation as that which regulates commercial fertilizers.
The statutes do not differentiate between the use of lime and
fertilizers. Therefore, the discussion in the preceding sec-
tion with respect to those states are equally applicable to
activities involving agricultural liming.
Four other states, New Jersey, Virginia, West Virginia
and Wisconsin have specific legislation dealing with agricultural
69
liming. As with most of the commercial fertilizer legisla-
tion the agricultural liming acts are primarily concerned with
registration and appropriate labeling of such substances.
However, the New Jersey and Virginia Agricultural Liming Acts
prohibit the sale of any agricultural lime which contains
toxic materials in quantities injurious to plants or animals;
however, it does not appear that there was any intent on the
part of the legislature when the statutes were enacted to con-
trol pollution resulting from the use of agricultural lime.
The West Virginia and Wisconsin Agricultural Liming Acts
are strictly labeling and registration legislation, and contain
no provisions which might be useful in the controlling of non-
point source water pollution from agricultural activities as a
nonpoint source.
81
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FOOTNOTES
AGRICULTURE
^California, Indiana, Kansas, Massachusetts, Michigan, Minnesota, New
Jersey, North Dakota, Pennsylvania, Texas, Utah, Virginia, West Virginia,
and Wisconsin; Montgomery County, Maryland and Bellevue, Washington.
2Minn. Stat. Ann. H 40.005 (Supp. 1973).
3Mich. Coup. Laws Ann. $t 2 82.101-. 117 (West 1967), as amended, (West
Supp. 1973); N.J. Stat. Ann. $ 4:24-23 (1973); N.D. Cent. Code $ 4-22-27
(1959), as amended, (Supp. 1974); Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's
1969), as amended. (Supp. 1974); Utah Code Ann. 2 62-1-9 (1968); Va. Code
Ann. i 21-66 (1960), as amended, (Supp. 1974); W.Va. Code Ann. $ 19-21A-9
(1971); Wise. Stat. Ann. $ 92;09 (1972), as amended. (Supp. 1974).
*Wisc. Stat. Ann. $ 92.09 (1972), as amended, (Supp. 1974).
5N.J. Stat. Ann. $ 4:24-27 (1973); N.D. Cent. Code $ 4-22-34 (1959);
Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969). as amended. (Supp. 1974);
Utah Code Ann. $ 62-1-11 (1968); Va. Code Ann. $ 21-83 (1960). as amended.
(Supp. 1974); W.Va. Code Ann. $ 19-21A-10 (1971).
*>Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969), as amended, (Supp.
1974) .
7Mich. Comp. Laws Ann. U 282.101-282.117 (Supp. 1974).
8ld. 2 282.113 (Supp. 1974).
9Ran. Stat. Ann. ££ 2-2001 to 2-2011 (1964). as amended. (Supp. 1974).
. Rev. Civ. Stat. art. 165A-2 and 165A-3 (Vemon's 1969).
1:LPa. Stat. Ann. tit. 35,2$ 691.1-691.1001 (1964), as amended. (Supp.
1974).
12pa. Rules and Regs., tit. 25, H 102. 10-. 61 (1972).
13Soil Erosion and Sedimentation Control Manual for Agriculture, (1975:
Pennsylvania Department of Environmental Resources).
14ld.
15ld.
16Pa. Rules and Regs., tit. 25, $ 102.61 (1972).
17Tex. Eev. Civ. Stat. art. 165A-4, -2 (Vernon's 1969).
18Mass. Gen. Laws ch. 21, $ 24(7) (1973); N.J. Stat. Ann. $ 4:24-6
(1973); N.D. Cent. Code $ 4-22-06 (1959); Va. Code Ann. $ 21-62 (Supp.
1974); W.Va. Code Ann. $ 19-21A-8 (1971).
III-l
-------
19Cal. Pub. Res. Code $ 9026 (West 1956).
2°Minn. Stat. Ann. $ 40.072 (Supp. 1975).
23-Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969).
22id. art. 165A-2 (Vernon's 1969).
23Ran. Stat. Ann. $ 2-1907b (Supp. 1974).
24ind. Ann. Stat. $ 13-3-3-11 (1973); Mich. Comp. Laws Ann. $ 282.16 (1963)
Wis. Stat. Ann. $ 92.20 (1972).
25california, Indiana, Kansas, Massachusetts, Minnesota, and Pennsylv
vania.
26pa. Stat. Ann. tit. 3, $ 849-864 (1963), as amended. (Supp. 1973).
27See f.n. 11.
28Michigan, New Jersey, North Dakota, Texas, Utah, Virginia, West Vir-
ginia, and Wisconsin.
29See f.n. 7.
30N.D. Cent. Code $ 4-22-34 (1959); Tex. Rev. Civ. Stat. art. 165A-4
(Vernon's 1969); Va. Code Ann. $ 21-83 (1960), as amended, (Supp. 1974);
W.Va. Code Ann. $ 19-21A-10 (1971).
3lMich. Comp. Laws Ann. $ 282.641 (1963); Wis. Stat. Ann. $ 92.10 (1972).
32pa. Stat. Ann. tit. 35, g 691.503 (1964).
33wis. Stat. Ann. $ 92.10 (1972), as amended. (Supp. 1975).
34N.J. Stat. Ann. $ 4:24-27 (1973); Utah Code Ann. $ 62-1-11 (1968).
35Michigan, Utah and Wisconsin.
36utah Code Ann. $ 72-1-11 (1968).
37Mich. Comp. Laws Ann. $ 92.11 (1972).
38pa. Stat. Ann. tit. 3, $ 691.602 (Supp. 1973).
39id.
41N.D. Cent. Code $$ 36-08-01 to 36-08-09 (1972).
III-2
-------
42cal. Agric. Code U 12751-12994, 14101-14104 (West 1968), as
amended. (West Supp. 1974); Hawaii Rev. Stat. U 149A-1 to 149A-43
(Supp. 1974); Kan. Stat. Ann. U 2-2413 to 2-2437 (Supp. 1974); Mass.
Gen. Laws Ann. ch. 94B, $$ 11-22 (1972), as amended. (Supp. 1974); N.J.
Rev. Stat. $$ 13:1F-1 to 13:1F-14 (Supp. 1974); Utah Code Ann. W 44-30
to 44-40 (1971); Va. Code Ann. U 3.1-189 to 3.1-249 (1973).
43Ran. Stat. Ann. H 2-2413 to 2-2437 (Supp. 1974).
44N.J. Rev. Stat. 0 13:1F-1 (Supp. 1974).
45N.J. Rev. Stat. $ 13:1F-10 (Supp. 1974).
46cal. Agric. Code U 14101-14104 (West Supp. 1974).
47HaSs. Gen. Laws Ann. ch. 94B, W 11-22 (1972), as amended. (Supp. 1974).
48Cal. Agric. Code $ 14006.5 (West Supp. 1974); Hawaii Rev. Stat. $$
460J-1 to 460J-27 (Supp. 1974); Kan. Stat. Ann. $$ 2-2401 to 2-2411 (Supp.
1974); Mass. Gen. Laws Ann. ch. 94B, $$ 11-22 (1973); Utah Code Ann. t
4-4-17 (1973).
49Ind. Ann. Stat. U 15-3-1-1 to 15-3-1-16, 15-3-3.5-1 to 15-3-3.5 (1973).
50Id. $ 15-3-3.5-10 (1973).
51 Id. $ 15-3-3.5-23 (1973).
52Mich. Comp. Laws Ann. U 286.160-286.173, 286.411-286.420 (1967), as
amended, (Supp. 1973).
53id. t 286.413 (1967).
54N.D. Cent. Code $$ 19-18-01 to 19-18-11 (1971).
55Mich. Comp. Laws Ann. $ 286.412 (1967).
56Wis. Stat. Ann. $$ 94.67-94.71 (1972), as amended, (Supp. 1975).
57Minn. Stat. Ann. #0 24.071-24.077 (1963), as amended. (Supp. 1973);
Tex. Rev. Civ. Stat. Ann. art. 135b-5 (Vernon's 1969), as amended, (Supp.
1974).
58Minn. Stat. Ann. $$ 18A.01- 18A.11 (Supp. 1973).
59lex. Rev. Civ. Stat. Ann. art. 135b-5 (Vernon's 1969), as amended.
(Supp. 1974).
6lTex. Rev. Civ. Stat. Ann. art. 135b-4, (Vernon's 1969)
62w.Va. Code Ann. $$ 19-16A-1 to 19-16A-13 (1971).
III-3
-------
63Minn. Stat. Ann. 22 18.031-18.036 (1963), as amended, (Supp. 1973).
64N.D. Cent. Code 2 2-05-18 (1959), as amended. (Supp. 1973).
65utah Code Ann. $ 4-3-5 (1971).
66california, Indiana, Kansas, Massachusetts, Minnesota, New Jersey,
North Dakota, Texas, Utah, Virginia, West Virginia and Wisconsin.
67cal. Agric. Code 22 14501-14552 (West 1968), as amended, (West Supp.
1974); Mass. Gen. Laws Ann. ch. 128, 02 64-83 (1974); N.J. Rev. Stat. 22
4:9-15.1 to 4:9-15.42 (1973).
68id.
69N.J. Rev. Stat. 22 4:9-21.1 to 4:9-21.10 (1973); Va. Code Ann. 22
3.1-126.1 to 3.1-126.130 (Supp. 1974); W.Va. Code 22 19-15A-1 to 19-15A-10
(1971); Wise. Stat. Ann. 2 94.66 (1972).
III-4
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BUILDING AND CONSTRUCTION
According to an Environmental Protection Agency (EPA) study,
each year construction of new highways, dams, power plants, housing
developments and other construction activities use up more than
400,000 hectares (about 1,000,000 acres) of land, much of which
had been previously utilized for the production of food, feed,
fiber crops, and timber while serving as elements of water recharge,
wildlife and recreation systems.
Construction activities incidental to the development of land
and water resources represent a major nonpoint or area source of
surface water contaminants. Contaminants attributable to construction
activities can be prevented by the timely utilization of empirical
structural and soil stabilization measures presently available.
According to EPA studies, pollution control plans for the construc-
tion activities should follow certain basic procedures which include:
1. Planning structures and vegetation rehabilitation
measures which will protect environmentally vul-
nerable areas.
2. Controlling the speed and volume of runoff water
from construction sites with detention of storm
water and utilization of diversion structures to
divert water from graded areas.
3. Trapping sediment on site.
4. Stabilizing exposed soils by timely site grading,
seeding, and mulching coupled with stage grading,
and sodding.
5. Determining the extent of the need for water pol-
lution abatement before construction begins.
6. Specifying water pollution abatement procedures in
the construction contract.
7. Preparing water quality control plans as part of
development and building construction programs to
minimize stream turbidity, changes in stream, flow,
and limit the movement of oils, waste water, fuels,
aggregate leach water, mineral salts, pesticides
and other contaminants into waterways.
82
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8. Outlining procedures for the maintenance and in-
spection of structural and vegetative controls
graded areas, borrow pits, dredge spoil areas,
and soil stockpile areas, among others, on a
periodic basis and making such procedures part of
the construction contract.
In view of the conclusions reached by the EPA studies, the
Contractor has directed its research efforts toward consideration
of state and local legislation which can be called upon to effect
the necessary, prevention and abatement of water pollution, from
contruction activities. Since planning for pollution control from
nonpoint sources of water pollution is but a single facet of compre-
hensive planning for land and water resource management, those
state statutes which authorize planning agencies and municipalities
to control construction activities through the approval of archi-
tectural and engineering drawings and specifications are generally
relevant to any local program for control of water pollution from
building and construction activities as nonpoint sources. There
can be little doubt that provision for water pollution control
practices should be a condition of every building permit granted by
a municipality and that such practices should generally follow
approved methods developed over many years by the Soil Conservation
Service and other Federal and state agencies.
EPA studies suggested that specific instructions as to struc-
tural and vegetative soil stabilization practices should be
included in every construction contract, but also pinpointed out
the need for additional control as the project develops. Since the
need for water pollution abatement measures is determined by the
nature and characteristics of each site relative to its surrounding
regional ecological system, water quality control plans should be
prepared to minimize stream turbidity and changes in stream flow
temperature, while contamination by oil, waste water, aggregate
wash water, pesticides and other materials can be controlled by ade-
83
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quate erosion and sediment control measures.
It is obvious that the most effective legal controls of water
pollution from construction activities will be those that permit a
regulatory agency, municipality or other governmental or quasi-
governmental body to monitor the activities until completion and
modify the terms of any permit or license granted throughout the
term of the construction in accordance with some definitely measur-
able criteria, such as stream flow characteristics or water quality
measurements.
Computer and manual searches of fourteen states and one county
have yielded forty-six statutes enabling state administrative agen-
cies and local governmental units, such as counties, cities, muni-
cipalities, villages and towns, and other municipal subdivisions to
regulate construction'. Thirty statutes deal with the powers of
local governmental units and their subdivisions and sixteen deal
with state administrative agencies in general. All forty-six
statutes could be interpreted as means of controlling construction
activities in order to abate water pollution. These statutes
either grant a state administrative agency or a local governmental
entity the power to construct or the power to regulate construction,
and they have been categorized according to the subject matter to
facilitate comparison. The authority to construct or to regulate
construction is based on the police power of the state to protect
public health, safety and welfare.
STATUTES CONTROLLING WATER POLLUTION
Twelve statutes specify the reduction or elimination of water
pollution as the objective of the regulatory scheme. California's
Subdivision Map Act grants to the legislative bodies of cities and
counties, the power to regulate by ordinance the design and improve-
ment of subdivisions in order to ensure proper grading and to
prevent sedimentation, a nonpoint source water pollution process.1
84
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In Michigan the Director of,the State Department of Natural
Resources is authorized to issue permits for the construction of
dams only after the land to be flooded is properly cleared and only
if the dam will not "have a significant adverse effect on fish,
X
wildlife, ... or infringe the public rights in state waters.^ The
public rights language invokes the trust doctrine which, in this
case, means that the public has an interest in unpolluted State
waters. Under Michigan's Great Lakes Submerged Lands Acts, the
Department of Health may object to the Department of Conservation
granting a permit for filling in submerged unpatented lands or for
constructing an artificial waterway opening into the Great Lakes.
The Department of Conservation must find that the project will not
injure the public interest and trust in the unpatented lands, around
and in the Great Lakes, including bays and harbors which are held in
trust by the State. No standards are set in the statute, but the
Department is to formulate its own standards by invoking the trust
doctrine to consider whether, a proposed project's increase in water
4
pollution mandates against project approval.
A New Jersey provision authorizing the Commissioner of the
Department of Transportation to adopt rules and regulations for the
construction, reconstruction and maintenance of State highways has a
companion provision which provides for compensation by the State, of
private parties for contamination of a potable well water supply if
the contamination is caused by the Department's road construction
activities.
In North Dakota, the Public Service Commission is authorized to
set standards for fences and railroad crossings constructed by
railroads doing business within the State. These companies are
required to restore nearby streams or watercourses to their
preconstruction condition.
The Commissioner of the Department of Natural Resources of
Massachusetts has the power to regulate or prohibit the dredging,
filling, removing or otherwise altering or polluting of inland
85
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wetlands. The use or improvement of lands and water for agri-
cultural purposes is exempt from regulation by the Commissioner.
The statute expressly prohibits anyone from polluting or altering
water flows or water levels in a manner that injures fish or fish
spawn without a permit, unless such a person is acting with
Q
appropriate authority to provide public water supplies.
In West Virginia, the Commissioner of Highways has the
authority to promulgate rules and regulations preserving methods for
road construction, best suited to curb construction-related
9
pollution. The Commissioner may issue specific orders as well as
promulgate rules and regulations. The Commissioner can enforce his
orders, rules and regulations by resorting to appropriate legal or
equitable remedies.10
In Virginia, cities, towns and municipal corporations may
regulate construction and may also protect their water supplies to
12
prevent them from becoming polluted. These regulatory powers
appear separately but could be read together to mean that a local
government entity may regulate construction to prevent pollution of
its water supply. Cities, municipal corporations, and towns have
the power to pass ordinances, impose penalties and seek equitable
remedies. Therefore, they could enforce regulations to abate
water supply pollution.
The Department of Natural Resources in Wisconsin has the power
to promulgate orders and regulations specifying methods of
construction, operation and the maintenance of special equipment for
dams and bridges in order to protect the public health and safety
and to protect property.14 Permits are required for dam
construction and are not to be issued if environmental pollution
would result. Hearings are required prior to the issuance of a
dam permit; the local county board is required to have a special
meeting to determine whether the public interest would be best
served by the dam. Municipalities are authorized to acquire,
construct or maintain dams across lakes or streams adjoining or
86
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within municipal limits. It can be inferred that municipalities
can regulate the construction or maintenance of dams to minimize
pollution. This chapter imposes civil liability for all damage to
persons and property resulting from failure to comply with the
standards. The Department is authorized to seek enforcement orders
in the courts.
The Department of Natural Resources is also empowered to review
county ordinances, enacted pursuant to §59.961, Wise. Stat. Ann.
Such ordinances zone shorelands near the highwater mark of navigable
waters. The ordinances are reviewed to ensure that they meet the
environmental standards enumerated in §144.26(1) of the Navigable
Waters Protection Law, which has as its purpose and policy water
pollution reduction. Counties which do enact such zoning or
ordinances would be able to control water pollution resulting from
building site activities and other land uses.
The Director of the Department of Community and Environmental
Development of King County, Washington, may regulate excavations,
18
grading and earthwork construction. The Director may issue
orders, grant permits, and approve plans and specifications.^
Section 6 prohibits grading without a permit; however, there are
exceptions to this rule. The statute contains fairly specific
operating conditions and standards for performance of cuts and fills.20
The Director can enforce the ordinances by suspending or revoking
the operating permit and by taking for satisfaction of enforcement
21
costs, the permittee's bond. Persons aggrieved by the Director's
22
actions may appeal to the King County Board of Appeals.
The purpose of this ordinance is to safeguard lives and
property and to minimize adverse environmental effects within the
23
country from construction activities. The most important adverse
environmental effect which can be minimized under the ordinance is
24
soil erosion, caused by surface water runoff. The ordinance does
not specifically mention water pollution, although there is a
provision governing the use of containing structures for fill
87
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deposited on tide or shorelands, which has been included in order to
further the objective of minimizing adverse environmental effects
25
including increased water pollution. A second King County,
O C.
Washington ordinance empowers the County Department of Public
Works and Transportation to establish and implement a surface water
runoff policy in order to minimize the deterioration in water
quality, to prevent the siltation of waterways, and to protect
2 7
property owners from damage due to surface water runoff. The
Department is authorized to issue permits or grant approval for the
following specified activities: grading, substantial development,
flood control zones, subdivisions and short slot development and
building permits. Permit and approval applicants must submit
drainage plans to the Department prior to receiving approval. Tne
above specified activities are unlawful if undertaken without a
29
permit. Under the ordinance, the Department may require specific
construction or maintenance to be undertaken and the posting of cash
and surety bonds by persons constructing runoff retention or
detention facilities or by government municipal corporations engaged
in developing or improving lands. The ordinance contains guide-
lines for drainage plans. The Department should be able to
enforce this ordinance by resorting to the county courts, but no
enforcement mechanisms are specified.
When the statutes which have been described above are compared
with one another, a few generalizations can be made. Generally, the
body with regulatory responsibility has adequate powers for the
promulgation of rules and regulations to set standards and
procedures to meet specific needs. In the cases of all twelve
statutes, the regulatory responsibility rests with an existing state
or municipal agency; thus, the funding for these regulatory
activities is taken care of under the normal budget and
appropriation process of the agency. The statutes, in most cases,
do not contain specific legislatively determined standards or
guidelines nor do they contain schemes for ensuring the enforcement
88
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of rules and regulations or statutes.
In order to evaluate the statutes, they must be examined with
the following questions in mind:
1. Do the statutes provide a proper place for the
inclusipn of experts in the regulatory scheme?
2. Does the purpose of the legislation make clear the
legislatively determined need for a broad, regulatory
scheme in order to assure the public health, safety
and welfare?32
A positive answer to the first question indicates that the
regulatory process should be able to deal with complex issues. A
positive answer to the second question means that, in effectuating
the purpose of the statute, compliance with the regulatory scheme
may be sought through use of the police powers of the government.
From the general grant of police powers, many additional specific
powers may be inferred from the implications of the statute or from
a reasonable and broad interpretation of the statute.
Two statutes lack provisions for the promulgation of rules and
regulations. Under Wisconsin's Chapter on Town Highways, the town
superintendent of highways or, if there is no superintendent, the
town board has the power to supervise the construction of town
highways and bridges, under the direction of the County Highway
Commission and the State Highway Commissioner.
Thus, in accord with State and county regulations, towns may
set procedures and standards for construction of highways within
their boundaries. However, under King County, Washington's
Ordinance No. 2231, no provision for controlling construction of the
State or county highways or private roadways exists. ^ The
ordinance does not expressly grant to the Department of Public Works
and Transportation the power to promulgate rules and regulations.
Since the Department has the power to issue permits and
approvals for specified activities, and since the Department is to
take care that the statutory guidelines for drainage plans are
followed, it has been given a regulatory administrative function.
In order to establish and implement a surface water runoff policy
and to enforce it, the Department must have the power to make rules
89
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and regulations. The lack of express powers necessary to carry out
the purpose of the law results in implied powers. Each of the other
nine statutes contain express provisions for the promulgation of
rules and regulations.
Five Of the twelve statutes include construction standards or
authorize the regulatory agency to set standards. Of the remaining
seven statutes not expressly given the power to promulgate
standards, four have a permit or licensing statutory provision.
Broad discretion to regulate or control an activity or conduct
investigations is the modern trend in licensing. Consequently,
those provisions conferring licensing power on an agency would, as a
necessary accompaniment, imply the power to promulgate standards.
The Michigan Department of Conservation, the Commissioner of the
Massachusetts Department of Natural Resources, cities and towns
(municipal corporations) in Virginia, and King County in Washington
•3 Q
have the power to issue licenses or permits. Standards could be
inferred from the general statutory scheme for the remaining two
statutes. The Commissioner of the Department of Transportation of
39
New Jersey has control of State highways and highway construction;
the Michigan Department of Natural Resources regulates dams and dam
40
construction. The Commissioner and the Department have been
granted jurisdiction and control over highways and dams,
respectively. Standards would have to be implied to effectuate the
purposes of these statutes.
King County has a liability insurance requirement which
requires prospective permittees to assess building water runoff
retention or detention facilities. This requirement appears to be a
laudable safeguard to owners of property adjoining these facilities
that prospective losses from mishaps will be met by the builder-
41
permittee. Similar provisions could be adopted elsewhere.
Enforcement schemes vary in the twelve statutes under
discussion, from no mention of enforcement to authority to seek
appropriate remedies in the local courts. None of the statutes'
90
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enforcement schemes are complete. In Michigan, the Department of
Natural Resources may request the State Attorney General to
prosecute persons constructing or permitting third persons to
construct.dams without a permit. The Department may seek
42
prosecution of persons violating a provision of the act. Both
actions are misdemeanors usually punishable by fine. The Director
can order that a dam be repaired or dismantled, if a dangerous ,
condition exists. The power to grant a permit pursuant to
§11.422(2) of Michigan's statutes implies a power to suspend or
revoke it. Persons aggrieved by an agency action are entitled to a
hearing and a judicial review of the agency's final decision or
order. There is no specified tinjunctive relief, but it could be
implied. The (Michigan) Department of Conservation has the implied
power to seek State prosecution for a misdemeanor of persons engaged
in filling or modifying submerged Great Lakes' lands or waters
without a permit.44 This provision specifies a penalty of a fine not
exceeding $1000 per violation and/or imprisonment for a term not
exceeding one year. Unlike the enforcement provisions for the
Department of Natural Resources, there is no section making the
violation of any statute provision a misdemeanor. As in the
previous section, there is an implied power to revoke permits issued
by the Department of Conservation. Hearings to determine fraud by
permit applicants are held by the State Administrative Board. The
power to issue orders is interpreted not to include stop work
orders. As in the previous statute, the Director can make
inspections. Hearings and reviews of final departmental decisions
are again implied.47 Injunctive relief, though not express, could be
implied as it is for the Department of Natural Resources. Each
statute will be discussed in conjunction and comparison with
Michigan's Great Lakes Submerged Lands Act, previously discussed.48
The State Commissioner of the Department of Transportation of
New Jersey does not appear to have any express enforcement powers.
Private property owners, whose potable well water supplies are
91
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contaminated by Department road construction are entitled to
compensation from the Commissioner for the procurement of a
substitute water supply or for the construction costs of a new well.
49
The Commissioner is granted a right of entry. There are also
provisions providing for criminal prosecution and'equitable
remedies. The Department has complete control of construction when
it executes and performs as an independent contractor. The
provisions pertaining to the Department as an independent contractor
provide no public, private or agency civil remedies, and there are
no prohibited acts.
The Public Service Commission of North Dakota has the express
power to seek an injunction or other suitable equitable relief in
enforcing its rules, regulations and statutory standards. Persons
aggrieved by the Commission's actions are entitled to a hearing;
52
appeals from final decisions are made in the District Court. There
are no public or private remedy provisions. There is a prohibition
against railroad companies failing to maintain or construct
crossings and fences, which is a misdemeanor subject to a fine of
between twenty-five and one-hundred dollars per violation. The
Commission has an implied power to make inspections, since this
would be necessary to the regulatory scheme.
In Massachusetts, the Department of Natural Resources acting
through the Commissioner may enforce the act by injunctive or other
equitable relief. The State Attorney General, a city or town, or
the owner of property affected by the activity regulated may seek to
54
enjoin violations of the act. This provision, unlike any other
previously discussed, gives private property owners a civil cause of
action, in addition to common law relief. Cities and towns may act
on the public's behalf to enforce the act. The Department may issue
final orders, which are subject to enforcement by the courts.
Section 40 prohibits the removal, filling, dredging or altering
of any bank, wetland, or beach without an approval issued from the
Department. Persons are prohibited from throwing, discharging, or
92
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placing waste materials in State waters in violation of the
Massachusetts Clean Water Act; Section 42 of the Clean Water Act
prescribes fines and/or imprisonment for persons: discharging
wastes, violating any act provision, violating any regulation or
order, and making any false statement. Such violations are
misdemeanors.
The West Virginia State Highway Commissioner of the State Road
System is empowered to seek any appropriate legal or equitable
remedy in enforcing rules and regulations formulated to abate
construction-related pollution. Absent any provisions in the act,
persons aggrieved by agency action are entitled to a hearing and to
5 8
judicial review of final decisions. The Commissioner has the
implied power to inspect roads and airports which would aid in the
regulatory scheme. No violations are set out; there are no
penalties and no private or public remedies.
Municipal corporations, cities, and towns in Virginia have
powers granted under the State constitution and as specified in the
general laws. They also possess certain incidental and essential
powers. Cities and towns have the power to impose fines of up to a
maximum of $1000 and/or to impose imprisonment terms of up to one
59
year for violations of ordinances. Municipal governments may seek
equitable relief to prevent continuing violations of ordinances
through enforcement of the statewide building code. Cities and
towns have the historical inherent power to define and abate
62
nuxsances. They can make inspections where it is necessary to
effectuate a constitutionally valid regulatory scheme.
Cities and towns have the express power to prevent water pollution.
Counties and municipalities can regulate zoning by ordinance.
Municipal corporatibns, towns, and counties have the essential power
to sue and be sued. Given the fact that cities, towns, and
municipalities may pass ordinances, prescribe penalties, seek
equitable relief and sue and be sued, they could specify in more
detail their own remedies or public remedies for the enforcement of
93
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regulations to prevent the pollution of water supplies, to control
construction, to prevent construction-related pollution of water
supplies, or to enforce regulations governing any other construction
activity which could cause point or nonpoint source water pollution.
In Wisconsin, the Department of Natural Resources may order the
owner or person in charge of a bridge or dam to make alterations or
repairs necessary to place the structure in compliance with the
act. The Department may inspect claims and, if found unsafe or
not in compliance, can cause water to be drawn off the dam to pre-
vent mishaps. An initial complaint may be filed by any executive
officer of a city, town, or village, but the Department can make
inspections without a complaint being filed. Private citizens or
the State may seek to enjoin the construction or maintenance of a
fi Q
dam that is in violation of the provisions of the act.
Section 31.2G imposes civil liability for all injury to persons
or to property resulting from failure to comply with standards
outlined in 31.18(i). Judgments against the owner are liens on the
dam or bridge in question. Presumably, the Department can revoke
a permit issued for the construction, operation and maintenance of a
dam for violation of permit conditions and statutory regulations,
orders, and standards. Since the Department issues standards and
promulgates regulations, it can be inferred that it also has the
power to seek injunctive relief. The Department is not given the
power to prescribe civil or criminal penalties for provision
violation. The statutory scheme is dependent on injunctions and
civil damage actions and has no penalties for statute violations.
In Wisconsin, where counties have the power to enact zoning
ordinances for shorelands near the highwater mark, enforcement
powers are among the general powers given counties of the State.
Counties have the necessary powers as corporate bodies to sue and be
sued and to pass ordinances.71 Section 59.025 states that in
addition to the powers granted counties, they are to have the
organizational ability and authority in favor of rights and
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privileges to organize and administer county functions. Counties
may require permits with specified conditions attached. Counties,
out of implication, must be able to prescribe penalties for viola-
tion of ordinances and to seek injunctive relief against ordinance
72
violators. Provisions may be enacted which will allow private
citizens to initiate enforcement proceedings or legal actions.
Persons aggrieved by a decision of the county zoning authority may
be heard by the County Board of Adjustment. Counties also have
74
the general police power to define and abate nuisances. Counties
in Wisconsin have the power to prescribe by ordinance, adequate
enforcement measures which could include: provisions for civil
damages to property owners, citizen complaint investigation, civil
and criminal penalties, equitable relief and administrative
sanctions.
The Director of the King County, Washington Department of
Community and Environmental Development, in enforcing the grading
ordinance may abate conditions violating the ordinance in a civil
action. Stop work orders, and forfeiture to the county of surety
or cash bonds are actions that may be taken. The Director may
77
revoke or suspend a grading permittee's operating permit. Civil
78
penalties for ordinance violation are provided. A violation of
an ordinance provision is a misdemeanor. Each day a violation exists
counts as a separate offense. No fines or periods of imprisonment
for convicted violators are specified. There are no public or
private remedies or special complaint procedures. Persons who are
aggrieved by the Department's actions are entitled to a hearing by
79
the King County Board of Appeals.
The King County, Washington Department of Public Works and
Transportation is charged with administering Ordinance No. 2231.
The ordinance establishes a surface water runoff policy, and the
Department is given the power to issue permits and approve specified
activities and plans, although it has no specified enforcement
80
powers. Consequently, the Department's powers are implied from
the statutory scheme and are inferred as delegated by the county
legislative body. Counties are authorized to carry on county
95
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81
affairs; they have the necessary powers to sue and be sued and to
02
pass ordinances and resolutions. By implication, they have the
power to prescribe fines, periods of imprisonment, and civil remedies
83
for infractions or violations of their ordinances. They also have
the police power to abate public nuisances and in all likelihood, have
the power to suspend or revoke permits and to withdraw approvals. King
County could enact ordinances specifying civil damage remedies, civil
and criminal penalties, and public remedies to accompany this ordinance,
STATUTES NOT CONTROLLING WATER POLLUTION
These statutes either authorize a state or local administrative
agency or a local governmental entity to construct specified struc-
tures or to regulate construction of such. They do not make
provisions for an entity to adopt rules, regulations, standards, or
methods which will reduce or abate water pollution from point or
nonpoint construction sources. Though, if an agency or entity has
the power to regulate construction by imposing rules, standards,
regulations or methods, or by undertaking the construction itself,
that agency or entity, if it desires, could formulate and enforce
rules, regulations, standards and methods for the additional purpose
of protecting the public trust in state waters by reducing or
eliminating water pollution. These agencies or entities could use
their power to regulate construction in a manner which would reduce
or eliminate construction activity runoff from point or nonpoint
sources. The following statutes have been organized according to
the type of construction activity authorized or regulated. The
activities are briefly compared with each other within each type of
construction subgroup.
CONSTRUCTION OF ROADS, HIGHWAYS, STREETS AND BRIDGES
This category has the most entries. The majority concern an
agency's or logal government entity's power to regulate
construction.
Statutes Giving Agencies or Local Government Entities the Power to
Regulate Construction
96
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85
In Hawaii, the Director of the Department of Transportation
has the power to promulgate specifications, standards and procedures
for constructing streets, roads and driveways. A performance bond
of those persons doing contract work for State highway projects may
be required. The Director may issue special permits to dig up State
highways or to persons laying service facilities. Presumably, the
power to promulgate rules and regulations and to issue orders is
consonant with executing the office's duties. The act includes
specificatiohs for the excavation and the backfilling of trenches.
No penalties or other enforcement provisions are included. The
powers to prescribe fines and imprisonments, to seek injunctions, to
prescribe damages, liability, and to provide public or private
remedies must be inferred. Persons aggrieved by Department acts are
entitled to a hearing and judicial review of final decision.
The power to plan and supervise the construction, improvement
and repair of State highways in Indiana was granted to its State
86
Highway Commission. The Commission has the power to promulgate
rules and regulations and to enforce the provisions of the
87
chapter. There are no permit provisions. Like the Hawaii statute,
there are no penalties or other enforcement provisions. No
standards are mentioned in the act. It is inferred that the
Commission has the necessary power to issue orders, to prescribe
fines and imprisonments, to seek injunctions, to prescribe damages
liability, and to provide public and private remedies. The State
Administrative Procedure Code provides a right to a hearing and
judicial review of final agency orders for parties aggrieved by
agency action.
The Kansas State Highway Commission has the power to supervise
all construction and maintenance of roads (excluding most township
89
roads), bridges and culverts. The Commission may perform its own
contracts. It may issue permits for installations in or on public
highways. Similar to the Hawaii provision, Section 68404 empowers
the Commission to devise construction and maintenance plans and
97
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specifications. The Commission also has the right of entry. The
act specifies criminal penalties consisting of a fine and costs upon
conviction for the misdemeanor of violating any provision of the
9 0
statute. NO public or private remedies are provided, nor are
there any provisions for private civil damage actions or for
injunctions. Standards for construction and maintenance could be
91
promulgated by the County Engineer. Absent express provisions the
Commission's power to issue orders, promulgate rules and
regulations, seek injunctive relief, and prescribe public and
private remedies has to be inferred from the legislative grant.
Persons aggrieved by the Commission have the right to a hearing and
judicial review. The New Jersey Commissioner of the Department of
Transportation may adopt rules and regulations for the
reconstruction or maintenance of State highways. This section has
been analyzed in the previous discussion on construction statutes,
authorizing the prevention of water pollution. The Commission may
perform its own contracts; it has the right of entry, and may
92
promulgate rules, regulations and specifications. Unlike the
Hawaii statute, this act does not grant authority to the
Commissioner to issue permits. Administrative, public, private,
criminal or civil remedies are absent as in the Hawaii statute. The
Department's power to issue orders, prescribe penalties and public
or private remedies could be inferred from the act's legislative
scheme. Persons aggrieved by agency action have a right to a
93
hearing and judicial review of final determinations. Cities in
New Jersey have the general power to control and regulate streets
and may determine methods employed for the construction of curbs and
94
sidewalks. They may prescribe when the construction, repair or
alteration of curbs and sidewalks is to be done at an abutting
95
landowner's expense. cities have the essential powers to sue or be
96
sued and to enact laws and ordinances. They also have the
incidental power to prescribe criminal and civil penalties for
violations of their ordinances. They impliedly have the power to
98
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seek injunctive relief to enforce their ordinances. Although no
penalties or administrative sanctions expressly exist, the power to
regulate streets denotes a regulatory scheme with all the requisites
considered necessary for its implementation. Given liberal inter-
pretation, cities may enact appropriate legal and equitable remedies
including public and private ones. Municipalities in New Jersey
have the power to enact ordinances controlling construction on municipa
97
streets and highways. Municipalities also have the general police
98
power to issue building permits and to enact housing codes. By
analogy, municipalities have the same essential, incidental and
inherent (implied) powers as cities.
The county commissioners of counties in North Dakota have
qq
supervision over the construction and repair of county roads.
Standards for county and township roads are prescribed in the County
Roads chapter. The chapter prescribes penalties for
nonconstruction activities, such as obstructing a highway or
drainage ditch, or placing stones or rubbish on or near highway
section lines. The county commissioners have the power to
102
prescribe fines and/or imprisonments for ordinance violation.
Since the commissioners have the power to regulate road construction
and maintenance, they can promulgate rules, regulations and
standards pursuant to the regulatory scheme. Impliedly, they may
issue orders. A county has the essential powers to sue and be sued
and to pass ordinances and resolutions. Enforcement provisions
for road construction and maintenance are lacking, but boards of
county commissioners have the power to prescribe civil damage
provisions, criminal and civil penalties, administrative enforcement
provisions, and public or private remedies.
The West Virginia Commissioner of Highways, whose power to
determine and enforce methods of construction best suited to reduce
water pollution has been previously discussed, may promulgate
standards, rules, and regulations and may use any appropriate legal
104
or equitable enforcement remedy. There are no private or public
99
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remedies. Persons aggrieved by the Commissioner's actions may
105
obtain a hearing and judicial review of a final determination.
The Utah State Road Commission may construct and maintain roads
as well as regulate road construction and maintenance. Like the
Hawaii provision, there are no penalties or other enforcement
provisions specified in the act. Considering the broad delegation
of jurisdiction, the enforcement power could be inferred from the
statutory scheme. The fact that the Commission has the power to
promulgate rules and regulations and to promulgate plans and
specifications tend to indicate that the Commission is to possess
complete regulatory powers. Impliedly, it is able to issue orders,
prescribe administrative sanctions, fines, and imprisonments as well
as prescribe civil damage remedies and public remedies. Persons
aggrieved by actions of the Commission have a right to a hearing and
to judicial review of final agency decisions.
Municipalities, cities and towns in Virginia have the power to
adopt necessary regulations to prevent pollution of their water
, . 108 . 109
supplies. They also have the power to regulate construction.
By implication, municipalities, cities and towns may regulate
construction-related pollution of water supplies. Since the powers
of local governments have been explained in the previous section,
little detail is necessary here. They have all the general powers
necessary to prescribe civil and criminal penalties and to prescribe
damages liability for pollution. They could also promulgate
administrative enforcement procedures; ordinances may provide public
or private remedies. Consequently municipalities, cities, and towns
have full enforcement powers, although details are not given in the
general laws regarding construction-related pollution prevention.
In Wisconsin, the Town Superindendent of Highways or the Town
Board and the County Highway Commissioner have the power to
supervise the construction and repair of town and county highways
and bridges. The Wisconsin State Highway Commission can
prescribe specifications for the maintenance and design of state
100
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„
roads. Cities and towns have implied power to promulgate rules
and regulations for such construction and repair. No other powers
are given expressly, but the local governmental units, counties, and
towns, have the necessary general powers to expand the
administration and enforcement provisions for road construction and
repair supervision. Towns and counties are corporate bodies with
112
the powers to sue and be sued, and to make laws and ordinances.
They have the police power to abate public nuisances. They have the
implied power to prescribe fines and imprisonments for the violation
of ordinances; they can probably seek injunctions to enjoin
ordinance violation. Counties have the necessary powers to enact
ordinances and adopt regulations establishing prohibited acts,
penalties, damage provisions, special public and private remedies,
arid administrative remedies, which could constitute an adequate
enforcement scheme in regulating construction.
Statutes Giving Agencies or Local Government Agencies the Power
to Construct
In the state of Indiana, all cities and towns have the
exclusive power to construct and to control the manner of construc-
tion and repair of streets, alleys, bridges, watercourses, sewers,
114
drains, and public grounds within cities and towns. NO specific.
enforcement or administrative provisions are stated. It may be
assumed that they have the power to promulgate rules, regulations,
and standards since they have regulatory power. Other powers must
be implied from the general powers given cities and towns. As
municipalities, they have the essential powers to sue and be sued
and to pass ordinances and resolutions. By necessary implication,
cities and towns have the power to seek injunctive reliefs and to:
imprison, fine, set forfeitures and damages liability for violations
or infractions of their ordinances. The power to abate public
nuisances is a police power possessed by cities and towns. Cities
and towns have implied and necessary powers to enact ordinances and
adopt regulations establishing violations, penalties, damages
101
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liability, special public and private remedies, and administrative
remedies, which could include mechanisms for adequate enforcement of
provisions regulating construction.
In Michigan, the city councils of Fourth Class cities have the
power to regulate the construction and repair of public streets,
sidewalks and alleys. Like the Indiana provision for cities and
towns, no other powers or provisions for administration or
enforcement are provided, but those general powers are reserved to
cities with the exception of §103.2, which allows the city to charge
adjacent premises and lots for construction or maintenance of
crosswalks and sidewalks. Cities would, if necessary, be able to
issue orders and promlugate rules, regulations and standards for
such construction and maintenance, since they have the power to
regulate. Cities may pass ordinances and resolutions and determine
penalties for violations or fines not to exceed $500 and/or
imprisonment not exceeding six months. Costs may be accessed
against ordinance violators. Cities are able to seek injunctive
relief to enforce their ordinances: they have the police power to
abate public nuisances charging the tortfeasor with costs and a
118
penalty. They also have the essential right to sue and be
119
sued. Fourth Class cities have the express, implied and
necessary powers to enact ordinances and adopt regulations,
establishing prohibited acts, penalties, damages liability, public
and private remedies, and administrative remedies to adequately
administer and enforce provisions regulating the construction of and
repair of streets, sidewalks and alleys.
The construction of and supervision over streets, roads, high-
ways, alleys, driveways, public improvements and public works in
Kansas is under the jurisdiction of the Commissioners of Streets and
Public Utilities for Second Class cities.120 As with the Indiana
provision for cities and towns, no administrative or enforcement
provisions accompanied the grant, necessitating referral to the
general powers of Second Class cities to enlarge a statutory scheme.
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A city can regulate an activity which it has the power to perform.
Therefore, general supervision means cities can promulgate rules,
regulations, orders, and standards for construction and maintenance.
They may enact ordinances for their own affairs and may prescribe
fines, imprisonments, and forfeitures for the violation of these
ordinances. Cities have the corporate power to sue and be sued
and the implied power to seek injunctive relief to enforce their
122
ordinances; they have the police power to abate public nuisances.
These powers are sufficient for cities to establish by ordinance,
administrative and enforcement provisions which include: civil
damages liability, prohibition and violation penalties, public and
private remedies, and administrative remedies.
The Commissioner of Highways of the West Virginia State Road
Commission has jurisdiction of publicly-owned state roads and is
responsible for rules and regulations for street maintenance and
123
construction. Where the grant for agency jurisdiction is as
broad as it is here, regulation necessitates the implied power to
124
promulgate rules, regulations, and standards. Criminal penalties
are prescribed for a violation. It is a misdemeanor conviction which
is punishable by a fine ranging from $10 to $100 or by imprisonment
125
for five to thirty days or by both. Other administrative or
enforcement provisions include the power to issue orders, to
specify civil damages liability, to seek injunctive relief, to pre-
scribe public .and private remedies, and to take administrative
agency remedies. Presumably, persons aggrieved by the Commissioner's
actions may be entitled to a hearing and to judicial review of an
agency's final decision. Under a reasonable and liberal inter-
pretation of this broad state legislation, the Commissioner
impliedly is granted the power to issde orders, seek equitable
relief, prescribe procedures for administrative agency actions for
enforcement, and to prescribe public and private remedies.
The Virginia Commissioner of the State Highway
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Transportation Commission has the plenary power to construct,
1 ?6
improve, and maintain roads in the state highway system. This
means that all contracts for the construction, maintenance and
repair of roads in the State highway system or in secondary State
highway system are administered by the Commissioner. In improving
State roads, the Commissioner may, in the course of changing or
eliminating a public railroad crossing, agree with the railroad on
the terms, costs and manner of construction for the change, subject
127
to review by the Virginia State Corporation Commission.
The Commissioner may approve plans, specifications, and methods
for construction, whenever a road of a city or town in the State
highway system crosses a railroad, is projected across a railroad,
is changed to cross a railroad, or crosses a railroad by an
underpass or overpass in need of relocation, alteration or repair.
In the event the Commissioner and the Railroad Company cannot agree,
the plans are subject to review by the State Corporation
128
Commission.
The Commissioner of the State Highway and Transportation
1 n q
Commission has the power to promulgate rules and regulations. " <£he
Commissioner may regulate and impose restrictions on the use and
occupation of streets and roads, and may likewise regulate the
construction, operation, and maintenance of works along State roads
and highways. No other powers for administration are given. The
State Corporation Commission has enforcement authority if violations
of the Public Services Companies chapter occur. Any person
aggrieved by an action of a public service company may file a
complaint with the Corporation Commission. The Commission may
enjoin violations. Railroads and certain other public service
companies may be fined up to $500 for violations of the chapter.
Persons aggrieved by Commission action would most likely be able to
obtain a judicial review of any final agency determination. By
necessary implication, the Commissioner has the power to promulgate
standards, issue orders, and enforce statutory and administrative
104
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provisions, due to the broad delegation of power. The Commission
could prescribe regulations and criminal and civil penalties, public
and private remedies, and administrative agency action remedies.
In Minnesota, the Road Authority of any town, city, village or
borough may appropriate or expend monies for the improvement and
maintenance of roads, bridges, or ferries beyond their boundaries
and leading into such town, city, village or borough. They are also
authorized to plan for the establishment, maintenance, and
improvement of controlled access highways. Counties and towns are
132
authorized to enter into road construction contract. No specific
provisions appear for villages and boroughs other than those general
powers provided by law. Villages are considered to have the same
powers as towns; boroughs as political entities, for these purposes,
are considered to have the same powers as counties. Towns, cities,
and counties are corporate bodies with the essential powers to sue
and be sued and to enact ordinances. Counties and towns are given
the express authority to pass ordinances or resolutions for road
construction. The powers of road authorities over highways and
roads are general. Absent administrative and enforcement provisions
essential for achieving regulation of and construction of streets
and highways, powers are inferred and implied from the broad
legislation and from the general powers of respective towns, cities,
counties, villages, and boroughs. No other penalty provisions are
prescribed. Local road authorities by implication have the power to
issue rules, regulations, and orders, to promulgate standards, and
to prescribe by regulation various provisions for civil damages
liability, penalties, and public and private remedies to enforce the
construction and maintenance provisions.
Since State and local administrative agencies and local
governmental entities have the power to regulate road, street,
highway, alley, and bridge construction or to perform the construc-
tion rules, regulations, standards and orders, they could include
rules, regulations, standards, and orders within the regulatory
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scheme to control point or nonpoint source water pollution.
BUILDING CODE PROVISIONS
All building code provisions are an exercise of the government
police power for protecting the public health, welfare and safety.
The City of Bellevue in Washington has adopted with amendments, the
Uniform Building Code and incorporated within it, provisions to
regulate the clearing, grading, and filling of lands. The building
official of the Building Department has the power to enforce all
133
provisions of the code. The Department has jurisdiction over all
construction, the quality of construction materials for, the uses
and occupations of, the location of, and the maintenance of
134
buildings, structures and certain equipment to be placed therein.
The official also has the power to make inspections and has an
implied essential power to issue rules, regulations, and
standards. The building official may order work stopped or may
order a particular use discontinued. The official is empowered to
issue permits and certificates of occupancy and to approve plans and
specifications. There are several prohibition sections. No
building or structure can be used without a certificate of
138
occupancy. It is unlawful for anyone to construct, enlarge,
repair, improve, convert or demolish buildings or structures
139
contrary to any code provisions. The Uniform Building Code
contains detailed standards and regulations concerning occupancy,
fire zones, types of construction, the quality of design and
materials, fire protection and public streets.
Buildings and structures defined [in section 203] as unsafe,
141
are declared a public nuisance and subject to abatement. The cost
of enforcement may be recovered from the violator by the
142
Department. The building official is authorized to set permit
fees to reflect the value of the building or structure constructed,
143
altered, removed or repaired. Persons, firms or corporations
violating any provision of the code will be charged with a mis-
demeanor, punishable upon conviction with a fine not exceeding $350
106
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144
or by imprisonment not exceeding ninety days or both. Each day
such violation exists constitutes a separate offense. Fines are
recoverable through civil suit by the city. Any person, firm or
corporation aiding and abetting a violator or committing an act or
omitting an act to procure violation is guilty of a misdemeanor.
Amendments to the adopted Uniform Building Code make minor
148
changes and additions. Any person violating a provision is
liable to the city for a civil penalty of not less than $25 and not
149
more than $350 per day for each day the violation exists. Persons
are prohibited from making any changes in the surface of any lands
by grading, excavating or by removing natural topsoils, trees, or
vegetative coverings without a permit.150 The building official is
authorized to issue special notice to owners or persons in control
of property, to eliminate within a specified time, any hazards to
life and limb, dangers to property or hazards adversely affecting
the use of any watercourse, including siltation and
sedimentation. The official has the power to inspect all grading
projects for which a permit was issued and upon completion of a
grading project, the permittees may be required to submit a final
152
report. Additional regulations are specified in the amendments
for cuts, fills, drainage facilities and terracing. Not included
within the code are provisions for special civil damages liability,
154
for private remedies, or for citizen complaint procedures.
Despite the omissions, the administrative and enforcement apparatus
makes this a very effective local ordinance.
King County, Washington also adopted the Uniform Building Code
which contains the same provisions previously discussed for the City
of Bellevue, Washington, but excluded any amendments and provisions
for regulation and control of grading, filling, excavating and
filling lands. The county added its own amendments to the code.
Section 2 of the Uniform Building Code is amended to
create the Building Code Advisory and Appeals Board, which is
charged with determining the suitability of alternate materials and
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methods of construction and to make reasonable interpretations of
the code to resolve disputes. Section 2 of the code is amended by
section 3, which makes it unlawful for any person, firm, or
corporation to construct, alter, remove, improve, demolish, equip,
use or maintain any building or structure in the county "or cause
the same to be done" in violation of the code. Persons, firms,
or corporations violating or procuring violation of code provisions
forfeit a cumulative civil penalty of $3 per day of violation, plus
costs of enforcement to the Building Division. Section 3 makes
any person violating any code provisions guilty of a misdemeanor
punishable by a fine or imprisonment for not more than 90 days, or
158
both. King County, in addition to accepting the Uniform Building
159
Code, adopted the Uniform Housing Code.
160
The Building Department enforces the Uniform Housing Code.
The official has the power to make inspections, issue permits, and
cause a building or structure to be repaired, sold or demolished.
The Department has jurisdiction over all buildings or portions of
1 /- o
buildings used for human occupation or habitation. it applies to
the new portions of buildings and to buildings which are moved.
Persons are prohibited from constructing, repairing, demolishing or
altering a building without a permit; no one may construct, alter,
repair, improve, demolish, equip, occupy, use or maintain or cause
the same to be done to any building or premise in violation of code
. . 164
provxsions. The code contains space and occupancy standards in
Sections 501 and 505. No express powers to promulgate standards and
to issue rules and regulations are granted; these powers are
essential to the police power regulatory scheme and must be implied.
Section 201 (c) makes owners of a building(s) liable to persons
suffering damages on account of the breach of duties imposed by the
codes. The Department is entitled to recover the costs of
demolition or repair; the building official submits a report request
to the county legislative body which, upon holding a hearing, may
order a special assessment to be collected like regular county
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taxes, or may make the charge a personal obligation on the property
owner involved.165' section 1502 enables the legislative body to
establish a Repair and Demolition Fund, a revolving fund which is to
be taken from County revenues. The Housing Advisory and Appeals
Board hears appeals concerning Department actions and, although
judicial review is not mentioned, a right to limited judicial review
of final Department determinations probably exists. Failure to
obey a lawful order of the building official or of the Housing
Advisory and Appeals Board and violation of Section 204, prohibiting
construction alteration, maintenance or use of a building or
premises in violation of the code are misdemeanors punishable by a
fine or imprisonment or both.167 As with the Uniform Building Code,
the Uniform Housing Code as amended appears to provide reasonably
adequate administration and enforcement of the regulatory scheme.
In Hawaii, the Board of Supervisors in each county has the
168
power to regulate building construction by ordinance. The chief
executive officer of each county can take charge of all county road
169
work and other public construction. The Board has the power to
conduct inspections, to condemn structures, and to prescribe
penalties of fines and court costs for violations of its
ordinances. Since the Board has the power to regulate, it has
the implied power to issue orders and promulgate rules, regulations,
and standards. A county as a local government entity and as a
municipal corporation has the power to sue and be sued. Impliedly,
a county would be able to seek equitable relief. Absent are
provisions for civil damages liability, public and private remedies,
and administrative action procedures and the express power to
promulgate rules, regulations, orders and standards. Section 62-34
gives County Boards of Supervisors the power to enforce all
necessary ordinances covering the inspection of buildings and the
condemnation of unsafe structures. They may prescribe penalties for
ordinance violation, including a fine of up to $500 and court costs;
offenders may be imprisoned until such fines are payed. State
109
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administrative procedures apply to counties giving persons aggrieved
by Commissioner action the right to a hearing and judicial review of
172
final agency determinations. Enough of a regulatory framework is
present, which when supplemented by general county powers could
provide for adequate enforcement and administration.
In Virginia, the State Board of Housing is directed to adopt a
Uniform Statewide Building Code which will supercede all local
173
government building codes. Local governments are responsible for
174
code enforcement. The State Board is given standards or
175
guidelines to be used in formulating a building code. Inspections
are to be conducted by local building departments. The State
Board of Housing has the power to formulate policies and goals and
to implement and administer the code. The Executive Director is
178
charged with formulating rules and regulations. The Director may
179
receive Federal grants for the State. Section 36-105 authorizes
building fees to be levied to offset the cost of enforcement.
Section 36-99 requires that all buildings be constructed to comply
with the State building code. Anyone who violates any provisions of
the code shall be guilty of a misdemeanor and subject, upon con-
180
viction, to a fine not exceeding $500. Presumably the State
Board can promulgate rules and regulations, which will supply
missing administrative and enforcement provisions, such as
administritive enforcement actions, penalties, summary agency
remedies, public and private remedies, civil damages liability, and
injunctive relief. Local governments actually have the general
powers necessary to supply any missing administrative or enforcement
provision. Absent express hearing and appeals provisions, the
provisions of the Virginia Administrative Agencies Act entitle
persons aggrieved by the local building agency or the State Board to
181
a hearing and to judicial review of final agency action.
The governing body of any Virginia county, city, or muni-
cipality may adopt and enforce an ordinance to assure orderly
182
subdivision and development of land. The ordinance may include
110
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regulations for adequate drainage and flood control and may include
regulations for street improvements and plats. There are no
accompanying provisions for civil damages liability, public
remedies, private remedies, agency actions or additional powers to
inspect, promulgate standards, issue permits or hold hearings.
Provisions governing the general powers of cities and towns can be
supplied. Cities and towns have the power to abate nuisances and
the power to seek injunctions for continuing code violations.
They also have the power to prescribe penalties of fines and
T85
imprisonments for ordinance violations. it can be inferred that
cities and towns formulate rules and standards for their
186
ordinances. Cities and towns may enact ordinances and
resolutions or may promlulgate new rules and regulations to enact or
incorporate missing administrative and enforcement provisons.
In West Virginia, municipalities have the general authority to
1 R7
regulate the construction of buildings.07 They may require
188
permits. They have the power to pass ordinances, issue orders,
adopt bylaws, promulgate rules and regulations, prescribe fines,
forfeitures, imprisonments (not to exceed thirty days), and to
189
maintain an action at law or equity to enforce their ordinances.
Impliedly, municipalities may promulgate construction standards.
Persons adversely affected by a final municipal determination are
entitled to de novo review in the Circuit Court or other court
190
having jursidiction in the county. Section 8-12-5 enables
municipalities to abate public nuisances. West Virginia is a home
rule state, where general laws act as a limitation on municipal
powers. Funding provisions are not specified, but municipalities
have the power to spend necessary sums for local government
purposes; they may assess taxes, borrow monies and issue bonds,
191
subject to constitutional and general law limitations. Since
municipalities have these broad general powers, they could enact
ordinances expressly providing the exercise of these powers to
regulate building construction. They could also enact ordinances
111
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for provisions such as civil damages liability, administrative
action procedures, private and public remedies, and civil penalties.
Municipalities have the powers necessary to enact a comprehensive
system of provisions for the administration and enforcement of a
building construction regulatory scheme.
California's Subdivision Map Act previously discussed with
other construction-related statutes which controlled water pollution
should also be included here, since it authorizes cities and special
I Q 9
districts to regulate the design and improvement of subdivisions.
In North Dakota, Township Boards of Supervisors are authorized to
193
establish zoning districts to regulate construction. The powers
that zoning districts have originate with the Board. The Boards may
collect taxes and incur debts, promulgate rules and regulations (in
accordance with a comprehensive plan), take any appropriate action
against violators of zoning regulations and rules. ^ Regulations
do not take effect until public hearings are held. No penalties,
civil damages liability provisions, public or private remedies,
civil or criminal penalties or administrative procedures are
included. The broad enforcement power given the Board "to take any
appropriate action" would include the promulgation of ordinances and
regulations providing injunctive relief and any of the
above-mentioned remedies, suitable for a workable comprehensive
regulatory scheme.
MISCELLANEOUS
The last group of statutes to be discussed covers a variety of
topics which are not covered by any of the previous categories.
These seventeen sections give a state or local government entity or
administrative agency the power to construct or the power to
regulate the construction of railroad crossings, dams, airports,
grades, landfills, earthworks and electric lines. All the powers
necessary for effective enforcement and administration such as: 1)
the power to make rules, regulations and standards; 2) the power to
issue permits; 3) the power to make inspections; 4) the power to
112
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issue orders; 5) the power to raise and expend administration costs;
6) the power to prescribe civil and criminal penalties; 7) the power
to prescribe public and private remedies; 8) the power to seek
injunctive relief; 9) the power to prescribe statute violation as
civil damage liability; 10) the power to provide for hearings; and
11) the power to use straight forward administrative extrajudicial
sections to enforce the statute, though not expressly included in
these statutes. At best, only a few of these provisions are
specified in any one statute. Consequently, we have taken a liberal
interpretation of these provisions in assuming that where broad
regulatory power is granted, essential powers were intended to be
included by implication, in order to enable the entity or agency to
carry out its functions. All of these statutes can be used to
regulate and control point or nonpoint source water pollution from
construction based on a given agency or local entity's broad power
to regulate and control construction, whether or not the actual
construction is done by the agency or by contractors. The general
powers of cities, counties, towns, villages and municipalities is
not explained as was done in previous discussions.
Regulation of Digging Up Public Ways
Village councils in Michigan may prohibit all openings in and
removals of earth, from public streets, except as prescribed by
195
them. Permits for, or conditions attached to permission to dig
could contain regulations to be followed in digging (digging for the
purpose of repair, construction or removal of utility lines,
streets, and conduits), which would reduce resultant runoff.
Village councils have the power to make public improvements and to
TO C
make special assessments. These councils could follow their own
rules and regulations to prevent construction runoff when they
undertake their own improvement work. They have the power to abate
197
nuisances and to adopt ordinances. Impliedly, they can prescribe
and administer penalties in their ordinances regulating digging on
streets. There are no civil or criminal penalties or remedies
113
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expressly prescribed, nor are there any administrative or other
regulatory powers.
In Massachusetts, the State Department of Public Works issues
permits to public utility companies to dig up, open, or obstruct
198
state highways. The permittee must replace the materials and
199
resurface the areas broken or altered. The Department may
200
require a bond from the permittee to cover any damages. Cities
and towns may contribute agreed upon amounts of money to the Depart-
201
ment. The Department may receive appropriations and levy
202
taxes. it has a duty to maintain, repair, and construct state
203
highways. Persons are prohibited from digging up a state highway
without a permit. Violation of the prohibition is a misdemeanor; no
penalties are specified. Aggrieved parties are entitled to a
204
hearing and judicial review of final decisions. A public remedy
is provided whereby ten or more persons may intervene in an
adjudication proceeding, where damage to the environment is
9fi S
threatened. 3
Railroad-Related Construction
In Michigan, the common council of a city or village may
establish regulations and rules for the construction of drains,
206
sewers, and reservoirs by street railroads. Street railroads are
207
also subject to regulation by ordinance by cities and villages.
No enforcement or administrative provisions are expressly included.
Cities and villages have implied power to prescribe penalties for
208
their ordinances and to enforce them. They also have the
209
essential power to use the courts. Enforcement is possible by
exercising these powers.
Boards of Commissioners in first class cities in Kansas have
the power to direct the laying out and construction of railway
210
tracks, turnouts, and switches. They may require railroad
companies to construct, complete, or repair viaducts over or tunnels
211
under streets. jn the event that the city undertakes
construction or repair of viaducts and tunnels, costs are to be
114
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assessed against railroad company property as a lien and may be
taxes against that property. Section 1903 provides that
railroads, upon conviction of neglecting or refusing to construct or
repair viaducts or tunnels to pay a fine of $100 each day the
213
violation exists. NO other administrative or enforcement
provisions are included.
In North Dakota, the Public Service Commission may require
railroads to construct fences according to Commission guidelines;
standards are provided within the chapter for the construction of
railroad crossings by railroad companies.214 Railroads are to
restore nearby streams and watercourses to their former state or to
215
a useful conditon after construction. The Public Service
Commission has the power to issue rules, regulations and orders to
216
regulate railroads. Violation of a Public Service Commission
order is unlawful; a railroad's failure to construct or maintain
217
crossings is punishable by a fine of from $25 to $100. The
Commission's express powers are not complete, but since it can
regulate and since there are penalties, it has such other powers as
are necessary. The enforcement powers included are sketchy at best.
Regulation of Dam Construction
The Michigan Department of Natural Resources has the power to
218
approve and to issue permits for the construction of dams. The
Department's control of dam construction-related water pollution has
been previously discussed in the section on construction-related
219
water pollution statutes. The Director of the Department has the
power to order the owner of a dam to repair or remove such dam if a
220
hazardous condition is determined to exist. A dam construction
permittee is required to petition the Board of County Commissioners
for a court established lake level and for an established special
assessment district to maintain the lake level, if the dam has a
221
head of five feet or more. violation of any chapter provision or
222
of any lawful rule constitutes a misdemeanor. Any person
constructing or allowing another to construct on his land a dam
115
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223
without a permit is guilty of a misdemeanor. No penalties are
provided and the powers given the Department are incomplete; never-
theless, the Department could enact by rule or regulation the
missing administrative and enforcement provisions. The State's
Administrative Procedures Act provides for hearings and judicial
224
review of final agency decisions.
In Wisconsin, the Department of Natural Resources may
promulgate orders, rules, and regulations for the methods of
construction, operation, and maintenance of equipment to be used for
225
dams and bridges over streams. it also has the power to issue
permits, conduct inspections, collect inspection fees, and authorize
or undertake the dam operation, maintenance, and repair work
226
itself. Section 31.26 provides for owner liability for personal
injury and property damage due to the owner's failure to comply with
standards. The executive of a town or village may petition or
request the Department to investigate unsafe dam or bridge
227
conditions. Private citizens may seek an injunction to abate
private nuisance when a dam or bridge is in violation of this
228
chapter. Persons who violate the lawful orders of the Department
in regard to mill dams or bridges shall forfeit $500, recoverable by
229
the Department in a civil action. Public hearings are to be held
before permits are granted. No criminal penalties are provided.
These provisions have been discussed in the section on water
pollution control statutes.
The Department of Public Works and Transportation of King
County, Washington, which administers surface water runoff policy,
issues permits to persons constructing runoff detention and
9 7fl
retention facilities used to prevent flooding. (^ mOre extensive
description of the Department's powers can be found in the
9 °,1
discussion on controlling construction-related water pollution.)
The Director of the Department must approve drainage plans submitted
with the permit application, and may require a permittee to post
OOO
cash or surety, construction and maintenance bonds. By the power
116
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implied under the regulatory scheme,, the Director could impose
conditions on permit issuance, requiring compliance with standards,
rules, and regulations. No other administrative provisions are
given, and there are no penalties for statute violation. There are,
in effect, no penalties, damages liability provisions, public or
private remedies.
In Virginia, a riparian owner may build a dam, mill, or other
works, such as machines, factories, or "engines useful to the
public" on a watercourse, if the Circuit Court of the county grants
233
permission. The Court appoints five local freeholders to act as
Commissioners, reporting to the Court upon the adverse environmental
impact on adjoining lands not owned by the applicant, for additional
lands needed for construction, and for lands to be injured by the
construction. if the Circuit Court decides to grant leave, based
on the report and other factors, it may impose special conditions as
may be appropriate upon the leave to build the facility.^35 These
conditions could be framed to reduce or eliminate
construction-related water pollution. The Court can issue orders
and enforce those orders by using contempt power. There are no
provisions for review, but such review is probably to be had from
the next highest court with jurisdiction. These provisions appear
to represent the persistence of an outmoded practice, because an
administrative agency more cognizant of environmental matters can
develop the expertise to make an intelligent determination. An
administrative agency could combine legislative, judicial and
executive functions.
The Michigan Department of Conservation has the power to issue
permits for the construction of artificial waterways which will
2^6
connect with any of the Great Lakes. ° The State's Department of
Health may object to the Department of Conservation's decision to
grant a permit. The Department of Conservation must find that the
project will not injure the public trust in State waters before
237
granting the permit. The Department of Conservation can issue
117
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238
rules, regulations and orders. Persons are prohibited from
engaging in any construction activity concerned with building a
waterway for connection with any of the Great Lakes without a permit
239
or approval. Persons who engage in such activities as dredging,
excavating, filling lands or modifying lands or waters, without a
permit are guilty of a misdemeanor and upon conviction subject to a
fine of up to $1000, imprisonment for not more than one year, or
240
both per offense. There are no private or public remedies.
Construction of Airports
The Virginia Airport Authority has the power to construct and
to permit the construction of industrial, commercial and
241
recreational facilities near airports. ^t may impose such
242
conditions on the construction as it deems proper. The Authority
also has the power to improve, maintain, regulate and operate
243
airports and air navigation facilties. it can establish and
244
maintain airports in and over state waters. The Authority has
the following regulatory powers: to promulgate rules and
regulations, exercise the power of eminent domain, enter properties,
make contracts, issue revenue bonds, and issue revenue refunding
, , 245
Donas. Since the Authority has the power to regulate and impose
conditions, its regulations and conditions could be framed to
control construction activities to prevent or reduce construction
activities to prevent or reduce construction-related water
pollution. There are no enforcement provisions expressly provided,
but the Authority could promulgate rules, regulations, and
procedures specifying such provisions.
The West Virginia Commissioner of Highways for the State Roads
246
Sytem has the power to supervise the construction of airports.
The Commissioner's powers have previously been discussed in the
section on construction statutes directly controlling water
247
pollution. Included in the powers is the right to promulgate
rules and regulations and to seek any appropriate legal or equitable
248
-remedy in enforcing the provisions of this chapter.
118
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Regulation of Dredging and Land Fill Operatings Bordering Waters
or Beaches
The Beach Commission of any New Jersey municipality has the
power to manage and control the construction, maintenance, and use
249
of beaches. The Commission has the power to prescribe and
250
enforce regulations, orders and penalties. Funding is provided
from municipal appropriations and from collections for the beach
251
fund. Many provisions not expressly included could be implied
from the general powers municipalities possess. Municipalities may
pass ordinances and may sue and be sued; they can regulate building
construction and issue building permits as an adjunct to exercise of
o c o
the police power. The Beach Commission could impliedly do all of
the above.
The Commissioner of the Massachusetts Department of Natural
Resources has the power to adopt regulations controlling or
prohibiting the dredging, filling, recovering and altering or
253
polluting of state wetlands. This statute has been previously
discussed in the section on construction statutes directly
254
controlling water pollution from construction. Public hearings
are held prior to regulation adoption, and the town or city councils
of the jurisdiction in which the land is located must approve the
255
regulation before adoption. The Department has the power to
*\ c c
issue final orders. At the initiation of the State Attorney
General, the Commissioner of the Department, the executive officer
or district attorney of a city or town, or an owner of property
affected by the activity, or any court having jurisdiction may
2 S 7
restrain statute violations and may issue orders. 3I Persons
aggrieved by the Commissioner of the Department or by the Natural
Resource Board's failure to act, may seek equitable relief.258 There
are no civil or criminal penalty provisions. Persons aggrieved by
an agency action are entitled to a hearing and to judicial
review.
The King County grading ordinance, previously discussed in the
section on construction statutes directly controlling water
119
-------
pollution, gives the Director of the Building Division of the
Department of Community and Environmental Development the power to
260
issue grading, excavation, and earthworks construction permits.
Applicants for permits must submit plans and specifications for
approval, must pay permit fees, and must obtain case or surety and
operating bonds. Applicants must also obtain liability
261
insurance. Section 11 contains detailed standards for cuts and
fills. Appeals from Department action are made to the King County
O f- -J
Board of Appeals. Section 20 prescribes a civil penalty to be
recovered by the Department for an ordinance violation constituting
262
a public nuisance. Violation of any ordinance provision is a
misdemeanor but no penalty is specified. This ordinance is a
good example of a well-drafted regulatory scheme.
Laying of Electric Lines — Construction Within Rights of Way
The Virginia State Corporation Commission, which has the power
to regulate public service companies and administer all laws
prescribed by the constitution for the regulation and control of
corporations doing business in Virginia must approve the
installation and construction of all electric transmission lines of
265
200 kilovolts or more. The Commission can determine the best
corridor or route to be taken in order to minimize adverse
environmental impacts from the construction or installation of
• i • 266
electric lines. The Commission can place special conditions on
267
its approval, which would minimize adverse environmental impacts.
The .Commission has concurrent jurisdiction with courts of the
Commonwealth to hear disputes or grievances involving public service
O c O
companies, to make determinations, and to enforce penalties.
Persons or corporations aggrieved by a public service corporation's
violation of any of the provisions of this act may petition the
Commission to act as a court of record in hearing the
allegations. Tne Commission has the power to mandamus public
270
service corporations. Appeal from the actions of the Commission
271
are taken by the State Supreme Court. The Commission, due to its
120
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broad grant of power,tp regulate corporations, has the essential and
necessary powers .tp,issue rules, regulations, orders and
272
standards. Penalties are provided.
The construction of telegraph or telephone lines in a manner
that endangers life or limb is unlawful and punishable as a
misdemeanor by a fine of from $100 to $500.273 violation of any of
the provisions in this chapter excepting section 56-462 is a
misdemeanor punishable by a fine ranging from $10 to $500.274 Most
of the powers the Commission possesses are not express. The
provision governing power line construction is one of many
provisions by which the Commission can regulate construction done by
public service companies. For example, the State Corporation
Commission can review costs, plans and specifications, methods, and
manner of construction for changing, altering, or rebuilding a
railroad state highway grade crossing or overhead pass or underpass
when the State Highway Commissioner.and the railroad company which
OTC
is to undertake the project cannot agree."/J Tne commission can
review plans, costs, specification, methods, and manner of
construction for changing, altering, or rebuilding a railroad/city
or town highway grade crossing, an overhead pass, or an underpass,
when the city or town authorities and the railroad company, who are
276
to jointly undertake the project, cannot agree. in both
!
instances, the Commission is to issue an order deciding all matters
or is to issue an order dismissing the proceedings brought by the
town or city or by the State Highway Commission against the railroad
977
company. Public necessity and convenience is to be the basis for
278
the Commissioner's decision. ;
The governing body of any town, city or county in Virginia may
enact an ordinance authorizing an officer or agency of such local
governmental entity to issue permits for construction within
279
right-of-way lines of any public roadways in its jurisidiction.
This provision is directed at regulating the construction of
buildings and structures, driveways, signposts and curbs along
121
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roadways. Persons are prohibited from constructing anything within
a roadway's right-of-way lines without a permit from the respective
280
city or town's authorized officer or agency. Violation of this
provision is a misdemeanor punishable by a fine of from $25 to $100
for a first offense and by a fine of from $100 to $500 for a second
2 81
offense. There are no other accompanying provisions. Several
elements are implied. The city or town will be able to collect
permit fees to defray administration and enforcement costs. Since
the agency or officer shall have the implied power to issue permits,
they also have the power to regulate by promulgating rules,
282
regulations, standards, and orders. Since towns and cities have
the essential powers to sue and be sued, and to pass ordinances and
resolutions and since they (as municipal corporations) have the
right to prescribe penalties for violations of their ordinances,
they could pass additional ordinances providing for civil damages
liability, public remedies, injunctive relief, civil penalties,
private rights of action, inspections, hearings, and administrative
283
processes to expand the statutory scheme.
Each of the statutes or ordinances discussed gives a state or
local government entity the power to construct or regulate the
construction of various objects, structures or environments. In the
first group, statutes directly controlling water pollution from
construction-related activities were examined. The subsequent
statutes controlled or regulated a particular type of construction
activity without specifically mentioning water pollution control as
an objective. Once an agency or entity has the power to regulate an
activity, it could regulate that activity in a manner that reduces a
detrimental environmental by-product of the activity. If an agency
or entity has the power to regulate construction or control water
pollution without any qualifications as to the type of water
pollution to be reduced or abated, then nonpoint source water
pollution is also meant to be controlled.
122
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FOOTNOTES
BUILDING AND CONSTRUCTION
ICal. Gov't. Code U 66511-66499.37 (West Supp. 1974).
2Mich. Stat. Ann. $ 11.422(3)(1973).
3ld. at U 13.700(3)-13.700(15).
4ld.
5N.J. Stat. Ann. U 27:7-21, 27:21.1 (Supp. 1975).
6N.D. Cent. Code $ 49-11-04 (1960).
7ld. at it 49-11-24, 49-11-25.
^fass. Gen. Laws Ann." eh. 131, % 40-42 (1974).
$W. Va. Code Ann. $ 17-4-31 (1974).
l°Id. at $ 17-2A-8 (23)(1974).
1JVa. Code Ann. $$ 36-97 to 36-119 (Supp. 1975); 15.1-863 (1973)
12Id. at U 36-97 to 36-119 (Supp. 1975), t 15.1-905 (1973).
137a. Code Ann. $ 15.1-486 (Supp. 1975), $ 15.1-905 (1973).
15Wis. Stat. Ann. H 31.02, 31.19 (1973).
. at n 31.04, 31.36 (1973).
ld. at i 31.06 (1973), as amended, (Supp. 1974).
17Id. at 0 59.971 (Supp. 1974).
18King Co., Wash., Ordin. No. 1488 (1973).
19Id. at $ 7
2®Id. at U 8, 9.
. at i$ 21, 15.
. at $ 22.
2*Id. at % 2.
2*Id. at $ 11.
23ld. at i 13.
IV-1
-------
26Ring Co., Wash., Ordin. No. 2231 (1975).
27id. at 0g 1, 3.
28id. at $ 1.
29id. at $ 3.
30rd. at 2 7.
31ld. at £0 4, 5.
32Dallas Sands Statutory Construction $$ 4.18, 4.19, 65.03 (4th Edit.
1972) [Hereinafter referred to as Sands]; Chester James Antieau, Municipal
Corporations $ 5.03 (1973) [Hereinafter referred to as Antieau].
33tfis. stat. Ann. U 81.01(1), 83. 01(7) (b), 84.07(1) (1957), as amended. (Supp.
197$).
34Ring Co., Wash., Ordin. No. 2231 (1975).
35see the analysis of each statute, supra.
36King Co., Wash., Ordin. No. 1488 (1973); Wis. Stat. Ann. $ 31.01-31.06
(1973), as amended, (Supp. 1974); W.Va. Code Ann. $ 17-2A-8U) , (2) (1974);
N.D. Cent. Code %% 49-11-04 to 49-11-06 (1969); Va. Code Ann. $ 15.1-476
(1973).
37sands, $ 4.25.
38Mich. Stat. Ann. % 13.700 (15) (1973); Mass. Gen. Laws Ann. ch. 131,
$ 40 (1974); Va. Code Ann. 20 15.1-906 (1973); King Co., Wash., Ordin. No.
2231, $ 3 (1975).
39N.J. Stat. Ann. $$ 27:7-21, 27:7-21.1 (Supp. 1975).
40nich. stat. Ann. W 11.421-11.425 (1973).
4lKing Co., Wash., Ordin. No. 2231, $$ 2-7 (1975).
42Mich. Stat. Ann. £2 11.425 (1973).
43Mich. Stat. Ann. ? 11.422(3) (1973).
44Mich. Stat. Ann. $ 13.700(10) (1973).
46Mich. Stat. Ann. $ 11.42 (1973).
47Mich. Const, art. VI, $ 28; Mich. Stat. Ann. $ 24.301 (1973)
48Mich. Stat. Ann. U 13. 700(3)-13. 700(15) (1973).
49N.J. Stat. Ann. $ 27:7-21.1 (Supp. 1975).
IV-2
-------
.j. stat. Ann. 2 27:7-21 (Supp. 1975).
51N.D. Cent. Code g 49-02-02 (1960).
52N.D. Cent. Code $ 28-32-05 (1974).
53N.D. Cent. Code * 49-11-07 (1960).
54uass. Gen. Laws Ann. ch. 131, 0 40 (1974).
55id.
56nass. Gen. Laws Ann. ch. 21, $$ 26-53 (1973), as amended, (Supp. 1974).
57w. Va. Code Ann. $ 17-2A-8(23) (1974).
58w. Va. Code Ann. W 29A-5-1, 29A-5-4 (1971).
59va. Code Ann. 0 15.1-901 (1973).
60va. Code Ann. 2 15.1-905 (1973).
61 Va. Code Ann. $ 36-97 - 36-119 (1950).
62Antieau, £* 6.02, 6.03 (1973).
63va. Code Ann. $ 15.1-510 (1973).
64Va. Code Ann. $ 15.1-486 (1973).
65Antieau, $ 5.08 (1973).
66wis. Stat. Ann. U 31.01 - 31.19 (1973), as amended. (Supp. 1974).
67 id. at $ 31.19.
68wis. Stat. Ann. £ 31.25 (1973).
69wis. Stat. Ann. £ 31.26 (1973).
70wis. Stat. Ann. $ 59.971 (Supp. 1974).
7lAntieau, 0 5.08.
72 Antieau, $ 5.03.
73wis. Stat. Ann. $ 59.99 (1957), as amended. (Supp. 1974).
74 Antieau, 2£ 6.02, 6.03.
75wis. Stat. Ann. $ 59.07 (1957), as amended. (Supp. 1974).
IV-3
-------
76King Co., Wash., Ordin. No. 1488, $ 21, 16 (1973).
77King Co., Wash., Ordin. No. 1488, g 15 (1973).
78King Co., Wash., Ordin. No. 1488, $ 19.20 (1973).
79King Co., Wash., Ordin. No. 1488, t 22 (1973).
80King Co., Wash., Ordin. No. 2231, $ 2b (1975).
81Wash. Const, art. II, $ 4.
82Antieau, $ 5.08.
83Antieau, $ 5.03.
84Antieau, $$ 6.02, 6.03.
85Hawaii Rev. Stat. $ 264-6 to 264-12 (1968), as amended, (Supp. 1974).
86Ind. Ann. Stat. $ 8-13-1-2 (1973).
87Ind. Ann. Stat. g 8-13-1-5 (1973).
88Ind. Ann. Stat. g$ 4-22-1-14, 4-22-1-18 (1974).
89Kan. Stat. Ann. gg 68-401 to 68-433, 68-501 to 68-599 (1972), as
amended, (Supp. 1974).
90Id. at 68-433.
91Id. at 68-502, 68-571.
92N.J. Stat. Ann. $ 27:7-21 (Supp. 1975).
93N.J. Stat. Ann. $ 40:180-1 (1967)-
94fl.J. Stat. Ann. $g 52:14B-1 to 52:14B-18 (1970), as amended, (Supp. 1975),
95N.J. Stat. Ann. $ 40:180-2 (1967).
95Antieau, g 5.08.
97N.J. Stat. Ann. $$ 40:67-1, 40-67-16.5 (1967).
98Antieau, gg 6^50, 6.49.
98N.D. Cent. Code gg 24-05-02 to 24-05-22 (1970), as amended. (Supp. 1973).
100N.D. Cent. Code gg 24-05-20, 24-06-26.1 (1970).
101N.D. Cent. Code g 24-06-27, 24-06-29 (1970), as amended, (Supp. 1973).
IV-4
-------
102N.D. Cent. Code $ 11-11-10 (1960).
103Antieau, $ 2.08.
104W.Va. Code Ann. $$ 17-2A-8(1), 17-2A-8(2) (1974).
105W.Va. Code Ann. U 29A-5-1, 29A-5-4 (1971).
106Utah Stat. Ann. $$ 27-12-1 to 27-12-8, 27-12-104, 27-13-2 td 27-13-9
(1969), as amended. (Supp. 1973).
107Utah Stat. Ann. U 63-46-10, 63-46-9 (Supp. 1973).
108Va. Code Ann. U 15.1-854, 15.1-863 et se^. (1973).
109Va. Code Ann. U 15.1-863 (1973); U 36-97 to 36-119 (Supp. 1975).
110Wis. Stat. Ann. t$ 81.01, 83.01, 84.07 (1957), as amended. (Supp. 1974).
mWis. Stat. Ann. $ 84.01 (Supp. 1974).
112Wls. Const, art. 4, $ 23; Wis. Stat. Ann. $ 59-01 (Supp. 1974); Antieau,
2 5.08.
113Antieau, $ 5.03.
114Ind. Ann. Stat. $ 18-5-10-1 et ^eg,. (1974).
115Antieau, W 5.03, 5.08, 6.02, 6.03.
116M±ch. Comp. Laws Ann. $$ 103.3 (1967).
117Mich. Comp. Laws Ann. ££ 89.1, 89.2 (1967).
" 118Antieau, $ 5.03; Mich. Comp. Laws Ann. $ 103.4 (1967).
119Antieau, $ 5.08.
120Kan. Stat. Ann. $ 14-1307 (1964).
12%an. Const, art. XII, $ 5; Antieau, $ 5.03.
122Antieau, U 5.03, 5.08, 6.02, 6.03.
123W.Va. Code Ann. $ 17-2A-4, 17-2A-8 (1974).
124Antieau, £ 5.03; W.Va. Code Ann. 0 17-4-31 (1974).
!25W.Va. Code Ann. $ 12*4-38 (1974).
126Va. Code Ann. $ 33.1-12 (Supp. 1975).
IV-5
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127va. Code Ann. $ 56-369 (1974).
128va. Code Ann. g 56-366.1 (1974).
129Va. Code Ann. $ 56-462 (1974).
130Va. Code Ann. U 56v6, 56-449, 56-468 (1974).
131ya. Code Ann. 0 9-6.14:1 to 9-6.14:19 (Supp. 1975).
132M±nn. Stat. Ann. $ 160.07 (Supp. 1974).
133city of Bellevue, Wash., Ordin. No. 1704, as amended by Ordin. Nos.
1765 and 1803 (1972), International Conference of Building Officials,
Uniform Building Code (1973) -
134uniform Building Code at M 201, 202 (1973).
135Uniform Building Code at 102 (1973).
136Uniform Building Code at 304 (1973); Antieau, Municipal $ 5.03 (1973)
137Uniform Building Code at 0 202 (1973).
138Unifora Building Code $ 301d (1973) .
139Uniform Building Code at gg 306, 301a (1973).
140Uniform Building Code at Parts III-XII (1973).
143 Id. at $ 205.
144Id.
145 Id_. at $ 3.
146City of Bellevue, Wash., Ordin. No. 1803, $ 1 (1972).
147 City of Bellevue, Wash., Ordin. No. 1803, $ 205 (1972).
148City of Bellevue, Wash., Ordin. No. 1803, g 206 (1972).
149 City of Bellevue, Wash., Ordin. No. 1803, $ 206 (1972).
150City of Bellevue, Wash., Ordin. No. 1803, $ 2 (1972).
IV- 6
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153Ring Co., Wash. Ordin. N6. 2096 (1973).
154id.
155id.
156K±ng Co., Wash., Ordin. No. 2096 (1973).
157id. at % 206.
158Ring Co., Wash., Ordin. No. 2096, $ 3 (1973).
159International Conference of Building Officials, Uniform Housing Code
(1973) cited in King. Co., Wash., Ordin. No. 2096 (1973).
160id. at * 201(a).
161ld. at U 303, 301, 1401(c)(3).
162id. at i 103(a).
163id. at n 103(b), 103(c).
164id. at U 301, 204.
165id. at n 1601-1611.
166id. at $ 1201.
167id.
168Hawaii Stat. Ann. $ 62-39 (1968).
169Hawaii Stat. Ann. $ 62-34 (1968).
170Hawaii Stat. Ann. $ 62-34 (1968).
"lid.
172Hawaii Stat. Ann. H 91-9, 91-14 (1968), as amended. (1975).
173va. Code Ann. tit. 36, U 36-97 to 36-119, 36-98 (Supp. 1975).
174id. at $ 36-105 (1970), as amended. (1975).
17Sid. at 2 36-99.
176id. at $ 36-105.
17?va. Code Ann. Ann. t 36-124 (1970).
178va. Code Ann. 0'36-126 (Supp. 1975).
IV-7
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179va. Code Ann. $ 36-130 (Supp. 1975).
I80va. Code Ann. $ 36-106 (Supp. 1970).
ISlVa. Code Ann. U 9-6.14:1 to 9-6.14:19, 9-6.14:12, 9-6.14:17 (1972),
as amended, (Supp. 1975).
182va. Code Ann. U 15.1-465 to 15.1-485, 15.1-499, 15.1-474 (1972),
as amended, (Supp. 1975).
183id_. at U 15.1-474, 15.1-476.
184Va. Code Ann. U 15.1-905, 15.1-499, 15.1-901 (1973).
185Id. at $ 15.1-901
186Antieau, $5.03
18?W.Va. Code Ann. $ 8-12-13 (1969).
188W.Va. Code Ann. g 8-12-14 (1969).
189W.Va. Code Ann. $ 8-11-1 (1969).
190W.Va. Code Ann. $ 8-34-1 (1969).
191Antieau, H 3.05, 5.08
192Cal. Gov't. Code $$ 66411-66499.37 (Supp. 1974).
193N.D. Cent. Code tit. 58, W 58-03-11, 58-03-14; 58-03-11 (1972).
194N.D. Cent. Code Ann. Const. $ 184, (1972).
195Mich. Comp. Laws Ann. $ 67.22 (1970).
196Mich. Comp. Laws Ann. $ 67.12 (1970).
197Mich. Comp. Laws Ann. $ 67.23 (1970).
198Mass. Gen. Stat. Ann. ch. 81, $ 21 (1968), as amended, (Supp. 1974).
201id.
203Mass. Gen. Laws Ann. ch. 81, $ 13 (1958).
204Mass. Gen. Laws Ann. ch. 30A, gg 10, 14 (1958), as amended, (Supp. 1974)
IV- 8
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205Mass. Gen. Laws Ann. ch. 30A, $ 10A (Supp. 1974).
206Mich. Comp. Laws Ann. $ 472.19 (1970).
207Mich. Comp. Laws Ann. $ 472.13 (1970).
208Antieau, Municipal $ 5.03 (1973).
209Antieau, Municipal $ 5.08 (1973).
210Ran. Stat. Ann. t 13-1904 (1964).
21lKan. Stat. Ann. # 13-1903 (1964).
212Kan. Stat. Ann. $ 13-1904 (1964).
213Ran. Stat. Ann. $ 13-1903 (1964).
214N.D. Cent. Code Ann. $$ 49-01-02, 49-11-04 to 49-11-06 (I960),
215id. at $ 49-11-04.
216id. at $ 49-02-02.
217N.D. Cent. Code Ann. $$ 49-11-15, 49-11-07 (1960).
218nich. Comp. Laws Ann. $$ 281.131^ - 281.135, $ 281.131 (1970).
219see Statutes Controlling Water Pollution this chapter.
220nich. Comp. Laws Ann. $ 281.132b (1970).
22lMich. Comp. Laws Ann. $ 281.132a (1970).
222Mch. Comp. Laws Ann. $ 281.135 (1970).
223ld.
224nich. Comp. Laws Ann. U 24-201-24.215; 24.271, 24.301 (1970),
225Wis. stat. Ann. U 31.01-31.38; 31.02 (1973).
226Id. at n 31.20, 31.04, 31.02.
227Id. at $ 31.19.
228ld. at $ 31.25.
229ld. at * 31.06.
"OKing.Co., Wash., Ordin. No. 2231, $ 3 (1975).
231see Statutes Controlling Water Pollution this chapter.
IV-9
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232King Co., Wash., Ordin. No. 2231 at 00 3, 7 (1975).
233Va. Code Ann. 00 62.1-116 to 62.1-127 (1973).
234Id. at 62.1-118, 62.1-119.
235Id. at 0 62.1-122.
236Mich. Comp. Laws Ann. 00 322.701 to 322.715; 322.712
237Id. at 0 322.715.
238Id. at 322.709.
239Id. at 322.712.
240Id. at 0 322.710.
241Va. Code Ann. 00 5.1-56 to 5.1-58, (1972) .
242 Id. at 0 5.1-58.
243Id.
244Id.
245Va. Code Ann. 00 5.1-69, 5.1-59, 5.1-58, 5.1-60, 5.1-61 (1972)
246W.Va. Cdde Ann. 00 17-2A-8, 17-2A-4, 17-3-1 to 17-3-10 (1974).
247See Statutes Controlling Water Pollution this chapter.
248W.Va. Code Ann. 0 17-2A-8 (1974).
249N.J. Stat. Ann. 0 40:55A-5 (1967).
250N.J. Stat. Ann. 0 40:55A-5, 40:55A-11 (1967).
251N.J. Stat. Ann. 0 40:55A-9, 40:55A-10 (1967).
252Antieau, 00 6-17, 6.50.
253Mass. Gen. Laws Ann. ch. 131., 00 40, 40A, 41, 42 (1974).
254See Statutes Controlling Water Pollution this chapter.
255Mass. Gen. Laws Ann. ch. 131, 0 40 (1974).
IV-10
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259Mass. Gen. Laws Ann. ch. 30A, 00 10, 14 (Supp. 1974).
260King.Co., Wash., Ordin. No. 1488, $$ 7, 6(2) (1973).
26lKing Co., Wash., Ordin. No. 1488, U 8, 9, 10 (1973).
262King Co., Wash., Ordin. No. 1488, $ 22 (1973).
2fi3King CO., Wash., Ordin. No. 1488, W 15, 16, 21 (1973).
26*King Co., Wash., Ordin. No. 1488, $ 20 (1973).
Co., Wash., Ordin. No. 1488, U 19, 20 (1973).
266Va. Code Ann. art. IX, $ 2; U 12.1-2, 56-35 (1974), 0 56-46.1 (1972),
as amended, (Supp. 1975).
267ld. at 56-46.1 (1974), as amended, (Supp. 1975).
. Code Ann. $ 12.1-38 (1974).
270Va. Code Ann. $ 56-6 (1974).
"lid.
272Va. Code Ann. art. IX, 0 4.
273Sands, $ 65.03.
274Va. Code Ann. $$ 56-462, 56-468 (1974).
2?5va. Code Ann. $ 56-449 (1974).
2?6va. Code Ann. $ 56-r366.1 (1974).
2?7va. Code Ann. $ 56-366.2
278VA. Code Ann. H 56-366.1, 56-366.2 (1974).
279Id_.
280Va. Code Ann. $ 46.1-180.3 (1974).
281ld.
283Antieau, $ 5.03.
284Antieau, t 5.08
IV- 11
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MINING
Mining is an activity essential to the maintenance of the
economic health of the United States and the continued industrial
development of the world. Although the land area presently
affected by mining activities represents less than one percent
of the land area of the United States and by the year 2000 (even
accepting the most optimistic estimates of Project Independence),
that area will increase to only three percent, the effects of
mining upon water quality and quantity are spread over large areas
Any modification or disturbance of the earth's crust will
in some way affect the environmental systems associated with
the geologic substrate of that crust. The extent of such
effects depends upon the nature and extent of the disturbance,
the means by which the earth's crust is disturbed and the
nature of the materials released and translocated as a result
of the disturbance. In the case of mining for economic
minerals, the purpose of disturbing the earth's crust is to ex-
tract quantities of economic minerals and the choice of technique
or method is largely made on economic considerations alone.
Perhaps the most serious contaminant responsible for water
pollution from mining activities is the acidic mixture of sulfuric
acid with iron and other metallic salts which results from the
oxidation in air of pyritic materials in the presence of water.
Acid mine drainage can arise from both underground and surface
mining activities.
SURFACE MINING
According to EPA studies, surface mining in ground water
recharge areas should be avoided, and where unavoidable, special
water handling measures should be established as part of the
mining plan.
Any process leading to issuance of permits for mining
operations should require mine operators to report local soil
123
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and slope stability characteristics, since some soils are highly
erodable and require rigorous erosion control measures if water
quality is to be maintained and some geologic formations weather
rapidly upon exposure to air and water. The weathered formations
become unstable and subject to sliding and flowing, which, in
addition to contaminating local surface waters also represents
a safety hazard. The permitting process should also require
mine operators to adequately describe regional physiography since
certain terrain may require special mining techniques such as
the modified block-out, parallel fill, and/or slope reduction
in order to prevent massive landslides of spoil material.
Over-burden segregation and handling should be planned for
prior to initiation of any surface mining activity, and in
the case of existing surface mining operations, further activities
should be delayed pending approval of over-burden segregation
and handling procedures. In some areas, surface mining takes
place over existing operating or abandoned underground mines,
and any permitting process should include a requirement for
reporting the past mining and drilling history of the area so
that underground mines and underground mine-water pools can be
identified. When surface mining activities break through into
underground mines, large quantities of contaminated but impounded
water can be released. The introduction of air into the underground
mine can also accelerate the chemical reactions that eventually
result in acid mine drainage, particularly in eastern coal
mining regions.
Local environmental conditions are extremely important
in surface mine reclamation. It is difficult to revegetate
surface mined lands in arid, semi-arid, alpine and tundra areas.
Any area that is not revegetated immediately after mining is
subject to the ravages of wind and water, and erosion resulting
from mining operations can contaminate regional hydrologic sys-
tems for many years after mining activities have been abandoned.
124
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In choosing plant species for revegetation, careful consideration
must be given to the plants' adaptability to local environmental
conditions.
While many modern surface mining techniques do not neces-
sarily provide for complete reclamation/ they do represent some
means for controlling the release of contaminants from surface
mining operations. A number of techniques are available to
surface mine operators, and while all the techniques cannot be
applied at any individual mine site, careful choice of mining
procedures can minimize the contamination from any particular mine
reclamation or mining operation.
It is a well known geologic fact that the contaminants
which represent potential sources of water pollution are not
evenly distributed throughout mineral seams, a phenomenon par-
ticularly evident in the case of coal. Of the many coal seams
occurring in a given area, relatively few account for almost
all the water pollution. Lateral variability occurs often in
coal seams, and a particular coal seam may be acid in one area and
alkaline in another. Water quality studies and core boring samples
in polluted watersheds often indicate that contamination is not
evenly distributed but is concentrated in local areas. A small
portion of a watershed may be responsible for the majority of
the water pollution. In certain areas, particularly in the
eastern portion of the United States, extensive water quality
sampling can determine these "hot" areas in mineral seams, and
once these areas of high pollution potential are located and
mapped, stringent water pollution control measures can be
applied in those particular areas, reducing the overall cost
of water pollution control throughout the entire region.
Much of the water pollution expected from future mining
operations can be avoided by strictly regulating or, where
necessary, prohibiting mining in areas of high pollution po-
tential, but an essential first step is establishing a water
125
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quality sampling program on an areawide or regional scale to
identify and map areas of high pollution potential. Such map-
ping should eventually include data on mineral seams, and mine
operators should be compelled to provide maps for each individual
mineral seam they seek to exploit.
Sedimentation, an environmental process defined as the
erosion, transportation, and deposition of material by water and
wind, is greatly accelerated by mining activities. Physical
disturbance exposes soil and rock to erosive forces and increases
erodability of the parent material. In mining areas, moving
water is responsible for most of the erosion, although wind may
be a significant transport mechanism for eroded material, par-
ticularly in arid or semiarid regions, carrying fine grained
materials over wide areas. Inevitably, however, the material
scattered by the wind will enter the network of surface water
flow during periods of surface runoff.
The need for erosion control has been apparent for thousands
of years, and the durability of many classical civilizations can
be attributed to their success in protecting their limited supply
of prime agricultural land from erosion. Extensive research
by the United States Departments of Agriculture and Interior
during this century has significantly advanced the science of
erosion control.
Many of the erosion control procedures developed for urban
and highway construction are applicable to mining operations,
although erosion and sediment control techniques sometimes con-
flict with mine water chemical pollution controls and may require
tradeoffs. Erosion control calls for a decrease of runoff water
velocities, which can increase infiltration and chemical contami-
nation. If the underlying material contains water leachable con-
taminants which can contribute significantly to pollution, infil-
tration should be discouraged. Mine-water chemical pollution
control, on the other hand, generally calls for rapid surface
126
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water runoff to reduce infiltration.. Where chemical contamina-
tion of surface and ground waters can occur, some balance must
be maintained between sediment control and control of chemical
contamination.
The basic methods of erosion control involve:
0 isolation of erodable material from moving water by,
diversionary channelization and covering procedures;
0 reduction of the velocity of water flowing over erod-*
able material by slope control, revegetation and construction
of impediments to flow (mulches, scarification, dikes, contour
plowing, and dumped rock); and
0 decreasing the erodability of the material by com-
paction and chemical stabilizers, burial of erosion prone mater-
ials, and revegetation.
Where erosion prevention methods are not as effective as
may be desired, suspended material can be removed from the
transport media, water, by construction of collection and
conveyance systems leading to impoundments. Detaining water
for a sufficient time under quiescent conditions will cause sus-
pended material to settle out. The most efficient erosion con-
trol systems for active surface mines often combine settling
ponds with such preventive measures as diversion and revegetation.
The choice of erosion and sediment control techniques should
be made during mine planning and must consider local conditions
including erodability of disturbed material, topography, rainfall,
relationship of surface flow channels, the drainage area tribu-
tary to the mine site, mine site hydraulics and the settling char-
acteristics of the transported material, although local physi-
ographic, weather, and soil conditions result in variations in
the level of control possible.
STRIP AND SURFACE MINING
State statutes regulating the establishment, operation,
and abandonment of strip and surface mines generally include
some provisions for protection of soil and water resources.
127
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Operating standards may be imposed, plans required, and in-
spections authorized. Operation and reclamation plans can
become important means of water pollution control.
Permits to conduct surface or strip mining are required
in ten1 of the twenty-two states surveyed by the EPA. Seven
states2 require operators to obtain permits for surface mining,
while only five states require strip mining permits. As
conditions precedent to granting permits, many states require
payment of administrative fees, maps of the area, plans of oper-
ation, and proof of ownership or right to mine. All of the
states searched during this study require the filing and
approval of a comprehensive reclamation plan as a condition
precedent to obtaining a surface mining permit. All states
searched during this study, except Indiana, require a reclamation
4 5
plan for strip mining permits. Although Missouri and Indiana
require reclamation, they do not condition approval of the permit
application on approval of a comprehensive reclamation plan.
To insure compliance with the reclamation plan or requirement,
all the states searched also require applicants to post
performance bonds which may be released if reclamation opera-
tions are satisfactorily completed. The bonds are subject to
forfeit if operations are unacceptable. In each of the searched
states, a designated State agency is authorized to reclaim the
land if the operator fails to do so and may look to the bond
for reimbursement.
In all the states studied administrative agencies have
been designated to administer and enforce surface and/or
strip mining laws. In each state, the regulatory agency
is given the authority to promulgate rules and regulations
and to carry out such inspections and investigations as may be
necessary in the performance of its duties.
The West Virginia Surface Mining and Reclamation chapter6
authorizes the Division of Reclamation of the Department of
Natural Resources to administer state laws relating to surface
mining. A Reclamation Commission was created and may issue
128
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rules, regulations and orders, make investigations and inspec-
tions and conduct hearings. Permits are required in West Virginia
not only to engage in surface mining but also to prospect for
coal. The Director of the Division is to consider and pass
on all permit applications and reclamation plans. If surface
mining cannot be carried out in such a manner as to prevent
lakes or streams from being contaminated by sedimentation,
landslides, or acid water drainage, the Director may prohibit
the mining operation. The Director is also required to disapprove
plans for operations within one hundred feet of public streams or
lakes.
Virginia regulates the surface mining of coal. As in West
Virginia, responsibility for regulation is divided between various
state agencies. The Board of Conservation and Economic Development
may promulgate rules and regulations and issue orders dealing
with surface mining of coal, while the Department of Conservation
and Economic Development is responsible for administration and
o
enforcement of the chapter. Applications for prospecting and
for surface mining permits are approved or disapproved by the
Director of the Department of Conservation and Economic Development.
Applications for surface mining permits must include specifications
for mining operations, drainage and reclamation plans and proposed
control techniques. A separate section of the State Code regulates
9
certain other types of mining having an effect on the land surface.
The Department considers applications for mining permits, and
no permit may be granted unless an acceptable plan of operation
and reclamation is also submitted. The Director of the Depart-
ment is empowered to issue rules, regulations and orders, and .to
carry out inspections.
A related Virginia strip mine statute regulating "orphaned
lands," authorizes the Director of the Department of Con-
servation and Economic Development to enter into agreements with
owners or lessees of land disturbed by coal strip mining where-
by they agree to allow the Division of Mined Land Reclamation
129
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12
to reclaim the land, in a manner prescribed by the Director.
Federal funds may be utilized in carrying out the purposes of
this chapter. This statute, unlike the others discussed, is not
a licensing statute and does not regulate mining activities;
it merely gives the Department authority to reclaim lands which
would not otherwise be reclaimed.
The other Virginia statute, regulating certain types
of mining other than coal mining, requires the submission of
a plan of operation which must include proposed reclamation
measures. Grading of loose soil and debris, revegetation, and
debris removal are among the required reclamation measures. A
bond of $200 to $1000 per acre must be posted to insure compliance.
The Montana Board of Land Commissioners and the Department
of State Lands share responsibility for regulation of surface
and strip mining operations. The Reclamation of Mining Lands
chapter of the Code authorizes the Board to deny surface
mining permits to operators who submit unsatisfactory reclamation
plans or, more specifically, whose plans conflict with water
and air quality standards. This chapter deals only with
surface mining of ore, rock or a substance other than oil,
gas, bentonite, clay, coal, sand, gravel, phosphate rock or
uranium. The usefulness, productivity, and scenic value
of Montana's lands and surface waters are to be considered
by the Board in deciding on applications for permits, and the
chapter authorizes the Board to issue rules, regulations and
orders, hold hearings, and hire staff to act as supervisors.
Montana, like West Virginia and Virginia, requires separate
prospecting permits for surface mine exploration work.
The Montana Strip Mining and Reclamation Act17 also
authorizes the Board to issue rules, regulations and orders
pertaining to strip mining of coal or uranium. Under this Act,
the Department of State Lands decides on all permit applications,
including the plans of operation and reclamation required to
be submitted with the application. Investigations and inspec-
tions are conducted by the Department. If a plan fails to include
130
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efforts to eliminate hazards of soil erosion, landslides and
18
water pollution, it may be rejected by the Department.
A site permit is required to prospect land not covered by the
strip mine permit.
19
The Montana Strip Mine Siting Act extends the permit
requirement to all new strip mines. An application for a permit
must include a reclamation plan, as in the other Montana acts.
In passing on the application, the Department of State
Lands is to consider the environment and depletion of natural
resources. Under this Act, the Department given the rule making
power, may issue orders, and conduct investigations and inspec-
tions.
20
The Idaho Surface Mining Act requires that the State
Board of Land Commissioners consider and rule on all permit
applications and reclamation plans. Control of erosion is to
be a major factor in the acceptability of reclamation plans,
rules and regulations.
In North Dakota, the Public Service Commission administers
programs for the reclamation of strip-mined lands. Reclamation
21
plans must accompany applications for permits to surface mine.
The Commission may adopt administrative rules and regulations,
conduct hearings, and carry out inspections and investigations.
Reforestation, revegetation and the enhancement of water resources
22
are the goals of reclamation in North Dakota. A reclamation
plan is prerequisite to licensure and must include steps to
93
minimize runoff and pollution from construction debris.
Certain areas of the state are designated as not reclaimable
O A
and, therefore, surface mining in these areas is prohibited.
In Kansas, permits to surface mine are obtained from the
Mined-Land Conservation and Reclamation Board, part of the
Corporation Commission. The Mined-Land Conservation and Reclamation
Act2^ authorizes the Board to promulgate rules and regulations,
issue orders, and conduct investigations and inspections.
131
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The Corporation Commissioner hires the personnel necessary
to carry out the purpose of the act. Applications for permits
must be accompanied by a reclamation plan which includes
provisions for grading, prevention of undesirable seepage
and revegetation.
Indiana requires permits for surface mining and strip
mining. Surface mining is regulated under the Strip Mining
26
Reclamation chapter of the Code, and the Natural Resources
Commission has the power to approve applications for permits
and to promulgate rules and regulations. The Department of
Natural Resources supervises the administration of the act,
conducts any necessary investigations or inspections and issues
enforcement orders. Applications for permits must be accompanied
by plans for operation, grading, and reclamation, all of which
27
must be approved by the Commission. Strip Mining permits,
on the other hand, are approved and issued by the Department of
2 8
Natural Resources (formerly the Department of Conservation),
which may issue rules and regulations to enforce the provisions
requiring land reclamation, grading, damming, and revegetation.
However, a reclamation plan need not be filed with the application
for a permit.
In Indiana, a reclamation plan is a prerequisite to obtain-
29
ing a surface mining permit but not a strip mining permit,
while in Missouri, the reverse is true. Under the provisions
of the Missouri Land Reclamation Act, surface mining of
clay, limestone, sand and gravel requires a permit, but a
reclamation plan need not be included in the permit application.
Rather, by rule and regulation the Land Reclamation Commission
requires that reclamation be undertaken. The Commission
may promulgate rules and regulations, issue orders, conduct
hearings, hire employees and carry out investigations and inspec-
tions in enforcing the Act.
132
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Reclamation plans are a prerequisite to obtaining a strip
32
mining permit in Missouri. The plans should be formulated
to prevent water and mine pollution and to promote soil and
water conservation. As in the previous provisions, the Land
Reclamation Commission may adopt and promulgate rules and
regulations, issue orders, conduct hearings, and hire employees
to conduct inspections and investigations. Plans and applications
must be approved by the Commission before a permit will be is-
sued .
A Board of Land and Natural Resources was established in
33
Hawaii and empowered to issue or deny permits for strip mining.
Issuance of a permit is conditioned on the submission and approval
of reclamation plans. The Board is given "full power and auth-
ority to carry out and administer the chapter," and although
the power to issue rules and regulations is not specifically men-
tioned, the Board may hold hearings, issue orders and conduct
investigations.
In a separate chapter of the Hawaii Code, this power to
issue strip mining permits is limited somewhat, since no permit
or license may be issued for strip mining on land within state
forest reserve boundaries without the prior approval of the De-
34
partment of Land and Natural Resources. In determining whether
to grant or withhold approval, the Department is to consider the
effects of the proposal on forest growth, and the conservation
and development of water resources.
The final state surveyed which regulates surface or strip
mining is Colorado. The Colorado Open Mining Land Reclamation
Act of 1973 requires that operators obtain permits to
engage in open mining, which includes mining of limestone for
construction purposes, coal, sand, gravel and quarry aggre-
gate by open cut mining, strip mining, open pit mining, quar-
rying and dredging. Reclamation plans containing provisions
protecting water supplies from acid and refuse pollution and
siltation and protecting soil from water erosion must be
133
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approved by the Land Reclamation Board, which is authorized
to set standards for reclamation plans, promulgate rules and
regulations and make reasonable inspections.
Performance bonds provide an efficient means of in-
suring reclamation of disturbed lands in that they encourage
the operator to perform reclamation in the first instance and
provide the state with the funds to reclaim the land if the
operator does not. The reclamation plans required to be filed
under most statutes also provide a significant control of ac-
tivities which may lead to water pollution. Reclamation of
water, often as critical as reclamation of the land, must also
be considered; where ignored, some states will not issue a
ich
37
permit, while other states impose penalties such as permit
or bond revocation, fines or criminal liability.
The reclamation plan required to be filed under the
3 8
West Virginia Surface Mining and Reclamation Chapter
must contain provisions for the protection of the public,
their property, and soil and water resources. Prior to
commencement of mining operations an operator must complete
and maintain a drainage system. Other reclamation efforts
may be undertaken at scheduled intervals. Several reclamation
procedures are required to be made contemporaneously with
39
mining operations. Water protection measures such as
runoff testing and treatment, revegetation, and seepage and
soil erosion prevention are to be a part of reclamation
efforts. A bond equal to the greater of $600 to $1000 per acre
or $10,000 per operation is to be posted with the application
and may be forfeited if reclamation efforts are unacceptable
or if the operator refuses to obey an order of the Director.
In West Virginia, as in several other states, the agency, in
this case the Division of Reclamation of the Department of
Natural Resources, has no authority to bring forfeiture proceedings,
but must request the Attorney General or a county attorney to
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institute the action. In addition to the performance bond, a
special reclamation tax of $60 per acre of land disturbed is
assessed. The proceeds from this tax are to be applied to the
reclamation bond was ever posted.4^
Virginia's Coal Surface Mining chapter4^ aiso requires
that reclamation plans include a description of control techniques
and a drainage plan. A bond of $300 per acre is required for
a prospecting permit, while the bond for a surface mining permit
to mine five acres or more is the greater of $200 to $1000 per
acre or $2500. Both bonds are significantly lower than those
required by West Virginia. Following service of notice of non-
compliance with the plan of operation or reclamation or with
agency rules and regulations, the Director may declare the bond
to be forfeited.44
Reclamation efforts in Montana are to be conducted as
rapidly and as completely as possible according to the chapter on
Reclamation of Mining Land and the Montana Strip Mining and Re-
clamation Act. The reclamation chapter requires reclamation
simultaneously with mining efforts or at least promptly after
completion. In either case, reclamation is to be completed within
two years.4" The Strip Mining and Reclamation Act calls for
reclamation "as rapidly, completely, and effectively as the most
modern technology will allow.ll4^ Both measures seek to control soil
erosion, runoff and water pollution and the bond requirements are
similar in both measures.48 The third Montana measure, the Strip Mine
Siting Act,49 patterns its bond requirement after the Strip
Mining and Reclamation Act but raises the minimum involved.
For new strip mine sites, a performance bond of between $200
to $10,000 per acre or $5000 must be posted, but in no instance
may the bond required be less than the estimated cost of recla-
mation. " The Reclamation of Mining Lands chapter is the only
one of the three statutes which details the procedure for bond
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forfeiture. Under the provisions of that chapter, the Board
of Land Commissioners, after notifying the permittee of non-
compliance and allowing a reasonable time for compliance, is to
request the Attorney General to bring bond forfeiture proceedings
and, if necessary, to sue for deficiencies.
To comply with the Idaho Surface Mining Act, ^ reclamation
plans must contain provisions for the restructuring and revegetation
of the overburden so as to prevent and control erosion. Reclama-
tion efforts must commence within one year after mining opera-
tions are terminated. The bond in Idaho is relatively low, a
maximum of $500 per acre. If an operator fails to reclaim, the
Board of Land Commissioners may reclaim and sue for costs, or sue for
forfeiture of the bond.52 Once again, forfeiture proceedings must
be brought by the Attorney General at the Board's request.
The North Dakota Reclamation of Strip Mined Lands chapter
allows the Public Service Commission to institute its own bond
forfeiture proceedings if an operator fails to comply with the
rules of the Commission. A reclamation plan, to obtain approval of
the Commission, must include steps to minimize water pollution from
runoff and construction debris and efforts to reforest and revege-
tate. A bond of up to $500 per acre may be required to insure
compliance with the plan.53 The chapter requires that reclamation
be completed within three years of the termination of mining operations.
Grading, draining and revegetation efforts are to be in-
cluded in reclamation plans in Kansas and are to be required
by the Department of Natural Resources in Indiana to prevent
soil erosion and the resulting pollution of waters.5^ The
Kansas Mined-Land Conservation and Reclamation Act sets
the performance bond for surface mining operations at $300 to $1000
per acre, while the Indiana Strip Mining Reclamation chapter requires
a $300 to $2000 per acre bond for surface mining.5^ The Indiana
statute provides for retention of the bond by the Department of
Natural Resources upon failure of the operator to satisfactorily
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complete reclamation, but the Kansas Mined-Land Conservation
and Reclamation Board has no such authority. The Kansas Board must
petition the Attorney General to institute bond forfeiture pro-
ceedings if an operator fails to comply with the Board's rules
C o
and regulations. Kansas, like Montana, provides a timetable to
which reclamation efforts must adhere. Reclamation is to commence
as soon as possible; grading is to be kept current with mining
operations; and all reclamation is to be completed within twelve
months after the permit expires.
The bond requirements for strip mining in Missouri vary
according to the mineral being mined.^ y^e Attorney General
represents the Land Reclamation Commission in bond forfeiture
proceedings, which proceedings may be instituted, after notice and
opportunity for a hearing, for non-compliance with any of the Commis-
sion's rules and regulations. The chapter regulating strip
mining of coal and barite, the Reclamation of Mining Land
Chapter, requires that a reclamation plan be submitted as
prerequisite to obtaining a permit. A strict timetable is in-
cluded indicating within how many days after completion of the
mining operations each phase of reclamation must be commenced
and completed. Reports must be filed detailing reclamation progress,
and the Commission may inspect for compliance.
61
Hawaii's Strip Mining chapter requires that strip
mine reclamation plans be accompanied by a performance bond of
up to $300 per acre, and the Board of Land and Natural Resources
is empowered to bring forfeiture proceedings. The Colorado Land
Reclamation Board has no such authority under the Open Mining Land
Reclamation Act.6 The performance bond, in an
amount to be determined by the Board, may be forfeited for failure
to reclaim only at a forfeiture proceeding instituted by the At-
torney General.63 the bond will be declared forfeited only after
written notice and an opportunity for a hearing prior to the Board's
requesting forfeiture proceedings.
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Reclamation of land is prescribed in several other mis-
cellaneous statutes not dealing with strip mining or surface
mining. The Idaho Dredge Mining and Placer Mining Protection
Act conditions retention of the required permit and return
of the performance bond upon restoration by the operator of the
topsoil and vegetation in the disturbed area. Before water used
in mining operations is discharged into any stream, it must meet
state water quality standards.65 Failure to comply with these
or other provisions of the act or with rules and regulations
or conditions set by the Board of Land Commissioners will result
in disciplinary action. A bond of $1000 per acre with a
$10,000 minimum may be forfeited to the state after notice and
an opportunity for a hearing.
Provisions in the Mineral Land section of the Minnesota
Code°° calls for the filing and approval of a reclamation
plan before a permit may be issued to mine copper or nickel.
The Commissioner of Natural Resources may adopt these rules and
regulations to prevent water pollution and regulate mine waste
disposal. A bond to insure compliance with the plan may be required
by the Board if an operator has failed to reclaim in the past or if
the Board has reason to doubt that the operator will reclaim.6^
This type of bond requirement seems to offer the state far less
protection than the mandatory performance bonds required in the other
statutes discussed. Minnesota is not the only state with such
fi Q
a provision. A Michigan law00 regulating Metallic Mineral
Mining Operations authorizes the Chief of the Geological
Survey to determine whether an operator is a bad risk and whether such
operator should be required to post a performance bond. Minnesota
does, however, require each operator to obtain liability insurance
to cover personal injuries or property damage, while the
Michigan law does not. As a result, there is no requirement
in the Michigan law that operators file reclamation plans. On
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the other hand, both laws authorize the administrative agencies
involved to conduct studies or surveys on the effects of mining
on soil erosion and water quality, and to promulgate rules and
regulations regarding reclamation or restoration based on these
studies.69 Failure to reclaim in either state may result in
bond forfeiture although neither state details the procedures
for recovery upon the bond.
Montana's Open Cut Mining Act70 regulates the open cut
mining of bentonite, clay, scoria, phosphate rocks, sand and
gravel. Like the Montana statutes regulating strip and surface
mining, this Act requires the approval of a reclamation plan be-
fore operations may begin. The Act does not require a permit to
mine but rather a contract with the Board of Land Commissioners
by which the operator agrees to reclaim and revegetate the dis-
turbed land and protect water and other resources. •"• A bond com-
mensurate with the costs of reclamation but amounting to at least
$200 and no more than $1000 per acre is to be posted before the
contract may be accepted. The Board is authorized to bring suit
for bond forfeiture and/or breach of contract if the operator
fails to reclaim.
The Montana Landowner Notification Act72 makes it a
misdemeanor for prospectors or miners to fail to notify the
landowner of the intent to disturb the land and to disclose
contemplated'protection and restoration measures. The landowner's
approval of these measures must be obtained in advance. The final
reclamation statute is a recent amendment to the Indiana Reclamation
of Lands chapter.73 The statute authorizes the Department of
Natural Resources to purchase land to reclaim, if the owner fails
to do so, but the-provision applies only to land disturbed by strip
or shaft mining. The Director of the Department may grade, plant
and perform other acts of restoration on the land purchased and
may then turn them over to a state agency for sale to the public.
Penalties
Although performance bonds are an effective means of in-
suring that damage to the environment is corrected to the extent
possible, they do nothing to prevent that damage from occurring
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in the first place.
The extent of environmental damage caused by mining,
including water pollution, may be limited at several stages. The
first is the permit stage. If unacceptable damage to the environ-
ment can be expected to result or if the reclamation plans are
insufficient, a mining permit may be denied. Each of the
statutes discussed in this section which authorizes an agency
to grant permits also authorizes refusal to grant permits;
however, once a permit has been granted an economic interest
has been created which cannot be limited without due process
of law. When violations of the laws or regulations occur, in-
junctive relief may provide the most immediate and the most
effective remedy. The usual procedure is for the administrative
agency to first order compliance and then to proceed to exhaust
administrative remedies. Fourteen of the statutes''*
discussed in this section authorize some form of injunctive
relief. Seven of the statutes allow the agency administering the
act to institute injunction proceedings, while four others require
that the Attorney General represent the state in these suits.
The West Virginia, Virginia and North Dakota provisions
regulating surface mining, the Virginia statute regulating
other types of mines, the Missouri coal and barite strip mining
statute, the Hawaii strip mining statute, the Kansas Mined-Land
Conservation and Reclamation Act, and the Idaho Dredge Mining
and Placer Mining Protection Act all permit the authority charged
with administering the statute to institute proceedings to en-
join violations of their provisions or orders issued under them.
However, the Idaho Surface Mining Act^5 restricts the use
of injunctions, authorizing the Board of Land Commissioners to
seek injunctive relief only if no performance bond or an insuf-
ficient performance bond was filed. If a bond has been filed,
forfeiture of the bond is the remedy provided for failure to
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reclaim, and continued mining operations may not be enjoined.
On the other hand,- the Idaho Dredge Mining Act allows not only
the Board to enjoin wrongful mining operations but also citi-
zens.76 This is the only state mining legislation authorizing
citizen suits for injunctive relief.
The West Virginia Surface Mining and Reclamation pro-
77
vision permits injunctive proceedings to be brought
by certain persons other than the administrative agency (Di-
rector of the Department of Natural Resources); the Attorney
General and the county prosecuting attorney each have author-
ity under the act to compel compliance with or enjoin violations
of the article. The Kansas Mined-Land Act78 contains a pro-
vision which the other acts do not. It authorizes actions for
specific performance of reclamation plans in addition to other
equitable relief.
All three Montana strip or surface mine statutes require
that suits to enjoin violations or threatened violations of
orders adopted under their provisions be brought by the Attorney
General on behalf of the state.79 The same is true in Minne-
sota, where under the Mineral Lands chapter,80 it is the
Attorney General who must institute proceedings against viola-
tors of the article. The Metallic Mineral Mining Operations
sections of the Michigan Code81 authorize the Chief of the
Geological Survey Division to promulgate rules and regulations
relating to mining operations. Violations of these rules and
regulations may be enjoined in proceedings brought by the At-
torney General.
A preliminary step must be taken prior to seeking either
injunctive relief or bond forfeiture. The agency must order
compliance or order actions to cease. If such an order is issued and
obeyed, no further action needs to be taken; however, in most
cases, the operator may request a hearing to appeal the order.
Unless the hearing officer or the statute provide other-
wise, the order must usually be complied with until a final de-
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cision is made. Therefore, like a temporary restraining
order, an agency order even when objected to has certain ad-
vantages. Of course, the order may be disobeyed, in which case
enforcement proceedings, perhaps injunctive relief, will be
necessary. Noncompliance with an order may result in criminal
or civil penalties.
p O
The Kansas Mined-Land Conservation and Reclamation Act0"
authorizes the Board to issue cease and desist orders, permit
suspension orders, and orders requiring operators to adopt re-
medial measures. Persons disobeying such orders are subject
to a fine of up to $250 per day. The Missouri Reclamation of
83
Mining Lands statute allows the Land Reclamation Commission to
issue cease and desist orders and assess civil penalties of up to
$1000 per day for their violation.
A division of authority with regard to orders exists
under the Montana Strip Mining and Reclamation Act. The Board
of Land Commissioners may issue orders requiring remedial
Q A
measures or revoking permits,°* while the Department of
Conservation and Economic Development actually revokes the
permit and also has authority to order the halting of oper-
ations . °^
Revocation of permits is another enforcement measure
provided for in a number of statutes. Of the statutes which
authorize agencies to grant and deny permits, only three, the
Virginia chapter on Permits for Certain Mining Operations, the
Idaho Surface Mining Act and the Colorado Open Mining Land Reclama-
tion Act of 1973, fail to expressly authorize the revocation of those
permits. The Virginia statute does, however, mention permits
which have been revoked in one of its provisions. ^ All of the
other licensing statutes allow the administering agency or agencies
to revoke and/or suspend permits for violations of statute provisions
or permit terms.
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West Virginia is among the states which authorize suspen-
sion or revocation of surface mining permits,^7 but this is
not the only action open to the responsible agency in that state.
The Surface Mining and Reclamation article" gives the Director of
the Department of Natural Resources the power to take any legal
action necessary to enforce its regulations.
Citizen action is another way to prevent violations from
occurring or to collect damages for past violations. Two states
have statutes authorizing citizens to file writs of mandamus
seeking to force government officials to enforce the mining
QQ
laws. The West Virginia Surface Mining and Reclamation chapter
has such a provision, as do the Montana Strip Mining and
90 91
Reclamation Act and the Montana Strip Mine Siting Act.
The first two statutes also authorize citizen suits for damage
to property caused by mining operations. The West Virginia
qo
chapter provides for treble damages. • Damage suits may also
be brought in Idaho under the Dredge Mining and Placer Mining
Protection Act,93 and in Minnesota under the Mineral Lands
chapter.94 The Idaho Act also allows citizens to seek injunc-
tive relief to prevent wrongful mining, and in addition, it con-
tains a provision authorizing private citizens to apply to the
Board of Land Commissioners seeking administrative remedies
in addition to remedies at law and equity.
Seven statutes" provide civil penalties for violations
of statute provisions, orders, rules or regulations. The Minne-
sota Mineral Lands chapter provides civil penalties of $1000
96
per day for failure to comply. ° The Idaho Surface Mining
97 98
Act, the Montana Strip Mining and Reclamation Act,
99
the Montana Strip Mine Siting Act, and the Montana Reclamation
of Mining Lands chapter aii punish violations by civil
penalties of between $100 to $1000 per day. Of these five acts,
only Montana's Reclamation chapter fails to provide an addition-
al criminal punishment for willful violations. Willful viola-
tions in the other four measures are misdemeanors.101
143
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102
The Kansas Mined-Land Conservation and Reclamation Act
subjects violators of rules, regulations or orders of the Board to
fines of up to $250 per day. Hawaii punishes violations of the
Strip Mining chapter by forfeitures of $5000 recoverable in an
action brought by the Board of Land and Natural Resources.
104
Indiana's chapters licensing strip mining and surface mining
both provide fines of $1000 to $5000 upon conviction of violating
the provisions of the acts, and such violations are misdemeanors
under both chapters. The Idaho Dredge Mining Act also
punishes violations of the act, rules or regulations as misde-
meanors, with each day of violation constituting a separate
offense, but no specific form of punishment is set forth in the
act.
The Montana Open Cut Mining Act, the Missouri Land
107
Reclamation Act, the Colorado Open Mining Land Reclamation
108
Act of 1973, and the North Dakota Reclamation of Strip-Mined
109
Lands chapter all punish failure to secure a permit (or
contract) as misdemeanors, and in each case a fine is provided
for upon conviction.
Fines and/or imprisonment are also provided for under two
Virginia statutes. The chapter regulating the surface mining
of coal declares that mining without a permit, obtaining a
permit through false information, willfully failing to follow
control techniques and willfully disobeying regulations or orders
misdemeanors, are punishable by fines of up to $1000 per day and/
or up to one year imprisonment. The Virginia chapter governing
certain other mining operations declares that violation of any
section of the statute or order of the Director is a misdemeanor
punishable by a fine of up to $1000 and/or up to one year in
prison. West Virginia also punishes willful violation of the Sur-
face Mining and Reclamation statute, or operating without a permit,
112
or obtaining a permit by making a false statement as misdemeanors.
144
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COAL MINING
Strip mining and reclamation laws are the primary tools
used by the states studied to regulate coal mining. In a number
of states, separate legislation controls waste of coal, refuse
disposal and various mine safety measures.
11"}
Montana enacted the Strip Mined Coal Conservation Act
to prevent waste of coal. The act requires the submission and
approval of a comprehensive strip mine plan to the Department of
State Lands in order to achieve this end. Although control of
water pollution was not the avowed purpose of the act, it could
be a significant result of waste prevention activities.
Coal refuse and coal dust control are the subject of a number
114
of statutes. The protection of human life is usually the primary
purpose of this legislation. Nevertheless, as in waste prevention
statutes, the remedial measures taken for other purposes may also
reduce water pollution.
West Virginia has a Coal Refuse Disposal Control Act
which enables the Director of the Department of Natural Resources
to order an operator of a coal refuse pile which is in a danger-
ous condition to take remedial action at his own expense. If
the refuse pile constitutes and immediate danger to human life,
the director may enter the land and take whatever remedial measures
are necessary. This particular statute contains several provisions
directly aimed at the abatement of water pollution. The director
is authorized to reclaim abandoned coal refuse piles and, as part
of reclamation efforts, abate water pollution. To enforce
this act, the Department is authorized to adopt rules and regula-
tions, issue orders, hold hearings, make inspections, and take any
remedial action necessary.
West Virginia, Indiana and Kansas have all enacted
legislation controlling coal dust by requiring sprinkling with
a wetting agent or specifying means of removal from the mines that
would minimize the risk that dust would escape. Since failure to
properly wet the dust can result in its escape and eventual transport
to nearby surface waters, and since improper wetting procedures
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could cause runoff and result in water pollution, adequate inspec-
tion and enforcement of these provisions may aid in pollution abate-
ment. The Department of Mines is charged with enforcement in
West Virginia; the Director of the Department may make inspections,
issue orders, rules and regulations, and hold hearings. In Indiana,
the Bureau of Mines, a division of the Department of Mines, is
responsible for the execution and administration of this act, and
the Director of the Bureau has the powers of a police officer to
arrest and detain. In addition, he may make inspections, issue
orders and hire necessary assistants. Since these laws are primarily
to protect miners, Kansas has given the Labor Commissioner power
to enforce its coal dust provisions, and the Commissioner has the
authority to make inspections, take preventive measures, and order
removal of safety hazards.
Old, unused or abandoned mines present a number of safety
hazards, and are the subject of legislation in Indiana and West
120
Virginia. The Indiana Mining Act of 1955 contains a provision
requiring that abandoned mines or parts of mines be filled and
sealed by the last operator. Such a seal might prevent escape
of contaminants to surface waters and ground water. As in the
coal dust provisions of the act, the Bureau of Mines is charged
with enforcement.
121
West Virginia requires that all unused coal mines be
plugged with fireproof material in such a manner as to allow
periodic checks for gas. Any person desiring to reopen an abandoned
coal mine must give the Director of the Department of Mines ten
days written notice if water or mine seepage has collected or if
the opening of the mine will release collected water or seepage
122
into a water course. This provision is designed to prevent
acid mine drainage and its resulting contamination of waters.
When a coal mine is worked out or indefinitely closed, the opening
must be properly sealed within ninety days. The same enforcement
provision governing coal dust applies to the three unused mine
statutes as well. The Director of the Department of Mines is
given the same enforcement powers.
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Of the statutes discussed in this section, only the West
Virginia laws provide for injunctive relief against violators.
Under the provisions of the West Virginia Coal Refuse Disposal
123
Control Act, the Director of the Department of Natural Resources
may order remedial action with respect to refuse piles. If an
operator refuses to obey the order, the Director may apply to the
county circuit court for an injunction to enforce the order. In
the alternative, the Director may take the necessary remedial
action and request the Attorney General to bring suit. The West
Virginia Director of Mines is authorized to seek injunctive relief
whenever an operator fails to comply with an order or decision of
the director, interferes with the director or his representatives,
refuses him entry into or inspection of a mine or refuses him
124
access to information or reports.
Civil penalties are a frequently used enforcement measure.
125
The Montana Strip Mined Coal Conservation Act provides a
penalty of $100 to $1000 per day for operation without an approved
strip mine plan or nonconformity with the plan. The penalty,
if unpaid, must be recovered in a civil action brought by the
Attorney General. Violations of rules of the Board of Land
Commissioners are punished as misdemeanors under the Montana
Strip Mined Coal Conservation Act, but no specific form of punish-
ment is indicated in that act.
The West Virginia Director of the Department of Mines is
authorized to assess civil penalties against operators or miners
126
who violate the Mines and Minerals chapter. Violation by a mine
operator is punishable by a civil penalty of up to $3000. Willful
violation by a miner may result in a penalty of up to $250. The
Director himelf may seek enforcement of these assessments in the
circuit court.
The remaining statutes all designate violations of all or some
127
of their provisions as misdemeanors. The Kansas Coal Dust statute
provides that violators be fined between $10 and $100. The Indiana
i OR
Mining Act of 1955 punishes violations of the act or obstruction
of investigations by fines of up to $500 and/or up to six months
147
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imprisonment (unless individual provisions of the act provide
different penalties).
West Virginia's Code contains a somewhat similar provision.
129
Violations of any section of the Natural Resources chapter,
constitute a misdemeanor punishable upon conviction by a fine of
$20 to $300 and/or between ten to one-hundred days imprisonment.
The Coal Refuse Disposal Control Act is contained in this
chapter and prescribes no different penalties.
The West Virginia Mines and Minerals chapter defines as
misdemeanors any willful violations of health and safety standards
or knowing violations or failures to comply with departmental
orders in final decisions. The first offense is punishable, upon
conviction, by a fine of up to $5000 and/or up to one year in jail.
Subsequent offenses may be punished, upon conviction, by fines
not to exceed $10,000 or imprisonment for up to three years or
both.
SAND AND GRAVEL
1 o o
Five of the states-*-0^ surveyed have laws governing
sand and gravel removal or mining. Although not a major
source of nonpoint pollution, sand and gravel removal, like
other mining operations, may contribute to erosion, runoff
and sedimentation.
Two of the statutes prohibit sand and gravel mining
near certain waters. Virginia's Dredging Sand and Gravel
133
provisions make it unlawful to dredge, dig or remove any
part of any deposit of sand or gravel from a stream or river
bed or from any land abutting upon a stream or river. Hawai
prohibits any mining within the shoreline area or within
1000 feet seaward or in ocean waters less than thirty-one feet
deep. The law exempted until July 1, 1974 any sand mining
operations begun prior to 1970 and permits the planning
department of any county to grant other exemptions.
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Texas requires that operators obtain a permit to remove
or excavate sand from a Gulf Coast beach.135 Before issuing
a permit to remove sand from a public beach, the Commissioners
Court (of the General Land Office) is to determine whether
removal of sand will create a hazardous condition or make
the area more susceptible to storm damage. Cities and towns
may authorize removal of sand from public beaches only for
the construction of publicly owned and operated recreational
facilities.
The removal of sand, gravel, oil, gas or other minerals
is regulated in Kansas and Indiana. The Kansas law13** pro-
hibits removal of such natural products from riverbeds without
the consent of the Director of Taxation. The purpose of the
act is to insure that proceeds from the sale of these products
do not escape taxation. It does not apply to the removal
of such products for use in public construction or for the
domestic use of the person taking it. The Indiana
statute gives the Department of Natural Resources the
power to regulate forest lands. Included in this grant of
authority is the power to issue permits for the removal of
sand, gravel, coal, stone, gas, oil, or other minerals from
forest lands. The Director may impose any conditions he
deems necessary on the removal of these products, which could,
of course", include conditions respecting the protection of
water resources from contamination by mining activities.
Virginia, Texas and Kansas provide equitable remedies
for violations of their sand and gravel statutes. A private
individual may seek injunctive relief against violations
and obtain treble damages for injury to property under the
1 -in 1 39
Virginia law.-1--30 In Texas, the Attorney General may
seek and obtain injunctive relief on behalf of the state
to prevent removal of sand from Gulf Coast beaches in
violation of the act. Under the Kansas Sand and Gravel
149
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140
chapter, the Attorney General or the County Attorney may
bring any suit necessary to protect the property rights of
the state. The court is authorized to grant injunctive relief
and/or civil damages to the state. The Director of Taxation,
with the consent of the Governor, may bring or defend any suit
necessary to protect the state's interests.
The Virginia141 and Kansas sand and gravel statutes
punish violations of their provisions as misdemeanors, but
only the Kansas act specifies a penalty. Upon conviction,
violators may receive fines of $25 to $1000 and/or six months
imprisonment. Obstructing the Department of Natural Resources in
the conduct of its duties is a misdemeanor under the Indiana
143
statute. Upon conviction the violator may be fined up to
$300. Taking minerals in violation of the statute is also a
misdemeanor and is punishable upon conviction by a fine of
$50 to $1000 per day.
144
Texas punishes violations of the Gulf Coast and
Public Beach Areas section of the statute by a fine of between
$10 to $200 per day per operation. The Hawaii Shorelines Setbacks
statute contains no enforcement provisions.
OIL AND GAS
Nine of the states146 surveyed have enacted legislation
governing oil and gas wells, which could have an impact on
water pollution from mining as a nonpoint source. At any
phase of the operation — exploration, drilling, operation
of the well, abandonment, plugging, waste disposal — contaminants
may be released which can lead to pollution of groundwater
and surface waters.
The relevant oil and gas production laws have been
classified into three broad categories. The first includes
comprehensive legislation which regulates all or most of
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the phases of production. The second is a group of statutes
governing abandonment and plugging of wells. The last category
consists of waste disposal laws.
The largest category is composed of the comprehensive
legislation regulating all or many phases of oil and gas
production. Some of this legislation was enacted expressly
to protect water resources, while other statutes have as
their primary goal the conservation of oil and gas resources
and may or may not have the protection of water resources as
a secondary goals. Those statutes which specifically seek
to prevent water pollution may facilitate regulation of
water endangering activities; however, even those statutes
which make no mention of pollution but encourage waste
prevention and other sound mining practices may, as a practical
matter, contribute to the prevention of water pollution. One
of the ways oil and gas are wasted is by allowing their
escape or spillage. Whether the statute prevents this escape
to conserve oil and gas or to protect the water, the resulting
improvement in water quality is the same.
Six states have enacted seven laws regulating various
phases of oil and gas production as a means of conserving oil
and gas. The statutes of Utah r Indiana, Idaho,
and two in Michigan also contain provisions calling for
the protection of water. All seven statutes, the last
•ICO
being West Virginia's-1-3 , prohibit the waste of oil and
gas. Permits are required to drill for oil and gas under
the conservation statutes of Texas, Indiana, Michigan, and
Idaho. (West Virginia licenses the drilling and plugging
of wells but not under its oil and gas conservation statute.)
All of the laws provide for state regulation, whether by permit
or rule, of drilling, spacing, casing and plugging of wells
as necessary to prevent waste.
Legislation requiring casing of wells can protect
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subsurface water-bearing strata from transfer of fluids.
Plugging regulations prevent seepage which may run directly
into water or which may destroy vegetation and thereby increase
the possibility of soil erosion. Disposal of oil brines
and other wastes may also pollute waters if not accomplished
properly. Each of the seven conservation statutes regulates
casing and plugging, and some1 J also regulate disposal.
Utah's legislation creates a Board of Oil and Gas
Conservation within the Department of Natural Resources. 5
The Board may promulgate rules and regulations and do whatever
is necessary to achieve the purposes of the act and to carry out
its mandates. The Board is specifically authorized to require that
wells be operated in a manner calculated to avoid waste, spillage,
and pollution of fresh water supplies.
The Texas Railroad Commission is responsible under that
state's laws155 for making and enforcing rules for the
conservation of oil and gas. The Texas oil and gas conservation
statute governs not only the production and storage of oil
and gas but also the transportation of these commodities.
The Oil and Gas Division of the Indiana Department of
Natural Resources is given authority under the Oil and Gas
Control Agency chapter156 to promulgate rules and regulations
not only to prevent waste of oil and gas, but also to prevent
pollution of lakes, rivers and watercourses by oil and
gas wells. The manner of drilling, plugging, casing, and
disposal are proper subjects for regulation.
West Virginia's Oil and Gas Conservation statute '
places administrative and enforcement powers in the Oil and
Gas Conservation Commission. Spacing, drilling, pooling, and
operating of wells may be regulated by the Commission. Secondary
recovery methods are prescribed in the act as a conservation
measure but may incidentally prevent water pollution.
The Idaho Oil and Gas Conservation Act15° has a water
152
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pollution prevention provision»which seems particularly effective.
The issuance of drilling permits is conditioned on the approval
of the operations plans by the Department of Water Resources. If
the Department feels that fresh water supplies are endangered it
may order that conditions be met to protect the water supplies
before the Oil and Gas Conservation Commission may issue the
permit. The Commission is composed of members of the Board of
Land Commissioners who have responsibility for regulating other
types of mining as well. The Commission may issue rules, regula-
tions, and orders, hold hearings and sue and be sued.
The Michigan Conservation of Oil, Gas and Minerals chapter^S
contains two statutes whose purpose is to prevent waste of oil and
gas. The Supervisor of Wells is responsible under the first stat-
ute for regulating drilling, operating and sealing of wells.^0
These operations must, however, be performed so as to prevent
pollution of fresh water supplies. The Supervisor may issue rules,
regulations, and orders and hold necessary hearings to enforce the
act, prevent waste and protect water supplies.
The Michigan Mineral Well Act161 also contains references
to water pollution, prohibiting, inter alia, surface waste which
is defined to include damage to or destruction of surface waters
or soils. The Act is administered by the Supervisor of Mineral
Wells who may issue rules, regulations and orders necessary to
enforce the Act. Among the phases of activity which may be
regulated by the Supervisor are well locating, drilling, deepening,
casing, sealing, injecting, plugging, and storage. Waste disposal
well drilling or converting requires a permit from the Supervisor.
Under either statute the Supervisor may bring legal actions to
enforce the law, rules or regulations, with the Attorney General
representing the Supervisor.
West Virginia has a second comprehensive article, entitled
162
"Oil and Gas Wells," which in contrast to the above seven stat-
utes, seems to place more emphasis on preventing water pollution.
The article prohibits the drilling, plugging or fracturing of a
153
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well without a permit. Like Idaho, West Virginia conditions
the granting of a permit on the absence of or avoidance of threats
to water quality. If the Division of Natural Resources believes
that well drilling threatens water quality and purity, standards
may be imposed which the applicant must meet to avoid polluting
state waters. Once a permit is issued by the Department of
Mines, the driller must permanently line the well walls with cement
casing to protect fresh water bearing strata. Abandoned wells
must be plugged at each strata — oil, gas and water bearing --
to prevent seepage and contamination. To insure compliance a bond
of $2500 per well or $15,000 for a series of wells is to be posted
before drilling begins, and may be forfeited for violations of
any rules or regulation. in addition to the bond, every
applicant must pay a fee of $100 per well into a special reclama-
tion fund used to reclaim abandoned wells. To enforce the law, the
Department of Mines is given the authority to issue rules, regula-
tions and orders, hire inspectors, hold hearings, and bring legal
actions. As a further deterrent to pollution causing activities,
the article establishes a rebuttable presumption in civil suits that
any contamination of a fresh water source or supply within 1000 feet
of any oil or gas well drilling was caused by such drilling.
Texas and Indiana are two other states with comprehensive
nonconservation oriented statutes requiring the licensing of
well drilling, the prevention of water pollution and the filing
of a bond to insure compliance with rules and regulations. AS
in the conservation statute, the Texas Railroad Commission is
responsible for enforcing the Oil and Gas Rules and Regulations
article.
The Commission may issue and enforce rules, regulations and
orders in connection with the drilling, operation, abandonment
and plugging of wells and the production of oil and gas in general.
Prevention of the pollution of streams, public waters, and
subsurface water bearing strata is to be one of the goals of the
154
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Commission's regulatory activities. The bond required to be posted
in both Texas and Indiana to cover the cost of plugging a well is
1 CO
$5000 per well or a $10,000 blanket bond covering all wells.
Inspections and investigations are authorized to be conducted
under both statutes. In Indiana the Department of Natural
169
Resources has many of the same powers given the Texas Railroad
Commission. The Department may promulgate rules and regulations
governing the manner of drilling, use and plugging of both test
holes and wells. As in Texas, prevention of water pollution is to
be considered and promoted by the administrative agencies both in
promulgating rules and regulations and in issuing permits for
drilling.
The Texas legislature enacted two other provisions regarding
development of oil and gas in water, riverbeds, or channels. The
first prohibits pollution related to such development and autho-
rizes the Commissioner of the General Land Office and the Game,
Fish and Oyster Commissioner to enforce the law. The second
requires lessees of state land along riverbeds to exercise the
highest degree of care and utilize proper safeguards to prevent
stream pollution. The Board of Mineral Development has authority
under this section of the Code.
172
Michigan also has a statute which regulates leases of
state land for oil and gas production. The State Supervisor of
Wells is given jurisdiction and control over all oil and gas
exploration, development, handling and use under a lease of state
lands. The statute specifically subjects all lease holders to
any statutes, rules, or regulations for the prevention of water
pollution. Binding rules and regulations may also be promulgated
173
by the Supervisor to further protect water resources. The statute
requires the written consent of all littoral landowners as a pre-
requisite to drilling an off-shore well within 500 feet of land
fronting on the Great Lakes.
The Kansas Oil and Gas Wells regulatory provisions174 place
155
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emphasis on proper casing and plugging to prevent pollution of
surface water and water bearing strata. The statute prohibits the
exploration or plugging of wells without a license. The Corpora-
tion Commission may issue rules and regulations governing opera-
tion and abandonment of wells, including the type of equipment
which may be used to drill wells with minimum pollution. The
Commission has authority to enforce the act through legal action.
The Industrial Commission and the State Geologist are res-
ponsible for the administration and enforcement of North Dakota's
oil and gas law. Under two separate chapters of the Mining
1 7 f\
and Gas and Oil Production title the Commission is given power
to promulgate rules, regulations and orders governing the drilling,
casing, plugging and operation of wells. All of these operations
are to be done in such a manner as to prevent pollution from oil. As
in the majority of other statutes, a permit is required to drill
for oil or gas. Supervisory and enforcement powers are vested in
the State Geologist. However, the Commission, rather than the
Geologist, is given the power to bring enforcement actions in
court.
The final comprehensive statute is that of Virginia, which
authorizes the Chief Mine Inspector of the Division of Mines to
prevent, inter alia, the pollution of freshwater supplies by oil,
gas or salt water. The Inspector has supervision over and may
promulgate rules and regulations governing the location, drilling,
production, casing, abandonment, plugging and filling of all wells
and over mining operations in close proximity to any well. A
permit to drill must be obtained from the Inspector prior to commence-
ment of operations. The Inspector has the additional authority to
require a $1000 bond with the permit application if in the opinion
of the Inspector it is necessary to insure compliance with regula-
tions, he may also take actions to enforce the law.
Penalties
With the exception of the three nonconservation Texas stat-
156
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utes, all of the statutes discussed in this section authorize
injunctiye relief to enforce their provisions and the rules and
regulations promulgated thereunder. The Texas Railroad Commissioner
is authorized in the conservation statute to act through the Attorney
General to enjoin waste of oil and gas and violation of the Act.178
However, injunctive powers are not given to the Board of Mineral
Resources, the Commissioner of the General Land Office, or the Game
Fish and Oyster Commission. The oil and gas conservation statute
authorizes either the Attorney General or a county district attorney
joined by the Attorney General to seek and obtain injunctive relief.
The Indiana Oil and Gas Control Agency statute also requires
the Department to obtain injunctive relief through the Attorney
179
General. Michigan's enforcement provisions are somewhat con-
180
fusing. Under both the Mineral Well Act and the Supervisor of
181
Wells provisions, the Supervisors "may bring procedures at law
or in equity for the enforcement of" the acts and rules promul-
gated thereunder. Yet the next line states that the Attorney
General shall represent the Supervisors in all such actions.
Kansas allows the Corporation Commission or the Attorney
General or the county attorney to bring an action to enforce the
oil and gas wells provisions by an injunction or a mandatory
1 8?
injunction.
Under the statutes of each of the other states discussed
„. . . 183 184 185 186
above — Virgxnia, West Virginia, Utah, Idaho and
187
North Dakota — the administrative agency or officer may bring
actions for injunctive relief without going through the Attorney
General. In Virginia, North Dakota, Utah and Idaho, citizens
may also seek injunctive relief against violation of the acts.
In Idaho, Utah and North Dakota, if the Commission brings an
injunction action, the citizen may be precluded from doing so.
A variety of other civil remedies are provided in the com-
prehensive measures. Where a bond is or may be required as a
prerequisite to obtaining a permit, bond forfeiture is a means
of enforcement. The West Virginia Oil and Gas Wells provisions
157
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contain examples of several effective administrative remedies.
In each of the states where a permit is required to drill/ the
agency may deny the permit until conditions are met. West
Virginia authorizes denial until water quality standards can be
maintained. The Oil and Gas Inspector is authorized to issue
cease operations orders which after notice and an opportunity for
188
a hearing may be enforced in a civil action. The Texas Public
1 89
Lands section offers another example of a cease operations
order. Most of the statutes discussed in this section authorize
the administrative agency to issue orders, and a cease operations
order is probably authorized. The Michigan Supervisor of Wells
statute authorizes the Supervisor to first seize illegal oil and
190
then institute confiscation proceedings.
All of the statutes requiring a bond to cover the cost of
plugging the well also authorize the agency to plug the well if
the operator fails to — using the bond to pay expenses. The
191
Indiana Oil and Gas provisions, in addition to requiring a
bond, authorize the Oil and Gas Division to repair improperly
plugged wells and, if the bond is insufficient to cover expenses,
to take a lien on the equipment and leasehold. The Michigan
Supervisor of Wells provisions authorize the bringing of a suit
192
for damages to recover expenses so incurred.
TO 7
The Texas Pollution of Streams statute " contains an example
of another type of administrative remedy — cancellation of permits
194
for failure to develop a well in a non-polluting way.
Private remedies exist in a number of the statutes discussed.
Actions for damages are the most frequently contemplated citizen
suits. Such actions may be maintained under the Idaho Oil and Gas
195
Conservation Act for damages caused by any violation, under
196
the West Virginia oil and gas wells provisions for contamina-
197
tion of water supply, and under the Indiana Test Holes Act
for reimbursement of funds spent repairing a test hole for the
permit holder.
158
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Civil penalties of $1000 per day per offense are authorized
for violations of the Texas Oil and Gas conservation provisions,^"98
199
the Michigan Mineral Well Act, the Michigan Supervisor of Wells
. . 200 201
provisions, and the North Dakota Subsurface minerals sections.
202
The Michigan Leasing of State Lands provision imposes an unusual
civil penalty on persons mining without a lease. The penalty is
equal to three times the value of the material taken.
Criminal enforcement is provided in all but the Texas
statutes. Falsification of records or reports is designated in
Utah, Idaho, West Virginia (oil and gas conservation) and North
*\ f\ f
Dakota (subsurface mining) as a misdemeanor. This crime is
"punishable upon conviction by a fine of.up to $5000 and/or six months
20V
imprisonment." In Michigan u' (Supervisor of Wells provision) a
violation is punishable as a felony and upon conviction a violator
may receive a fine of up to $3000 and/or three years imprisonment.
208
Michigan also punishes mining without a lease (required by the
Leasing of State Lands provisions) as a felony. Violators are
punishable upon conviction by a fine of up to $500 and/or up to
two years imprisonment.
Violations of the substantive provisions of the acts them-
selves seem to be punished less severely than the recording
209
violations. In Michigan, for example, violations of the
Supervisor of Wells statute regulating drilling, operating and
sealing of wells are only misdemeanors punishable by fines of no
more than $1000 and a maximum of ninety days in jail.
210
In Indiana, the violation of the Test Holes Act Or rules or
regulations promulgated thereunder is a misdemeanor punishable
upon conviction by a fine of between $25-$100 per day. Violation
of the oil and-gas drilling provisions, regulations, rules or
orders is punishable upon conviction by a fine of $100 - $500 per
f\ T 1 *^ "I O
day and/or up to sixty days imprisonment. The Virginia statute
also punishes violations of its sections as misdemeanors. Upon
conviction violators may receive fines of between $25-$500 or
between ten days to one year imprisonment.
159
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213
The West Virginia Oil and Gas Conservation Act punishes
violations of its provisions, rules or regulations by fines of up
to $1000. Such violations are misdemeanors. The West Virginia
214
Oil and Gas Wells article designates a number of different
misdemeanors, all punishable upon conviction by fines of up to
$2000 and/or up to twelve months imprisonment. The misdemeanors
include violations of the permit requirement, violation of any pro-
vision of the article, rule, or regulation promulgated thereunder, and
willful violation of any section of the Act prescribing the manner
of drilling, casing, plugging or filling a well.
The Kansas Oil and Gas Wells provisions also designate various
215
offenses, all of which are misdemeanors. They include allowing
gas or oil to escape ($50 to $200 per day fine and/or thirty days to
six months imprisonment per day's violation); improper casing ($500
fine); failure to exclude salt or mineral waters from fresh water
supplies ($1000 maximum fine); and violation of provisions regarding
drilling and abandonment (fine of up to $500, imprisonment up to six
months) .
WATER WELLS AND SALT WELLS
Texas and Minnesota regulate the operation of water wells.
Michigan regulates salt wells. Texas has two statutes governing
216
water wells. The first, part of the Water Code, requires that
any owner of a water well who encounters salt water or water
containing anything injurious to vegetation plug the well. By
protecting vegetation the statute prevents soil erosion and
resulting water pollution. Escaping salt or mineral laden water
is another source of pollution abated by the statute. The Texas
217
Water Well Drillers Act requires persons drilling water wells to
register with the Water Well Drillers Board. The Board may promul-
gate rules and regulations providing for proper plugging of wells
to avoid water pollution. The Board may revoke the registration
of persons failing to plug properly or violating the Act, rules
or regulations.
160
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218
The Minnesota Code chapter on Well Water Contractors
prescribes the licensing of drillers to prevent the wasting of
ground water. The State Board of Health is responsible for
establishing standards for well design, location, and construc-
tion and for otherwise regulating drilling and construction.
The mode of plugging abandoned salt wells is regulated by ;
provisions of the Michigan Conservation: Oil, Gas and Minerals
219
chapter. The State Salt Inspector is to supervise plugging to
insure that fresh water is excluded from the salt bearing rock.
Any salt well owner is authorized to plug abandoned wells at the
expense of the owner of the land. It should be noted, however, that
these provisions are applicable in only two Michigan counties
and, further, that idle or abandoned salt producing wells as are
sunk to the rock salt strata are not covered.
Of the statutes surveyed the Texas Water Well Drillers
220
Act provides the most effective enforcement provisions.
Registration may be revoked for violation of the Act or rules and
regulations of the Board. In addition, such violations are punish-
able by a civil penalty of up to $1000 per day. The Texas Water Wells
221
Statute punishes violations of its provisions as misdemeanors.
Upon conviction, violators may receive fines of between $10 to $500.
Minnesota prescribes no monetary penalties. Violation of
accepted standards of drilling may result in license revocation
while willful violation of any of the statute sections constitutes
222 223
a misdemeanor. The Michigan salt wells statute allows civil
action for expenses to be filed by a person who plugs the well of
another. In addition, a civil penalty of up to $200 per violation
may be assessed against persons violating the statute. Half of this
penalty is given to the informer and half to the county.
MISCELLANEOUS
A number of statutes appear in the laws of the states surveyed
which, while relevant to control of water pollution from nonpoint
sources, are rather unique and therefore, difficult to compare. A
161
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description of these statutes follows.
Hawaii has created forest and water reserve zones which are
governed by, and for which zoning regulations are promulgated by,
224
the Department of Land and Natural Resources. The statute
specifically authorizes the Department to promulgate regulations
prohibiting unlimited soil mining and, therefore, is a strong
deterrent to soil erosion. Violation of such a regulation would be
punishable by a fine of up to $500, and the statute also authorizes
citizen suits to enjoin violations.
Minnesota and Michigan have statutes governing the mining of
225
iron ore. The Michigan law is not actually a regulatory statute,
merely declaring that mining for iron ore is in the public interest,
and authorizing the Department of Conservation to acquire land by
condemnation when the private miner cannot. This action may only
be taken when the miner needs the land to develop and operate water
supply areas in order to prevent unlawful water pollution from the
land already owned.
226
Minnesota's statute is regulatory, and requires operators
to obtain permits to mine for iron, copper or nickel and prohibits
mining under public waters without State authority. The Commissioner
of Natural Resources is empowered to issue permits to prospect and
mine for iron ore on state lands, imposing such conditions as he
deems necessary, which could include safeguards for the protection of
fresh water sources. Consent from the state must be obtained before
public waters may be drained to facilitate mining, and a license must
be obtained to flood state lands for the same purpose. Again, the
Commissioner may impose conditions including the use of methods which
limit water pollution on either grant of authority. Violation of the
provision prohibiting unauthorized mining under public waters is a
felony punishable upon conviction by a fine of up to $10,000 and/or
up to five years imprisonment.
Wisconsin similarly requires a permit to divert waters of
surface streams or lakes for mining purposes. The Department of
162
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Natural Resources is empowered^ to fix conditions on the issuance
of permits reasonably necessary to preserve the health, safety and
227
welfare of the public. Conditions may also be imposed relative
to the restoration of waters upon completion of mining operations.
In a provision similar to Michigan's, the statute authorizes the
acquisition by purchase or condemnation of land necessary for the
conveyance of water .used ,in mining operations. Violations of the
permit conditions or the permit requirements are punishable by
fines of up to $1000 and/or up to six months imprisonment.
228
A Texas statute"0 regulates the lease for mineral development
of State lands near Caddo Lake or its tributaries and provides that
any mining operations on this land must be conducted in a manner to
prevent pollution of the water resulting in the destruction of fish
or wildlife. The Commissioner of the General Land Office is author-
ized to prescribe and enforce rules and regulations necessary to the
administration of this provision, but no penalties are prescribed.
229
The Indiana Legislature has enacted a statute relative to
mining and excavations in cities or near city streets, and King County,
230
Washington has enacted an ordinance regulating much the same
thing. The Indiana City and Town Government title vests authority
in the local Board of Public Works to license the making
of excavations in or the removal of coal rock gravel or other
material from the surface or beneath the surface of any street,
alley or public place in the city. The Board has power tp require
231
a bond for damages caused by such excavation. The provision
does not expressly allow the Board to impose conditions,regarding
water pollution on the issuance of the license, but it might be
argued that water pollution constitutes damage for which the bond
may be forfeited.
232
The King County Ordinance was enacted to protect the public
and its property and ,to minimize adverse effects on the environment
by regulating excavations, grading, and earthwork construction,
including cuts and fills, gravel pits, dumping, quarrying and
163
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mining operations within the county. The Director of Building
Division, Department of Community and Environmental Development is
given enforcement authority. Included in this authority is the
power to make inspections and notify owners to repair or eliminate
hazards.
Permits are required to do grading work, although numerous
exceptions are listed. Temporary permits may be issued by the
Director for excavations, quarrying, mining, and removing of soil,
peat, sand, gravel, rock and other natural deposits. However,
before the temporary permit may be issued, the application must
be referred to the Department, the Land Use Management Division
and the Department of Public Works for review and recommendations.
The Department of Public Works is to review the applications and
any plans submitted to determine their effects on drainage. (In
addition to approval by these departments, any permit requires
approval of Federal, state and local agencies having jurisdiction.)
Upon issuance of the permit, the permittee must post a re-
clamation bond to ensure correction of drainage and geological
hazards. An operation bond must also be posted to ensure correction
of deficiencies affecting, inter alia, water quality. This
bond may not exceed $1000. If permittee fails to make necessary
corrections, the bond will be forfeited and used to reclaim and
correct.
The ordinance prescribes several operating conditions and
standards of performance which may have an impact on nonpoint
source water pollution. The degree of slope of any cut or fill
is regulated. All disturbed areas must be prepared and main-
tained to control soil erosion. Waste material must be removed
prior to filling. The type of material used to fill is also
regulated. Provision must be made for proper drainage to prevent
erosion and sedimentation. Included among conditions
designed to prevent erosion and sedimentation are revegetation,
restoration and setback requirements. Finally conditions are
164
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imposed with respect to reclamation of excavations made to a water
producing depth. > .
Violation of any provision of the ordinance or order issued
by the Director constitutes a misdemeanor, and each day's violation
is a separate offense. The ordinance prescribes a cumulative civil
penalty of $10 per day per violation plus costs. The Director may
also seek legal or equitable relief to enjoin violations or abate
unlawful conditions. Appeals from final decisions of the Director
may be taken to the County Board of Appeals.
PLUGGING
Eight of the statutes studied address themselves specifically
to plugging or capping of abandoned or unused wells. The Indiana Code
233
devotes a chapter to the prevention of water pollution by plugging
of wells, and places the responsibility for plugging or repairing wells
with the operator. If, after notice of defects and an opportunity for
a hearing, the operator has not plugged or repaired a well, the Depart-
ment of Natural Resources may do so. Similarly, private individuals
threatened or injured by an improperly plugged or unplugged well
234
may enter the land and remedy the condition. Any person who
does so has a cause of action against the person legally obli-
gated to plug and repair for the cost and expense. As an incentive
to operators to repair, the act provides that action to repair or
plug a well upon the request of the Department may not be construed
as an assumption of responsibility to replug or repair or as an
o o c
admission of liability for damages from pollution. JJ Nor is
anything in the chapter to be construed as placing the obligation
to remedy such conditions on the landowner of the well unless he
is also the operator. A later chapter prohibits the escape of
of gas or oil from an improperly confined well for more than
236
two days, and authorizes the possessor of the land to make
repairs, then sue the owner or lessee of the well for costs.
Texas does place an obligation to plug an abandoned well on
237
owners as well as operators. The primary responsibility lies
165
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with the operator, but upon failure to comply, nonoperating owners
of the well will be required to remedy the condition, and upon
their failure, the duty to plug falls on the landowner. Non-
operating well owners and landowners are responsible for only
their proportionate share of the cost of plugging; however, if
the landowner does plug or replug the well, he may bring an action
against the operator and nonoperator for expenses and may impose
239
a lien upon the interests of the others. As in Indiana,
the administering agency, the Railroad Commission, has
some authority after notice of defect and an opportunity for
a hearing and compliance, to plug the well to avoid additional
pollution of fresh water. However, the Commission is somewhat
more limited than the Indiana Department as to when it may plug,
only being permitted to do so if the legally obligated parties
cannot be found or do not have sufficent assets. If the Commission
does plug a well, it has a cause of action: first, against the
operator, to be secured by a lien upon his interest, fixtures and
equipment; second, against the nonoperator to be secured by a
lien upon his interest; and third, against the landowner, to be
240
similarly secured. A provision similar to Indiana's states
that payment of money to the Commission is not admissible in
a suit in which the person's obligation to plug is at issue.
In enforcing the act, the Commission is given the same enforcement
powers as are given in Title 102 of the statute.
At the complaint of a citizen, the owner of a mine in Kansas
must, at his own expense, enclose, fill up or cover an abandoned
241
well or mine. if the owner fails to comply, the township in
which the well is located must do so if, in the judgment of the
township trustees, the condition is dangerous. The expenses for
this operation are obtained from the county fund and then assessed
against the property owner as additional property taxes. This
assessment becomes a lien upon the premises.
Texas has two statutes, one of which is uncodified, requiring
166
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the plugging of wells which endanger the quality of certain
242
rivers. The Colorado River Municipal Water District may
prevent pollution of "that river by adopting any necessary rules
and regulations. The District may also cap abandoned wells and
take other practical pollution control measures. The Oil and
Gas Division of the Railroad Division has authority to cap
improperly plugged wells which are presently permitting salt water
to flow into the Frio River.
Virginia and West Virginia have statutes regulating the plugging
of oil or gas wells, particularly when they lie near a coal mine.
The Virginia mines and mining title244 requires that all abandoned
wells be plugged and that the Chief Mine Inspector be notified of
intent to abandon. The title itself details the manner of filling
and plugging which must be followed. A different procedure must
be followed if the well penetrates workable coal beds. The title
also contains provisions governing the storage of oil in wells.
This section requires that oil must be stored in a manner to
avoid pollution of fresh water bearing strata, water wells, and
public water supplies. Preventable waste or escape of oil or gas
is prohibited.
245
West Virginia's statute prohibits the injection of gas
for storage into a working coal seam. Gas storage operators are
required to plug or recondition any well found within a storage
area. Any well not used for storage must be plugged. A storage
well must be relined as it passes through any coal stratum. The
Deputy Director of Oil and Gas of the Department of Mines is
responsible for enforcement of this statute and may issue orders
to enforce it. The effectiveness of the act may be- limited by the
number of exemptions granted. Although strip mining is the primary
method of coal mining in the state, the act does not apply to it or
to auger mines, or to original extractions of natural gas, crude oil
or coal.
Plugging by the state or citizens with a cause of action
167
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against the party legally obligated to plug is the primary method
of enforcement under these particular statutes. This is the sole
remedy available under the Indiana Plugging of Wells chapter,
247
the Kansas Wells and Excavations provisions, and the Texas
248
River statutes.
249
The Texas Plugging Abandoned Wells article authorizes the
Railroad Commission to enforce the article and Commission rules,
regulations and orders in the same manner and upon the same condi-
tions as provided for in Title 102, which is a long title with
numerous penalty and enforcement provisions. However, article
6036 of that Title is a general penalty provision, stating that,
in addition to other penalties provided in individual provisions,
violations of Title 102 or the Commissions's rules and regulations
may be punished by a penalty of up to $1000 per day. The fine is
one enforcement measure available to the Commission in enforcing
the abandoned wells article. Violation of the Indiana chapter
prohibiting escape of gas or oil is punishable by a fine of between
$50 to $200 for the first violation and by a fine of between $200 to
$500 for subsequent violations.
The Virginia and West Virginia plugging and storage provisions
are the only ones which provide injunctive relief. Under the Vir-
. . . 251
ginia statute, the Chief Mine Inspector or an injured citizen
may sue for injunctive relief to enjoin violations of the provisions
regarding plugging of abandoned wells or storage of oil or gas in
252
wells. The Department of Mines or an operator are authorized to
institute proceedings for injunctive relief to restrain violations
of the article or to enforce obedience therewith. The Virginia
4- *. 4. 253
statute provides one other civil remedy for failure to drill,
plug, or abandon a well properly- The bond filed to obtain a drilling
permit may be forfeited in whole, or in part.
254
West Virginia also provides an additional civil remedy.
Storage operators may bring actions for damage caused when a mine
operator gives improper notice of intent to open or reopen a
168
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coal Kline near a storage area. This action also constitutes a
misdemeanor. ;Violation of any order of the West Virginia Depart-
ment of Mines constitutes a misdemeanor punishable upon conviction
by a fine not exceeding $2000 or imprisonment for up to 1 year or
255
both. Violation of the plugging or storage provisions of the
O ^ f\
Virginia Code constitutes a misdemeanor.
DISPOSAL
Three statutes in the states surveyed deal splely with dispo-
sal of waste material. Texas has enacted a Disposal Well Act257
requiring that persons wishing to drill a disposal well for oil and
gas or industrial or municipal waste must first obtain a permit
from the Railroad Commission. Several conditions must be met before
a permit will be issued. Safeguards must be taken to ensure that
existing oil and gas wells are not endangered and that surface water
is not polluted by disposal products. Proper casings must be pro-
vided in order to safeguard subsurface fresh water supplies. The
Commission may adopt rules and regulations necessary for the
performance of its functions, and the Water Development Board is
authorized to submit comments to the Commission advising it on the
acceptability of any proposed well.
258
In Kansas, the State Corporation Commission and the Board of
Health must approve plans for the disposal of brines and mineralized
waters at oil and gas sites to prevent water pollution. The Board
may determine that the most acceptable means of disposal is by
disposal well. The owner may challenge this finding at a hearing
before the Commission. If a disposal well is required, it must meet
the requirements for minimum depth established by the Commission,
and the Act prohibits use of excessive pressure to dispose of waste.
259
The Virginia Mines and Minerals Title contains a chapter
regulating the design, construction and inspection of refuse piles
and water and silt retaining dams. The Chief Mine Inspector is
responsible for inspections and enforcement, and he may order
hazardous conditions corrected.
169
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260 261
Only the Texas and Kansas statutes contain penalty pro-
262
visions. The Virginia statute authorizes the Chief Mine Inspector
to order compliance but indicates no punishment for failure to comply.
Texas punishes violations of the Disposal Well Act or drilling permit
provisions by penalties of up to $1000 per day. In addition, the
Act expressly indicates that possession of a permit does not relieve
an operator of civil liability for damages caused.
T TT 263
in Kansas, violation of the prohibition against using excess
pressure is a misdemeanor punishable upon conviction by a fine of up
to $500 or up to one year imprisonment or both. Violation of the
Commission's requirements as to disposal well depth also constitutes
a misdemeanor punishable upon conviction by a fine of $50 to $500.
For each of these misdemeanors each day the violation occurs consti-
tutes a separate offense.
170
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FOOTNOTES
MINING
Virginia, Virginia, Montana, North Dakota, Idaho, Kansas, Indiana
Missouri, Hawaii, Colorado.
2tfest Virginia, Virginia, Montana, North Dakota, Idaho, Kansas, Indiana.
^Missouri, Indiana, Hawaii, Colorado, Montana.
*Mo. Rev. Stat. $ 444.760-444.786 (Supp. 1973).
5lnd. Ann. Stat. 22 14-4-2-1 to 14-4-2-14 (1973).
6w.Va. Code Ann. 22 20-6-1-1 to 20-6-12 (1973), as amended, (Supp. 1974).
7Va. Code Ann. $ 45.1-198, 45.1-200 (1974).
8ld.
9Va. Code Ann. $ 45.1-180 to 45.1-197.2 (1974).
lOld. at 2 45.1-182
uVa. Code Ann. 22 45.1-216 to 45.1-220 (1974). "Orphaned Lands" are de-
fined in section 45.1-216 as lands which have been "distrubed by coal sur-
face mining operations which were not required by law to be reclaimed or
which have not in fact been reclaimed."
_l. at 2 45.1-218.
13Va. Code Ann. 22 45.180 to 45.1-197.2 (1974).
[. at 2 45.1-183.
:. Rev. Codes Ann. 22 50-1201 to 50-1226 (Supp. 1974).
16ld. at 22 50-1207, 50-1208.
17Mont. Rev. Codes Ann. 22 50-1034 to 50-1057 (Supp. 1974).
!8Mont. Rev. Codes Ann. 22 50-1601 to 50-1617 (Supp. 1974).
19ld.
20idaho Code Ann. 2 47-1501 to 47-1518 (Supp. 1974).
21N.D. Cent. Code 22 38-14 1 to 38-14-13 (1972), as amended. (Supp. 1973),
22id. at 2 38-14-01.
23id. at 2 38-14-05.
24ld. at 2 38-14-05.1.
V-l
-------
25Ran. Stat. Ann. 22 49-401 to 49-424 (Supp. 1974).
26ind. Ann. Stat. 22 13-4-6-1 to 13-4-6-13 (1973), as amended, (Supp.
1974.
27id. at 2 13-4-6-5.
28ind. Ann. Stat. 22 14-4-2-1 to 14-4-2-14 (1973), as amended, (Supp.
1974).
29id. at 2 14-4-2-5.
30no Rev. Stat. 22 444.760 to 444.786 (Supp. 1973).
31 Id. at 2-444.774.
32Mo. Rev. Stat. 22 444.500 to 444.755 (Supp. 1973).
33Hawail Rev. Stat. 22 181-1 to 181-10 (1968).
34Rawaii Rev. Stat. 2 183-42 (1968).
35colo. Rev. Stat. Ann. 22 34-32-101 to 34-32-118 (1974).
36por example, the Kansas Mined-Land Conservation and Reclamation Act,
Kan. Stat. Ann. 22 49-401 to 49-424 (Supp. 1974) and the Montana Reclama-
tion of Mining Lands chapter, Mont. Rev. Codes Ann. 22 50-1201 to 50-1226
(Supp. 1974).
37ya. Code Ann. 2 45.1-214 (1974); Montana Strip Mined Coal Conservation
Act, Mont. Rev. Codes Ann. 22 50-1401 to 50-1409 (Supp. 1974).
38w.Va. Code Ann. 22 20-6-1 to 20-6-32 (1973), as amended, (Supp. 1974).
39por example, backfilling, grading, and planting. W.Va. Code Ann. 2
20-6-10 (1973).
40w.Vfc..Code Ann. 2 20-6-16 (1973).
41w.Va. Code Ann. 2 20-6-30(c) (1973); Mont. Rev. Codes Ann. 22 50-1601
to 50-1617 (Supp. 1974); Mo. Rev. Stat. 22 444.500-444.755 (Supp. 1973).
42w.Vair.Code Ann. 2 20-6-17 (1973).
43ya. Code Ann. 22 45.1-198 to 45.1-215 (1974).
44Id. at 2 45.1-209.
45Mont. Rev. Codes Ann. 22 50-1201 to 50-1226, 50-1034 to 50-1057 (Supp.
1974).
V-2
-------
46Id. at $ 50-1209.
47Id. at $ 50-1043.
. Rev. Codes Ann. $$ 50-1039, 50-1211 (Supp. 1974).
. Rev. Codes Ann. $$ 50-1601 to 50-1617 (Supp. 1974).
50Id. at $ 50-1607.
51Idaho Code Ann. $$ 47-1501 to 47-1518 (Supp. 1974).
52M. at $ 47-1513.
5%.D. Cent. Code $ 38-14-04 (Supp. 1973).
54Kan. Stat. Ann. $$ 49-401 to 49-424 (Supp. 1974); Ind. Ann. Stat.
13-4-6-1 to 13-4-6-13 (1973*.
55Kan. Stat. Ann. $ 49-406 (Supp. 1974).
56Ind. Ann. Stat. * 13-4-6-5 (1973).
57Ind. Ann. Stat. $ 13-4-6-7 (1973).
58Kan. Stat. Ann. $ 49-416 (Supp. 1974).
59Mo. Rev. Stat. t 444.570 (Supp. 1973).
60Mo rev. Stat. $ 444.500 to 444.755 (Supp. 1973).
61Hawaii Rev. Stat. $$ 181-1 to 181-10 (1968).
62Colo. Rev. Stat. U 34-32-101 to 34-32-118 (1974).
63!W. at $ 34-32-113.
6*Idaho Code Ann. $ 47-1312 to 47-1324 (Supp. 1974).
65Id_. at U 47-1312, 47-1315.
66Minn. Stat. Ann. $$ 93.43 to 93.51 (Supp. 1973).
67Id. at $ 93.49.
68Mich. Compi Laws Ann. $$-425.181 to 425.188 (Supp. 1973).
69Id. at % 425.183.
70Mont. Rev. Codes Ann. $$ 50-1501 to 50-1516 (Supp. 1974).
71Id. at $ 50-1503.
V-3
-------
7%font. Rev. Codes Ann. $$ 50-1301 to 50-1306 (Supp. 1974).
73md. Ann. Stat. %$ 14-4-2.1-1 to 14-4-2.1-8 (1973).
paragraphs immediately following.
75Idaho Code Ann. $ 47-1513 (Supp. 1974).
76Idaho Code Ann. 0 47-1321 (Supp. 1974).
77W.Va. Code Ann. $ 20-6-30(c) (1973).
78Kan. Stat. Ann. $ 49-405 (Supp. 1974).
79Mont. Rev. Codes Ann. $$ 50-1056, 50-1222, 50-1611, 50-1612 (Supp.
1974).
80Minn. Stat. Ann. $ 93.4 (Supp. 1973).
81Mich. Comp. Laws Ann. $ 425.188 (Supp. 1973).
82Kan. Stat. Ann. $ 49-42 (Supp. 1974).
83Mo. Rev. Stat. $ 444.680 (Supp. 1973).
84Mont. Rev. Codes Ann. $ 50-1037 (Supp. 1974).
85Mont. Rev. Codes Ann. $ 50-1038 (Supp. 1974).
86Va. Code Ann. $ 45.1-212-1 (1974).
87W.Va. Code Ann. U 20-6-8, 20-6-25 (1973).
88W.Va. Code Ann. $ 20-6-30(a) (1973).
89W.Va. Code Ann. $ 20-6-11 (1973).
9°Mont. Rev. Codes Ann. $ 50-1055 (Supp. 1974).
91Mont. Rev. Codes Ann. $ 50-1612 (Supp. 1974).
92W.Va. Code Ann. $ 20-6-30 (b) (1973).
93Idaho Code Ann. $ 47-13 (Supp. 1974).
9^Minn. Stat. Ann. $ 93.51 (Supp. 1973).
9^ Idaho Surface Mining Act, Montana Strip Mining and Reclamation Act,
Montana Strip Mine Site Act, Montana Reclamation of Mining Lands chapter,
Kansas Mined-Land Conservation and Reclamation Act, Hawaii Strip Mining
chapter, Minnesota Mineral Lands chapter.
V-4
-------
96Minn. Stat. Ann. g 93.51 (Supp. 1973).
97idaho Code Ann. $ 47-1513(f) (Supp. 1974).
98Mont. Rev. Codes Ann. $ 50-1056 (Supp. 1974).
99Mbnt. Rev. Codes Ann. $ 50-1611 (Supp. 1974$.
lOOMont. Rev. Codes Ann. $ 50-1222 (Supp. 1974).
I01ldaho Code Ann. $ 47-1513(f) (Supp. 1974); Minn. Stat. Ann. $ 93.51
(Supp. 1973).
102Kan. Stat. Ann. t 49-421 (Supp. 1974).
103Hawaii Rev. Stat. $ 181-9 (1968).
104Ind. Ann. Stat. $ 13-4-6-13 (1973).
105Idaho Code Ann. $ 47-1321 (Supp. 1974).
106Mont. Rev. Codes Ann. $ 50-1513 (Supp. 1974).
107Mo. Rev. Stat. $ 444.78 (Supp. 1973).
108Colo. Rev. Stat. Ann. 2 34-32-113 (1974).
.. (C
109N.D. Cent. Code $.38-14-12 (Supp. 1974).
110Va. Code Ann. $ 45.1-214 (1974).
111 Va. Code Ann. $45.1-191 (1974).
112W.Va. Code Ann. $ 20-6-30(a) (1973).
113Mont. Rev. Cedes Ann. $$ 50-1401 to 50-1409 (Supp. 1974).
114W.Va. Code Ann. $$ 20-6C-1 to 20-6C-8, 22-2-25, 22-1-1 td 22-1-35
(1973); Ind. Ann. Stat. M 22-10-8-1, 22-10-8-2, 22-10-13-2 (1974); Kan.
Stat. Ann. U 49-251, 49-252 (1964).
115W.Va. Code Ann. $ 20-6C-1 to 20-6C-8 (1973).
116W.Va. Code Ann. $$ 22-2-25, 22-1-1 to 22-1-35 (1973).
117 Id_. at $'22-2-25.
118Ind. Ann. Stat. U 22-10-8-1, 22-10-8-2, 22-10-13-2 (1974).
119Kan. Stat. Ann. U 49-251, 49-252 (1964).
V-5
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I20lnd. Ann. Stat. $ 22-10-2-4 (1974).
121W.Va. Code Ann. 00 22-2-5, 22-1-1 to 22-1-35 (1973).
122W.Va. Code Ann. $ 22-2-71 (1973).
123W.Va. Code Ann. 00 20-6C-6, 20-7-5 (1973).
124W.Va. Code Ann. 0 22-1-19 (1973).
125Mont. Rev. Codes Ann. 0 50-1407 (Supp. 1974).
126W.Va. Code Ann. 0 22-l-20(a) (1973).
127Kan. Stat. Ann. 0 49-251, 49-252 (1964).
128lnd. Ann. Stat. 0 22-10-13-2 (1974).
129W.Va. Code Ann. 0 20-7-9 (1973).
130W.Va. Code Ann. 00 20-6C-1 to 20-6C-8 (1973).
131W.Va. Code Ann. 00 22-1-1 et^ ^e^., 22-l-20(b) (1973).
132Virginia, Hawaii, Texas, Indiana.
133Va. Code Ann. 00 62.1-190 to 62.1-193 (1973).
134Hawaii Rev. Stat. 00 205-31 to 205-37 (Supp. 1974) [Hereinafter re-
ferred to as the Shoreline Setbacks statute]".
135Tex. Rev. Civ. Stat. Ann. art. 54l5g (1969), as amended, (Supp. 1974).
136Kan. Stat. Ann. $0 70a-101 to 70a-116 (1972), as amended. (Supp. 1974).
I37lnd. Ann. Stat. 00 14-3-1-13, 14-3-1-14, 14-3-1-17, 14-3-1-22 (1973)-
138Va. Code Ann. 00 62.1-192 (1973).
139Tex. Rev. Civ. Stat. Ann. art. 5415g (1969), as amended, (Supp. 1974).
140Kan. Stat. Ann. 0 70a-104 (1972).
141 Va. Code Ann. 0 62-1-191 (1973).
142Kan. Stat. Ann. 0 70a-108 (1972).
. Ann. Stat. 0 14-3-1-22 (1973).
. Rev. Civ. Stat. Ann. art. 54l5g (1969), as amended, (Supp. 1974).
i Rev. Stat. 00 205-31 to 205-37 (Supp. 1974).
V-6
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146utah, Texas, Idaho, Indiana, Michigan, West Virginia, Kansas, North
Dakota.
l*7Utah Code Ann. t$ 40-6-1 to 40-6-17 (1970).
l*8Tex. Rev. Civ. Stat. art. 6008, 6014, 6016 (Vernon's 1962), as amended,
(Vernon's Supp. 1974) [Hereinafter referred to as the Texas Oil Gas
Conservation statute] .
. Ann. Stat. W 13-4-7-1 to 13-4-7-26 (1973) [Hereinafter referred
to as the Indiana Oil and Gas: Control Agency chapter]:
150 Idaho Code Ann. % 47-315 to 47-330 (Supp. 1974) [Hereinafter referred to
as the Idaho Oil and Gas Conservation Act].
151Mich. Comp. Laws Ann. $$ 319.1 to 319.27 (West 1967), as amended, (Supp.
1973) [Hereinafter referred to as the Michigan Supervisor of Wells statute];
Mich. Comp. Laws Ann. $$ 319.211 to 319.236 (Supp. 1973) [Hereinafter re-
ferred to as the Mineral Well Act.]
152W.Va. Code Ann. $$ 22-4A-1 to 22-4A-15 (1973) [Hereinafter referred to
as the West Virginia Oil and Gas Conservation statute] .
153 Idaho Oil and Gas Conservation Act, Idaho Code Ann. gg 47-315 to 47-330
(Supp. 1974); Indiana Oil and Gas: Control Agency chapter, Ind. Ann. Stat.
n 13-4-7-1 to 13-4-7-26 (1973).
154Utah Code Ann. $$ 40-6-1 to 40-6-17 (1970).
155Tex. Rev. Civ. Stat. art. 6008, 6014, 6016 (Vernon's 1962), as amended.
(Vernon's Supp. 1974).
156 ind. Ann. Stat. U 13-4-7-1 to 13-4-7-26 (1973).
157W.Va. Code Ann. U 22-4A-1 to 22-4A-15 (1973).
158 Idaho Code Ann. $$ 47-315 to 47-330 (Supp. 1974).
159 Mich. Comp. Laws Ann. $ 319.1 et seq. (West 1967), as amended, (Supp.
1973).
at n 319.1 to 319.27.
at H 319.211 to 319.236.
162W,Va. 'Code Ann. H 22-4-1 to 22-4-19 (1973).
163Idaho Code Ann. $ 47-320 (Supp. 1974).
164W.Va. Code Ann. H 22-4-3a" (1973) .
165W.Va. Code Ann. $ 22-4-2 (1973).
V-7
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l$7Tex. Rev. Civ. Stat. arts. 6029, 6029A (Vernon's 1962); Ind. Ann. Stat.
n 13-4-5-1 to 13-4-5-11 (1973).
168Tex> Rev. Civ. stat. arts. 6029, 6029A (Vernon's 1962).
169Ind. Ann. Stat. gg 13-4-5-1 to 13-4-5-11 (1973) [Hereinafter referred
to as the Test Holes Act] .
170Tex. Rev. Civ. Stat. art. 5351, 5366 (Vernon's 1962) [Hereinafter re-
ferred to as the Pollution of Streams Provisions].
. Rev. Civ. Stat. art. 5421c (Vernon's 1962), as amended, (Vernon's
Supp. 1974) [Hereinafter referred to as the Public Lands statute].
!72Mich. Comp. Laws Ann. $ 322.427a to 322.429 (1967).
173Mich. Comp. Laws Ann. $ 322. 47a (1967).
17*Kan. Stat. Ann. U 55-101 to 55-142 (1964), as amended, (Supp. 1974).
3-75N.D. Cent. Code $$ 38-08-04 to 38-08-17, 38-12-01 to 38-12-05 (1972).
176Va. Code Ann. $$ 45.1-108 to 45.1-115, 45.1-141 to 45.1-143, 45.1-105
(1974).
177Id. at $ 45.1-115; Tex. Rev. Civ. Stat. Ann. art. 6008 (Vernon's 1962),
as amended, (Vernon's Supp. 1974).
178Ind. Ann. Stat. $ 13-4-7-25 (1973).
!79Mich. Comp. Laws Ann. $ 319.228 (Supp. 1973).
18°Mich. Comp. Laws Ann. g 319.17 (Supp. 1973).
!81Kan. Stat. Ann. $ 55-119 (1964).
l82Va. Code Ann. ££ 45.1-141, 45.1-142 (1974).
183W.Va. Code Ann. $ 22-4-18 (1973).
184w.Va. Code Ann. $ 22-4-18 (1973).
185utah Code Ann. $ 40-6-9 (1970).
i^idaho Code Ann. $ 47-325 (Supp. 1974).
187N.D. cent. Code $ 38-12-05 (1972).
18%.Va. Cod§ Ann. $ 22-4-lgOO (1973).
189Tex. Rev. Civ. Stat. Ann. art. 5421c (Vernon^s 1962), as amended,
(Vernon's Supp. 1974).
V-8
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190Micn. Comp. Laws Ann. $ 319.21 (1967).
191lnd. Ann. Stat. $ 13-4-7-23(c), 13-4-7-19 (1973).
192Mlch. Comp. Laws Ann. $ 319.18a (West 1967).
193Tex. Rev. Civ. Stat. Ann. art. 5351, 5366 (Vernon's 1962).
194Id. at art. 5351 (Vernon's 1962).
195Idaho Code Ann. $ 47-325 (Supp. 1974).
196W.Va. Code Ann. ££ 224-15 (1973).
197Ind. Ann. Stat. $ 13-4-5-10 (1973).
198xex. Rev. civ. Stat. Ann. art. 6008 (Vernon's 1962), as amended, (Vernon's
Supp. 1974).
199Mich. Comp. Laws Ann. £ 319.235 (Supp. 1973).
200Mich. Comp Laws Ann. % 319.20 (Supp. 1973).
201N.D. Cent. Code g 38-12-05 (1972).
202Mich. Comp. Laws Ann. $ 322.428 (1967).
203Utah Code Ann. $ 40-6-10(c) (1970).
204Iaho Code Ann. 2 47-325 (Supp. 1974).
205W.Va. Code Ann. $ 22-4A-14(b) (1973).
206N.D. Cent. Code $ 38-12-05 (1972).
207Mich. Comp. Laws Ann. $ 319.19 (1967).
208Micn. Comp. Laws Ann. 2 322.429 (1967).
209Mich. Comp. Laws Ann. $ 319.18b (1967).
210Ind. Ann. Stat. $ 13-4-5-11 (1973).
211Ind. Ann. Stat. $ 13-4-7-26 (1973).
212Va. Code Ann. $ 45.1-105(b), 45.1-143 (1974).
213W.Va. Code Ann. $ 22-4A-14 (1973).
214W.Va. Code Ann. $ 22-4-1K (1973).
215Kan. Stat. Ann. U 55-102 et seg^. (1964), as amended, (Supp. 1974).
V-9
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21&Tex. Water Code Ann. $ 23.001-23.004 (1972) [Hereinafter referred to
as the Texas Water Wells statute].
217Tex. Rev. Civ. Stat. art. 7621e (Water Aux. Laws Pamphlet 1973).
218Minn. Stat. Ann. 0tf 156A.01-156A.08 (Supp. 1973).
219Mich. Comp. Laws Ann. $$ 319.251-319.253 (1967).
220see f.n. 217.
221Tex. Water Code Ann. t 23.004 (1972).
222Minn. Stat. Ann. $ 156A.08 (Supp. 1973).
223Mich. Comp. Laws Ann. $ 319.252, 319.253 (West 1967).
22%awaii Rev. Stat. $ 183-41 (1968), as amended, (Supp. 1974).
225Mich. Comp. Laws Ann. g 425.171 (Supp. 1973).
226M±nn. Stat. Ann. H 93.283, 93.34, 93.43 (1964), as amended, (Supp.
1973).
227Wis. Stat. Ann. U 107.05, 107.06 (1974).
228Tex. Rev. Civ. Stat. Ann. art. 5421b-l (1962).
229Ind. Ann. Stat. g 18-1-6-15 (1974).
230King.Co., Wash., Grading Ordin. No. 1488 (Jan. 22, 1973).
231Ind. Ann. Stat. $ 18-1-6-15 (1974).
232*ing Co., Wash., Grading Ordin. No. 1488 (Jan. 22, 1973).
233Ind. Ann. Stat. $$ 13-4-4-1 to 13-4-4-8 (1973) {Hereinafter referred
to as the Plugging of Wells chapter].
23AId_. at $ 13-4-4-7.
235!d_-
236Ind. Ann. Stat. U 13-4-8-1 to 13-4-8-2 (1973).
237Tex. Rev. Civ. Stat. art. 6005 (Vernon's 1962), as amended, (Vernon's
Supp. 1974) [Hereinafter referred to as the Texas Plugging Wells article].
238ld.
V-10
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241Kan. Stat. Ann. U 19-2504 to 19-2506 (1974).
242Tex. Rev. Civ. Stat. art. 8280-137, t 28 (Vernon's 1962), as amended.
(Vernon's Supp. 1974).
243Tex. 52d Leg., R.S., ch. 227.
244Va. Code Ann. U 45.1-128 to 45.1-131, 45.1-136 to 45.1-144 (1974).
245W.Va. Code Ann. t$ 22-7-1 to 22-7-12, 22-4-la (1973).
246Ind. Ann. Stat. H 13-4-4-3, 13-4-4-7 (1973).
247Ran. Stat. Ann. 00 19-2504 to 19-2506 (1974).
248iex. Rev. Civ. Stat. art. 8280-137, 0 28 (Vernon's 1961), as amended,
(Vernon's Supp. 1974); Tex. 52d. Leg., R.S. ch. 227.
249iex. Rev. Civ. Stat. art. 6005 (Vernon's 1962), as amended. (Vernon's
Supp. 1974).
250ind. Ann. Stat. * 13-4-8-1 (1973).
251Va. Code Ann. U 45.1-144, 45.1-142 (1974).
252w.Va. Code Ann. $ 22-7-ll(b) (1973).
253va. Code Ann. $ 45.1-139 (1974).
254w.Va. Code Ann. $ 22-7-11 (1973).
255w.Va. Code Ann. $ 22-7-12 (1973).
256va. Code Ann. 2 45.1-143 (1974).
257iex. Water Code Ann. U 22.001-22.104 (Vernon's 1972).
258Ran. Stat. Ann. U 55-1003 fio 55-1007 (1964).
259va. Code Ann. U 45.1-221 to 45.1-225 (1974).
260iex. Water Code Ann. $ 22.101 (1972).
26lKan. Stat. Ann. $ 55-1003 60 55-1007 (1964).
262va. Code Ann. $ 45.1-224 (1974).
263Ran. Stat. Ann. '$ 55-1004, 55-1005 (1964).
V-ll
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SILVICULTURE
Over one-third of the gross area of the United States is
covered with forests, of which over two-thirds are classified
commercial, forests, almost twenty percent of which are owned
by the People of the United States and administered by various
government agencies. Well-managed forests make little contri-
bution to surface and ground water contamination. Incident
rainfall is deprived of most of its erosive power by the tree
cover and rates of infiltration through ground cover and into
subsurface soils are often high enough that intense rainfall
can be accommodated without runoff. Productivity can be main-
tained over a long period of time with some cooperation from
human beings. Silviculture is a continuous management process
that begins when matured timber is harvested and the site is
prepared for a new crop of trees. It includes a relatively
long period of growth which contributes little to groundwater
and surface water contamination and a relatively short period
of harvest and reforestation which can become a significant
nonpoint source of water pollution. Nature, as well as man,
disturbs forests and modifies otherwise dynamically stable
forest ecosystems. Disease, insects, windstorms, droughts and
fires can so disturb the dynamic equilibrium of a forest eco-
system that the forest becomes a significant nonpoint source
of water pollution in a local area. Silviculture is generally
concerned with timber production and the maintenance of forest
ecosystems in a state of sustained yield and economic produc-
tivity. Silvicultural activities include timber harvesting,
reforestation, promotion of tree growth, prevention of disease,
fire fighting and fire prevention. Silviculture has been
defined as the theory and practice of controlling forests, the
establishment of forests, their composition and growth.
Since silviculture is a well-established academic disci-
pline and a substantial body of scientific literature has grown
171
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up over the years in this field, it is possible to seriously
consider legal regulation of silviculture by means of single
purpose legislation such as the Federal Multiple Use Sustained
Yield Act and a number of state forest practice acts such as
those in Oregon and Massachusetts. Many forest practices are
potential contributors to contamination of surface and ground
waters, but such forest practices are susceptible to regulation
by legal means within the limits of the general police power
authority granted to many municipal subdivisions.
The most dramatic disturbance of forest ecosystems by
man occurs in harvesting. The harvesting methods generally
recognized by the forestry professionals in the United States
are clearcut, seed tree, shelter wood, and selection systems.
Harvesting in forest ecosystems often produces dramatic short
term degradation of water quality primarily as a result of
sedimentation following erosion. Clearcutting, or any other
method which removes substantially all the trees in a water-
shed area is likely to have an immediate short term negative
effect on water quality-
Legal regulation of forest harvesting practices requires
control of what have been generally considered private actions
on private property. The success of the Oregon Forest Practices
Act achieving responsible timber harvesting practices is largely
due to significant cooperation among elected officials, adminis-
trative officers, professional foresters, the forest and timber
industry, and the general public.
There has been some suggestion that certain harvest
practices such as clearcutting be prohibited by federal law,
since every forest is a watershed of some sort and clearcutting
will to some extent, for some period of time, result in some
degradation of water quality. Unfortunately, clearcutting is
particularly adapted to subclimax species that do not reproduce
well under competitive conditions and clearcutting is also the
172
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method best adapted to assure prompt establishment of genetically
improved strains of certain species through artificial reforesta-
tion. According to E.P.A. studies, the principal species
harvested by clearcutting are Short Leaf Pine and'Loblolly Pine
in the South; Red Pine and Jack Pine in the Lake States; Red
Spruce, White Spruce and Balsam Fir in the Northeast; Lodgepole
Pine in the Rocky Mountains; and Douglass Fir in the Pacific
Northwest.
Another aspect of the harvesting operation which often
involves extensive damage to watersheds and can lead to sub-
stantial contamination of surface waters is "yarding." After
trees are felled in a logging operation, they must be collected
in a yarding area where they can be loaded for transportation.
In a few cases in New England and the West, logs can be rafted
from yarding areas to the mill by means of streams or rivers,
but in most cases the logs must be tranported to the mills by
truck over permanent roads and they must be brought to the
permanent roads from the site of harvest by skidding, yarding,
or snaking operations, all of which can significantly accelerate
erosion and lead to sedimentation following runoff. The method
of transporting logs has been dictated primarily by economic
considerations over the years, and insisting on balloon, skyline
cable, and helicopter transport methods imposes substantial
economic penalties which must be considered in developing legal
controls to prevent water pollution from such activities. Al-
though natural regeneration can establish productive stands of
trees in many forest ecosystems, it can be encouraged by forest
practices which provide favorable conditions for natural germina-
tion and growth of desired seedlings. The harvest method
selected is often an important factor in establishing the
required conditions.
The seed tree method removes all trees from an area
with the exception of a few of the most desirable trees that are
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left to produce seed and restock the cut-over area. The seed
tree method is suitable for propagation of selected pine species.
The shelter wood system, which involves gradual removal of an
entire stand by means of partial cuttings, permits establishment
of a new crop before the final harvest. This method is well
adapted to regeneration of Appalachian mixed hardwoods. The
selection system is significant only where it is desirable to
maintain an all aged forest by removing the oldest or largest
trees at periodic intervals of five to twenty years. The selec-
tion system is well adapted to propagation of species such as
Engelann Spruce and Alpine Fir in the Rocky Mountains and
Ponderosa Pine in the West. Clearcutting is suitable for estab-
lishment of uniform stands of intolerant species that do not
reproduce readily under competition from other trees such as
Southern Pines, Douglas Fir in the Pacific Northwest and the
Western White Pine in northern Idaho.
Forest wild fires have historically played an important
role in natural regeneration and maintenance of preferred tree
species.
In recent years, however, the use of prescribed fires has
become a scientifically accepted forest practice. Prescribed
burning is extensively employed in some areas to reduce the
potential for wild fires by systematically preventing the surface
build-up of fuel resulting from accumulating slash and other
forest debris. Traditionally surface vegetation has been removed
by controlled burning to permit direct contact of seed from
intolerant tree species with mineral soils.
A number of forest practices are employed primarily during
the forest growth between harvests. Pesticides are used to
control insects, weed trees, plant diseases and rodents, and
chemical fertilizers have been increasingly applied to improve
growth increments. The use of fire retardants to control and
manage fire has become an essential practice in silviculture.
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Since sediment is the principal contaminant which is
attributed to silviculture, legal control of water pollution
from silviculture as a noripoint source depends primarily on
controlling the runoff from managed forests, and limiting the
sediment carried by that runoff. Thermal pollution of streams
and surface waters can result from removal of tree cover and
may have serious effects on cold water streams from the point of
view of fish and wildlife management. Runoff from forested water-
sheds often contains organic matter of vegetative and animal origin
which can markedly affect chemical biological equilibrium in
aquatic ecosystems. Runoff also serves as a transport mechanism
by means of which pesticides used in silviculture can be trans-
ported to the surface waters and together with fertilizers and
fire retardants can be responsible for contributing substantial
nutrient loads of nitrogen and phosphorus to surface waters.
Bacterial and viral pathogens can also be carried by runoff to
surface waters. Since infiltration rates in many forests are
high, dissolved contaminants such as pesticides, nutrients, and
organic matter including pathogenic material, can enter ground-
water systems and often affect the quality of water supply in
areas far removed from the site of silviculture activity.
FOREST MANAGEMENT
The surveys have indicated that most statutes use broad
language which often characterizes grants of authority to the
agencies responsible for administering forest management and forest
practices acts. Granting of the power to "manage" a forest or
to set standards regulating "forest practices" or to "protect,"
"preserve," or "conserve" forest resources contemplates a broad
range of governmental regulation. Often such terms are not
clearly defined, or limited in enabling legislation allowing
flexible interpretation by the administrative agency with specific
limitations to be imposed by the courts or on later legislative
review.
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1 2
Three of the searched states, Idaho, Oregon, and
Washington, have Forest Practice Acts, and the administrative
agencies designated in those acts — the Idaho Board of Land
Commissioners, the Oregon Board of Forestry and the Washington
Forest Practices Board — may set minimum standards for forest
practices. These Boards are authorized to promulgate rules and
regulations necessary to carry out the purposes of the acts.
Protection of soil and water resources is an express purpose of
the legislation in each of those states. Although the power to
establish forest practice standards is a broad delegation of
authority, the legislature of each of these states did provide
certain guidelines such as defining the type of forest
practice to be regulated.
The Washington Act indicates that among the practices to
be regulated, so as to maintain the forests and water quality,
are: timber harvesting; road construction and maintenance in or
near forests; reforestation or restoration; the use of chemicals
and fertilizers; and the disposal of slash. Washington adds to
the list precommercial thinning, salvage of trees and brush
control.
Administration of the acts is somewhat different in each
of the three states. Oregon divides the state into regions. A
committee is appointed for each region to recommend rules approp-
riate to the forest conditions in that region to the Board
which is to develop and enforce regional rules. The State Forester
who under §526.031 of the Oregon Revised Statutes, is the chief
executive officer of the Department of Forestry, is responsible
for enforcement of forest laws, rules and regulations. The
Forester or his assistants are given immediate supervision of
forests and forestry practices. Certain forestry practices may
be designated by the Board as requiring forester notification
prior to commencement.
In Idaho, the State is divided into two forest regions.
Enforcement powers are divided between the Board of Land
176
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Commissioners and the Department of Land.which is directed to
administer and enforce the Act and promulgate rules in conform-
ity with it, while the Board has certain administrative remedies
within-the realm of its authority. Operators are required to
notify the Department before commencing forest practices. How-
ever, the Act contains a provision exempting from the Act certain
forest practices conducted in accordance with a plan approved by
the Board of Supervisors of a Soil Conservation District.
An even greater division of authority exists in Washington,
where the Forest Practice Act distributes administrative and
enforcement duties among the Forest Practices Board, the Depart-
ment of Resources, the Department of Ecology and the counties.
The Forest Practices Board sets forest practice standards which,
however, must comply with the water quality standards promul-
gated by the Department of Ecology. The Department of Natural
Resources is responsible for administering funds, although the
Board hires its own staff. The Natural Resources Department
also has primary enforcement powers, and may also be required to
approve certain forest practices before they can be initiated,
if the Board so requires. If the Department of Natural Resources
fails to enforce water quality standards or regulations after .the
Department of Ecology has given notice of a violation, the
Department of Ecology may act to enforce them. Finally, the
counties may notify the Department of Natural Resources of
their objections to any proposed forest practice within their
jurisdiction. The county is given limited authority under the
Act to regulate planning and zoning on land platted before 1960
and to restrict conversion of forest land to other uses. If a
practice falls within this local authority, the Department must
disapprove the practice upon demand by the county. The county
also may bring actions for injunctive and declatory- relief against
violations of regulations or final orders but only upon notice
to the Department of Natural Resources and the Department of
177
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Ecology of the violation and after both Departments have failed
to act.
Broad enabling language, modified by legislative guidelines
together with division of power between state and county authori-
ties is also characteristic of the Public Forests chapter of the
Wisconsin Code. Here the Department of Natural Resources is
required to execute all matters pertaining to forestry within the
jurisdiction of the State, direct the management of forests and
advance the cause of forestry. The forests are to be managed in
such a way that their primary uses constitute silviculture,
growing of continuous forest crops and stabilization of stream
flow, and the Department of Natural Resources is authorized to
set an allowable timber cut limited to designated trees, and, in
an effort to curb soil erosion, distribute planting stock on
State lands. Counties may act to provide watershed protection
and stabilization of stream flow in county forests. A county
board may promulgate and enforce regulations for the use of forests
by the public. Counties may also engage in silviculture, forest
management, and sale of timber. The counties, like the Depart-
ment may prepare a plan for allowable timber harvests and land
use. As in the Forest Practice Acts, county jursidiction in
Wisconsin is limited by county boundaries. Unlike the prior
acts, .this law also places jurisdictional limits on the State.
The Department of Natural Resources may manage and prescribe
practices only for lands designated as State forests. The Forest
Practices Act authorized Boards to prescribe forest practices
for all forest lands of the State -- public and private.
The Massachusetts Forestry Chapter contains similar
provisions. The State Forester is directed to manage, develop,
and reforest the State forests. In doing so, attention is to be
paid to protection of State water supplies. With the approval of
the Department of Conservation, the Forester may promulgate
reasonable regulations necessary to the care and management of
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the State forests and water supply. Unlike the Wisconsin statute,
this section of the Massachusetts Code also extends certain
authority over private forest lands and the Director of the
Division of Forestry of the Department of Conservation is author-
ized to promote the perpetuation, extension, and proper manage-
ment of both the public and private forest lands in Massachusetts.
The State Forester may demonstrate proper silviculture practices
to the interested public and may distribute planting stock, with
some authority to decide where that stock is to be planted. In
regard to .demonstrations and distributions, the State Forester
is expressly authorized to cooperate with and accept funds from
the Federal Government.
Like the Massachusetts Division of Forestry, the Office of
Extension Forestry of the Kansas State University of Agriculture
and Applied Sciences performs advisory and educational functions
with respect to private forest owners. The Office is directed
to promote the development and use of forest resources and the
control of soil erosion. Technical assistance may be provided
to interested persons. The Office also performs functions with
regard to.state land. Forestation and reforestation projects
conducted by the State are to be supervised by the Office.
Although the duties of the Office are largely advisory rather
than regulatory, it may promulgate rules and regulations neces-
sary to the administration of the Act.
The New Jersey environmental protection legislation enacted
g
in 1970 uses language similar to the grants of authority in
the Massachusetts and Kansas statutes. Where the Director of the
Massachusetts Division of Forestry is directed to promote the
perpetuation, extension and proper management of forest lands,
the Division of Parks, Forestry and Recreation in New Jersey is
required to protect and manage the State forests and promote the
use of good forestry management principles. In addition to the
broad substantive powers, the administrative power to hire
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personnel and obtain Federal -funding is also granted the Depart-
ment. A Parks, Forestry and Recreation Council is established
9
to advise and assist in administration of the Act.
Under a separate section of the Code, the New Jersey
Division of Parks, Forestry and Recreation is given regulatory
power of the State "forest park reserves" and is responsible for
the care, management and regulation of the reserves. The
Division must administer the reserves for general conservation.
More specifically, the Division is directed to reforest cut-over
and denuded lands and place special emphasis on conserving
forest tracts around headwaters and on watersheds of the State.
(Note that in the Wisconsin Public Forests chapter, supra,
responsibility for protection of the headwaters and watersheds
was given the counties.)
Among the specific duties imposed on the Minnesota Commis-
sioner of Conservation is also that of conserving the forests
around the headwaters of streams and in the watersheds of the
State. The grant of power to this agency, as with the
others discussed, begins with a broad delegation — to manage and
control all State forest lands. The statute then enumerates
certain powers granted to implement the duty to manage and con-
trol. The Commissioner is required to ascertain the best
methods of reforestation, to distribute planting stock, and
conserve forests and may promulgate rules and regulations for
the care and management of the State forest lands. As in several
of the other forest management statutes, no control over private
forest lands is given. A division of authority between the
Commissioner and the county is also expressly provided. Day
to day care of the forest lands within their jurisdiction and
county responsibility includes the removal of trees, brush and
debris. To cover the cost of meeting their responsibilities
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the counties are authorized to issue bonds. In addition, 50%
of the gross receipts of the sale of state timber located in
a county is appropriated to that county.12
The Michigan legislature has enacted three laws giving
forest management authority to various agencies or officials.
In each case a jurisdictional limitation is involved. The
Forest Reserve Act creates a State forest reserve which is
to be maintained and controlled by the State Forestry Commis-
sion which must provide for good forestry practices on the
reserve, and may require that sound practices also be used by
private individuals granted the right to harvest trees on the
reserve.
A parallel statute authorizes the creation of municipal
forestry commissions to supervise and manage municipal forest
14
lands. The Commissions may promulgate reasonable rules and
regulations regarding these lands and Municipal-State coopera-
tion is required. The municipal commissions must cooperate with
the Department of Conservation with respect to the establishment
and maintenance of public forests. A restrictive funding pro-
vision in this statute raises some questions as to the effec-
tiveness of municipal commissions. Under this statute, no
municipal legislative body may appropriate more than $5000 for
the Commission without a 3/5 vote of the electorate.
The third Michigan statute gives the Department of Natural
Resources the power to develop forest practice guidelines and
procedures to be followed along highways which have been desig-
nated "natural beauty roads." Among the practices to be
regulated are cutting, spraying, dusting, salting, and mowing —
all potential causes of water pollution.
Indiana also has a natural beauty roads law which grants
similar powers to the county boards of commissioners.
Virginia, like Michigan, has three related statutes grant-
ing three different officers power to manage forest land within
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limited jurisdictions. There are several forest reserves in
Virginia, the care, management, use and preservation of which
are the responsibility of the Director of Conservation and the
18
Board of Conservation and Development. The section of the Code
granting authority to the Commissioner and the Board instructs
them in particular to conserve the forests around headwaters and
in the watersheds of all watercourses of the State, as statutes
in Wisconsin, New Jersey, and Minnesota. Forest wardens have
direct enforcement powers. Funding management and protection
efforts are to come in part from the sale of timber from State
forests.
Two other statutes give the Commission of Game and Inland
Fisheries and the Director of Engineering and Building
overall management authority over forests on lands within their
jurisdiction, and in addition, they are required to see that the
timber on the lands is harvested in accordance with the best
timber management practices.
State forest management statutes often contain no penalty
or enforcement provisions, merely directing state or local
agencies to manage forests within their jurisdiction in accordance
with sound forestry practices. They are not penal statutes, nor
do they generally prohibit or require public action.
The Forestry Management Section of New Jersey's
environmental protection law gives no enforcement power to the
21
Division administering them. However, another section of the
New Jersey Code dealing with the Department of Environmental
Protection authorizes the Department to enforce forestry laws,
rules and regulations and to seek and obtain injunctive relief
22
when necessary.
Statutes which contain prohibitions or regulate practices
are more apt to include remedies. The most effective type of
remedial measure is one which allows immediate action against
violators. Fines and imprisonment do not necessarily halt im-
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proper silvicultural activities which degrade water quality
since there is often a significant time lapse between the com-
mencement of a violation and its cessation during which, serious
and often permanent, irreparable damage is done to surface waters.
Equitable relief, especially injunction, whether temporary or
permanent, mandatory or prohibitory, is the key to effective
protection of water quality from degradation by nonpoint sources
of water pollution.
The New Jersey Department of Environmental Protection may
23
obtain an injunction against damaging forest practices. The
24
Washington Forest Practices Act gives bpth the Department of
Natural Resources and the Department of Ecology the power to seek
and obtain injunctive relief against forest practices. The
Department of Ecology may act to enjoin only forest practices
pertaining to water quality; while the Department of Natural
Resources may enjoin any injurious forest practice. One limita-
tion on the powers of both Departments is that these injunctions
may not run longer than one year. Another provision of the Act
authorizes counties to seek and obtain injunctive relief against
forest practices within their jurisdiction if the Departments
fail to. A time limit is not specified with regard to injunc-
tions obtained as a result of county enforcement action.
Of the two natural beauty roads statutes discussed in this
25
section, only Indiana's provides for enforcement. A County
Attorney, acting for the Board of Commissioners, may sue to en-
join damage to natural beauty roads. The Michigan counterpart
contains no enforcement or penalty provision.
The three above statutes are the only ones in the forest
management category which specifically provide for injunctive
relief. Several others do allow the executive agency to take
"other" action, and some administrative remedies are as undefined
in the general grants of power given the agency. The Minnesota
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State Forests Statute authorizes the Commissioner of Conservation
to execute all rules and regulations pertaining to forestry and
26
to prosecute violators. The Massachusetts Forestry Chapter
also grants the power to prosecute violators of forestry rules
and regulations to the Department of Conservation, and in addition
gives officers of that Department the same enforcement powers as
27
police officers, except the power to serve process.
Stop work orders and orders to cease violations may be
issued under the Idaho, Oregon and Washington Forest Practice
2 8
Acts. Violators may be ordered to repair damages caused by
their actions. If the violator fails to make repairs, each of
these acts authorizes the administrative agency to proceed with
repairs and either sue for expenses (Washington) or impose a lien
on the land (Idaho) or on the land and personalty of the violator
(Oregon) in the amount of the expenses. Persons aggrieved by
orders of the Oregon Forester or Washington Department of Natural
Resources may appeal. In Oregon, appeal is made to the Board of
Forestry with judicial review by the circuit court within 30
days of the Board's decision. In Washington, a civil penalty of
up to $1000 per day may be imposed by the Department, for
violations of the Act or regulations, and appeals from this
assessment are taken to the Forest Practices Appeals Board.
All three of the above Forest Practices Acts provide for
criminal sanctions as well as civil remedies. In Oregon, failure
to notify the Forester of intent to commence forestry activities
(i.e., growing, cutting, processing of trees), or violation of
any rule, regulation or standard promulgated under the Act is
29
punishable upon conviction as misdemeanors. Each day of
operation without notification is a separate offense.
In Washington, violations of the Acts or regulations are
punishable by a civil penalty, however, willful violations are
punished criminally being classified as gross misdemeanors
punishable upon conviction by a fine of $100 to $1000 per day
184
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or up .!to one 'year imprisonment for each day's violation.
The Idaho Act, like Oregon's, classifies violations of
the Act or rules as misdemeanors punishable upon convicion by
fines, but the Act fails to specify minimum or maximum fines.
"50
The Virginia Forest Resources Statute punishes viola-
tions of rules or regulations pertaining to State reservations
or parks, upon conviction by a fine of between $5 and $50 per
offense. If the fine is not paid, the Act authorizes imprison-
ment at a rate of one day for every two dollars not paid.
31
The Wisconsin Public Forest chapter also classifies
violations as misdemeanors. In this case, the resale of forestry
stock received from the Department of Natural Resources for
forestry purposes is a misdemeanor. Violators may be punished
by fines of between $50 to $100. The misuse of planting stock
(i.e., using it for other than windbreaks, control of soil
erosion, or game food and cover) is not a misdemeanor, but is
punishable by a fine of up to $1000. Counties which fail to
comply with the Act may be ordered to do so by the Department.
A court may enforce this order and violation will subject county
officials to civil contempt proceedings.
New Jersey punishes persons setting fires in a forest park
reserve by a penalty of $50-$200, assessed summarily and enforced
32
in a civil action with civil standards of proof applying.
In mitigating circumstances, the violator may be allowed to pay
the price of the damage caused by the fire if it is less than
the penalty.
HARVESTING
The legislation discussed in this section affects the cutting,
harvesting or transporting of timber. Many of these laws are
enabling statutes authorizing an agency or political body to
regulate these activities. Others are simply prohibitions, enforce-
able by local law enforcement officials or forest wardens, and will
be considered under enforcement.
185
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Among the enabling statutes, several were enacted primarily
as water resource protection or conservation measures. Others
have as their primary goal the promotion of forest growth or
the prevention of forest fires. Whether disposal of cutting
debris is ordered as a fire prevention measure or to prevent
water pollution, the result is the same. The water pollution
potential of the silvicultural activity is prevented. The
prevention of forest fires is also a means of pollution control,
by minimizing soil erosion, as is the promotion of forest growth
which similarly retards soil erosion and reduces water pollution.
Two of the harvesting statutes require that permits or
licenses be obtained prior to cutting, and also contain pro-
visions calling for the conservation of water resources. The
Massachusetts Forest Cutting Practices statute requires
commercial harvesters to be licensed, and creates a State Forestry
Committee to promulgate a set of approved forest cutting practices.
A plan of operations using only approved practices must be
prepared jointly by the operator and the Director of the
Massachusetts Division of Forestry before any landowner may
harvest trees.
In Indiana, the Department of Conservation issues permits
for the cutting of timber from state forests, and before issuing
any permit must consider the need for the timber in contrast with
the effect of its harvest upon the conservation of timber, water,
and soil resources, and wildlife. This statute contains a
rather unique permit provision, which allows the Department, by
means of conditions imposed on applicants for permits, to assume
certain powers not expressly granted by the statutes. Permit
terms may regulate practices, removal of timber and disposal of
slash and require adequate fire prevention practices. The
Department may also include conditions providing for summary
revocation of the permit by the Department for violations of
186
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permit provisions.
Counties in Indiana have the duty and authority to regulate
cutting for county-owned public forests, which are to be protected
from fire and grazing and cut in accordance with approved forestry
measures. To fund these maintenance efforts, counties may levy
taxes and use revenue from the sale of timber. 5 In addition,
part of the funds collected as license or cutting fees by the
Department of Conservation is allocated to the county in which the
state forest is located.
The Hawaiian legislature has enacted a comprehensive land,;
use statute which allows the Department of Land and Natural
Resources to prohibit unlimited cutting of trees in areas designated
as forest and water reserve zones in order to protect the.water
and forest resources of the State. The Department may designate
the zones, promulgate land use regulations for them, hold hearings,
and hire the personnel necessary to enforce the statute.
In Minnesota, one statute authorizes the Commissioner of
Natural Resources to sell any state lands, except those bordering
meandering lakes, to be used to grow continuous forest crops in
37
accordance with sustained yield practices. The timber on lands
which do border meandering lakes may be sold for cutting and
removal, in accordance with sustained yield practices. Another
38
statute, the Minnesota Forestry Act, requires that persons
proposing to cut timber from land in or adjoining state forests
must post notice at the site and give notice to the Commissioner
of Natural Resources. Any person proposing.to cut such timber
must agree to dispose of cuttings as directed by the Director of
the Division of Forestry, who is also authorized to permit the
removal of dead trees and refuse from state forests in order to
improve the forests and protect them from fire. Again, debris
must be properly disposed. The Department is authorized to
issue rules and regulations to enforce these provisions.
39
The Michigan Slash Disposal Law, although primarily a
187
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fire prevention measure, restricts post cutting practices. The
Director of Conservation or his authorized representative must
notify persons responsible for cutting forest growth along or
within a public highway who have not properly disposed of the
debris. If the party fails to comply with this notification,
the Department may pay for the removal of debris and present a
statement of that amount to the violator for payment.
A New Jersey law handles accumulation of debris somewhat
differently, declaring it a public nuisance to allow accumula-
40
tions which might cause forest fires. The Department of
Environmental Protection now has the enforcement authority, formerly
given the Board of Conservation and Development.
41
A Massachusetts log transport statute requires persons
unloading lumber from a vessel to obtain a permit from the harbor
master who is generally appointed by a city mayor or town
selectman. The master determines where lumber may be hefted and
unloaded. Although the statute is primarily aimed at preventing
obstructions to navigation, it can also serve to abate some of
the water pollution caused by the timber industry.
Penalties
A violation of a law or regulation governing the harvesting,
cutting or transporting of timber may be prosecuted civilly,
administratively or criminally. Only three of the harvesting
statutes provide for immediate summary equitable action against
A O
violators. The Virginia Log Transport Statute authorized
injunctive relief against the dumping of timber, trees or logs
into any state waters, and in particular the Big Sandy River, so
as to obstruct it. The county attorney or an injured party may
file a bill in equity with the Circuit Court which may issue an
injunction to enjoin violations.
The New Jersey Department of Environmental Protection may
bring suits for injunctive relief against violations of the laws,
rules and regulations dealing with environmental protection, which
188
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include provisions of the code prohibiting accumulation of brush
or debris from felled trees.
The Massachusetts Forest Cutting Practices Act empowers the
Director of the Division of Forestry to seek and obtain injunctive
relief against persons harvesting timber in violation of the
44
licensing requirements.
Neither the New Jersey nor the Massachusetts statutes
expressly authorize citizen suits for injunctive relief. However,
both of these acts plus a West Virginia law pertaining to
45
obstructions of rivers statute and the Michigan Slash Disposal
Law do allow citizens to maintain actions for damages. The
West Virginia statute also authorizes private citizens to bring
nuisance abatement actions in the county court.
Enforcement of the Hawaii Forest and Water Reserve Zone
statute and of zoning regulations is by "court order at the
47
suit of the Department," or an affected landowner. No actions
for damages are specifically provided for in that statute.
The Michigan Department of Conservation under the Slash
Disposal Law, and the Minnesota Division of Forestry are authorized
to direct persons responsible for debris accumulations to dispose
48
of the debris properly. If the responsible persons fail to
comply with the agency notice, the agency may pay for removal.
In Michigan, the responsible party is billed, and, if necessary,
sued for expenses. In Minnesota, the expenses incurred by
the Division become a lien on the land which may be foreclosed
if not paid.
New Jersey also authorizes the Division of Parks, Forestry
and Recreation, in the Forest Fire Service Statute, to order
the removal of any menace represented by litter from felled trees.
Rather than providing for a lien on the operator's land or for a
suit to recover damages, the Act provides for a penalty intended
to cover the Division's costs.
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Revocation of licenses or permits is an administrative
remedy found in two of the three licensing statutes. The Indiana
Removal of Timber provisions authorize the Department of Natural
Resources to include a provision in timber cutting permits, which
allows for revocation and indicates the grounds for such disciplinary
52
action.
The Massachusetts Forest Cutting Practices Act requires the
licensing of commercial timber harvesters. The Director of
the Division of Forestry has the power under that act to revoke a
license for violations of the statute's provisions (which
primarily prescribe cutting practices).
The log transport statute in Massachusetts requires that a
permit be obtained before lumber may be removed from a vessel, but
there is no provision authorizing revocation of these permits.
Instead, violations are punishable as crimes, and the penalty
54
is a fine.
A number of statutes in the harvesting category punish
violations without designating the violation a crime. In
Massachusetts, forest wardens may inspect wood and lumber opera-
tions to insure proper disposal of slash. Violations are punishable
by fines. Hawaii provides fines of up to $500 for violations of
the zoning regulations governing land use in forest and water
reserve zones. The New Jersey Division of Parks, Forestry, and
Recreation is authorized to impose fines for willful violations
of the state, limiting accumulation of litter from felled trees.
Non-willful violations may also be punished by fines. This particular
piece of legislation provides for imprisonment upon failure to pay
these penalties with release conditioned upon payment of the fine
or after a maximum prison term of 90 days or sooner release by
the court. New Jersey penalties are summarily imposed and
recovered through civil proceeding where civil standards of
proof apply.
Five of the fourteen states studied designated violations
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of harvesting statutes as misdemeanors, which are punishable
fine, imprisonment or both. The Massachusetts Log Transport
statute establishes two separate misdemeanors; both, punishable
by a fine of between $20-$100, and failure to obtain the harbor-
master's approval of the unloading site before unloading is
punishable by a maximum fine of $50.
The Massachusetts Forest Cutting Practices Act and the
58
Minnesota Forestry Act impose penalties for failure to post
notice of cutting, and in Massachusetts this misdemeanor is
punishable by a fine of no more than $25 per acre, while in
Minnesota the same misdemeanor is punishable for conviction by
either a fine of $25 or up to 20 days in jail. Both statutes also
declare other activities to be misdemeanors. The failure to
follow the Massachusetts Division of Forestry's plan of operation
is punishable by a fine of up to $25 per acre, while commercial
harvesting without a license subjects the violator to a maximum
fine of $25. The Massachusetts Superior Court has jurisdiction
in equity to enforce these penalties. The Minnesota code punishes
the improper disposal of cutting with fines of between $25-$100
or up to 90 days imprisonment.
Like the Massachusetts log transport statute, a West Virgiriia
59
law prohibits obstruction to passage on a navigable or floatable
stream or river. Where Massachusetts punishes this misdemeanor
by a fine of $20-$100, the West Virginia law provides a fine of
up to $1000 or imprisonment of up to one year. Virginia, too,
punishes dumping of lumber into state waters, with maximum penalties
of $100, or 30 days. Persons causing the obstruction of
rivers, creeks, streams, or swamps by dumping logs or felling
timber into them may be fined up to $1000 per day or required to
serve 12 months in jail. If the obstructed river is the Big Sandy,
the punishment provided for is a fine of $100-$500 or 12 months
imprisonment. Only one of the statutes examined allows punishment
by both fine and imprisonment. In Michigan, violators of the
191
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Slash Disposal Law upon conviction of a misdemeanor may be fined
up to $100 and/or imprisonment for 90 days.
INCENTIVES
Water pollution may be abated not only by directly pro-
hibiting the actions which can cause pollution, but also by
encouraging activities which prevent pollution. The principal
economic incentives used to encourage good forestry practices
are tax reductions and subsidies. Subsidies may take the form of
a cash payment to cover the costs of certain sound forest
practices, or it may be a valuable commodity such as planting
stock.
Massachusetts, Idaho, Indiana, Michigan, Wisconsin,
Minnesota, and Hawaii provide tax incentives to encourage
landowners to retain and improve their forests and promote
good forest management practices. An amendment to the
Massachusetts constitution authorizes the general court to
prescribe for wild and forest lands, such tax measures as will
/- i^
develop and conserve forest resources. The other seven states
provide specific tax reductions or exemptions for forest land
used solely and primarily for raising forest crops and meeting
other requirements.
Idaho, Wisconsin, and Minnesota offer preferential tax
treatment to owners of land which has been designated as
"sustained-yield" forest land. Wisconsin authorizes its
Department of Natural Resources to consider applications
for designation of land as "sustained-yield forest lands."
Land so designated is subject to a forest management plan
approved by the Department and requiring some forestry prac-
tices. Deviation from the plan or unauthorized or excessive
cutting is prohibited and penalized; however, land so clas-
sified receives a reduction in property taxes. Idaho des-
ignates certain districts in the state as "cooperative
sustained yield districts." Any land lying within these
districts is subject to certain prescribed forestry prac-
tices, such as restrictions on timber cutting. The State
192
-------
Forester enforces these restrictions. The Idaho statute6^
has as its express purpose "the protection of the state's
water resources and the prevention of soil erosion." Instead
of a tax reduction as in Wisconsin, the Idaho statute provides
a tax credit for owners of land located in the districts. The
County assessor is instructed to give a tax credit in an amount
equal to the assessed value of the timber left uncut.
The Minnesota Tree Growth Tax law65 authorizes any owner
of more than five acres to apply for a special designation
in which the owner assumes the obligation of following sus-
tained yield practices in return for lower tax rates as
determined by the county board.
The State of Wisconsin offers two other classifications
in addition to "sustained-yield" which can qualify for tax
relief. An owner of no less than 40 acres within the
boundaries of a forest protection district may apply for a
"Forest Crop Lands" designation. To qualify, the land must
be more useful for growing timber than for any other purposes,
designation of his land as forest crop land results in a
restriction on the amount of timber that may be cut and
requires the owner to practice forestry thereon and adhere to
sound forestry practices. In return for the designation, the
landowner signs a contract with the state which runs with the
land for 25 to 50 years, but is terminable upon mutual consent
or violation of any of the provisions by the owner. In
consideration of the owner's adherence to the conditions of the
contract, the State provides for a reduction in property tax
rate as determined by the Department of Revenue. A special
designation may be given land which would otherwise qualify as
forest crop land, but which lies outside a forest protection
district. Such land will be taxed at a reduced rate. The
Wisconsin Woodland Tax Law allows an owner of less than 40 acres
to enter into a 10 year contract with the State under which the
193
-------
owner agrees to practice forestry on the land in accordance
with sound forestry practices, promote forest growth and pro-
hibit grazing or burning.
Indiana provides two different forest land tax designations
s- Q
for 10 acres or less. "Forest plantation" refers to land which
has been cleared and planted with trees. "Native forest lands"
refers to land which has never been plowed or cultivated and
on which at least 1000 native timber products are maintained.
The Department of Natural Resources may prescribe minimum
standards of forest management to be followed by owners who
apply for and receive classification. To qualify for either
classification the land must be ten acres or more of land
devoted primarily to forest growth and containing no buildings
or dwellings. Owners of classified land are then assessed a
nominal property tax; however, when the land is withdrawn, the
owners must pay a retroactive tax plus interest or an increment
tax whichever is less.
North Dakota provides a special tax rate to be determined
by the county for ten acres or more of sufficient density of
"native woodlands," i.e., land which normally supports a growth
69
of natural forest cover. The State Forester considers and
determines the acceptability of all applications.
Michigan uses the designation "commercial forest" to
indicate forest land which may receive preferential tax treat-
ment, if it is used and developed solely to produce a "thrifty
forest carrying a suitable but not excessive number of mer-
chantable trees. Use of such land for industrial, recrea-
tional or other commercial purposes or the cutting of any
trees without a permit is prohibited. The property is exempt
from general property tax and is assessed at a lower special
tax rate.
The Hawaiian Act authorizes the Board of Land and Natural
71
Resources to approve land for classification as tree farms.
194
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The tract must be thirty acres or more in size, suitable for
raising trees of a commercial quality, in a quantity sufficient
to establish a business in the sale thereof. The tract is
required to be managed according to good forestry management
practices and must be unsuitable for some higher or better use.
Minnesota, in addition to its Tree Growth Tax, offers
72
bounties or rewards for timber growth. Every person who
plants or maintains one acre or more of forest trees in a
density of 600 trees per acre may receive from the county
$2.50 per acre for up to six successive years. The act in-
directly promotes soil conservation and the prevention- of
soil erosion. However, since the maximum possible subsidy
covers only a period of 6 years, the effectiveness of such an
incentive is questionable.
Virginia offers a more realistic subsidy. Landowners
wishing to reforest their land may be paid up to 75% of the
cost of reforesting, or $45 per acre, whichever is less.
This is administered by the State Forester who may hire the
personnel necessary to carry out his functions. Funds to
administer the act come from a special "reforestation of
timberlands state fund." The effectiveness of this partic-
ular act is questionable considering an addendum to the fund-
ing provision which indicates that the act is not in effect
during any biennium when the general assembly fails to ap-
propriate a sum equal to or exceeding the estimate of the
revenue to be collected for reforestation from the state's
forest products tax. This is a tax levied annually on anyone
who for sale, profit or commercial use, manufactures ships
or severs timber or other forest products. The revenues
from this tax are used for reforestation, seedling cultivation,
forest fire protection, and education.
A few of the Forest Management/Forest Practices Acts
contain provisions authorizing the distribution of planting
195
-------
stock, rather than a subsidy for reforestation. Massachusetts,
74
Wisconsin and Kansas have such provisions in statutes.
Declassification of the land is the principle penalty
imposed under all but two of the tax incentive statutes. Under
the Minnesota, Hawaii, Michigan, North Dakota, Indiana, and
Idaho statutes discussed above, deviation from the sustained
yield or approved forest practices required by the act results
in the revocation of the classification by the agency respon-
sible for classification and a return to the regular tax
rolls. Decisions of the executing agency to revoke or deny
classification are appealable in all of the statutes. In
Hawaii declassification results specifically from destruc-
tion of tree farm property. In addition to having the pro-
perty returned to regular tax rolls upon declassification
the taxpayer is to be assessed taxes retroactively for the
period of classification plus be assessed a penalty. Indiana
and Idaho, in addition to the administration remedy of de-
classification, provide fines for certain acts. In Idaho,
any person violating the provision of the statute prohibiting
excessive cutting of certain pine trees will be fined $50 per
acre maximum. Under the Indiana law, any person making a
false statement on an application for classification may be
charged with a misdemeanor and, upon conviction, will be fined
76
a maximum of $250 and/or 6 months imprisonment.
The two Wisconsin statutes also punish violations with
fines and or criminal prosecution. Violations of the require-
ments for designation as "sustained yield forest land" or any
rules or regulations promulgated by the Department of Natural
Resources or the Department of Taxation results in a fine of
77
between $10 and $500 per day. Violation of the provision of
that act prohibiting excess cutting of timber is punishable
78
at a rate of $40 per thousand board feet of excess timber cutting.
Failure to make a report or giving a false report of timber cut
as required to maintain a "forest crop lands" designated under
Wise. 77.01 to 77.16 constitutes a misdemeanor punishable by a
7 9
fine of up to $1000 or up to 1 year imprisonment or both.
196
-------
Of those statutes surveyed, the Michigan Commercial Forest
Reserves statute provides the stiffest penalty for violation of
80
the Act. Violations are felonies punishable upon conviction
by a fine of up to $2000 or up to 3 years imprisonment or both.
This law also requires that persons wishing to cut trees in a
commercial forest obtain a permit. The Department of Natural
Resources may revoke cutting permits for fraud or proper cause.
Only one of the tax incentive statutes provides for injunc-
tive relief against unlawful cutting of timber. The Wisconsin
sustained-yield forest lands provision authorizes the Department
of Natural Resources to obtain a temporary injunction against
81
violators.
None of the cash subsidy provisions provide penalties?
however, two of the states authorizing distribution of planting
stock provide methods of insuring proper use or punishing im-
proper use of stock. The Massachusetts forestry chapter attempts
to prevent misuse or unsound use of the planting stock by
authorizing the forester to withhold distribution until the
82
location of planting has been approved.
Wisconsin, on the other hand punishes violators after misuse
83
of the stock occurs. Resale of planting stock is a misde-
meanor; violators may be fined between $50-$100. Misuse of
planting stock, although not a crime, is punishable by a fine of
up to $1000. In Kansas, planting stock is distributed by the
State University which seems to have no enforcement powers.
197
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FOOTNOTES
SILVICULTURE
lldaho Code Ann. U 38-1301 to 38-1312 (Supp. 1974).
2ore. Rev. Stat. W 527.610 to 527.990(1) (1973 Repl. Part).
3Wash. Rev. Code Ann. $t 76.09.010 to 76.09.900 (Supp. 1974).
*Wis. Stat. Ann. $$ 28.005 to 28.23 (1973).
5 Mass. Gen. Laws Ann. ch. 132, $ 1 et seq. (1974).
&Mass Gen. Laws Ann. ch. 132, $$ 1, 6 (1974).
7Kan. Stat. Ann. U 76-425d, 76-ft25f, 76-435 (1969).
BN.J. Stat. Ann. $$ 13:18-15.100 to 13:1B.-15.104, 13:18-65 (1969), as_
amended, (Supp. 1974).
9N.J. Stat. Ann. $$ 13:18-15.100 (1969).
.J. Stat. Ann. $0-13:8-1 to 13:8-16 (1968), as amended. (Supp. 1974).
[Hereinafter referred to as the New Jersey Forest Reserves Statute.]
11 Minn. Stat. Ann. $$ 89.01, 89.001 et seq. (1964), as amended, (Supp.
1973). [Hereinafter referred to as the Minnesota State Forests Chapter.]
12Minn. Stat. Ann. t 89.036 (Supp. 1973).
13Mich. Comp. Laws Ann. $$ 320.101 to 320.107 (West 1967).
^Mich. Comp. Laws Ann. U 320.201 to 320.210 (West 1967).
15Mich. Comp. Laws Ann. H 247.381 to 247.385 (West Supp. 1973).
16lnd. Ann. Stat. U 19-7-17.5-1 to 19-7-17.5-8 (1974).
17 Va. Code Ann. £ 10-32 et seq. (1973). [Hereinafter referred to as the
Virginia Forest Resources Statute.]; Va. Code Ann. $ 29-23 (1973); Va. Code
Ann. $ 2.1-106.8 (1973), as amended. (Supp. 1974).
iSVa. Code Ann. $ 10-32 e£ seg^. (1973).
!9va. Code Ann. i 29-23 $1973).
20 Va. Code Ann. g 2.1-106.8 (1973), as amended. (Supp. 1974).
21N.J. Stat. Ann. $ 13:18-15.101 (1968).
22N.J. Stat. Ann. $ 13:lD-9(a) (Supp. 1974).
23 id.
VI-1
-------
24Wash. Rev. Code Ann. $ 76.09.140 (1974).
25Ind. Ann. Stat. $ 19-7-17.5-8 (1974).
26Minn. Stat. Ann. $ 89.01 (1964).
27Mass. Gen. Laws Ann. ch. 132, $ 34, ch. 132A, $ 7 (1974).
28Idaho Code Ann. g 38-1307(3) (Supp. 1974); Ore. Rev. Stat. $ 527.680
(1973 Repl. Part): Wash. Rev. Code Ann. $ 76.09.080 (1974).
29Ore. Rev. Stat. g 527.990 (1973 Repl. Part).
30Va, Code Ann. $ 10-43 (1973).
31Wis. Stat. Ann. $ 28.12 (1973).
32N.J. Stat. Ann. $ 13:8-16 (1968).
33Mass. Gen. Laws Ann. ch. 132, $g 40 to 46 (1974).
34Ind. Ann. Stat. 02 14-5-4-1 to 14-5-4-6 (1973).
35Ind. Ann. Stat. U 19-7-1-4, 19-7-1-7, 19-7-2-2, 19-7-2-7 (1974).
36 Hawaii Rev. Stat. $ 183-41 (1968), as amended, (Supp. 1974).
37 Minn. Stat. Ann. gg 92.321, 92.45 (1964), as amended, (Supp. 1973).
38 Minn. Stat. Ann. $$ 88.01 to 88.21, 88.73, 88.75 (1964), as amended,
(Supp. 1973).
39 Mich. Comp. Laws Ann. gg 320.41 to 320.48 (West 1967).
40N.J. stat. Ann. $$ 13:9-23 to 13:9-26, 13:9-36, 13:9-43 (1969), as_
amended, (Supp. 1974).
4lMass. Gen. Laws Ann. ch. 102, $$ 17, 19, 22, 28 (1972).
42va. Code Ann. $$ 62.1-194 to 62.1-194.3 (1973), as amended. (Supp. 1974).
43N.J. Stat. Ann. U 13:lD-9 (Supp. 1974).
44Mass. Gen. Laws Ann. ch. 132, $ 46 (1974).
45w.Va. Code Ann. g 61-3-47 (Supp. 1974).
46Mich. Comp. Laws Ann. g 320.46 (West 1967).
47Hawaii Rev. Stat. $ 183-41 (1968), as amended. (Supp. 1974).
4aMich. Comp. Laws Ann. 2 320.42 (West 1967); Minn. Stat. Ann. $ 88.14
(Supp. 1974).
VI-2
-------
49Mich. Comp. Laws Ann. 00 320.45, 320.46 (West 1967).
SOMinn. Stat. Ann. $ 88.14 (Supp. 1974).
51N.J. Stat. Ann. $ 13:9-2 (1968).
52ind. Ann. Stat. $ 14-5-4-3 (1973).
53Mass. Gen. Laws Ann. ch. 132, $ 46 (1974).
54nass. Gen. Laws Ann. ch. 102, $ 28 (1972).
55iha Massachusetts log transport provisions, the Massachusetts Forest
Cutting Practices Aet, the Minnesota Forestry Article, the West Virginia
Obstruction of Rivers provisions, and the Michigan Slash Disposal Law.
56Mass. Gen. Laws Ann. ch. 102, 0 17, 28 (1972).
57Mass. Gen. Laws Ann. ch. 132, 0 43 (1974).
58Minn. Stat. Ann. $ 88.75 (1964).
59w.va. Code Ann. $ 61-3-47 (Supp. 1974).
60Va. Code Ann. 00 62.1-194, 62.1-194.2, 62.1-194.3 (1973), as amended.
(Supp.1974).
6lMich. Comp. Laws Ann. $ 320.46 (West 1967).
62Mass. Const. Amend, art. 41 (1958).
63tfis. Stat. Ann. 00 70-335 (1969), as amended, (Supp. 1974).
64idaho Code Ann. 00 70-335 (1969), as amended, (Supp. 1974).
65Minn. Stat. Ann. 00 270.31 to 270.39 (1969), as amended. (Supp. 1973).
66Wis. Stat. Ann. 00 77.01 to 77.16 (1957), as amended. (Supp. 1974).
6fais. Stat. Ann. 0 77.16 (1957), as amended. (Supp. 1974).
68tnd. Ann. Stat. 0 6-8-2-1 to 6-8-2-20 (1972).
6%.D. Cent. Code 00 57-57-01 to 57-57-08 (1972), as amended, (Supp. 1973).
7CMich. Comp. Laws Ann. 00 320.301 to 320.314 (West 1967), as amended.
(West Supp. 1973).
7;IHawaii Rev. Stat. 00 186-1 to 186-12 (1968), as amended. (Supp. 1974).
n. Stat. Ann. 00 348.01 to 348.05 (1972).
VI-3
-------
73va. Code Ann. :•$ 10-90.29 (1973), as amended, (Supp. 1974).
74Mass. Gen. Laws Ann. ch. 132, $$ 6, 9 (1974); Wis. Stat. Ann. $ 28.06
(1973); Kan. Stat. Ann. $ 76-425d(l) (1969).
75idaho Code Ann. $ 38-308 (1961).
76ind. Ann. Stat. $ 6-8-2-17 (1972).
77wis. Stat. Ann. $ 70.-335(18) (1969), as amended, (Supp. 1974).
78w±s. Stat. Ann. $ 70.335(10) (1969), as amended, (Supp. 1974).
79w±s. Stat. Ann. $$ 77.06, 77.09 (1957), as amended, (Supp. 1974).
SOMich. Comp. Laws Ann. $ 320.314 (West 1967).
SlWis. Stat. Ann. $ 70.335(10) (1969), as amended, (Supp. 1974).
82Mass. Gen. Laws Ann. ch. 132, $$ 6, 9 (1974).
83wis. Stat. Ann. $ 28.06 (1973).
84Ran. Stat. Ann. $ 76-425d(f) (1969).
VI-4
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GENERAL CATEGORY
In this report, those statutes which do not neatly fit into
one of the major classifications have been grouped as "General"
legislation; however, in each of these cases, the language of the
statutes considered is broad enough to cover both point sources
and nonpoint sources of water pollution.
These general statutes deal with diverse subjects and for
the purpose of this compilation have been grouped into classes
under the following designations:
• Authorization of Citizen Suits to Protect the Environment.
• Coastal Zone Protection.
• Critical Areas Protection.
• Financial Incentives (monetary aid and tax concessions).
• Flood Plain Regulations.
• General Health and Welfare Controls.
• General Pollution Controls.
• Planning, Zoning and Other Land Use Regulations.
• Nuisances -- Obstructions.
• Prevention of Loads Spilling on Highway.
• Removal of Ice and Snow: Salting of Roads.
• Soil Erosion and Sedimentation Control.
• Special Pollution Controls.
• Wetlands Protection.
AUTHORIZATION OF CITIZEN SUITS TO PROTECT THE ENVIRONMENT
These statutes confer upon private citizens or groups of
private citizens standing to bring suit to protect the environment,
and create, in effect, private attorneys general. Water pollutants
from identifiable nonpoint sources could be attacked under these
statutes, particularly in Wisconsin and Michigan.
Five of the thirteen states surveyed have statutes which
authorize citizen suits. Under the Indiana statute, anyone
may sue to protect the environment from "significant pollution."
198
-------
However, no aqtion may be maintained unless the administrative
agency which has jurisdiction over environmental pollution has
been given notice in writing of the specific act complained of,
and that agency has failed to hold a hearing and make a final.
decision within one hundred eighty (180) days after receipt of
the notice. The criteria for determination in such actions is
that no conduct, program or product shall be allowed to continue
if that conduct, program or product impairs or is likely to impair
2
the environment,and there is a feasible alternative.
The Massachusetts statute permits a minimum of ten
private persons to intervene in adjudicatory proceedings before
an administrative agency when the issue is "damage to the environ-
ment."
The Thomas J. Anderson, Gordon Rockwell Environmental
4
Protection Act of 1970 of Michigan authorizes anyone to
bring actions in the appropriate court "for the protection of
the air, water and other natural resources" of the State. The
burden of proof is on the plaintiff to establish a prima facie
case "that the conduct of the defendant has, or is likely to
pollute, impair or destroy air, water or other natural
resources ..." The defendent may then rebut the prima facie
case and/or establish the affirmative defense that there is
"no feasible and prudent alternative to defendant conduct ..."
Under the Minnesota Environmental Rights Act, anyone
may maintain an action for declaratory or equitable relief in
the name of the state "for the protection of the air, water,
land or other natural resources from pollution, impairment or
destruction;" however, no actions may be maintained challenging
acts not reasonably .expected to cause pollution or violation
of any environmental quality standards performed under either
a permit or license. Once the plaintiff has made a prima facie
case, the burden shifts to the defendant to establish that
there is no feasible way to protect the natural resource.
199
-------
Under the Wisconsin statute any administrative agency may, on
petition by any interested person, "issue a declaratory ruling
with respect to the applicability to any person, property or
state of facts of any rule or statute enforced by it." This
statute was first used to litigate significant environmental
issues such as the DDT controversy, filling of wetlands and odor
pollution.
Only three of these statutes, those in Indiana, Massachusetts
and Wisconsin, specifically provide for hearings and appeals, but
all of these statutes, except Massachusetts' and Wisconsin's
authorize resolution of the issues by a court which may grant
equitable relief including injunctions and declaratory judgment
and may also impose other conditions in order to protect the environ-
ment. On the other hand, only the Massachusetts statute, which
does not provide citizen access to the courts in environmental
matters, authorizes intervention in adjudicatory administrative
agency hearings. There is, however, some question as to whether
a citizen as a "party aggrieved," individually or on behalf of
others similarly situated, requires statutory authority to inter-
vene in an administrative proceeding. The Wisconsin statute
authorizes the court to grant declaratory relief only.
COASTAL ZONE PROTECTION
These statutes usually seek to protect a zone of limited
area which borders the coastlines in certain states, but are
generally drawn broadly enough so that the states could control
any nonpoint source of water pollution which might affect
coastal zones. Prohibiting sedimentation of estuaries is a
particular case in point and could exert significant influences
on agriculture, silviculture, mining, and construction activities
at sites far removed from the coastal zone.
200
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9
The California Coastal Zone Conservation Act of 1972
establishes a State Coastal Zone Conservation Commission and
several regional commissions which collectively cover all of
the California counties contiguous to the Pacific Ocean. The
Coastal Zone Conservation Commission is responsible for developing
a plan providing for land use regulations and conservation of
natural resources, for the maintenance and enhancement of the
"coastal zone environment" although the plan is subject to
approval by the State legislature. The regional commissions may
issue permits for land development in their coastal zone
jurisdictions, and no land development may take place in the
coastal zone without a permit, and no permit may be granted
unless the proposed developments can be shown to have no sub-
stantial adverse effect on the environment. The State
Commission can overrule any actions of the regional commissions
which may result in environmental damage to the coastal zone.
The California Coastal Zone Conservation Act of 1972 is essentially
a moratorium or attempt to slow down development since it
expires on January 1, 1977.
The Hawaii statute authorizes the Department of Planning
and Economic Development to prepare a coastal zone management plan
that complies with the requirements of the Federal Coastal Zone
12
Management Act. The plan shall serve as a guide for the State
Land Use Commission and other state agencies.
The Massachusetts statute, unlike the other five
statutes in this section, deals with coastal waters rather than
coastal lands and designates no administrative agency or
particular official to enforce the statute. Under this statute
no one may discharge oil, sewage, poisons or other substances
which are injurious to public health or to shellfish into
coastal waters unless they have a permit which comports with
Federal and State pollution control laws or unless an emergency
exists.
The Michigan Shorelands Protection and Management Act of
14
1970 authorizes the Water Resources Commission to develop
201
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a plan for the use and management of shorelands which will
serve as a guide for the promulgation of rules and regulations
to control the use and development of shorelands. All local
ordinances must conform with these rules, and if they do not,
the Commission may nullify them. The stated purposes of these
rules include prevention of soil erosion and water pollution.
"Shorelands," as used in this Act and the Minnesota Shorelands
statute is used in a manner similar to "coastal zone" in the
other statutes.
The Minnesota statutes authorize the Commissioner of
Natural Resources to develop standards and criteria for the
use and development of shorelands in municipalities and unin-
corporated areas, and one of the stated purposes of the
statute is to preserve water quality. Municipalities and
counties, are authorized to enact ordinances, rules and regulations
which conform to the Commissioner's standards. The Commissioner
may promulgate ordinances, rules or regulations for any municipality
or county which has failed to adopt adequate ordinances, rules
or regulations.
The Texas Coastal Public Lands Management Act of 1973
differs from the other statutes in this section in that it deals
only with the public lands and not all lands in the coastal zone.
However, it is similar to the Hawaii coastal zone statute in that
it seeks to comply with the requirements of the Federal Coastal
Zone Management Act. Under this statute, the School Land Board
is directed to develop a comprehensive coastal public lands manage-
ment program which will preserve natural resources. The Board
may regulate the manner of construction of all structures to be
built on coastal public lands. This statute is the only one of
this group which specifically authorizes the agency to hire staff.
202
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The Hawaii statute, the Michigan Shorelands Protection and
Management Act of 1970 and the Minnesota statute are the only
ones which specifically provide for funding.
18
The California Coastal Zone Conservation Act of 1972
authorizes hearings on permit applications and judicial review
of permit refusals. None of the other statutes authorize
hearings and appeals on permits. The Texas Coastal Public
Lands Management Act of 1973 permits any aggrieved person to
seek judicial review of any adverse agency decision. All of
these statutes, except for the Massachusetts statute and the
Texas Coastal Public Lands Management Act of 1973, specifically
authorize their respective agencies to formulate land use plans
which protect the coastal zone environment. All of these states,
except for Hawaii and Massachusetts, authorize the appropriate
agencies to issue rules and regulations to enforce their statutes.
Injunctions may be obtained under all of these statutes
except for the Hawaii statute and the Texas Coastal Public
Lands Management Act of 1973. Only the California Coastal
Zone Conservation Act of 1972 authorizes declaratory judgments.
The Hawaii statute authorizes condemnation as a means of
enforcement and implementation, while providing no other civil
remedies. The Massachusetts statute is the only one which authorizes
the owner of any fish or shellfish, whether it be a private person
or the government (city, town, or commonwealth), to sue anyone whose
action injures such fish or shellfish. Treble damages will be awarded
if the suit is successful. The Minnesota statute is the only one
19
which authorizes mandamus actions.
20
The California Coastal Zone Conservation Act of 1972
provides civil penalties of up to $10,000 for general violations
of the act plus additional penalties of up to $500 a day for ille-
gal land development in the coastal zone. The Minnesota statute
has a civil penalty of at least $100 for each lot or parcel whose
203
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development violates land use restrictions in the shorelands
areas. The Texas Coastal Public Lands Management Act of 1973
has civil penalties for a variety of violations of land use
regulations, some of which have a minimum of $50 and a maximum of
$1000 and others of which have no minimum, but a maximum of $200.
None of the other statutes researched have monetary civil
penalties.
22
The California Coastal Zone Conservation Act of 1972
authorizes anyone to maintain an action seeking various civil
remedies. The Hawaii statute enables the State, the counties and
their agencies (which includes the agency that enforces this
23
statute) to obtain the specified civil remedy (condemnation).
Under the Massachusetts statute, owners of fish or shellfish
injured by pollution can claim treble damages, but in order to
obtain an injunction, the Commissioner of Natural Resources must
24
request the Attorney General to bring the action. The Michigan
25
Shorelands Protection and Management Act of 1970 authorizes the
Water Resources Commission, the enforcing agency, to obtain the
one stated civil remedy, injunction. The Commissioner of Natural
Resources, who administers the Minnesota statute, does not enforce
any of the civil remedies. Under that statute, a county or
2 6
municipality can get an injunction; a taxpayer or a municipality
27
can bring a mandamus action; and a county can enforce the civil
28'
penalty. The Texas Coastal Public Lands Management Act of 1973
does not indicate who enforces the civil remedy.
Only the Massachusetts statute and the Minnesota statute
provide criminal penalties. Under the Massachusetts statute,
there is a fine of not less than $150 nor more than $5000 and/or
imprisonment of up to one year for anyone who discharges pollutants
29
into coastal waters. Any violation of the Minnesota Shorelands
statute will result in a fine of not more than $300 and/or
imprisonment for up to 90 days.
CRITICAL AREAS PROTECTION
These statutes protect certain specially designated-"crit-
ical areas" of the states which the state legislatures feel are
204
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in need of special protection from environmental damage. Under
such statutes nonpoint sources of water pollution might be con-
trolled. The Minnesota Critical Areas Act of 1973 allows
the governor to designate certain areas that are endangered by
uncontrolled land development as "critical areas." Under a
32
Virginia statute, the Division of State Planning and Com-
munity Affairs is requested to "develop criteria, both qualita-
tive and quantitative, which shall be used in the identification
and delineation of the State's critical environmental areas,"
and then to set up such areas and protective areas about crit-
ical environment areas. The Division is also requested to
establish land use regulations for these areas.
Both statutes depend on more than one governmental agency
in order to carry out the law. After the governor has designated
"critical areas" under Minnesota's Critical Areas Act of 1973,
the Minnesota Environmental Quality Council or the local unit
of government may adopt plans and regulations dealing with
land use. While the State Environmental Quality Council may
adopt general rules and regulations, it is the local units of
government that actually enforce the act. These local govern-
ment units may also issue development permits, which may be
required before building or other development within a critical
area commences. Such permits must conform to the plans and
regulations adopted for critical areas.
The Virginia statute provides a simpler procedure. After
the Division of State Planning and Community Affairs has identi-
fied the state's critical environmental areas, standards for
land use within the critical areas are to be developed but
will not become effective until they have been approved by the
General Assembly. Unlike Minnesota's "Critical Areas Act of
1973," there is no provision in the Virginia statute for permits,
rules and regulations, although the Division may recommend
regulations to the General Assembly. The Virginia statute also
provides for public hearings on the designation of critical
environmental areas.
Neither statute provides any civil remedies or criminal
penalties.
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FINANCIAL INCENTIVES (MONETARY AID AND TAX CONCESSIONS)
Financial incentive statutes encourage, but do not compel,
actions which may prevent or minimize damage to the environment.
Two of the states surveyed have statutes which authorize
financial incentives.
33
The Environmental Aid Act of New Jersey simply enables
the Department of Environmental Protection to grant up to $2500
per year to any local environmental agency for any purpose that
the agency is authorized by law to perform.
34
Under the Virginia statute, it is the offical policy
of Virginia to conserve the State's natural resources in a manner
that will prevent erosion, preserve natural scenic beauty and promote
proper land use planning by assessing selected real estate at a
lower than normal rate for tax purposes . Real estate devoted
to agricultural, horticultural, forest and open space use, will
be assessed only for its value for those purposes, as opposed
to its normal commercial value. Any county, city or town which
has a land use plan may adopt an ordinance directing the Commis-
sioner of Taxation to value qualifying real estate only on its
value for those purposes. If anyone receiving this lower tax
assessment changes the use of his land, he may be assessed at
the higher tax rate for the five year period prior to the change.
Neither statute contains any civil remedies or criminal
penalties.
FLOOD PLAIN REGULATIONS
Flood plain regulations often control erosion which causes
or at least exacerbates floods. Since erosion is also a cause
of nonpoint source pollution, these regulations can sometimes
be used to indirectly control such pollution. Two states
surveyed, Kansas and Minnesota, have flood plain regulations.
Under the Kansas flood plain statute, the Chief Engineer of the
206
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Division of Water Resources must approve all proposed ordinances
of cities and other political subdivisions that relate to land
use in flood plains.
Under Minnesota's Flood Plains Management Act, the Com-
missioner of Natural Resources shall take whatever actions are
necessary to manage the flood plains in order to reduce flood
damage. Local governments must adopt adequate flood plains
management ordinances. If any local government fails to do
so, the Commissioner shall adopt such an ordinance for that -
local jurisdiction. The Commissioner shall also coordinate all
local, State and Federal flood plains management activities. There
are also prohibitions against the building of structures which
restrict river capacity and restrictions on the alteration of
existing structures in flood plains.
Both statutes allow the enforcing official to make rules
and regulations to carry out the law. However, only Minnesota's
Flood Plains Management Act provides civil and criminal
penalties. Violations of this act may be enjoined by the
Commissioner of Natural Resources or a local governmental unit
38
as a public nuisance. Violations are also punishable as misdemeanors,
GENERAL HEALTH AND WELFARE CONTROLS
These statutes represent a small sampling of a large body.
of statutes which seek to protect the public health, safety,
and welfare. Since water pollution can represent a threat to the
public health, safety and welfare, such statutes can be used to
control nonpoint sources of water pollution.
Two of the states searched and one of the local jurisdic-
tions searched have statutes or ordinances protecting the public
health, safety and welfare which may be of use in controlling
39
pollution from nonpoint sources. The Kansas and two Michigan
statutes are all enabling acts which give the cities of Kansas
and the townships and villages of Michigan the power to either
40
make regulations (in the case of Kansas) or pass ordinances
207
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41
(in the case of Michigan), and to protect the public health,
safety and welfare. The Kansas statute and one of the Michigan
42
statutes also give the cities of Kansas and the villages of
Michigan the power to abate nuisances. Nuisances are more
thoroughly discussed in the "Nuisances-Obstructions" category.
The Land County Ordinance also has the purpose of protecting
the public health, safety and welfare, but the County Board
of Commissioners must first declare that a public health hazard
exists in a certain area of the county before action can be taken.
The Kansas statute provides no civil or criminal penalties.
The only penalty in the Lane County ordinance is that the Lane
County Health and Sanitation Department must deny all building
permit applications within the designated health hazard area.
GENERAL POLLUTION CONTROLS
This section contains a large group of miscellaneous
statutes and ordinances which control pollution in some manner,
but which do not fit into any of the other sections. Eight of
the states and three local jurisdictions surveyed
have statutes or ordinances which fit into this section.
43
A Hawaii statute requires that all public contracts
awarded pursuant to public contract provisions shall make
provisions for pollution control when applicable. An Indiana
44
statute authorizes the Board of Health to make rules
or regulations and issue orders to abate or prevent
45
water pollution. The Indiana water supply statute prohibits
anyone from causing or allowing any substance which is deleterious
to public health, industry or agriculture to be deposited in state
46
waters. Another Indiana cities statute gives a whole series of
powers to cities, some of which could be used to control nonpoint
sources of water pollution. Such powers include the powers to
regulate, to license and to prohibit the disposal of wastes, the
power to prohibit the introduction of substances which endanger
the public health into watercourses, the power to regulate land
use, the power to regulate, to prohibit or to control any movement
208
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of the earth beneath the surface (as in mining), and the power
to perform any other function, in the public interest in the
conduct of municipal affairs, which is not prohibited by the United
47
States or the State constitution. The Indiana sewage statute
gives regional water and/or sewage districts the power, inter
alia, to prevent the polluting of the water supply in the
district.
48
A Massachusetts statute creates a Division of Environ-
mental Protection within the Department of the Attorney General.
The Attorney General has the authority to prevent or remedy damage
to the environment caused by any person, agency, department,
board, commission, division or authority of the Commonwealth of
Massachusetts or any local jurisdiction thereof. Another
49
Massachusetts statute authorizes the Commissioner of the
Department of Public Health.to issue cease and desist orders
against anyone who violates pollution statutes, rules or
regulations.
A Michigan statute allows a county charter to provide
for the abatement of water polution, among other powers. Another
Michigan statute gives Fourth Class cities the powers, inter
alia, to abate nuisances and prohibit the depositing of pollutants
into rivers, ponds, canals and streams of the city. A third
Michigan statute gives the city councils of Fourth Class cities
the authority to specifically prohibit the depositing of any
filth, logs, floating matter or any injurious object into any city
waters, and to generally provide, by ordinance, for the
preservation of water purity in any harbor, river or other waters
52
within the city and within one-half mile of its boundaries. There
is considerable overlapping in the powers conferred on Fourth
Class cities by the last two statutes.
A Minnesota statute provides that before the state conveys
any lands to the United States for the Voyageurs National Park,
the State shall enter into a written agreement with the Secretary
209
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of the Interior providing that he will maintain the highest
standards of water quality in the parks. Another Minnesota
54
statute says that the Commissioner of Natural Resources shall
examine the plans of any person or company that wishes to exercise
the right of eminent domain to acquire land to be used for oil
storage or transport in order to determine the environmental
impact of such plans. These plans must have the Commissioner's
approval before eminent domain powers may be exercised. The
Commissioner could refuse to give approval to any plans which
might increase nonpoint sources of water pollution.
A New Jersey statute allows cities and/or counties to
form joint commissions for the alleviation of flood conditions,
but they may undertake flood control works only in a manner
approved by the State Department of Environmental Protection,
which could impose standards that would minimize nonpoint source
pollution.
A Utah statute prohibits pollution of waters deemed
necessary for wildlife purposes by the Wildlife Board or any other
waters containing aquatic wildlife. The Virginia constitutional
provision declares that it is the general policy of the
Commonwealth of Virginia "to protect its atmosphere, lands and
waters from pollution..." The General Assembly is granted the
authority to pass statutes to control water pollution by this same
58
provision. A Virginia statute states that it is the policy of
the Commonwealth to prevent water pollution; all laws and
regulations shall be interpreted and administered in accordance
59
with that policy. Another Virginia statute permits any county
to adopt regulations for the prevention of water pollution and to
regulate construction activities for the same purpose. A third
Virginia statute confers similar powers on cities or towns.
A fourth Virginia statute makes it unlawful for anyone to dump,
place or put, directly or indirectly, upon the banks of, or into
the channels of, any Commonwealth waters, any object or substance
which may reasonably be expected to obstruct or contaminate such
waters. This statute is a direct control on nonpoint sources of
210
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water pollution. For example, engaging in practices which result
in erosion may be defined as a form of indirectly placing
contaminating substances upon the land near bodies of water.61
62
A Honolulu ordinance empowers the Board of Water Supply to
adopt rules and regulations for the prevention of water pollution
within the city. A Washington County solid waste control
ordinance enables the Board of County Commissioners to
promulgate rules and regulations for the collection, storage,
transportation and regulations for and disposal of waste and solid
waste. These rules and regulations may include provisions to
prevent water pollution "through frequency and regularity of
collection and by proper design, construction, operation and
maintenance of collection equipment. . ." and containers. No one
may collect, store, transport or dispose of any waste or solid
waste in the unincorporated areas of Washington County unless he
first obtains a certificate issued by the Board. A second
Washington County ordinance, the Solid Waste Disposal Site
Ordinance, makes it unlawful for anyone "to store, deposit,
collect, maintain or display on private property wastes or solid
wastes, that are hazardous to the health. . ." unless he has a
franchise from the Board of County Commissioners to operate such a
disposal site. In addition, the Board may promulgate regulations
to prevent pollution of surface and underground waters. This ordi-
nance also has special provisions and regulations which
specifically control agricultural and construction wastes. The
/- C
Plumbing Ordinance of Washington County requires anyone who
wishes to engage in sewage disposal system works to be the holder
of a current certificate issued pursuant to state law and to be
registered with the Department of Public Health of Washington
County. The ordinance further states that no one may engage in
the business of a journeyman plumber unless he has a certificate
of competency from the state; nor may anyone perform any work as
an apprentice plumber unless he is registered according to state
law. In addition, no one may repair, alter, renovate or install a
211
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plumbing or sewage disposal system unless he has obtained a permit
from the Department of Public Health, Furthermore, no one may
demolish a building unless he has securely plugged all sewage
disposal system openings. In addition, the Board of County
Commissioners may promulgate rules and regulations to protect the
public health, safety and welfare which could include regulations
to prevent water pollution.
The Drainage Code of the City of Bellevue, Washington,
"establishes the minimum level of compliance which must be met to
permit a property to drain to the City of Bellevue drainage
system." The drainage utility will only accept for service the
drainage from those properties which meet the storage, quality and
discharge requirements for storm and surface water runoff as
described in this ordinance. It may refuse service by refusing to
issue a drainage use permit to any property not meeting these
requirements. "No building permit or clearing and grading permit
will be issued by the City of Bellevue until a drainage use permit
has been issued." The ordinance also specifically prohibits
anyone from permitting water pollutants to enter the drainage
system or to be transmitted from one part of the system to
another. There are also specific prohibitions against permitting
agricultural (specifically, animal wastes) or construction-related
(specifically sediment)pollutants from entering the system. The
stated purpose of these prohibitions is to maintain all waters,
streams and lakes which receive city drainage at the lake class
water quality standards of the Washington State Department of
Ecology.
Because of the large number of statutes and ordinances in
this section most of the comparisons will be made by numerical
summary except in those cases in which special attention ought
to be drawn to a particular statute or ordinance.
68
Seven of these statutes and ordinances permit the
enforcing agency to hire staff to administer the statute or
ordinance. Eight of these statutes and ordinances provide
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for some kind of funding. One of the .Indiana statutes enables
cities to borrow money, accept donations and fix or levy a charge
or assessment against property benefited by city services. A
Minnesota statute allows the State auditor to sell bonds to
raise money to buy land for the park mentioned in the statute, but
the bonds may not exceed $5,870,000. A New Jersey statute72
specifically authorizes the participating cities and towns to
appropriate whatever money they feel is necessary to enforce the
statute and, in addition, enables the enforcing agencies to apply
for grants from county, state and Federal agencies.
The Honolulu ordinance allows the enforcing agency to issue
revenue bonds, Unlike the Minnesota park statute, there is no
monetary limit on the amount of bonds that can be sold. The three
Washington County ordinances and the Bellevue Drainage Code
authorize the enforcing agency to collect license fees. Of the
four, only the Washington County Solid Waste Disposal Site
Ordinance specifically allocates the money received for
enforcement purposes, but it could probably be assumed that the
money received under the other three ordinances may be for the
same purpose. The Bellevue Drainage Code also raises money by
levying a monthly service charge on all properties which use the
city drainage system and a lump sum charge for connection to
existing drainage facilities. While no purpose for these monies
is stated, they are apparently used for operating the drainage
system and extending it.
The Indiana statute, the Honolulu ordinance and the three
Washington County ordinances provide for quasi -judicial hearings.
77 78
The Michigan statutes, the Virginia statutes and all five
79
ordinances enable an aggrieved person to appeal an adverse
Q f\ Q "I
agency decision. The Indiana statute and all five ordinances
require that anyone who wishes to engage in activities that may
cause water pollution must first obtain a license (also called a
"certificate," "franchise" or "permit" in the various laws). Ten
213
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statutes and ordinances enable the enforcing agencies to issue
8 2
orders, rules and/or regulations to enforce the law.
The three Washington County ordinances require that the
County Board (with a few exceptions which will be noted) seek
enforcement through the civil remedies even though other agencies
administer these ordinances generally. In a similar fashion, the
Bellevue Drainage Code requires that the city of Bellevue enforce
the civil remedies even though another agency administers the
ordinance generally. In all other cases (with a few exceptions
which will be noted), the same agency which administers the
statute or ordinance generally may also seek enforcement.
Nine statutes and ordinances empower the appropriate agency
83
to obtain an injunction to enforce the law. Two statutes differ
from the pattern described in the previous paragraph. One of the
84 ...
Indiana statutes permits any citizen to seek an injunction; a
. . 85
Virginia statute permits either the Commonwealth Attorney or a
private citizen whose property has been damaged by pollution to
seek an injunction.
The Washington County Solid Waste Control Ordinance and the
Plumbing Ordinance of Washington County authorize both mandamus
and abatement actions. The Honolulu Ordinance, the Washington
County Solid Waste Control Ordinance, and the Washington County
Solid Waste Disposal Site Ordinance enable the agency to deny,
suspend or revoke permits, while the Plumbing Ordinance of
Washington County and the Bellevue Drainage Code authorize only
the denial of permits.
The Bellevue Drainage Code has two additional civil remedies.
First, anyone who violates any of the provisions of the "Drain-
age Code" shall be subject to a maximum civil penalty of $250
for each day that the violation continues. Secondly, anyone
who pollutes the city drainage system shall be liable to the
city for all costs incurred by the city in cleaning up the system.
p C
The Indiana statute has three additional civil remedies.
First, anyone who willfully fails to comply with the ,rules and
regulations of the enforcing agency shall be liable for damage
214
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caused by such failure. Secondly, the enforcing agency may
physically remove any harmful obstruction which violates any
of the rules and regulation. Sediment from nonpoint sources
could cause an obstruction. Thirdly, the enforcing agency may
enforce its rules and regulations by an "other legal remedy"
(not specified). The Massachusetts environmental
statute has one additional civil remedy. The enforcing agency
may bring an "action at law" (which action is not specified).
This remedy is quite similar to the third additional Indiana
sewage statute remedy.
88
Eleven statutes and ordinances contain criminal pen-
alties. The maximum possible fines range from $250 to $1000
and the maximum possible imprisonment ranges from thirty days
to twelve months. None of the statutes and ordinances contain
a minimum possible imprisonment, and only one, the Virginia con-
tamination statute, contains a minimum possible fine, $100 (and
a maximum of $500).
89
Seven statutes provide for no civil or criminal penal-
90 v
ties. The second Michigan statute says that a township may
impose penalties of fines not to exceed $500 or of imprisonment
not to exceed 90 days or both for violation of its ordinances.
PLANNING, ZONING, AND OTHER LAND USE REGULATIONS
Statutes regulating land use indirectly control nonpoint
sources of water pollution because of the limitations that they
place on certain land uses. Eight of the states searched and two
of the three local jurisdictions searched have land use statutes
92
or ordinances.
All of the state statutes discussed in this section are en-
abling acts, which give some governmental agency the power to
regulate land use in a given area by planning or zoning ordin-
ances or regulations. The language of each statute is so broad
215
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in scope that it should enable the designated governmental unit
to control nonpoint sources of water pollution.
93
The Lane County ordinance is a direct control on land
use. The Bellevue ordinance is a policy resolution which mandates
the incorporation of certain policies into all city land use
94
regulations. Both ordinances contain broad language similar to
that found in the statutes.
Some of these statutes and ordinances also contain specific
provisions which are closely related to the control of certain
95
nonpoint sources. The Hawaii statute gives conservation dis-
tricts the power to specifically prohibit the unlimited cutting
of forest growth and soil mining in officially designated "forest
and water reserve zones." The Virginia statute gives cities
and counties the similar power to regulate "the excavation or
mining of soil or other natural resources." In addition, the
Lane County ordinance requires a development permit before any-
one may engage in rocks, sand, gravel and loam excavation in
excess of 1,000 yards per year on any unzoned land in the county.
97
Two Minnesota statutes, the Municipal Planning Act of New
98 99
Jersey, the Virginia statute, the West Virginia planning
. . . 100 101
statute, and the Wisconsin statute all provide for land use
regulations to control soil erosion, siltation, and sedimendation
or to promote soil conservation generally-
Three of the statutes and two ordinances specifically mention
environmental or pollution controls. The Virginia Area Development
102
Act gives a special planning district commission the power
to carry out a program of small stream maintenance for the pur-
pose of environmental improvement of an experimental basis until
July 1, 1976. Both the West Virginia statute and the Wisconsin
104
statute permit local governmental units to make laws con-
trolling stream pollution. The Lane County ordinance says
that no development permits may be granted for any use or activity
OD unzoned county land unless that use or activity will not result
216
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.... 106
in significant water pollution. The Bellevue ordinance
says that it is the City's policy that adequate protection should
be provided against water pollution caused by silt and sedimenta-
tion.
The Hawaii statute, the Minnesota statute108 and
109
the West Virginia statute are the only ones which specifi-
cally authorize their respective agencies to hire the necessary
staff. The Minnesota statute, the West Virginia statute and the
Lane County ordinance are the only ones to specifically provide
for funding. All of the statutes, except for the Hawaii statute,
the two New Jersey statutes, the Virginia Area Development Act,
the West Virginia statute and the Bellevue ordinance provide for
both hearings and appeals. The West Virginia statute provides for
appeals only from such decisions. The Hawaii statute provides
for hearings only on whether or not to permit new uses within the
specifically designated "forest and water reserve zones."
Only the West Virginia statute and the Lane County ordinance
require permits for certain types of land uses. The Bellevue
ordinance requires any city official who issues building permits
to implement the City's policies on pollution control. The West
Virginia statute and the Lane County ordinance specifically
authorize the denial of permits to those applicants who fail to
meet certain conditions. Only the Lane County ordinance provides
for revocation of an existing permit.
All of these statutes and ordinances except for the Bellevue
ordinance permit the regulating agency to promulgate regulations
in order to carry out their mandate. Some statutes and ordinances
divide the power between more than one agency or at least require
the enforcing agency to consult with other agencies before making
a decision.
The two Minnesota statutes, the New Jersey statute, the North
Dakota statute, the Virginia statute and the West Virginia statute all
authorize some public official to seek injunctions restraining
217
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violations of these statutes. -1-1 in aii cases except for one of
the Minnesota statutes and the Virginia statute the same
officials who execute the statutes generally can seek injunctions.
The Hawaii statute, the two Michigan statutes, the two Min-
nesota statutes, the New Jersey statute, the West Virginia statute
and the Wisconsin statute all authorize some public official to
impose civil penalties on violators. In all cases, except for
114
one of the Minnesota statutes and the West Virginia statute
the same officials who execute the statutes generally can enforce
the civil penalties. However, under the Wisconsin statute, any-
one may bring suit to enforce the civil penalties. In the cases
of the two Michigan statutes, one of the Minnesota statutes and
the West Virginia statute, the enforcing official may set the
penalties. In the cases of the Hawaii statute, one of the
Minnesota statutes, the New Jersey statute and the Wisconsin
statute, the maximum penalties range from $50 to $2,500.
In the two Michigan statutes, the enforcing official may
bring an action to abate a nuisance caused by a violation. In the
two Minnesota statutes a taxpayer may institute mandamus
proceedings to compel the appropriate enforcement officials to
specifically perform their duties under the respective statutes.
The Hawaii statute permits owners of real estate directly affected
by an action of the agency to bring suit to enforce the zoning
118
regulations. The Minnesota statute permits municipalities to
use mandamus actions to enforce their planning ordinances.
Violation of the two Minnesota statutes, the North Dakota
statute, the Virginia statute and the Land County ordinance are
all misdemeanors; the maximum penalties range from $200 to $500
fines and from no imprisonment to six months imprisonment. The New
Jersey Municipal Planning Act, the Virginia Area Development Act
and the Bellevue ordinance contain no civil or criminal penalties.
218
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NUISANCES — OBSTRUCTIONS
These statutes represent a small sampling of a large body of
statutes which authorize the abatement of nuisances or the pre-
vention of obstructions to navigation. The majority of these
statutes are enabling acts which delegate power to abate nuis-
ances or prevent obstructions to some local unit of government.
Six of the states and one of the local jurisdictions searched
119
have nuisance or obstruction statues or ordinances.
120
All of these statutes except for one of the Minnesota
121 122
statutes, the North Dakota statute and the Washington
County ordinance are enabling acts which give a village, city,
1 23
county or, in the case of the West Virginia statute, the city
Board of Park and Recreation Commissioners, the power to abate
nuisances or prevent obstructions or both. The Minnesota and
North Dakota statutes as well as the Washington County ordinance
provide for direct controls over nuisances and obstructions.
None of these statutes specifically mentions the power to
hire staff or the method of funding. None of them provides for
124
hearings, but the two Michigan statutes, one of the Minne-
1 o c 126
sota statutes and the Virginia statute provides for
appeals. None of these statutes except for the West Virginia
127
statute enables the agency to make rules and regulations,
and none authorizes an agency to issue licenses and permits.
Only two of these statutes, the North Dakota and Virginia
128
statutes, provide for injunctions. The North Dakota statute
permits anyone to seek an injunction to abate a nuisance while
129
the Virginia statute allows the official body which enforces
the statute (in this case, municipalities), and no one else, to
seek the injunction. All of the statutes except for one of
the Michigan statues provide for criminal penalties only. The
219
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134
other Michigan statute enables the enforcing body to prevent
obstructions as well as to abate nuisances. The West Virginia
statute also permits the enforcing agency to provide additional
135
penalties. In all cases, except for one of the Michigan statutes,
the public body which enforces the statute generally is also the
one which can seek to impose penalties. In the case of the
Michigan exception, the city council enforces the statute
generally, but it is the city attorneys who must seek to enforce
the penalties.
All of these statutes, except for the West Virginia statute,
also provide for criminal penalties, with maximum fines ranging
from $100 to $1000 and maximum possible imprisonment from ninety
days to one year.
PREVENTION OF LOADS SPILLING ON HIGHWAY
Although this group of statutes could actually be part of
the nuisance section, because of their special emphasis, they
have been considered separately. All of these statutes re-
quire that anyone operating a vehicle which is carrying a load
on a public highway must prevent that load or any part of it
from spilling on the public highway, and may be utilized for
control of water pollution from highway runoff. Highway runoff
is one of the transport systems for movement of contaminants
from agricultural, silvicultural, construction and mining
nonpoint sources directly to surface waters and indirectly by means of
percolation and infiltration to groundwater systems.
Nine of the states surveyed have statutes which prohibit
the spilling of loads on highways. The Massachusetts sta-
tute, the Michigan Vehicle Code, one of the two New Jersey
statutes, the Utah statute, the West Virginia statute and the
Wisconsin statute all require that loads on vehicles traveling
on public highways be securely fastened so as to prevent leak-
137
age or spillage onto the highway. The Minnesota statute
220
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138
is similar but limited to forest products. One New Jersey
239
statute is more general in that it prohibits anyone from
placing injurious substances on highways (which includes loads
spilling from vehicles); this statute serves to reinforce
the other New Jersey statute.140 The Salt Water Haulers Act
141
of Texas is limited to salt water which could pollute a
body of fresh water. One of two Virginia statutes prohibits
anyone from depositing "upon any highway any soil, sand, mud,
gravel or other substances so as to create a hazard to the pub-
142
lie." (As in the case of the New Jersey highway statute,
this prohibition includes loads spilling from vehicles.) The
143
other Virginia statute requires that loads, whose weight
exceeds state maximum weight limits, must be sealed before ve-
hicles carrying such,loads can qualify for special permits to
operate on state roads or highways.
Only the Michigan Vehicle Code, the New Jersey highway
statute and the Utah statute specifically authorize the hiring
of staff. Only the two New Jersey statutes and the Minnesota
statute specifically provide for funding. Only the New Jersey
vehicle statute and the Salt Water Haulers Act of Texas speci-
fically provide for appeals. Three statutes, the Minnesota
statute, the Salt Water Haulers Act of Texas and the Virginia
vehicle statute require permits for the hauling of loads on
public highways. Of the three, only the Texas Salt Water Haulers
Act specifically provides for rejection of a permit application
and suspension or refusal to renew a permit. However, the New
Jersey vehicle statute, which does not require a permit for
hauling loads, does authorize the Director of the Division of
Motor Vehicles of the Department of Law and Public Safety to
suspend or revoke the vehicle registration certificate or the
driver's license certificate of anyone who improperly loads his
vehicle or otherwise violates the vehicle statute. The
Michigan Vehicle Code, the two New Jersey statutes, the Salt Water
221
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Haulers Act of Texas and the Utah statute all authorize the
enforcing agency to write rules and regulations to enforce the
statutes.
None of the foregoing statutes specifically authorize anyone
to obtain an injunction to enforce the statutes. However, five
144
of the statutes authorize someone to seek civil remedies.
The Minnesota and Utah statutes authorize the enforcing agency
to recover damages for harm caused by loads spilling on the public
highway from violators of the statute. The two New Jersey
statutes and the Wisconsin statute provide for civil monetary
penaltie's. The New Jersey highway statute provides a minimum
penalty of $10 and a maximum penalty of only $20. The New
Jersey vehicle statute has no minimum penalty but a maximum
penalty of $500. Both penalties are enforced by the same author-
ities who enforce these acts generally. The Wisconsin statute
has several penalties which range from a minimum of $10 to a max-
imum of $400; it does not specify who enforces them. Massa-
chusetts also provides penalties ranging from $10 minimum to $100
maximum. The wording of the statute makes it unclear as to
whether these are civil or criminal penalties; no specific mention
of the enforcer is made.
The Michigan Vehicle Code7 the Minnesota statute, the New
Jersey vehicle statute, the Texas Salt Water Haulers Act, the
two Virginia statutes, and the West Virginia statute all provide
145
for criminal penalties. The maximum fines range from $100
to $1000 and the maximum imprisonment ranges from ten days to
twelve months. Only the Texas Salt Water Haulers Act and the
Virginia vehicle statute, however, set minimum penalties.
REMOVAL OF ICE AND SNOW; SALTING OF ROADS
As in the case of the last section, this group of statutes
could also be treated as an element of nuisance; but because all
222
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of these statutes involve substances that are commonly used on
roads to remove snow or ice and which become part of the general
contamination attributable to highway runoff, and perhaps act
synergistically with other elements of runoff from nonpoint
sources, potentiating effects of agriculture, silviculture
construction and mining activities, they are treated separately.
Two states have such statutes. Section 5 of one of
two Massachusetts statutes authorizes cities and towns to pass
ordinances which provide for the removal of snow and ice from
sidewalks by abutting landowners arid for controlling the manner of
147
removal. Section 7A of that statute prohibits anyone from
storing sodium chloride, calcium chloride, chemically treated
abrasives or other chemicals used for the removal of snow and
ice from roads in such a manner or place as to subject any water
supply or ground water supply to the risk of contamination.
The other Massachusetts statute authorizes the Depart-
ment of Public Works to establish regulations for the clearance
of snow from tracks on state highways. Similar power is given
to the superintendents of streets of cities and towns concerning
city or town tracks.
149
The Minnesota statute requires the highway authorities
of cities, villages and boroughs to limit the use of salt for
snow removal to the road surfaces of hills, turns, and other
critical areas of those roads where plowing or sanding will not
sufficiently clear those roads. One of the stated purposes of
the statute is to "reduce pollution of waters" caused by such
salt.
None of these statutes specifically provides for funding,
hiring staff, hearings, appeals or licensing. The two Massachu-
setts statutes authorize the enforcing officials to promulgate
rules and regulations, but the Minnesota statute does not do so.
The Massachusetts sidewalks snow removal statute provides for
the study of the impact of snow removal chemicals on water sup-
plies.
223
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The Minnesota statute provides for no criminal or civil
penalties, and only the Massachusetts railway snow removal statute
provides for injunctions which can be sought by an interested
party. No other penalties are authorized, and the Massachusetts
sidewalks snow removal statute provides for civil penalties only.
The civil penalties are $10 for violation of a town ordinance
and $50 for violation of a city ordinance or for the unlawful
storage of snow removal chemicals. Towns and cities enforce
their respective ordinances while the Department of Public
Health enforces the unlawful storage provision. In all cases,
these are the same officials who administer these statutes gen-
erally.
SOIL EROSION AND SEDIMENTATION CONTROL
Since sediment is the major water contaminant attributable
to nonpoint sources and since erosion is the principal cause
of sedimentation, these statutes represent important direct
means of control of water pollution from nonpoint sources. This
large class of statutes will be considered in four groups.
Five of the states and two of the local jurisdictions sur-
veyed plus one additional state, Pennsylvania, have general soil
conservation statutes. All fourteen of the states surveyed
have soil conservation district statutes and two states have
152
wind erosion statutes. in addition, two states and one local
jurisdiction have some special soil erosion statutes.
The general soil conservation statutes are simply those
which do not fit into any of the other parts of this section.
154
A Hawaii statute requires county governments, in cooperation
with state and Federal agencies, to enact ordinances for the pur-
pose of controlling soil erosion and sediment, and if
any county fails to enact such an ordinance, the State Department
of Health is authorized to do so.
The Michigan Soil Erosion and Sedimentation Control Act of
156
1972 requires the Water Resources Commission of the Depart-
224
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ment of Natural Resources to adopt rules for a unified soil erosion
and sedimentation control program including provisions for the
157
approval of site plans, land use plans and permits. Local
governments enforce this act. Anyone who wishes to engage in any
land development activities which change the natural cover or
topography of the land must act in accordance with this act, the
Commission rules, any applicable local ordinance and any
applicable local permit. Anyone engaged in agriculture may enter
into an agreement with the local Soil Conservation District to
pursue those conservation practices which conform to the Commis-
sion's rules; if they do so, they will be exemp't from the site
plan, land use plan and permit requirements of this act.1'58
However, this Act does not apply to land on which mining or
logging activities- are practiced nor to the plowing and tilling of
land for the purpose of crop production or harvesting.
In any proceeding to determine the feasibility of
building a public drainage system under a Minnesota statute,
the authorities conducting the proceeding should give considera-
tion to soil and water conservation and may order the planting
of permanent grasses in drainage ditches to conserve the soil.
161
Under a Texas statute, a county may lease its road build-
ing equipment to a private landowner to prevent soil erosion.
T 62
Under the Utah statute, the State Land Board may act to pre-
vent floods by promoting revegetation of barren lands, which
will also prevent soil erosion.
A Montgomery County ordinance requires that anyone
who wishes to do any grading, stripping, excavating or filling
of land or to create borrow pits, spoil areas, quarries, material
processing facilities or any other facility must first obtain
a permit from the County Department of Environmental Protection,
except as provided in a large list of minor exceptions listed in
§19-3. The Director of the Department of Environmental Protec-
tion may attach any conditions to the permit deemed necessary
to control soil erosion and sediment. Before issuing the
225
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permit, the Director shall require a performance bond to ensure
that the permit conditions are properly performed.
A Bellevue resolution bars the relocation of streams when
the erosive qualities of the streams will be increased and will
164
contribute to an increase in silt and sediment load.
The soil conservation statutes in all fourteen states are
substantially similar and will, therefore, be discussed gener-
ally and by specific example from selected statutes. Most of
the soil conservation district statutes grew out of the Dust
Bowl disasters of the 1930's. The statutes in all fourteen
states were originally enacted in the late 1930"s. However, many
of those states have amended this legislation to reflect current
concerns, primarily that of water pollution resulting from
erosion. Minnesota is one of these states. In 1973, the
purpose clause of the Soil and Water Conservation District Act
was amended to acknowledge that improper land use practices have
caused and contributed to serious erosion of farm and grazing
lands by wind and water and have contributed to deterioration
of underground water reserves. The legislature went on to de-
clare that it was in the interest of the public welfare, health
and safety to provide conservation of the soil and soil resources
and to prevent soil erosion.
The idea behind the soil conservation district was to set
up a local voluntary governmental entity with corporate powers
which would educate, encourage, and undertake soil conservation
projects. The districts have a variety of names depending on
the state in question; the most common being "soil conservation
district," but they are also called "soil and water conservation
districts," "resource conservation districts" or simply "conser-
vation districts."
226
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The statutes delegated the following powers to the districts:
1. The power to develop a soil conservation plan for
their district.
2. The power to carry out preventive and control measures including
engineering operations, revegetation, methods of cul-
tivation or changes in land use on land with the
owner's consent.
3. The power to furnish financial or other aid including
machinery, equipment, fertilizer, seeds and other materials
to land owners wishing to embark on soil conserva-
tion projects.
4. The power to require land owners to use certain methods of
cultivation, range practices and other land use
practices to contribute money and services and
materials as a condition for participating in
the soil conservation district.
5. The power to adopt land use regulations.
The fifth power of soil conservation districts, the promulgation
of land use regulations, is a relatively new power to these dis-
tricts. The original soil conservation district legislation
did not provide for enforcement of plans adopted by the districts.
The early function of the district was to develop a plan, to educate
landowners within the district about the plan and then to offer
assistance to individual landowners for the implementation of the
plan. The districts did not have the power, except upon the ex-
press permission of a landowner, to enter upon privately owned
land and embark on a soil conservation project. The district did,
however, have the power to own land and to undertake soil conserva-
tion projects on land which is either owned in the name of the dis-
trict or by the state or county. With the advent of the power to
adopt land use regulations, many of the districts were granted
powers to enforce the land use regulations.
Michigan, New Jersey, North Dakota, Texas, Utah, Virginia,
West Virginia, and Wisconsin have enacted legislation which
authorizes the enforcement of land use regulations. 6 The
Wisconsin legislation authorizes soil and water conservation dis-
227
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tricts to adopt regulations for the use of land lying within the
district in the interest of conserving soil and water resources
and controlling erosion, runoff and sedimentation. The regulations
may specify completion of necessary engineering projects, the
observance of particular methods of cultivation including contour
cultivating, stripseeding and planting water conserving plants
and erosion prevention plans. The regulations may also specify
cropping programs. Provisions may also be made to protect
lands exposed by grading, filling, clearing, mineral extractions
and similar activities.
The regulations adopted under the Wisconsin legislation
may limit the:
"Size of the area to be exposed, the length of time
in season during which it may be exposed, require
the establishment of temporary water waste, storm
drains, temporary debris basin, terraces and other
structural and nonstructural methods to control
erosion, runoff, and sedimentation."167
The Wisconsin legislation goes on to provide that the regulations
may be enforced by other landowners within the district or by
the county all of whom may seek injunctive relief from the local
circuit court. There is no provision, however, for the district
supervisors to enforce their own regulations.
The soil conservation district legislation in six other
states with land use authority provides for enforcement of the
i /- p
regulations promulgated. West Virginia and Virginia legis-
lation provides that the district supervisors may sue in equity
for nonconformance with land use regulations. The supervisors
also have the right to enter and inspect for compliance.
Texas amended its soil conservation district statutes to
authorize the promulgation of land use regulations. The
district supervisors are empowered to enter privately owned
land to investigate for compliance with land use regulations.
228
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The enforcement provisions in the Texas legislation are similar
to those found in West Virginia. When the supervisors find a
landowner in noncompliance, they may petition a court with
jurisdiction to either order the landowner to undertake neces-
sary work or to cease from improper activities. The court may
order the district to undertake the required work itself and then
to assess court costs against the landowner.
The Michigan legislature did not enact legislation author-
izing district soil conservation supervisors to promulgate land
use regulations; however, the Michigan legislature has enacted
a Soil Erosion and Sediment Control Act which authorizes
regulations to be promulgated on the state level to control all
major earth-moving activities except logging and mining. Ag-
ricultural activities come within the scope of this act, and en-
forcement is left primarily to the counties. Designated county
agents may enter lands to inspect for compliance with soil erosion
and sediment control regulations. The State or county may seek
injunctions to bar inappropriate activities. Permits may be
obtained at the county level. Persons guilty of violation of
the sediment and erosion control regulations are guilty of a mis-
demeanor, but the exact penalties are not specified in the
act.
Two states have enacted statues specifically controlling
wind erosion. The Kansas Wind Erosion Statute imposes a duty
172
upon landowners to prevent dust from blowing from his land.
Where the landowner fails to fulfill this duty, the county may
order cultivation of the land in the specific manner and restrict
the times of the year during which the land may be cultivated.
The board may also order specific projects to be undertaken to
prevent or to minimize the blowing of dust. If the county bears
the initial cost for this project, the landowner may then be as-
sessed amounts sufficient to reimburse the county.
229
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174
The Texas Wind Erosion Statute are modeled upon the soil
conservation district statutes. The Texas legislation set
up wind erosion conservation districts which are empowered to seek
to prevent undue damage to the land from the unnecessary movement
of sand, dust, and soil from lands within or without the district.
To achieve this end the districts are authorized to construct
improvements to prevent erosion caused by wind, and the district's
commissioners have the right to enter upon any lands within the
district for the purpose of treating the land to prevent soil
erosion. The governing body of each district may charge the
owners of the benefited land for a portion of the total cost of
any projects undertaken.
Under the provisions of the Clean Streams Act, which auth-
orizes the Pennsylvania Department of Environmental Resources to
regulate any activity which creates a danger of pollution or
has a potential for pollution, regulations for controlling soil
erosion and sedimentation from various activities have been
promulgated. The regulations under the act provide basic standards
for erosion and sedimentation control. Permits are required for
most earthmoving activities conducted within the Commonwealth of
1 7fi
Pennsylvania; however, earthmoving activities involving the
plowing or tilling for agricultural purposes are exempt from the
requirement of a permit. The regulations provide that such an
activity, which does not require a permit, must still comply with
all other provisions of the act and the regulations. To obtain a
permit, applicants must develop an erosion and sedimentation
control plan which must be approved by the County Conservation
177
District in which the construction is to take place.
The Department of Environmental Regulation may delegate
administrative and enforcement duties to counties and other
local governments provided the unit of local government has
implemented an acceptable plan for administering the program.
The local government must supply an adequate and qualified staff
230
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for the review of erosion and sediment control plans, for the sur-
veillance and enforcement of this requirement. The Department
retains the ultimate responsibility for the administration of the
program. Agricultural activities apart from plowing and tilling
came within the scope of this act on January 1, 1974; plowing
178
and tilling activities will come under control of the
act on July 1, 1977.
All of the various soil conservation district statutes and
wind erosion statutes authorizes the district or state agency with
responsibility for implementation to hire staff. None of the
legislation contains specific requirements or limitations on
staffing. Regulations promulgated under the Pennsylvania Clean
Streams Law require local units of government which wish to un-
dertake enforcement of the act to hire a qualified and sufficient-
ly large staff to administer and enforce the act effectively.
All soil conservation districts and wind erosion conserva-
tion districts in Texas are empowered to accept contributions,
grants, state and Federal funds for the expenditures of carrying
179
out their purposes. The Hawaii, Massachusetts, New Jersey,
North Dakota, Virginia and West Virginia statutes provide only
for the acceptance of Federal grants, contributions, and gifts
180
to the soil conservation districts. There are no provisions
for other funding except as may be provided under specific
charter grants or the constitution of the state.
Legislation in California, Minnesota, and Texas provides
the most generous funding for soil conservation activities. Calif-
ornia authorizes the soil conservation districts to raise money
T 81
by assessing landowners within the district on an annual basis.
The assessment which the districts may impose is not to exceed
two cents per one hundred dollars of assessed value. The Minne-
sota legislation authorizes the State to bear the regular admini-
strative cost of the district, and the counties in which projects
are undertaken to bear the cost of the portion of each project
231
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182
carried out within its boundaries. The Texas legislation
for soil conservation districts allows the districts to retain
any income from lease or sale of lands and allows them to issue
notes for a period of up to one year in order to undertake pro-
183
jects. The wind conservation districts in Texas have
greater powers in that they may issue assessments based on the
benefit to various landowners. These districts are also entitled to
receive a portion of special road taxes, and they may issue bonds
184
for periods of up to ten years.
Kansas authorizes the supervisors of each district to pre-
"pare a budget request each year which is to be presented to the
•IOC
county boards. The county is then to impose assessments
on landowners in order to raise the funds needed by the district.
Indiana, Michigan, and Wisconsin leave the financial support
of soil conservation districts unspecified except for such
state and county funds as which may be appropriated on an annual
basis.186
The assessment provisions such as found in California are
the most effective means of providing funds on a regular basis
to the soil conservation districts. The imposition of a ceiling
on the assessment which the districts may make protects land-
owners from unexpected tax burdens. The assessment mechanism,
which allows for collection of the district funds through the
property tax system, provides a reasonably efficient administrative
design. Provisions such as those in Indiana which do not provide
a steady and predictable source of income to the districts
severely limit the effective planning of projects which those
districts may undertake. The budget submission mechanism pro-
vided for under the Kansas legislation falls somewhere in between
the provisions of California and Indiana in terms of assuring the
effectiveness of the soil conservation districts. When the soil
conservation district statutes were enacted, the prevailing idea
was to set up a voluntary structure which would provide some
232
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direction to soil conservation efforts within the district. The
acts were only intended to authorize the voluntary banding togethei
of individuals into a district for the purpose of developing a
conservation plan for the district. Then the district, through.
its supervisors, would undertake various activities with the '
consent of landowners to implement the conservation plan.
Landowners within the district would be encouraged to undertake
conservation measures on their property. This encouragement of
soil conservation took the form of offering equipment and
technical assistance to landowners willing to undertake various
soil conservation measures.
Six of these states have not changed their soil conserva-
tion district legislation since its inception.187 Thus, the
statutes in these states provide no mechanism for enforcing
the conservation plans developed in the district. Pennsylvania's
soil conservation district legislation has not been amended to
provide an enforcement mechanism,188 but with the enactment
of the Clean Streams Law the State legislature did provide a
mandatory mechanism for controlling soil erosion and sedimenta-
tion.189
190
Eight states amended their soil conservation district
legislation to authorize the district supervisors to promulgate
land use regulations for the district. In each of these cases
a mechanism was provided to insure compliance with the land use
regulations. The Michigan legislature did not provide the power
to enact land use regulations to soil conservation districts.
However, the legislature enacted the Soil Erosion and Sediment i
Control Act which provided for mandatory controls.191
The legislation in the nine states with enforcement pro-
visions authorizes the district supervisors of the responsible
agency to enter privately owned lands to inspect for compliance
with regulations issued under the statutes, Michigan and Pennsyl-
vania being the exceptions in this case. The foregoing estab-
lished the mechanism for an initial determination of compliance
and noncompliance with the regulations.
233
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Enforcement
Six state legislations provide for injunctions against land-
owners who are in violation of the land use regulations. The
legislation in North Dakota, Texas, Virginia, and West Virginia
authorizes the district boards to go into court and seek an
injunction or a bill of equity.192 Activities conducted in
violation of land use statutes may be enjoined. Where positive
action must be taken to prevent soil erosion, the districts in
these states may petition the court for an order directing the
landowner to undertake the necessary work or for an order author-
izing the district supervisors to enter upon the land and perform
the required project. In all of the states, where the district
undertakes the performing of a project under court order on the
land of a private landowner, the district may recover the costs of
the project and the legal proceeding.
Legislation in Michigan and Wisconsin empowers counties
193
to enforce the soil erosion control regulations. The Wis-
consin legislation also allows private landowners to seek in-
junctions to enforce land use regulations. In Pennsylvania,
any activity, for which a permit is required and not obtained,
or which is conducted in violation of the permit, is declared by the
194
statute to be a nuisance.x^ such a legislatve declaration
permits the local law enforcement officer to stop such activities
without resorting to the court for a legal determination.
The criteria used for judging the effectiveness of various
penalty provisions is discussed in this report in the introductionf
and the following discussion will use the introductory material
as a framework. Injunction and bill of equity provisions which
allow the promulgating and inspecting body to seek the legal
remedy are deemed to be more effective than provisions which
require another governmental entity to seek legal action. Thus,
under our system for judging effectiveness, the legislation of
North Dakota, Texas, Virginia, and West Virginia is judged to be
234
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more effective for preventing violation of land use regulations
than that of Wisconsin. Under the Michigan Soil Erosion and
Sediment Control law, the counties have the power to inspect and
enforce. Therefore, the Michigan style of statute falls into the
first category.
The Wisconsin legislation provides for the seeking of injunc-
tions by private persons. This is, on the surface, a particularly
effective way of insuring the carrying out of regulations, since
persons who would .be at all harmed by the failure of the landowner
to comply with land use regulations would have a speedy legal
remedy at their disposal. However, no provision is made for the
cost to be borne by the party violating the statute or by a specific
fund. Therefore, private persons who would seek such legal remedy
would have to be suffering from a serious harm in order for them
to undertake the economic burden of pursuing the legal remedy.
The Wisconsin legislation, while it allows private persons to
seek an injunction, does not provide for the recovery of damages
195
by the same persons. Legislation in New Jersey and Utah
authorize landowners, who suffer damage due to another landowner's
failure to comply with land use regulations, to recover damages
I Qf
for the failure to comply. ^° The Utah legislation is slightly
more difficult for a landowner to recover under than New Jersey's.
In addition to establishing damage to his property through
failure to comply with land use regulations, the landowner must
also establish that the failure to comply resulted in increased
erosion. In New Jersey this extra proof is not required, damages
may be awarded simply for the failure to comply with land use
regulations and subsequent damage to a landowner's property.
Only three states which were surveyed provide for criminal
197
penalties under its soil conservation district statute.
Utah provides that persons found guilty of violating land use
statutes are guilty of a misdemeanor which is punishable by a
198
fine of $100 to $500 per offense. Erosion and sediment
control legislation in Michigan provide for a criminal penalty.
The Michigan legislation does not specify the actual penalties
235
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but does say "the person found guilty of violating regulations
promulgated under the act or failing to secure a permit when
required for the conducting of land-moving operations is guilty
199
of a misdemeanor.
The Pennsylvania Clean Streams Law provides that any per-
son or municipality who violates any provision of the act or
any rule or regulation is guilty of a summary offense and upon
conviction shall be subject to a fine of $100 to $1000 for
each offense and upon default in paying such fine may be subject
to imprisonment for a period of sixty days. The legis-
lation also goes on to provide that if within two years following
such a conviction, the person or municipality again violates any
provision of the act, rule, regulation or order of the department,
such person or municipality is guilty of a misdemeanor and shall
?fl i
be subject to a fine of $100 to $5,000 for each offense. The
period of possible imprisonment in the case of a second offense
may be for as long as one year. The Pennsylvania legislation
also provides for the imposition of civil penalties which are
202
payable to the State. Civil penalties assessed for violations
shall not exceed $10,000, plus $500 for each day of continued
violation. In determining the amount of civil penalty, the
willfulness of the violation, the damage or injury to waters
of the Commonwealth, the cost of restoration and any other
relevant factors shall be considered.
The penalties, both criminal and civil, which are imposed
by legislation in various states are all of a similar nature.
The imprisonments or fines imposed under the legislation are of
a reasonable nature, and it is really not possible to say whether
a $500 fine is more effective than a $1000 fine. The real
key to the effectiveness of penalties of this type is the
manner in which the courts apply them. And it is not
impossible to make such a determination from these statutes
themselves.
236
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Under the designation of "unusual" soil conservation
statutes are those which attempt to control soil erosion in a
manner substantially different from those in the preceding
discussion. The Kansas Shelter Belt Snow Fence Law203
provides that any landowner who plants trees or shrubs
adjacent to a public highwaytin the manner specified by the
law,to serve as a shelterbelt or windbreak for the purpose of
preventing snow from drifting onto public highways will not
have to pay any property tax on that portion of land which is
occupied by the shelterbelt. This shelterbelt can also serve
to prevent soil erosion' on that portion of the farm.
204
A North Dakota statute authorizes the State of North
Dakota to enter into public works contracts with the Federal
Government in order to relieve unemployment. The statute per-
mits some of these public works to be done on private property
if the purpose of the works is forest protection or flood
control and if the State has a contract with the private land-
owner under which the private landowner may be required to prac-
tice specified cultural methods for the prevention of soil erosion,
A Honolulu ordinance205 contains two provisions which
can prevent soil erosion. One provision prohibits any use or
structure in floodways or flood plains if such use or structure
will increase erosion and the amounts of damaging materials which
might be carried downstream in floods. The other provision re-
quires that no structure with a few exceptions be placed within
ten feet of the zone of wave action on any lot which is situated
immediately adjacent to a sandy beach for the stated purpose of
minimizing the erosion of such beaches.
SPECIAL POLLUTION CONTROLS
This section contains a group of miscellaneous statutes
which control pollution in some manner, but which are limited in
scope to one geographical area or one very narrow category of
p o fi
pollution. Nine states have special pollution controls. uo
237
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Three of the states surveyed, Massachusetts, Virginia and
West Virginia, have enacted legislation which gives a state
agency the authority to regulate activities on the state's water-
ways and to take action to preserve scenic waterways within
the state.207
Eight of the states searched give state and/or municipal
agencies special powers to protect watersheds and water supplies
9 fl 8
within their jurisdictions. uo Four states have enacted legis-
lation setting special geographical areas as sanctuaries or as
O (")Q
reclamation areas. u^
Massachusetts statute says that conservation or preser-
vation restrictions in a deed may be enforced by governmental
bodies and charitable corporations. Such restrictions may limit
construction, excavation and other activities which might
change water conditions, and inhibit water conservation and
soil erosion control. A Michigan statute2-'--'- authorizes townships
to appropriate money to control weeds, but forbids the use of
poisons for such control unless approved by the Department of
Conservation.
OIT
A Virginia statute^^^ gives a riparian owner the right
to impound water near his property if the circuit court or
corporation court of the place where the impounding structure
is to be built grants leave to do so. The court may not grant
leave to impound water if that act will impair or make more
difficult the reduction of pollution. Even if leave is granted,
the court may make such conditions as it chooses.
The provisions of these twenty odd statutes are varied, and
because of the narrow nature of the statutes will not be dis-
cussed individually. Specific provisions, considered noteworthy
will be identified.
238
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All of the authorized activities are to be supported, at
least in part, by state or local revenues. Only the Indiana
statute and one of the New Jersey statutes provides
for the accessing of fees against benefited landowners.
215
Seven i3 statutes enable the enforcing agency to hold
quasi- judicial hearings. Fifteen statutes216 enable the en-
forcing agency to issue orders, promulgate rules and regula-
tions and enforce such. Only three statutes217 require that
anyone who wishes to engage in activities that may cause water
pollution must first obtain a license.
• 218
NineAXO statutes empower the appropriate agency to obtain
an injunction to enforce the statute. In an exception to the
general rule, the Attorney General rather than the enforcing
agency must obtain the injunction under the Massachusetts ocean
sanctuaries statute.
91 Q
^-1-^
statutes allow the appropriate agency to condemn
and purchase land through its power of eminent domain to enforce
390
the statute. All but two"u of the statutes prescribe various
penalties for violations. Some penalties are criminal and some
civil. The penalties include limit fines and imprisonment of
221
ninety days or less, except that one of the New Jersey statutes
provides for an unspecified period of imprisonment following
the second conviction within a six-month period.
WETLANDS PROTECTION
This group of statutes seeks to protect wetlands or estuaries
and the powers granted are probably broad enough to permit control
of some or all nonpoint sources of water pollution which may affect
particular wetlands. These statutes differ from the coastal
zone protection statutes in that coastal zone protection
statutes usually protect both upland and wetlands in a well-
defined coastal zone, while the wetlands protection statutes
protect only wetlands. Three of the searched states have wetlands
O O J
protection statutes. The Massachusetts statute"-6 gives the
Commissioner of Natural Resources the power to adopt orders regu-
lating the "dredging, filling, removing or otherwise altering,
239
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223
or polluting of coastal wetlands," and in the event a
court should nullify any such order, the Department of Natural
Resources may take the affected land by eminent domain.224
In addition, all areas under the control of the Metropolitan
District Commission are exempt from this statute.22^
The New Jersey statute22" contains similar powers and
exemptions as the Massachusetts statute. The Commissioner of
Environmental Protection may adopt orders regulating the
"[D]redging, filling, removing or otherwise altering, or polluting
[of]) coastal wetlands"; however, the Commissioner may not impair
the exercise of the powers and duties of the State Department of
Environmental Protection, the Natural Resource Council, the
State Department of Health, the State Mosquito Control Commis-
sion or any mosquito control or other project authorized by other
state statutes.
•j 9 -7
The Virginia statute^' which is significantly different
from those of Massachusetts and New Jersey, permits any town,
090
city or county to adopt the "Wetlands Zoning Ordinance"
set out in the statute, under which the locality shall establish
a wetlands board which grants permits for certain uses of the
local wetlands if these uses will not unreasonably disturb ecologi-
cal systems. Some uses, such as agriculture and certain types
of construction are permitted absolutely, while other uses22^
are subject to the permit procedure. All decisions of such
boards are subject to review by the Marine Resources Commission,
a state agency, which also has initial permit-granting power
in areas where the prescribed ordinance has not been adopted.
Only the New Jersey statute specifically authorizes the
enforcing agency to hire staff. The New Jersey and Virginia
statutes, but not the Massachusetts statute, specifically
provide for funding. All three statutes authorize hearings
and appeals. The New Jersey and Virginia statutes, but not
the Massachusetts statute, require permits for regulated acti-
240
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vities. Only the New Jersey statute authorizes the enforcing
agency to conduct research programs and administer environmental
protection programs, although the latter power appears to be
implied in the other two statutes.
All three statutes authorize the enforcing agency to obtain
injunctions. Only the Massachusetts statute authorizes the en-
forcing agency to use the state's eminent domain power to enforce
the statute. Only the New Jersey statute authorizes damage suits
and civil fines. Anyone who violates any order of the Commissioner
or any other provision of the New Jersey statute "shall be liable
to the State for the cost of restoration of the affected wetland
to its condition prior to such violation insofar as that is pos-
sible, and shall be punished by a fine of not more than $1,000."
(This fine appears to be a civil fine under New Jersey law.)
230
The Massachusetts and Virginia statutes, but not the
New Jersey statute, also provide for criminal penalties. Anyone
who violates any of the Commissioner's orders under the Massa-
chusetts statute may be fined not less than $10 nor more than
$50 or imprisoned for not more than one month or both. Anyone
who violates any provision of the Virginia statute or local wet-
lands zoning ordinance may be fined not more than $1000 or im-
prisoned for not more than twelve months or both for each day's
violation.
241
-------
FOOTNOTES
GENERAL
llnd. Ann. Stat. W 13-6-1-1 to 13-6-1-6 (1973).
. at 5? 13-6-1-1.
. Gen. Laws Ann. ch. 30A, $ 10A (Supp. 1974).
4Mich. Comp. Laws Ann. $$ 691.1201 to 691.1206 (Supp. 1973).
5ld. at $ 691.1203.
6M±nn. Stat. Ann. $$ 116B.01 to 116B.13 (Supp. 1975).
7ld. at $ 116B.04.
8Wis. Stat. Ann. 2 227.06 (Supp. 1974).
9Cal. Pub. Res. Code $ 27000-27650 (Supp. 1975).
lOid. at $ 27401.
nHawaii Rev. Stat. $ 205A-1 to 205A-3 (Supp. 1974).
1216 U.S.C.A. $ 1451 et se^. (1974).
13Mass. Gen. Laws Ann. ch. 130, $$ 23 to 27 (1974).
l4Mich. Comp. Laws Ann. $$ 281.631-281.645 (Supp. 1973).
15Minn. Stat. Ann. U 105.485, 394.37, 462.362 (Supp. 1975).
16Id. at $ 105.485.
17Tex. Rev. Civ. Stat. art. 5415e-l (Vernon's Supp. 1974).
18Cal. Pub. Res. Code $ 27000-27650 (Supp. 1975).
19Cal. Pub. Res. Code $ 27425 (Supp. 1975); Mass. Gen. Laws Ann. ch. 130,
i 26 (Supp. 1974); Mich. Comp. Laws Ann. $ 281.641 (Supp. 1973); Minn. Stat.
Ann. $ 105.485(4) (Supp. 1975).
20Cal. Pub. Res. Code $ 27426 (Supp. 1975).
21Tex. Rev. Civ. Stat. art. 5415e-l (Vernon's Supp. 1974).
22Cal. Pub. Res. Code $ 27427 (Supp. 1975).
23Hawaii Rev. Stat. $ 205A-1 (Supp. 1974).
25Mass. Gen. Laws Ann. ch. 1309 W 26, 27 (1974).
25M±ck. Comp. Laws Ann. $ 281.641 (Supp. 1973).
VII-1
-------
26Mlnn. Stat. Ann. H 394.37(3), 394.37(4) (1968).
27id.
28id.
29Mass. Gen. Laws Ann. ch. 130, $ 27 (1974).
30Minn. Stat. Ann. $ 394.37 (1968).
3lMlnn. Stat. Ann. $$ 116G.01-116G.14 (Supp. 1973).
32Va. Code Ann. $$ 10-187 to 10-196 (Supp. 1974).
33N.J. Stat. Ann. 0£ 13:1H-1 to 13:lH-7 (Supp. 1974).
34va. Code Ann. $$ 58-769.4 to 58-769.16 (1974), as amended. (Supp. 1974).
35Ran. Stat. Ann. U 12-734, 12-735 (Supp. 1974).
36Minn. Stat. Ann. $$ 104.01-104.07 (Supp. 1973).
37Id_. at $ 104.07
38Id.
39Kan. Stat. Ann. $ 13-436 (1964); Mich. Comp. Laws Ann. $$ 41.181-41.183
(1967), as amended. (Supp. 1974); $ 67.1 (1967).
40Kan. Stat. Ann. $ 13-436 (1964).
41Mich. Comp. Laws Ann. ? 41.181 (1967).
42Mich. Comp. Laws Ann. #67.1 (1967).
43Hawa±i Rev. Stat. 0 103-61 (Supp. 1974).
44Ind. Ann. Stat. H 16-1-3-13, 16-1-3-27 (1973).
45Ind. Ann. Stat. $$ 16-1-26-1, 16-1-26-2 (1973).
46Ind. Ann. Stat. $$ 18-1-1.5-1 to 18-1-1.5-30 (1974).
47Ind. Ann. Stat. i$ 19-3-1.1-8, 19-3-1.1-10 (1974).
48Mass. Gen. Laws Ann. ch. 12, 0 11D (Supp. 1974).
49Mass. Gen. Laws Ann. ch. Ill, $ 2c (Supp. 1974).
50Mich. Comp. Laws Ann. $ 45.515(c) (1967).
5^Mtch. Comp. Laws Ann. g 91.1 (1967).
VII-2
-------
52MLch. Comp. Laws Ann.0 697.4 (1967).
53Minn. Stat. Ann. g? 84B.01-84B.10 (Supp. 1973).
54Minn. Stat. Ann. 2 117.49 (Supp. 1973).
55N.J. Stat. Ann. 20 40:14-16 to 40:14-24 (Supp. 1974).
56Utah Code Ann. $ 23-15-6 (Supp. 1973).
57Va. Code Ann. Constitution of Virginia, art. XI, U 1, 2 (1973).
58Va. Code Ann. t 10-178, 10-179 (1973).
59Va. Code Ann. ft 615.1-505, 15.1-510, 15.1-510.2 (1973), as amended.
(Supp. 1974).
60Va. Code Ann. U 15.1-854, 15.1-863, 15.1-901, 15.1-905 (1973).
61Va. Code Ann. $ 62.1-194.1 (1973).
62Honolulu, Hawaii Charter U 7-101 to 7-119 (Supp. 1974).
^Washington Co., Ore., Ordin. No. 59 (1969), as amended, (1970, 1971,
1974) .
Washington Co., Ore., Ordin. No. 83 (1971).
65Washington Co., Ore., Ordin. No. 88 (1971).
66City of Bellevue, Wash., Proposed Drainage Code H 1-21 (1975).
68Ind. Ann. Stat. $ 18-1-1.5-2 (1974); $ 19-3-1.1-8 (1974); Mass. Gen.
Laws Ann. ch. 12, $ 11D (Supp. 1974); N.J. Stat. Ann. $ 40:14-22 (Supp. 1974);
Va. Code Ann. U 15.1-505, 15.1-510, 15.1-510.2 (1973), as amended, (Supp.
1974); 15.1-854, 15.1-863, 15.1-901, 15.1-905 (1973); Honolulu Charter $ 7-105
(Supp. 1974).
69Ind. Ann. Stat. H 18-1-1.5-4 (1974); Minn. Stat. Ann. $ 84B.07-84B.09
(Supp. 1973); N.J. Stat. Ann. $ 40:14-21 (Supp. 197,4); Honolulu Charter $ 7-105,
7-109 (Supp. 1974); Washington Co., Ore., Ordin. Nos. 59, 83, 88; City of
Bellevue, Wash., Proposed Drainage Code $ 1-21 (1975).
70Ind. Ann. Stat. $ 18-1-1.5-4 (1974).
71Minn. Stat. Ann. $ 84B.07-84B.09 (Supp. 1973).
72N.J. Stat. Ann. * 40:14-21 (Supp. 1974).
73Honolulu Charter £ 7-105, 7-109 (Supp. 1974).
VII-3
-------
7 Washington Co., Ore., Ordin. Nos. 59, 83, 88.
75City of Bellevue, Wash., Proposed Drainage Code $$ 1-21 (1975).
76ind. Ann. Stat. £0 16-1-3-21 (1974).
77Mich. Comp. Laws Ann. $ 91.1, g 97.4 (1967).
78va. Code Ann. $$ 15.1-504, 15.1-903 (Supp. 1974).
79Honolulu Charter $ 7-119 (Supp. 1974); Washington Co., Ore., Ordin.
Nos. 59, 83, 88; City of Bellevue, Wash., Proposed Drainage Code $$ 1-21
(1975).
80see f .n. 76.
f.n. 79.
82ind. Ann. Stat. g 16-1-3-22 (1973), $ 19-3-1.10 (1974); Mass. Gen.
Laws Ann. ch. Ill, g 2c (Supp. 1974); Utah Code Ann. $ 23-15-6 (Supp. 1973);
Va. Code Ann. $$ 15.1-510, 15.1-510.2, 15.1-854 (1973); Honolulu Charter
$ 7-105 (Supp. 1974); Washington Co., Ore., Nos. 59, 83, 88.
83ind. Ann. Stat. $ 16-1-26-2 (1973), $$ 18-1-1.5-5.5, 19-3-1.1-10 (1974);
Mass. Gen. Laws Ann. ch. 12, $ 11D (Supp. 1974); Va. Code Ann. $$ 15.1-905,
62.1-194.1 (1973); Washington Co., Ore., Ordin. Nos. 59, 88; City of Bellevue, Wash.,
Proposed Drainage Code $ 1-21 (1975).
84ind. Ann. Stat. $ 16-1-26-2 (1973).
85va. Code Ann. g 62.1-194.1 (1973).
86ind. Ann. Stat. $ 19-3-1.1-10 (1974).
87Mass. Gen. Laws Ann. ch. 12, $ 11D (Supp. 1974).
88ind. Ann. Stat. $ 18-1-1.5-19 (1974); Mich. Comp. Laws Ann. n 01.1,
97.4 (1967); Utah Code Ann. $ 25-15-6 (Supp. 1973); Va. Code Ann. $$ 15.1-505,
15.1-901; 62.1-194.1 (1973); Washington Co., Ore., Ordin. Nos. 59, 83, 88;
City of Bellevue, Wash. , Proposed Drainage Code $ 1-21 (1975).
89nawaii Rev. Stat. $ 103-61 (Supp. 1974); Mich. Comp. Laws Ann. g 45.515c
(1967); Minn. Stat. Ann. $$ 84B.1 to 84B.10, 117.49 (Supp. 1973); N.J. Stat.
Ann. U 40:14-16 to 40:14-24 (Supp. 1974); Va. Code Ann. U 10-178, 10-179
(1973).
90Mich. Comp. Laws Ann. $ 91.1 (1967).
91Mich. Comp. Laws Ann. $ 45.515(c) (1967).
92Hawaii, Michigan, Minnesota, New Jersey, North Dakota, Virginia, West
Virginia, Wisconsin, Lane County, Oregon and City of Bellevue, Washington.
VII-4
-------
93Lane Co., Ore., Code, ch. 9, it 9.700-9.995 (1973).
94city of Bellevue, Wash., Resolution No. 2007 (1972).
95aawaii Rev. Stat. $ 183-41 (Supp. 1974).
96va. Code Ann. $t 15.1-1400 to 15.1-1652 (1973), as amended. (Supp. 1974).
97Minn. Stat. Ann. U 394.21-394.37 (1968h as amended. (Supp. 1973), H
462.351-462.364 (Supp. 1973).
"
98N.O. Stat. Ann. U 40.55-1.1 to 40.55-1.29 (1967), as amended. (Supp.
1974) .
99va. Code Ann. U 15.1-486 to 15.1-503.2 (1973), as amended. (Supp. 1974).
100W.Va. Code Ann. $$ 8-24-1 to 8-24-38, 8-24-66 to 8-24-71 (1969), as_
amended. (Supp. 1974).
101Wis. Stat. Ann. U 59.97, 1971 (1957), as amended, (Supp. 1974), $ 87.30
(1972).
102See f.n. 96.
103See f.n. 100.
104See f.n. 101
105See f.n. 93.
106See f.n. 94.
107SeejE.n. 95.
108See f.n. 97.
109 See f.n. 100.
Comp. Laws Ann. H 125.201-125.203, 125.271, 125.273, 125.277,
125.327 (1967); Minn. Stat. Ann. $& 394.21-394.37 (1968), as amended. (Supp.
1973>, U 462.351-462.364 (Supp. 1973); N.D. Cent. Code U 11-33-01 to 11-33-21
(1960), as amended. (Supp. 1973); Va. Code Ann. U 15.1-486 to 15.1-503.2
(1973), as 'amended. (1974); Lane County, Ore., Code, ch. 9, $$ 9.700-9.995
(1973) .
1:L%.nn. Stat. Ann. g£ 394.21-394.37 (1968), as amended. (Supp. 1973),
n 462.351-462.364 (Supp. 1973); N.J. Stat. Ann. U 58:16A-50 to 58:16A-66
(Supp. 1974); N.D. Cent. Code H 11-33-01 to 11-33-21 (1960), as amended.
«(Supp. 1973); Va. Code Ann. $$ 15.1-486 to 15.1-503.2 (1973), as amended.
(Supp. 1974); W.Va. Code Ann. i$ 8-24-1 to 8-24-38, 8-24-66 to 8-24-71 (1969),
as amended. (Supp. 1974).
VII-5
-------
112See f.n. 97.
113See f.n. 99.
114See f.n. 97
115Minn. Stat. Ann. gg 462.351-462.364 (Supp. 1973).
116See f.n. 97.
117Mich. Comp. Laws Ann. & 125.201-125.203, 12.271, 12.273, 12.277, 12.
327 (1967).
118See f.n. 115.
'Michigan, Minnesota, North Dakota, Texas, Virginia, West Virginia, Washington.
County, Oregon.
120Mich. Comp. Laws Ann. gg 66.2, 66.10, 67.20, gg 89.2, 89.20, 90.12, 102.1,
102.11, 102.13, 102.14 (1967); Minn. Stat. Ann. gg 412.221, 412.231, 412.863
(1958), as amended, (Supp. 1973); Tex. Rev. Civ. Stat. arts. 1015, 1146, 1175
(Vernon's 1963), as amended, (Vernon's Supp. 1974); Va. Code Ann. gg 15.1-867,
15.1-901 to 15.1-907 (1973), as amended, (Supp. 1974).
121Minn. Stat. Ann. gg 609.031-609.032, 609.74-609.75 (Supp. 1973).
122N.D. Cent. Code gg 42-rOl-Ol to 42-01-11 (1968).
123W.Va. Code Ann. gg 8-21-1 to 8-21-14 (1969).
124Mich. Comp. Laws Ann. gg 66.2, 66.10, 67.20, 89.2, 89.20, 90.12, 102.1,
102.611, 102.13, 102.14 (1967).
125Minn. Stat. Ann. gg 412.221, 412.231, 412.863 (1958), as amended, (Supp.
1973).
126Va. Code Ann. gg 15.1-867, 15.1-901 to 15.1-907 (1973), as amended.
(Supp. 1973).
127See f.n. 123.
128See f.n. 122.
129See.f.n. 126
130Mich. Comp. Laws Ann. gg 66.2, 66.10, 67.20 (1967).
131See f.n. 121.
132See f.n. 130.
133See f.n. 121.
VII-6
-------
134Mich. Comp. Laws Ann. $$ 89.2, 89.20, 90.12, 102.1, 102.11, 102.13-
102.14 (1967).
135see f .n. 134.
136Massachusetts, Michigan, Minnesota, New Jersey, Texas, Utah, Virginia
West Virginia, Wisconsin.
137Mass. Gen. Laws Ann. ch. 85, 636 (Supp. 1974); Mich. Comp. Laws Ann.
$ 257.1-257.923 (1967); N.J. Stat. Ann. $$ 39:4-77, 39:5-1 to 39:5-47 (1973);
Utah Code Ann. M 27-12-8, 27-12-146, 27-12-147 (1969), as amended. (Supp.
1973); W.Va. Code Ann. $ 17C-2-3, 17C-17-6, 17C-18-1 (1974); Wis. Stat. Ann.
ii 346.87-346.95, 348.10-348.11 (1971), as amended. (Supp. 1974).
138Minn. Stat. Ann. H 169.80-169.89 (1960), as amended, (Supp. 1973).
139N.J. Stat. Ann. U 27:1-1 to 27:1-20, 27:7-44 (1966).
140N.J. Stat. Ann. W 39:4-77, 39:5-1 to 39:5-47 (1973).
14lTex. Water Code Ann. £g 24.001-24.046 (Vernon'a 1972).
142ya. Code Ann. $ 33.1-350 (1970).
143va. Code Ann. t>$ 46.1-16, 46.1-343 (1974).
144Minn. Stat. Ann. $$ 169.80-169.89 (1960), as amended. (Supp. 1973);
Utah Code Ann. H 27-12-8, 27-12-128, 27-12-147 (1969), as amended. (Supp.
1973); N.J. Stat. Ann. $$ 27:1-1 to 27:1-20, 27:7-44 (1966), n 39:4-77,
39:5-1 to 39:5-47 (1973); Wis. Stat. Ann. U 346.87-346.95, 348.10-348.11
(1971), as amended, (Supp. 1974).
145Mich. Comp. Laws Ann. $$ 257.1-923 (1967); Minn. Stat. Ann. $ 169.80-
169.89 (1960), as amended. (Supp. 1973); N.J. Stat. Ann. U 39:4-77, 39:5-1
to 39:5-4 (1973); Tex. Water Code Ann. U 24.001-24.046 (Vernon's 1972);
Va. Code Ann. 2 33.1-350 (1970), U 46.1-16, 46.1-343 (1974); W.Va. Code
Ann. n 17C-2-3, 17C-17-6, 17C-18-1 (1974).
146ifassachusetts and Minnesota.
147Mass. Gen. Laws Ann. ch. 85, $$ 5, 7A (1958), as amended, (Supp. 1974).
148Mass. Gen. Laws Ann. ch. 161, U 85, 142 (1958).
149Minn. Stat. Ann. 0 160.215 (Supp. 1974).
, Michigan, Minnesota, Texas, Utah, Montgomery County, Maryland,
and City of Bellevue, Washington.
151california, Hawaii, Indiana, Kansas, Michigan, Minnesota, New Jersey,
North Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin.
VII-7
-------
152Kansas and Texas.
iSSfcansas, North Dakota, and Honolulu, Hawaii.
154Hawaii Rev. Stat. 22 180C-1 to 180C-4 (Supp. 1974).
iSSid. at 2 180C-2.
156Mich. Comp. Laws Ann. 22 282.101-282.117 (Supp. 1974).
16°Minn. Stat. Ann. $ 106.671-106.673 (1964), as amended. (Supp. 1973).
161Tex. Rev-r Civ. Code art. 2372C (Vernon's 1971).
162Utah Code Ann. 22 65-1-75, 65-1-82 (1968).
163Montgomery Co., Md.^ Code 1972,22 19-1 to 19-20 (1972).
164City of Bellevue, Wash., Resolution No. 2422 (1974).
165california, Indiana, Kansas, Massachusetts, Michigan, Minnesota, New
Jersey, North Dakota, Pennsylvania, Texas, Utah, Virginia, West Virginia,
and Wisconsin, Montgomery County, Maryland and Bellevue, Washington.
166Minn. Stat. Ann. 2 40.005 (Supp. 1973).
167Mich. Comp. Laws Ann. 22 282.101-282.117 (1967), as amended, (West Supp.
1973); N.J. Stat. Ann. 2 4:24-23 (1973); N.D. Cent. Code 2 4-22-27 (1959),
as amended, (Supp. 1973); Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969),
as amended, (Supp. 1974); Utah Code Ann. 2 62-1-9 (1968); Va. Code Ann. 2
21-66 (1960), as amended, (Supp. 1974); W.Va. Code Ann. 2 19-21A-9 (1971);
Wis. Stat. Ann. 2 92.09 (1972), as amended, (Supp. 1974).
168Wis. Stat. Ann. 2 92.09 (1972), as amended, (Supp. 1974).
169N.J. Stat. Ann. 2 4:24-27 (1973); N.D. Cent. Code 2 4-22-34 (1959);
Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969), as amended, (Supp. 1974);
Utah Code Ann. 2 62-1-11 (1968); Va. Code Ann. 2 21-83 (1960), as amended,
(Supp. 1974); W.Va. Code Ann. 2 19-21A-10 (1971).
17OTex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969), as amended, (Supp.
1974).
171Mich. Comp. Laws Ann. 22 282.101-282.117 (Supp. 1974).
172Id. at 2 282.113 (Supp. 1974).
VII-8
-------
173Ran. Stat. Ann. H 2-2001 to 2-2011 (1964), as amended. (Supp. 1974).
174Tex. Rev. Civ. Stat. art. 165A-2, 165A-3 (Vernon's 1969).
175Pa. Stat. Ann. tit. 35, U 691.1-691.1001 (1964), as amended. (Supp. 1974),
17°Soil Erosion and Sedimentation Control Manual, (1975: Pennsylvania
Department of Environmental Resources).
177Id.
178Pa. Rules and Regs., tit. 25, $ 102.61 (1972).
179Tex. Rev. Civ. Stat. art. 165A-4, 165A-2 (Vernon's 1969).
180Mass. Gen. Laws ch. 21, * 24(7) (1973); N.J. Stat. Ann. 2 4:24-6 (1973);
N.D. Cent. Code $ 4-22-06 (1959); Va. Code Ann. $ 21-62 (Supp. 1974); W.Va.
Code Ann. $ 19-21A-8 (1971).
181Cal. Pub. Res. Code $ 9026 (West 1956).
l82Minn. Stat. Ann. $ 40.072 (Supp. 1975).
183Tex. Rev. Civ. Stat. art. 165A-4 (Vernon's 1969)>
184Tex. Rev. Civ. Stat. art. 165A-2 (Vernon's 1969).
185Kan. Stat. Ann. $ 2-1907b (Supp. 1974).
186Ind. Ann. Stat. t 13-3-1-11 (1973); Mich. Comp. Laws Ann. $ 282.16 (1963);
Wis. Stat. Ann. $ 92.20 (1972).
187California, Indiana, Kansas, Massachusetts, Minnesota, Pennsylvania.
188Pa. Stat. Ann. tit. 3, H 849-864 (1963), as amended, (Supp. 1973).
189See f .n. 11.
190Michigan, New Jersey, North Dakota, Texas, Utah, Virginia, West Virginia,
and Wisconsin.
191See f.n. 7.
192N.D. Cent. Code 0 4-22-34 (1959); Tex. Rev. Civ. Stat. art. 165A-4
(Vernon's 1969); Va. Code Ann. £ 21-83 (1960), as amended, (Supp. 1974);
W.Va. Code Ann. $ 19-21A-10 (1971).
193Mich. Comp. Laws Ann. $ 282.641 (1963); Wis. Stat. Ann. $ 92.10 (1972).
194Pa. Stat. Ann. tit. 35, $ 691.503 (1964).
195Wis. Stat. Ann. $ 92.10 (1972), as amended. (Supp. 1974).
196N.J. Stat. Ann. $ 4:24-27 (1973); Utah Code Ann. g 62-1-11 (1968).
VII-9
-------
197Michigan, Utah and Wisconsin.
198utah Code Ann. $ 72-1-11 (1968).
199Mich. Comp. Laws Ann. $ 92.11 (1972).
200Pa. Stat. Ann. $ 691.602 (Supp. 1973).
201id.
203Kan. Stat. Ann. $$ 29-500 to 29-508 (1973).
204N.D. Cent. Code £jg 50-17-01 to 50-17-09 (1974).
205Revised Ordinances of Honolulu, Hawaii $$ 21-1104, 21-1301 (1970), as
amended, (Supp. 1973).
, Massachusetts, Michigan, Minnesota, New Jersey, North Dakota,
Utah, Virginia, and West Virginia.
207Mass. Gen. Laws Ann. ch. 21, $ 17B (Supp. 1974); Va. Code Ann. $$ 10-167
to 10-176 (1973); W.Va. Code Ann. $$ 20-5B-1 to 20.5B-17 (1973).
208 Ind. Ann. Stat. $$ 18-1-8-1 and 18-1-8-2 (1971); Mass. Gen. Laws Ann. ch.
40, $ 8C (Supp. 1974); Mich. Comp. Laws Ann. it 455.58, 455.63, 455.212, 455.
214 (1967); Minn. Stat. Ann. $$ 112.34-112.86 (1964), as amended, (Supp. 1973);
N.J. Stat. Ann. gg 26:3-1 to 26:3-82 (1964), as amended, (Supp. 1974); N.D.
Cent. Code 00 11-28-01 to 11-28-11, 40-05-01, 40-05-06, 61-16-01 to 61-16-49
(1968), as amended, (Supp. 1973); Utah Code Ann. $$ 10-7-75, 10-8-1 to 10-8-7,
10-8-15, 10-8-84 (1973); Va. Code Ann. U 15.1-292, 15.1-841, 15.1-843, 15.1-
901, 15.1-903, 15.1-905 (1973), as amended. (Supp. 1974).
209Mass. Gen. Laws Ann. ch. 132A, $$ 1-16 (1974); N.J. Stat. Ann. $$ 13:17-1
to 13:17-86, 13:18-1, to 13-18-21 (Supp. 1974); Utah Code Ann. $$ 63-11-13,
63-11-17 to 63-11-17.3, 63-11-21, 63-11-21.1 (1968), as amended, (Supp. 1973);
Va. Code Ann. $ 29-153 (1973).
210 Mass. Gen. Laws Ann. ch. 184, gg 31-33 (Supp. 1974).
211 Mich. Comp. Laws Ann. gg 41.671-41.673 (1967).
212 Va. Code Ann. gg 62.1-104 to 62.1-115 (1973).
213 Ind. Ann. Stat. $ 18-1-8-2 (1971).
214 N.J. Stat. Ann. $$ 13:17-1 to 13:17-86 (Supp. 1974).
215 Mass. Gen. Laws Ann. ch. 21, $ 17B (Supp. 1974); Minn. Stat. Ann. $$
112.34-112.86 (1964), as amended, (Supp. 1973); N.J. Stat. Ann. $$ 13:17-1
to 13:17-86 (Supp. 1974), 26:3-1 to 26:3-82 (1964), as amended. (Supp. 1974);
VII-10
-------
N.D. Cent. Code 00 61-16-01 to 61-16-49 (1968), as amended. (Supp. 1973);
Va. Code Ann. 00 10-167 to 10-176, 62.1-104 to 62.1-115 (1973).
216ind. Ann. Stat. 0 18-1-8-2 (1971); Mass. Gen. Laws Ann. ch. 21, 0 17B,
ch. 40, 0 8C, ch. 132A, 00 1-16 (Supp. 1974); Mich. Comp. Laws Ann. 00 455.58,
455.63, 455.212, 455.214 (1967); Minn. Stat. Ann. 00 112.34-112.86 (1964),
as amended. (Supp. 1973); N.J. Stat. Ann. 00 13:17-1 to 13:17-86, 13:18-1
to 13:18-21 (Supp. 1974), 00 26:3-1 to 26:3-82 (1964), as amended. (Supp.
1974); N.D. Cent. Code 00 11-28-01 to 11-28-11, 40-05-01, 40-05-06, 61-16-01
to 61-16-49 (1968), as amended. (Supp. 1973); Utah Code Ann. 00 10-8-1, 10-
7-15 (1973), 63-11-13, 63-11-17 to 63-11-17.3, 63-11-21 to 63-11-21.1 (1968),
as amended. (Supp. 1973); W.Va. Code Ann. 00 20-5B-1 to 20-5B-17 (1973).
217N.J. Stat. Ann. 00 13:17-1 to 13:17-86 (Supp. 1974), 26:3-1 to 26:3-82
(1964), as amended. (Supp. 1974); W.Va. Code Ann. 00 20-5B-1 to 20-5B-17 (1973).
21Bind. stat. Ann. 00 18-1-8-1 to 18-1-8-2 (1971); Mass. Gen. Laws Ann.
ch. 21, 0 17B; ch. 132A, 0 1-16; ch. 184, 00 31-33 (Supp. 1974); N.J. Stat.
Ann. 0 13:17-1 to 13:17-86, 13:18-1 to 13:18-21 (Supp. 1974); Va. Code Ann.
00 15.1-292, 15.1-841, 15.1-843, 15.1-901, 15.1-903, 15.1-905 (1973); as
amended. (Supp. 1974); W.Va. Code Ann. 00 20-5B-1 to 20-5B-17 (1973).
219ind. Stat. Ann. 00 18-1-8-1 to 18-1-8-2 (1971); Mass. Gen. Laws Ann.
ch. 21, 0 17B; ch. 40, 0 8C; ch. 132A, 00 1-16, (Supp. 1974); N.D. 00 61-16-01
to 61-16-49 (1968), as amended. (Supp. 1973).
220Mich. Comp. Laws Ann. 00 41.671-41.673 (1967); Va. Code Ann. 00 10-167
to 10-176 (1973).
22%.J. Stat. Ann. 00 26:3-1 to 26:3-82 (1964), as amended. (Supp. 1973).
222Mass. Gen. Laws Ann. ch. 130, 0 105 (1974))
226N.J. Stat. Ann. 00 13.1B-1, 13.1B-3, 13:1D-1 to 13:1-19, 13:9A-1 to
13:9A-10 (1968), as amended, (Supp. 1974).
227Va. Code Ann. 00 62.1-13.1 to 62.1-13.20 (1973), as amended, (Supp. 1974).
228Id. 0 62.1-13.5 (Supp. 1974).
229Id. 0 62.1-13.9 (Supp. 1974).
230See f.n. 222 and 227.
VII-11
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Appendix A
Selected Provisions from Water Pollution Control Statutes
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Ala. Code tit. 22 (Supp. 1973)
of P°licy and purpose.~Where.is the pc1
r vate™ of thls state .constitutes a menace to public health £
smJvf^" PU5C nu.lsa"ces-,i? ha™ful to wildlife, fish and aquatic !r
SS dom«tic, agricultural, industrial, recreational and other leBitir-.-
ficiaruses of water, « is hereby declared to be the public pdicv of V-«
§ liO(12b). Definitions. — When used in this act the terms' defined
shall have the meanings here ascribed to them unless it clearly appears from
the context that some other meaning is indicated.
"Commission" means the water improvement commission; and "member"
means a member of said Commission.
"Waters" means all waters of any river, stream, watercourse, pond, lake,
coastal, ground or surface water, wholly or partially within the state.
"Pollution" means such contamination, or other alteration of the physical,
chemical or biological properties, of any waters of the state, including, but not
limited to, any violation of water quality- standards, change in temperature,
taste, color, turbidity, or odor of the waters, by the discharge of any sewage.
industrial wastes, or other wastes, or of any liquid, gaseous, solid, or other
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Ala. Code tit. 22 (Supp. 1973)
(2) It shall be the duty of the commission to issue, continue in effect, re-
voke, modify or deny, under such conditions as it may prescribe, to prevent,
control, or abate pollution, permits for the discharge of sewage, industrial
wastes or other wastes into the waters of the state and for the installation,
modification or operation of disposal systems or any parts thereof.
(3) Every person who, prior to the effective date of this chapter, is dis-
charging any sewage, industrial wastes or other wastes into any waters of this
state under a permit of the then existing water improvement commission may
continue to do so under said permit unless and until the commission modifies
or alters the terms of the permit.
(4) Every person who. prior to the effective date of this chapter, is pro-
ceeding to comply with a plan toward control of the pollution for which the
plan was develop'ed under a permit of the then existing water improvement
commission must do so within the time limit specified by said plan and/or
permit.
(5) Every person, who, prior to the effective date of this chapter is dis-
charging any pollution into any waters of this state without a permit covering
such discharge shall, in accordance with the terms of this chapter, apply in
writing, within 30 days of the effective date of this chapter, for a permit and
obtain a permit as a condition of continuing such discharge. Said permit shall
be granted upon the submission to and approval by the commission of a plan
to control such discharge within two years from date of application.
(6) Every person who, subsequent to the effective date of this chapter,
wishes to begin discharging any new or increased pollution into any waters
of this state shall apply to the commission in writing for a permit and must
obtain such permit before discharging such pollution.
(7) Any and all pollution is hereby declared to be a public nuisance and
shall be subject to immediate control of the commission by order or injunction
if it creates, or is about to create, a health hazard. Any order issued under this
paragraph shall be deemed to be final and conclusive' for the purposes of this
chapter.
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Alas. Stat. (1971), as amended, (Supp. 1974)
Sec. 46.03.050. Authority. The department has jurisdiction to
prevent and abate the pollution of the waters of the state. (§ 3 cti 120
SLA 1971)
Sec. 46.03.060. Water pollution control plan. The department shall
develop comprehensive plans for water pollution control in the state
and conduct investigations it considers advisable and necessary for the
discharge of its duties. (§ 3 ch 120 SLA 1971)
Sec. 46.03.710. Pollution prohibited. No person may pollute or add
to the pollution of the air. land, subsurface land or water of the state. (§
Sch 120 SLA 1971)
Sec. 46.03.760. Pollution penalties, (a) A person who violates §§ 710,
730, 740, or 750 of this chapter is guilty of a misdemeanor and upon
conviction is punishable by a fine of not more than $25,000, or by
imprisonment for not more than one year, or by both. Each unlawful
act constitutes a separate offense.
Sec. 46.03.780. Liability for restoration, (a) A person who violates a
provision of this chapter, or who fails to perform a duty imposed by this
chapter, or violates or disregards an order, permit, or other
determination of the department made under the provisions of this
chapter, and thereby causes the death of fish, animals, or vegetation or
otherwise injures or degrades the environment of the state is liable to
the state for damages.
• (b) Liability for damages under (a) of this section includes an amount
equal to the sum of money required to restock injured land or waters, to
replenish a damaged or degraded resource, or to otherwise restore the
environment of the state to its condition before the injury.
(c) Damages under (a) of this section shall be recovered by the
attorney general on behalf of the state. (§ 3 ch 120 SLA 1971)
/ Sec. 46.03.790. Wilful violation, (a) A person found guilty of
wilfully violating a provision of this chapter, or a regulation, written
order or directive of the department or of a court made under this
chapter is guilty of a misdemeanor, and upon conviction shall be
punished by a fine of not more than $1,000 and costs of prosecution, or
by imprisonment for not more than one year, or by both such fine, cost,
and imprisonment at the discretion of the court.
(b) Each day upon which a wilful violation of the provisions of this
chapter occurs may be considered a separate and additional violation. (§
Sch 120 SLA 1971)
/ Sec. 46.03.800. Water nuisances, (a) A person is guilty of creating
or maintaining a nuisance if he puts a dead animal carcass, or part of
one, excrement, or a putrid, nauseous, noisome, decaying, deleterious,
or offensive substance into, or in any other manner befouls, pollutes, or
impairs the quality of, a spring, brook, creek, branch, well, or pond of
water which is or may be used for domestic purposes.
(b) A person who neglects or refuses to abate the nuisance upon order
of the department is guilty of a misdemeanor and is punishable as
provided in § 790 of this chapter. In addition to this punishment, the
court shall assess damages against the defendant for the expenses of
abating the nuisance. (§ 3 ch 120 SLA 1971)
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Ark. Stat. Ann. (Supp. 1973)
82-1902. Definitions.—SUBDIVISION 1. The following words and
phrases when used in this Act [§§ 82-1901—82-1909], unless the context
clearly indicates otherwise, shall have the meanings ascribed to them
in this section.
SUBDIVISION 2. [SEWAGE.] "Sewage" means the water-carried waste
products from residences, public buildings, institutions or other build-
ings, including the excrementitious or other discharge from the bodies
of human beings or animals, together with such ground water infiltra-
tion and surface water as may be present.
SUBDIVISION 3. [INDUSTRIAL WASTE.] "Industrial waste" means any
.liquid, gaseous or solid waste substance resulting from any process of
industry, mining, manufacturing, trade or business or from the develop.
ment of any natural resources.
SUBDIVISION 4. [OTHER WASTES.] "Other wastes" means garbage,
municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand
ashes, offal, oil, tar cheniicals and all other substances organic or in-
organic, not sewage or industrial waste which may pollute or tend to
pollute the waters of the State.
SUBDIVISION 5. [POLLUTION.] "Pollution" means such contamination,
or other alteration of the physical, chemical or biological properties,
or [of] any waters of the State, or such discharge of any liquid, gaseous
or solid substance in any waters of the State as will or is likely to create
a nuisance or render such waters harmful or detrimental, or injurious
to public health, safety or welfare, or to domestic, commercial, industrial,
agricultural, recreational, or other legitimate beneficial uses, or to live-
stock, wild animals, birds, fish or other aquatic life.
SUBDIVISION 6. [SEWER SYSTEM.-] "Sewer System" means pipe lines
or conduits, pumping stations, and force mains, and all other construc-
tions, devices, and appliances appurtenant thereto, used for conducting
sewage or industrial waste or other wastes to a point of disposal.
SUBDIVISION 7. [TREATMENT WORKS.] "Treatment Works" means
any plant, disposal field, lagoon, dam, pumping station, constructed
drainage ditch or surface water intercepting ditch, incinerator, area
devoted to sanitary land fills, or other works not specifically mentioned
herein, installed for the purpose of treating, stabilizing or disposing of
sewage, industrial waste, or other wastes.
SUBDIVISION 8. [DISPOSAL SYSTEM.] "Disposal System" means a
system for disposing of sewage, industrial waste and other wastes, and
includes sewer systems and treatment works.
82-1904. Powers and duties of commission.— SUBDIVISION 1. The
Commission is hereby given and charged with the following powers and
duties:
SUBDIVISION 4. [STANDARDS.] To establish and alter such reason-
able pollution standards for any waters of the State in relation to the
use to which they are or may be put as it shall deem necessary for the
purpose of this Act [§§ 82-1901—82-1909];
A-4
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SUBDIVISION 8. [PERMITS.] To issue, continue in effect, revoke,
modify or deny, under such conditions as it may prescribe, to prevent,
control or abate pollution, permits for the discharge of sewage, industrial
waste or other wastes into the waters of the State, and for the instala-
tion, modification or operation of disposal systems or any parts thereof.
SUBDIVISION 9. [REVOCATION OR MODIFICATION OP PERMITS.] To re-
voke or modify any permit issued under this Act whenever it is
necessary, in the opinion of the Commission, for the purpose of pre-
venting or abating pollution of any waters of the State;
SUBDIVISION 10. [RULES AND REGULATIONS.] To adopt, after notice
and public hearing, modify, repeal, promulgate and enforce rules arid
regulations implementing or effectuating the powers and duties of the
Department and the Commission under this Act. Without limiting the
generality of this authority, such rules and regulations may, among
other things, prescribe (a) effluent standards specifying the maximum
amounts or concentrations, and the physical, thermal, chemical, biologi-
cal, and radioactive nature of the contaminants that may be discharged
into the waters of the State or into publicly owned treatment facilities;
(b) requirements and standards for equipment and procedures for
monitoring contaminant discharges at their sources (including publicly
owned treatment facilities and industrial discharges into such facili-
ties), the collection of samples and the collection, reporting and re-
tention of data resulting from such monitoring; and (c) water quality
standards, performance standards, and pre-treatment standards.
^ 82-1909. Violation of law a misdemeanor—Civil action to restrain
violation—Civil penalty.—(a) Any person who violates any provision
of this Act [§§ 82-1901—82-1909, 82-1931—82-1943] or commits any
unlawful act thereunder shall be guilty of a misdemeanor and upon
conviction thereof shall be subject to imprisonment for not more than
one (1) year, or a fine of not more than five thousand dollars ($5,-
000.00) or by both such fine and imprisonment. Each day or part of
a day during which such violation is continued or repeated shall con-
stitute a separate offense.
(b) The Department is authorized to institute a civil action in any
court of competent jurisdiction to restrain any violation of, and to
compel compliance with, the provisions of this Act and of any rules,
regulations, orders, or permits issued pursuant thereto, to require the
taking of such remedial measures as may be necessary or appropriate
to implement or effectuate the provisions and purposes of this Act,
and/or to recover civil penalties, costs, and damages as herein pro-
vided. The fact that any such violation may constitute a misdemeanor
shall not be a bar to the maintenance of such civil action.
(c) Any person who violates any provision of this Act or commits
any unlawful act thereunder shall be subject to a civil penalty in such
amount as the court shall find appropriate, not to exceed five thousand
dollars ($5,000.00) per day of such violation, to the payment of any
expenses reasonably incurred by the State in removing, correcting, or
terminating any adverse effects upon water quality resulting there-
from, including the costs of the investigation, inspection, or survey
establishing such violation or unlawful act, and the payment to tb*
State ot reasonable compensation for any loss or destruction of wild-
life fish, or aquatic life, or for any other actual damage resulting
therefrom. [Acts 1949, No. 472, [Part 1], §9, p. 1324; 1973, No. 262,
§10, p.—]
A-5
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Ariz. Rev. Stat. Ann. (1974)
§ 36-1851. Definitions
In this chapter, unless the context otherwise provides:
1. "Council" means the water quality control council established
by this chapter.
2. "Department" means the department of health services, which
for the purposes of this article includes the council.
* * *
6. "Permit" means a certificate or letter issued by the department
stating the conditions and restrictions governing the discharge of a
pollutant into any waters of the state.
7. "Person" means the state or any agency or institution thereof,
any municipality, political subdivision, public or private corporation,
individual, partnership, association, or other entity, and includes any
officer or governing or managing body of any municipality, political
subdivision, or public or private corporation.
8. "Pollution" means such contamination, or other alteration of
the physical chemical, or biological properties of any waters of the
state, including change in temperature, taste, color, turbidity, or odor
of the waters, or such discharge of any liquid, gaseous, solid, radioac-
tive, or other substance into any waters of the state as will or is like-
ly to create a public nuisance or render such waters harmful, detri-
mental, or injurious to public health, safety, or welfare, or to domes-
tic, agricultural, commercial, industrial, recreational, or other benefi-
cial uses, or to livestock, wild animals, birds, fish or other aquatic
life.
9. "Sewerage system" means pipelines or conduits, pumping sta-
tions, and force mains, and all other structures, devices, appurte-
nances, and facilities used for collecting or conducting wastes to an
ultimate point for treatment or disposal.
10,. "Treatment works" means any plant or other works used for
the purpose of treating, stabilizing, or holding wastes.
11. "Wastes" means sewage, industrial wastes, and all other liq-
uid, gaseous, solid, radioactive, or other substance which may pollute
or tend to pollute any waters of the state. The term "wastes" does
not include agricultural irrigation and drainage waters for which wa-
ter quality standards shall have been established pursuant to this ar-
ticle.
A-6
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§ 36-1864. Injunctive relief; appeal; violation; penalty
A. Whenever in the opinion of the department, after proper no-
tice and hearing, any person is engaging, continues to engage, or
threatens to engage in any act or practice which constitutes or will
constitute a violation of any order of the council or director, the de-
partment shall make application, through the attorney general, to the
superior court for an order enjoining such act or practice. The supe-
rior court after notice, as prescribed by the court, to the parties in in-
terest shall then proceed to hear the matter and if it finds that the
order was lawful and reasonable, it may issue an injunction or a re-
straining order in accordance with the Arizona rules of civil proce-
dure and laws relating thereto. In any action for injunction or re-
straining order brought pursuant to this section, any finding of the
council or director shall be prima facie evidence of the fact or facts
found therein. An appeal or a special writ may be taken from any
such order of the court in the same manner as is provided in civil cas-
B. Whenever the department shall determine, after investigation,
that any person is discharging or causing to be discharged into the
waters of the state directly or indirectly any wastes which in the
opinion of the department constitutes a clear, present, and immediate
danger to the health of the public, the department shall issue its writ-
ten, order to such person that he must immediately discontinue the
discharge of such wastes into the waters of the state, and whereupon
such person shall immediately discontinue such discharge. If such
person, notwithstanding such order, continues the discharge of such
wastes into the waters of the state, the department shall make appli-
cation, through the attorney general, to the superior court of this
state for the county in which the discharge is occurring for a tempo-
rary restraining order, preliminary injunction or permanent injunc-
tion as provided in the Arizona rules of civil procedure. Such* action
in such superior court shall be given precedence over all other mat-
ters pending in such court. An appeal or a special writ may be taken
from any such order of the court in the same manner as is provided
in civil cases.
C. Any person who is denied a permit by the department or who
has such permit revoked or modified shall be afforded an opportunity
for a fair hearing as provided in subsection B of this section in con-
nection therewith upon written application to the director within
thirty days after receipt of notice from the director of such denial,
revocation or modification. On the basis of such hearing the director
shall affirm, modify or revoke the determination made by the depart-
ment.
D. The hearing officer or any other employee of the department
designated by the council or director for that purpose, in connection
with any hearing, shall:
1. Issue subpoenas requiring the attendance and testimony of wit-
nesses whose testimony is material.
2. Issue subpoenas requiring the production of. documentary or
other tangible evidence at any designated place of hearing, upon writ-
ten application by any party, which shall include a showing of the
general relevance, materiality and reasonable particularity of the doc-
umentary or other tangible evidence desired and the facts to be
proved by them.
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§ 36-1857. Water quality standards
A. The council, in addition to other powers and duties enumerated
in § 36-1854, shall adopt, promulgate, modify and amend reasonable
standards of quality of the waters of the state for the prevention,
control and abatement of pollution. It is recognized that due to vari-
able factors no single standard of quality or the amount or degree of
pollutants that is permitted to be discharged into the waters of the
state is applicable to all streams or to different segments of the same
waters or to different discharges into waters. In the fixing of such
standards the council shall give consideration to, but not be limited to
the following:
1. The criteria established by the federal water pollution control
act, as amended, including the water quality act of 1965.
B. In administering this article, including the adoption, promul-
gation, amendment and modification of standards of quality, the
council shall:
1. Not require any present or future appropriator or user of wa-
ter to divert, cease diverting, exchange, cease exchanging, store, cease
storing, or release any water for the purpose of controlling pollution
in the waters of the state.
2. Exclude from water quality standards wholly private waters
closed to all public uses and not discharging into or polluting any oth-
er waters of the state.
§ 36-1858. Prohibitions
It shall be unlawful for any person:
1. To cause pollution of any waters of the state or to place or
cause any wastes to be placed in a location where they are likely to
cause pollution of any waters of the state.
2. To discharge any wastes into any waters of the state which re-
duce the quality of such waters below the water quality standards es-
tablished therefor by the council. Any such action is declared to be a
public nuisance.
3. To discharge any irrigation and drainage waters into any wa-
ters of the state which reduce the quality of such waters below the
water quality standards established therefor by the council.
A-8
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Cal. Water Code (1970), as amended, (Supp. 1974)
§ 13000. Conservation, control, and utilization of water re-
sources; quality; statewide program; regional ad-
ministration
The Legislature finds and declares that the people of the state
have a primary interest in the conservation, control, and utilization
°f the water resources of the state, and that the quality of all the wa-
ters of the state shall be protected for use and enjoyment by the peo-
ple of the state.
The Legislature further finds and declares that activities and
factors which may affect the quality of the waters of the state shall
be regulated to attain the highest water quality which is reasonable,
considering all demands being made and to be made on those waters
and the total values involved, beneficial and detrimental, economic
and social, tangible and intangible.
The Legislature further finds and declares that the health, safely
and welfare of the people of the state requires that there be a state-
wide program for the control of the quality of all the waters of the
•state; that the state must be prepared to exercise its full power and
jurisdiction to protect the quality of waters in the state from degra-
dation originating inside or outside the boundaries of the state; thai
the waters of the state are increasingly influenced by interbasin wa-
ter development projects and other statewide considerations; that
factors of precipitation, topography, population, recreation, agricul-
ture, industry and economic development vary from region to region
within the state; and that the statewide program for water quality
control can be most effectively administered regionally, within a
framework of statewide coordination and policy.
/§ 13050. Definitions
Aa used in this division:
(a) "State board" means the State Water Resources Control
Board.
(b) "Regional board" means any California regional water quali-
fy control board for a region as specified in Section 13200.
(c) "Person" also includes any city, county, district, the state or
any department or agency thereof. "Person" includes the United
States, to the extent authorized by federal law..
(d) "Waste" includes sewage and any and all other waste sub-
stances, liquid, solid, gaseous, or radioactive, associated with human
habitation, or of human or animal origin, or from any producing.
manufacturing, or processing operation of whatever nature, including
such waste placed within containers of whatever nature prior to, and
for purposes of, disposal.
(e) "Waters of the state" means any water, surface or under-
ground, including saline waters, within the boundaries of the state.
(f) "Beneficial uses" of the waters of the state that may be pro-
tected against quality degradation include, but are not necessarily
limited to, domestic, municipal, agricultural and industrial supply;
power generation; recreation; aesthetic enjoyment; navigation; and
preservation and enhancement of fish, wildlife, and other aquatic re-
sources or preserves.
A-9
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(g) "Quality of the water" or "quality of the waters" refers to
chemical, physical, biological, bacteriological, radiological, and other
properties and characteristics of water which affect its use.
(h) "Water quality objectives" means the limits or levels of wa-
ter quality constituents or characteristics which are established for
the reasonable protection of beneficial uses of water or the preven-
tion of nuisance within a specific area.
(i) "Water quality control" means the regulation of any activity
or- factor which may affect the quality of the waters of the state and
Includes the prevention and correction of water pollution and nui-
sance.
(j) "Water quality control plan" consists of a designation or es-
tablishment for the waters within a specified area of (1) beneficial
uses to be protected, (2) water quality objectives, and (3) a program
of implementation needed for achieving water quality objectives.
(k) "Contamination" means an impairment of the quality of the
waters of the state by waste to a degree which creates a hazard to
the public health through poisoning or through the spread of disease.
"Contamination" shall include any equivalent effect resulting from
the disposal of waste, whether or not waters of the state are affected.
(I) "Pollution" means an 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 ben-
eficial uses. "Pollution" may include "contamination."
(m) "Nuisance" means anything which: (1) is injurious to
health, or is indecent or offensive to the senses, or an obstruction to
the free use of property, so as to interfere with the comfortable en-
joyment of life or property, and (2) affects at the same time an en-
tire community or neighborhood, or any considerable number of per-
sons, although the extent of the annoyance or damage inflicted upon
individuals may be unequal, and (3) occurs during or as a result of
the treatment or disposal of wastes.
§ 13243. Prohibition against discharge of waste in certain areas*
A regional board, in a water quality control plan or in waste dis-
charge requirements, may specify certain conditions or areas where
the discharge of waste, or certain types of waste, will not be permit-
ted.
t 13301. Cease and desist orders Is'
When a regional board finds that a discharge of waste is taking place or threaten-
ing to take place in violation of requirements or discharge prohibitions prescribed
by the regional board or the state board, the board may issue an order to cease and
desist and direct that those persons not complying with the requirements or dis-
charge prohibitions (a) comply forthwith, (b) comply in accordance with a time
schedule set by the hoard, or (c) in the event of n threatened violation, take appro-
priate remedial or preventive action. In the event of an existing or threatened vio-
lation of waste discharge requirements in the operation of a community sewer sys-
tem, cease and desist orders may restrict or prohibit the volume, type, or concentra-
tion of waste that might be added to such system by dischargers who did not dis-
charge into the system prior to the issuance of the cease and desist order. Cease
and desist orders may be issued directly by a board, after notice and hearing, or in
accordance with the procedure set forth in Section 13302.
Underline Indicates changes or additions by amendment
A-10
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I 13303. Cease and desist orders; finality on Issuance
Cease and desist orders of the board sball become effective and final * * *
upon issuance thereof. Copies shall be served forthwith by personal service or by
registered mall upon the person being charged with the violation of the require-
ments and upon other affected persons .who appeared at the hearing and re-
quested a copy.
S 13304. Cleanup or abatement order; Injunction; remedial action by govern-
mental entity; expenditures; contracts; payment of costs
(a) Any person who discharges waste Into the'waters of this state In violation of
any waste discharge requirement or other order issued by n regional board or the
state board, or who Intentionally or negligently causes or permits any waste to be
discharged or deposited where it Is, or probably will be, discharged Into the waters
of the state nnd creates, or threatens to create, a condition of pollution or nuisance,
shall upon order of the regional board clean up sucli waste or abate the effects
thereof or. in the case of threatened pollution or nuisance, take other necessary
remedial action. Upon failure of any person to comply with such cleanup 'or abate-
ment order, the Attorney General, at the request of the board, shall petition the su-
perior court for that county for the issuance of an injunction requiring such person
to comply therewith. In any such suit, the court shall have jurisdiction to grant a
prohibitory or mandatory Injunction, cither preliminary or permanent, as the facts
may warrant.
(b) The regional board may expend available moneys to perform any cleanup,
abatement, or remedial work required under the circumstances set forth In sub-
division (a) which in its judgment is required by the magnitude of endeavor or
urgency of prompt action needed to prevent substantial pollution, nuisance, or In-
which the condition was abated and the amount of such lien, and naming the owner
of record of such property, in the office of the county recorder of the county in
which the property is located. Upon such recordation, the lieu shall have the same
force, effect, and priority as if it had been a judgment lien imposed upon real
property which was not exempt from execution, except that it shall attach only to
the property so posted and described in such notice of lien, and shall continue for
10 years from the time of the recording of such notice unless sooner released or
otherwise discharged. Such lieu may be foreclosed by an action brought by the city,
county, other public agency, or state board, on behalf of the regional board, for a
money judgment. Money recovered by a judgment in favor of the state board sball
be returned to the State Water Pollution Cleanup and Abatement Account.
(g) The city, county, other public agency, or state board on behnlf of a regional
board, muy at any time release all or any portion of the property subject to a lien
imposed pursuant to subdivision (f) from the lien or subordinate such lien to other
Hens and encumbrances if it determines that the amount owed is sufficiently
secured by a lien on other property or that the release or subordination of such
lien will not jeopardize the collection of such amount owed. A certificate by such
board, city, county, or other public agency to the effect that any property has been
released from such: lien or that such lien has been subordinated to other liens and
encumbrances shall be conclusive evidence that the property has been released or
that the lien has been subordinated as provided in such certificate.
(b) As used in this section, the words "nonopcrating" or "not in operation" means
the business is not conducting routine operations usually associated with that kind
of business.
I 13350. Civil liabilities; recovery of amount
(a) Any person who (1) intentionally or negligently violates any cease and desist
order hereafter issued, reissued, or amended by a regional board or the state board,
or (2) In violation of any waste discharge requirement or other order Issued, re-
issued, or amended by a regional board or the state board, intentionally or neg-
ligently discharges waste or causes or permits waste to he deposited where it is
discharged into the waters of the state and creates a condition of pollution or nui-
sance, or (3) causes or permits any oil or any residuary product of petroleum to
be deposited in or on any of the waters of the state, except in accordance with waste
discharge requirements or other provisions of this division, may be liable civilly
In a sum of not to exceed six thousand dollars ($6,000) for each day in which such
violation or deposit occurs.
Asterisks * * * Indicate deletions by amendment
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(b) The Attorney General, upon request of • * • _a_ regional board or the
state board, shall petition the superior court to impose, assess and recover such
sums. Except in the case of a violation of a cease and desist order, a regional
board or the state board shall make such request only atter a hearing, with due
notice of the hearing given to all affected persons. In determining such amount,
the court shall take into consideration all relevant circumstances, Including but not
limited to, the extent of harm caused by the violation, the nature and persistence
of the violation, the length of time over which the violation occurs and corrective
action, if any, taken by the discharger.
(c) The provisions of Articles 3 (commencing with Section 13330) and 6 (com-
mencing with Section 13360) of this chapter shall apply to proceedings to impose,
assess and recover an amount pursuant to this article.
(d) Remedies under this section arc in addition to, and do not supersede or limit.
any and all other remedies, civil or criminal.
i 13385. Civil penalties
Any person who discharges pollutants, except as permitted by waste discharge
requirements, or who violates any ccnso and desist order, prohibition, waste dis-
charge requirement, effluent limitation, water quality related effluent limitation,
national standard of performance, prctreatmcnt or toxicity standard or who re-
fuses to comply witli the requirements adopted pursuant to Section 13382 shall
be subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each
day In which such discharge, violation, or refusal occurs. Funds collected shall
be paid to the State Water Pollution Cleanup and Abatement Account
5 13386. Attorney general; recovery of civil penalties; Injunctions
(a) The Attorney General, upon request of a regional board or the state board,
shall petition the superior court to impose, assess and recover the sums provided
in Section 13385.
(b) Upon the violation of the terms of any cease and desist order, prohibition,
waste discharge requirement, effluent limitation, water quality related effluent
limitation, national standard of performance, prctreatmcnt or toxicity standard,
the requirements of Section 13383, or upon the failure of any discharger Into a
public treatment system to comply with any cost or charge adopted by any pub-
lic agency under Section 204(b) of the Federal Water Pollution Control Act, as
amended, the Attorney General, upon the request of the state board or regional
board shall petition the appropriate court for the issuance of a preliminary or
permanent injunction, or both, as may lie appropriate, restraining such person or
persons from continuing the violation. The provisions of subdivisions (b) and (c)
of Section 13331 shall be applicable to proceedings under this subdivision.
(c) With respect to violation of waste discharge requirements or cease and de-
sist orders, remedies under Section 13385 arc in lieu of civil monetary remedies
provided for in Section 13350.
§ 13387. Fines and Imprisonment; subsequent convictions
(a) Any person who willfully or negligently discharges pollutants except as al-
lowed by waste discharge requirements or who willfully or negligently violates
any effluent standard, water quality related effluent standard, national standard
of performance, toxicity or pretreatment standard, or who refuses to comply with
the requirements adopted pursuant to Section 33382, or who violates any cease
and desist order, prohibition, or waste discharge requirement shall be punished
by a fine of not more than twenty-five thousand dollars (?25,000) nor less than
two thousand five hundred dollars (152,500) for each day In which such violation
occurs, or by imprisonment for not more than one year In the county jail, or by
both. If the conviction is for a violation committed after a first conviction of
such person under this section, punishment shall be by a fine of not more than
fifty thousand dollars (.$50,000) for each day in which such violation occurs, or
by imprisonment for not more than two years in the county jail, or both. Funds
collected shall be paid to the State Water Pollution Cleanup and Abatement Ac-
count.
(I)) Any person who knowingly makes any false statement, representation, rec-
ord, report, plnn or other document filed with a regional board or the state board,
or wlio fiilsifies, tampers with, or knowingly renders inaccurate any monitoring
device or method required under this division shall be punished by a fine of not
more than ten thousand dollars ($10,000), or by Imprisonment in a county jail for not
more than six months, or liy both.
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Colo. Rev. Stat. (1973)
25-8-102. Legislative declaration. (1) It is declared that pollution of state
waters constitutes a menace to public health and welfare, creates public nui-
sances, is harmful to wildlife and aquatic life, and impairs domestic, agricul-
tural, industrial, recreational, and other beneficial uses of state waters and
the problem of water pollution in this state is closely related to the problem
of water pollution in adjoining states.
(2) It is further declared to be the public policy of this state to conserve
state waters and to protect, maintain, and improve the quality thereof for
public water supplies, for protection and propagation of wildlife and aquatic
life, and for domestic, agricultural, industrial, recreational, and other bene-
ficial uses; to provide that no pollutant be released into any state waters with-
out first receiving the treatment or other corrective action necessary to pro-
tect the legitimate and beneficial uses of such waters; to provide for the pre-
vention, abatement, and control of new or existing water pollution; and to
cooperate with other states and the federal government in carrying out these
objectives.
(3) It is further declared that protection of the quality of state waters and
the prevention, abatement, and control of water pollution are matters of
statewide concern and affected with a public interest, and the provisions of
this article are enacted in the exercise of the police powers of this state for
the purpose of protecting the health, peace, safety, and general welfare of
the people of this state.
(4) This article and the agencies authorized under this article shall be the
final authority in the administration of water pollution prevention, abatement,
and control. Notwithstanding any other provision of law, no department or
agency of the state, and no municipal corporation, county, or other political
subdivision, having jurisdiction over water pollution prevention, abatement,
and control, shall issue any authorization for the discharge of pollutants into
state waters unless authorized to do so in accordance with this article.
25-8-103. Definitions. As used in this article, unless the context otherwise
requires:
* * *
(4) "Effluent limitation" means any restriction or prohibition established
under state or federal law on quantities, rates, and concentrations of chem-
ical, physical, biological, and other constituents which are discharged from
point sources into state waters, including but not limited to standards of per-
formance for new sources, toxic effluent standards, and schedules of compli-
ance.
(5) ''Federal act" means the federal water pollution control act amend-
ments of 1972 as from time to time amended.
(6) "Individual sewage disposal system" means a system or facility for
treating, neutralizing, stabilizing, or disposing of sewage which is not a part
of or connected to a sewage treatment works.
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(9) "Person" means an individual, corporation, partnership, association,
state, or political subdivision thereof, federal agency, state agency, municipal-
ity, commission, or interstate body.
(10) "Point source" means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which pollutants
are or may be discharged.
(11) "Pollutant" means dredged spoil, dirt, slurry, solid waste, incinerator
residue, sewage, sewage sludge, garbage, trash, chemical waste, biological
nutrient, biological material, radioactive material, heat, wrecked or discarded
equipment, rock, sand, or any industrial, municipal, or agricultural waste.
(12) "Pollution" means the man-made, man-induced, or natural alteration
of the physical, chemical, biological, and radiological integrity of water.
(13) "Promulgate" means and includes authority to adopt, and from time
to time amend, modify, publish, and put into effect.
(14) "Schedule of compliance" means a schedule of remedial measures
and times including an enforceable sequence of actions or operations leading
to compliance with any control regulation or effluent limitation.
(15) "Sewage treatment works" means a system or facility for treating,
neutralizing, stabilizing, or disposing of sewage which system or facility has
a designed capacity to receive more than two thousand gallons of sewage
per day. The term "sewage treatment works" includes appurtenances such
as outfall and outlet sewers, pumping stations, interceptors, collection lines,
and related equipment.
(16) "State waters" means any and all surface and subsurface waters
which are contained in or flow in or through this state, except waters in
sewage systems, waters in treatment works of disposal systems, waters in
potable water distribution systems, and all water withdrawn for use until use
and treatment have been completed.
(17) "Water quality standard" means any standard promulgated pursuant
to section 25-8-204.
25-8-204. Water quality standards. (1) Water quality standards shall be
promulgated by the commission by regulations which describe water char-
acteristics or the extent of specifically identified pollutants for state waters.
(2) Water quality standards may be promulgated with respect to any
measurable characteristic of water, such as:
(a) Toxic substances;
(b) Suspended solids, colloids, and combinations of solids with other
suspended substances;
(c) Bacteria, fecal coliform, fungi, viruses, and other biological constit-
uents and characteristics;
(d) Dissolved oxygen, and the extent of oxygen demanding substances;
(e) Phosphates, nitrates, and other dissolved nutrients;
(f) pH and hydrogen compounds;
(g) Chlorine, heavy metals, and other chemical constituents;
(h) Salinity, acidity, and alkalinity;
(i) Trash, refuse, oil and grease, and other foreign material;
(j) Taste, odor, color, and turbidity;
(k) Temperature.
(3) Water quality standards may be promulgated for use in connection
with any one or more of the classes of state waters authorized pursuant to
section 25-8-203 and may be made applicable with respect to any designated
portion of state water or to all state waters.
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25-8-307. Emergencies. Whenever the division determines, after investi-
gation, that any person is discharging or causing to be discharged or is about
to discharge into any state waters, directly or indirectly, any pollutant which
in the opinion of the division constitutes a clear, present, and immediate
danger to the health or livelihood of members of the public, the division shall
issue its written order to said person that he must immediately cease or pre-
vent the discharge of such pollutant into such Waters and thereupon such
person shall immediately discontinue such discharge. Concurrently with the
issuance of such order the division may seek a restraining order or injunction
pursuant to section 25-8-607.
25-8-604. Suspension, modification, and revocation of permit. Upon a find-
ing and determination, after hearing, that a violation of a permit provision
has occurred, the division shall suspend, modify, or revoke.the pertinent
permit, or take such other action with respect to the violation as may be
authorized pursuant to regulations promulgated by the commission.
25-8-605. Cease and desist orders. If the division determines, with or with-
out hearing, that there exists a violation of any provision of this article or
of any order, permit, or control regulation issued or promulgated under
authority of this article, the division may issue a cease and desist order. Such
order shall set forth the provision alleged to be violated, the facts alleged
to constitute the violation, and the time by which the acts or practices com-
plained of must be terminated.
25-8-606. Clean-up orders. The division may issue orders to any person
to clean up any material which he, his employee, or agent has accidentally
or purposely dumped, spilled, or otherwise deposited in or near state waters
which may pollute them. The division may also request the district attorney
to proceed and take appropriate action under section 16-13-305 and sections
16-13-307 to 16-13-315, or section 18-4-511, C.R.S. 1973.
25-8-607. Restraining orders and injunctions. (1) In the event any person
fails to comply with a cease and desist order or clean-up order that is not
subject to a stay pending administrative or judicial review, the division may
request the district attorney for the judicial district in which the alleged viola-
tion exists or the attorney general to bring, and if so requested it shall be
his duty to bring, a suit for a temporary restraining order, preliminary injunc-
tion, or permanent injunction to prevent any further or continued violation
of such order. In any such suit the final findings of the division, based upon
evidence in the record, shall be prima facie evidence of the facts found
therein.
(2) Suits under this section shall be brought in the district or county court
where the discharge occurs. Emergencies shall be given precedence over all
other matters pending in such court. The institution of such injunction pro-
ceeding by the division shall confer upon such court exclusive jurisdiction
to determine finally the subject matter of the proceeding.
25-8-608. Civil penalties. (1) Any person who violates any provision of
any permit issued under this article or any final cease and desist order or
clean-up order shall be subject to a civil penalty of not more than ten thou-
sand dollars per day for each day during which such violation occurs.
(2) Upon application of the division, penalties shall be determined by the
commission after hearing as to the amount thereof and may be collected by
the division by action instituted in a court of competent 'jurisdiction for
collection of such penalty. A stay of any order of the division pending judicial
review shall not relieve any person from any liability under subsection (1)
of this section, but the reason for the request for judicial review shall be
considered in the determination of the amount of the penalty.
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25-8-609. Criminal pollution of state waters - penalties. (1) Any person
who discharges any pollutant into any state waters commits criminal pollution
of state waters if such discharge is made:
(a) In violation of any permit issued under this article; or
(b) In violation of any cease and desist order or clean-up order issued
by the division which is final and not stayed by court order; or
(c) Without a permit, if a permit is required by the provisions of this arti-
cle for such discharge, unless there is then pending an application for such
a permit; or
(d) In violation of any applicable control regulation, unless a permit has
been issued therefor or unless there is then pending an application for such
permit.
(2) Prosecution under paragraphs (a) and (d) of subsection (1) of this
section shall be commenced only upon complaint filed by the division.
(3) Any person who commits criminal pollution of state waters shall be
fined, for each day the violation occurs, as follows:
(a) If the violation is committed with criminal negligence or recklessly,
as defined in section 18-1-501, C.R.S. 1973, the maximum fine shall be twelve
thousand five hundred dollars.
(b) If the violation is committed knowingly or intentionally, as defined
in section 18-1-501, C.R.S. 1973, the maximum fine shall be twenty-five thou-
sand dollars.
(c) If two separate offenses under this article occur in two separate
episodes during a period of two years, the maximum fine for the second
offense shall be double the amounts specified in paragraphs (a) and (b) of
this subsection (3).
25-8-612. Remedies cumulative. (1) It is the purpose of this article to
provide additional and cumulative remedies to prevent, control, and abate
water pollution and protect water quality.
(2) No action pursuant to section 25-8-609 shall bar enforcement of any
provision of this article, or of any rule or order issued pursuant to this article
by any authorized means.
(3) Nothing in this article shall abridge or alter rights of action or remedies
existing on July 6, 1973, or after said date, nor shall any provision of this
article or anything done by virtue of this article be construed as estopping
individuals, cities, towns, counties, cities and counties, or duly constituted
political subdivisions of the state, from the exercise of their respective rights
to suppress nuisance's.
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Gen. Stat. Conn. (1973)
Sec. 25-54a. Declaration of policy. It is found and declared that the pollution
of the" waters of the state is inimical to the public health, safety and welfare
of the inhabitants of the state, is a public nuisance and is harmful to wildlife,
fish and aquatic life and impairs domestic, agricultural, industrial, recreational
and other legitimate beneficial uses of water, and that the use of public funds
and the granting of tax exemptions for the purpose of controlling and eliminating
such pollution is a public use and purpose for which public monies may be
expended and tax exemptions granted, and the necessity and public interest for
the enactment of this chapter and the elimination of pollution is hereby declared
as a matter of legislative determination. (1967, P. A. 57, S. 1.)
Sec. 25-54b. Definitions. As used in this chapter: "commissioner" means the
commissioner of environmental protection; "waters" means all tidal waters,
harbors, estuaries, rivers, brooks, watercourses, waterways, wells, springs,
lakes, ponds, marshes, drainage systems, and all other surface or underground
streams, bodies or accumulations of water, natural or artificial, public or private,
which are contained within, flow through or border upon this state or any por-
tion thereof; "wastes" means sewage or any substance, liquid, gaseous, solid
or radioactive, which may pollute or tend to pollute any of the waters of the
state; "pollution" means harmful thermal effect or the contamination or render-
ing unclean or impure or prejudicial to public health of any waters of the state
by reason of any wastes or other material discharged or deposited therein by
any public or private sewer or otherwise so as directly or indirectly to come
in contact with any waters; "rendering unclean or impure" means any alteration
of the physical, chemical or biological properties of any of the waters of the
state, including, but not limited to, change in odor, color, turbidity or taste;
"harmful thermal effect" means any significant change in the temperature of
any waters resulting from a discharge therein, the magnitude of which tempera-
ture change does or is likely to render such waters harmful, detrimental or
injurious to public health, safety or welfare, or to domestic, commercial, indus-
trial, agricultural, recreational or o'ther legitimate beneficial uses, or to livestock,
wild animals, birds, fish or "other aquatic life; "person" means any individual,
partnership, association, firm, corporation or other entity, except a municipality,
and includes any officer or governing or managing body of any partnership,
association, firm or corporation; "community pollution problem" means the
existence of pollution which, in the sole discretion of the commissioner, can
best be abated by the action of a municipality; "municipality" means any
metropolitan district, town, consolidated town and city, consolidated town and
borough, city, borough, village, fire and sewer district, sewer district and each
municipal organization having authority to levy and collect taxes or make
charges for its authorized function; "discharge" means the emission of any
water, substance or material into the waters of the state, whether or not such
substance causes pollution; "pollution abatement facility" means treatment
works which are used in the treatment of waters, including the necessary inter-
cepting sewers, outfall sewers, pumping, power and other equipment, and their
appurtenances, and includes any extensions, improvements, remodeling, addi-
tions and alterations thereof; "disposal system" means a system for disposing
of or eliminating wastes, either by surface or underground methods, and
includes sewage systems, pollution abatement facilities, disposal wells and other
systems; "federal water pollution control act" means the Federal Water Pollu-
tion Control Act, 33 U.S.C. section 466 et seq., including amendments thereto
and regulations thereunder; "order to abate pollution" includes an order to
abate existing pollution or to prevent reasonably anticipated sources of pollu-
tion. (1967, P.A. 57, S. 2; 1971, P.A. 872, S. 79.)
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Sec. 25-54e. Standards of water quality, (a) The commissioner of environ-
mental protection shall adopt, and may thereafter amend, standards of water
quality applicable to the various waters of the state or portions thereof as pro-
vided in subdivision (a) of section 22a-6. Such standards shall be consistent with
the federal water pollution control act and shall be for the purpose of qualifying
the state and its municipalities for available federal grants and for the purpose
of providing clear and objective public policy statements of a general program
to improve the water resources of the state; provided no standard of water qual-
ity adopted shall plan for, encourage or permit any wastes to be discharged
into any of the waters of the state without having first received the treatment
available and necessary for the elimination of pollution. Such standards of qual-
ity shall: (1) Apply to interstate waters or portions thereof within the state; (2)
apply to such other waters within the state as the commissioner may determine
is necessary; (3) protect the public health and welfare and promote the economic
development of the state; (4) preserve and enhance the quality of state waters
for present and prospective future use for public water supplies, propagation
of fish and aquatic life and wildlife, recreational purposes and agricultural,
industrial and other legitimate uses; (5) be consistent with health standards as
established by the state department of health.
(b) Prior to adopting, amending or repealing standards of water quality, the
commissioner shall conduct a public hearing. Notice of such hearing specifying
the waters for which standards are sought to be adopted, amended or repealed
and the time, date and place of such hearing shall be published as provided
in said subdivision (a) of section 22a-6 and also at least twice during the thirty-
day period preceding the date of the hearing in a newspaper having a general
circulation in the area affected and shall be given by certified mail to the chief
executive officer of each municipality in such area. Prior to the hearing the
commissioner shall make available to any interested person any information he
has as to the water which is the subject of the hearing and the standards under
consideration, and shall afford to any interested person the opportunity to
submit to him any written material. At the hearing, any person shall have the
right to make a written or oral presentation. A full transcript or recording of
each hearing shall be made and kept available in the files of the department
of environmental protection.
(c) The commissioner shall establish the effective date of the adoption,
amendment or repeal of standards of water quality, subject to the provisions
of subdivision (a) of section 22a-6. Notice of such adoption, amendment or
repeal shall be published in said law journal upon acceptance thereof by the
federal government.
(d) The commissioner shall monitor the quality of the subject waters to
demonstrate the results of his program to abate pollution.
Sec. 25-54L Pollution or discharge of wastes prohibited. No person or munici-
pality shall cause pollution of any of the waters of the state or maintain a dis-
charge of any treated or untreated wastes in violation of any provision of this
chapter. (1967, P.A. 57, S. 6.)
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Sec. 2S-54g. Orders to municipalities to abate pollution. If the commissioner
finds that'any punicipality is causing portion of the waters of the state, or
,that a community pollution problem exists, or that pollution by a municipality
or a community pollution problem can reasonably be anticipated in the future,
he shall, issue to the municipality an order to abate pollution. If the Commis-
. sioner, after giving due regard to regional factors, determines that such pollution
can best be abated by the action of two or more adjacent municipalities, he
may issue his order jointly or severally to such municipalities. If a community
pollution problem exists in, or if pollution is caused by, a municipality
geographically located all or partly within the territorial limits of another
municipality, the commissioner shall, after giving due regard to regional .factors,
determine which municipality shall be ordered to abate the pollution or shall,
after giving due regard to regional factors, issue an order to both of such
municipalities jointly to provide the facilities necessary to abate the pollution.
Any order issued pursuant to this section shall include a time schedule for action
by the municipality or municipalities, as the case may be, which may require,
but is not limited to, the following steps to be taken by such municipality or
municipalities: (a) Submission of an engineering report outlining the problem
and recommended solution therefor for approval by the commissioner; (b) sub-
mission of contract plans and specifications for approval by the commissioner;
(c) arrangement of financing; (d) acceptance of state and federal construction
grants; (e) advertisement for construction bids; (f) start of construction; (g) plac-
ing in operation. (1967, P.A. 57, S. 7; 1969, P.A. 153; 1971.-P.A. 872, S. 83.)
Sec. 25-54h. Order to person to abate pollution. If the commissioner finds
that any person prior to May 1, 1967, has caused pollution of any of the waters
of the state, which pollution recurs or continues after said date, he shall issue
an order to abate pollution to such person. The order shall include a time sched-
ule for the accomplishment of the necessary steps leading to the abatement of
the pollution. This section shall not apply to any person who is subject to the
provisions of section 25-54L (1967, P.A. 57, S. 8; 1971, P.A. 872, S. 84.)
Sec. 25-54k. Order to correct potential sources of pollution. If the commis-
sioner finds that any person is maintaining any facility or condition which
reasonably can be expected to create a source of pollution to the waters of
the state, he shall issue an order to such person maintaining such facility or
condition to take the necessary steps to correct such potential source of pollu-
tion. Any person who receives an order pursuant to this section shall have the
right to a hearing and an appeal in the same manner as is provided in sections
25-54o and 25-54p. If the commissioner finds that the recipient of any such order
fails to comply therewith, he shall request the attorney general to bring an action
in the superior court for Hartford county to enjoin such person from maintaining
such potential source of pollution to the waters of the state. All actions brought
by the attorney general pursuant to the provisions of this section shall have
precedence in the order of trial as provided in section 52-191. (1967, P.A. 57,
S. 11; 1971, P.A. 872,8.87.)
Sec. 2S-54n. Injunction. If any person, or municipality fails to comply with
any order to abate pollution, or any. part thereof, issued pursuant to the provi-
sions of section 25-54g, 25-54h, 25-54J or 25-541, and no request for a hearing
on such order or appeal therefrom is pending and the time for making such
request or taking such appeal has expired, the commissioner shall request the
attorney general to bring an action in the superior court for Hartford county
to enjoin such person or municipality from maintaining such pollution and to
comply fully with such order or any part thereof. All actions brought by the
attorney general pursuant to the provisions of this section shall have precedence
in the order of trial as provided in section 52-191. (1967, P.A. 57, S. 14; 1971,
P.A. 872, S. 90.)
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Sec. 22a-16. Action for declaratory and equitable relief against pollution. The
attorney general, any political subdivision of the state, any instrumentality or
agency of the state or of a political subdivision thereof, any person, partnership,
.corporation, association, organization or other legal entity may maintain an
action in the superior court for the county wherein the defendant is located,
resides or conducts business, except that where the state is the defendant, such
action shall be brought in Hartford county, for declaratory and equitable relief
against the state, any political subdivision thereof, any instrumentality or agency
of the state or of a political subdivision thereof, any person, partnership, cor-
poration, association, organization or other legal entity, acting alone, or in
combination with others, for the protection of the public trust in the air, water
and other natural resources of the state from unreasonable pollution, impairment
or destruction. (1971, P.A. 96, S. 3.)
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Del. Code Ann. tit. 7 (1974)
§ 6001. Findings, policy and purpose.
(a) Findings. — The General Assembly hereby makes the following findings
concerning the development, utilization, and control of the land, water, underwa-
ter and air resources of the State:
(1) The development, utilization, and control of the land, water, underwa-
ter and air resources of the State are vital to the people in order to assure
adequate supplies for domestic, industrial, power, agricultural, recreational
and other beneficial uses;
(2) The development and utilization of the land, water, underwater and
air resources must be regulated to ensure that the land, water, underwater
and air resources of the State are employed for beneficial uses and not
wasted;
(3) The regulation of the development and utilization of the land, water,
underwater and air resources of the State is essential to protect beneficial
uses and to assure adequate resources for the future;
(4) The land, water, underwater and air resources of the State must be
protected and conserved to assure continued availability for public recre-
ational purposes and for the conservation of wildlife and aquatic life;
(5) The land, water, underwater and air resources of the State must be
protected from pollution in the interest of the health and safety of the
public;
(6) The land, water, underwater and air resources of the State can best
be utilized, conserved, and protected if utilization thereof is restricted to
beneficial uses and controlled by a state agency responsible for proper
development and utilization of the land, water, underwater and air re-
sources of the State;
(7) Planning for the development and utilization of the land, water, under-
water, and air resources is essential in view of population growth and the
expanding economic activity within the State.
(b) Policy. — In view of the rapid growth of population, agriculture, industry,
and other economic activities, the land, water and air resources of the State must
be protected, conserved, and controlled to assure their reasonable and beneficial
use in the interest of the people of the State. Therefore, it is the policy of this
State that:
(1) The development, utilization, and control of all the land, water, under-
water and air resources shall be directed to make the maximum contribution
to the public benefit; and
(2) The State, in the exercise of its sovereign power, acting through the
Department should control the development and use of the land, water,
underwater and air resources of the State so as to effectuate full utilization,
conservation, and protection of the water and air resources of the State.
(c) Purpose. — It is the purpose of this chapter to effectuate state policy by
providing for:
(1) A program for the management of the land, water, underwater and
air resources of the State so directed as to make the maximum contribution
to the interests of the people of this State;
(2) A program for the control of pollution of the land, water, underwater
and air resources of the State to protect the public health, safety and wel-
fare;
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(3) A program for the protection and conservation of the land, water,
underwater and air resources of the State, for public recreational purposes,
and for the conservation of wildlife and aquatic life;
(4) A program for conducting and fostering research and development
in order to encourage maximum utilization of the land, water, underwater
and air resources of the State;
(5) A program for cooperating with federal, interstate, state, local gov-
ernmental agencies and utilities in the development and utilization of land,
water, underwater and air resources;
(6) A program for improved solid waste storage, collection, transporta-
tion, processing and disposal by providing that such activities may hence-
forth be conducted only in an environmentally acceptable manner pursuant
to a permit obtained from the Department. (7 Del. C. 1953, § 6001; 59 Del.
Laws, c. 212, § 1.)
§ 6002. Definitions.
The following words and phrases shall have the meaning ascribed to them in
this chapter unless the context clearly indicates otherwise:
(1) "Activity" means construction, or operation, or use of any facility,
property, or device.
(2) "Air contaminant" means particulate matter, dust, fumes, gas, mist,
smoke, or vapor or any combination thereof, exclusive of uncombined water.
(3) "Air pollution" means the presence in the outdoor atmosphere of 1
or more air contaminants in sufficient quantities and of such characteristics
and duration as to be injurious to human, plant or animal life or to property,
or which unreasonably interferes with the enjoyment of life and property
within the jurisdiction of this State, excluding all aspects of employer-
employee relationships as to health and safety hazards.
(4) "Board" means the Environmental Appeals Board.
(5) "Department" means the Department of Natural Resources and Envi-
ronmental Control.
(6) "Garbage" shall mean any putrescible solid and semisolid animal
and/or vegetable wastes resulting from the production, handling, prepara-
tion, cooking, serving or consumption of food or food materials.
(7) "Ground water" means any water naturally found under the surface
of the earth.
(8) "Hazardous waste" means any element or compound which when
discharged in any quantity on land or into air or into or upon waters and
including ground water, presents an imminent and substantial danger to
public health or welfare, aquatic organisms, including but not limited to,
fish, shellfish, terrestrial life, shorelines, and beaches.
(9) "Industrial waste" means any water-borne liquid, gaseous, solid, or
other waste substance or a combination thereof resulting from any process
of industry, manufacturing, trade or business, or from the development of
any agricultural or natural resource.
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(10) "Liquid waste" means any industrial waste or sewage or other
wastes or any combination thereof which may potentially alter the chemical,
physical, or biological integrity of water from its natural state.
(11) "Liquid waste hauler" means any person who engages in the removal
of liquid wastes from septic tanks, cesspools, seepage pits, holding tanks
or other such devices and conveys such liquid waste to a location removed
from the point of acceptance.
(12) "Liquid waste treatment plant operator" means any person who has
direct responsibility for the operation of a liquid waste treatment plant.
(13) "Oil" means oil of any kind and in any form, including but not limited
to, petroleum products, sludge, oil refuse, oil mixed with other wastes and
all other liquid hydrocarbons regardless of specific gravity.
(14) "Other wastes" means garbage, refuse, decayed wood, sawdust,
shavings, bark, sand, lime cinders, ashes, offal, oil, tar, dye-stuffs, acids,
chemicals, and all discarded substances other than sewage or industrial
wastes.
(15) "Person" means any individual, partnership, corporation, associa-
tion, institution, cooperative enterprise, municipality, commission, political
subdivision or duly established legal entity.
(16) "Pollutant" means dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt, and industrial, municipal and agricultural waste dis-
charged into water.
(17) "Refuse" means any putrescible or nonputrescible solid waste, ex-
cept human excreta, but including garbage, rubbish, ashes, street cleanings,
dead animals, offal and solid agricultural, commercial, industrial, hazardous
and institutional wastes and construction wastes resulting from the opera-
tion of a contractor.
(18) "Rubbish" means any nonputrescible solid waste, excluding ashes,
such as cardboard, paper, plastic, metal or glass food containers, rags,
waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather,
crockery, and other waste materials.
(19) "Secretary"' means the Secretary of the Department of Natural Re-
sources and Environmental Control or his duly authorized designee.
(20) "Sewage" means water-carried human or animal wastes from septic
tanks, water closets, residences, buildings, industrial establishments, or
other places, together with such ground water infiltration, subsurface wa-
ter, admixtures of industrial wastes or other wastes as may be present.
(21) "Solid waste" means any garbage, refuse or rubbish or any combina-
tion thereof with insufficient liquid content to be free flowing.
(22) "Surface water" means water occurring generally on the surface of
the earth.
(23) "Variance" means a permitted deviation from an established rule or
regulation, or plan, or standard or procedure.
(24) "Water facility" means any reservoir, dam, waterway obstruction or
well, or appurtenances needed for withdrawal, treatment, storage and sup-
ply of water. . , , .. ,.
(25) "Water pollution" means the man-made or man-induced alteration
/ of the chemical, physical, biological or radiological integrity of water.
(26) "Water well contractor" means any person engaged in the business
of contracting for the construction of water wells and/or installation of
pump"ng equipment in or for wells. (7 Del. C. 1953, § 6002; 59 Del. Laws,
c. 212, § 1.)
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§ 6003. Permit — Required.
(a) No person shall, without first having obtained a permit from the Secretary,
undertake any activity:
(1) In a way which may cause or contribute to the discharge of an air
contaminant; or
(2) In a way which may cause or contribute to discharge of a pollutant
into any surface or ground water; or
(3) In a way which may cause or contribute to withdrawal of ground
water or surface water or both; or
(4) In a way which may cause or contribute to the collection, transporta-
tion, storage, processing or disposal of solid wastes; or
(5) To construct, maintain or operate a pipeline system including any
appurtenances such as a storage tank or pump station; or
(6) To construct any water facility; or
(7) To plan or construct any highway corridor which may cause or contrib-
ute to the discharge of an air contaminant or discharge of pollutants into
any surface or ground water.
§ 6005. Enforcement; civil penalties.
(a) The Secretary shall enforce this chapter.
(b) Whoever violates this chapter or any rule or regulation duly promulgated
thereunder, or any condition of a permit issued pursuant to § 6003 of this title,
or any order of the Secretary, shall be punishable as follows:
(1) If the violation has been completed, by a civil penalty imposed by
Superior Court of not less than $1,000 nor more than $10,000 for each
completed violation. If the violation has been completed and there is a
substantial likelihood that it will reoccur, the Secretary may also seek a
permanent or preliminary injunction or temporary restraining order in the
Court of Chancery.
(2) If the violation is continuing, the Secretary may seek a monetary
penalty as provided in paragraph (1) of this subsection. If the violation is
continuing or is threatening to begin, the Secretary may also seek a tempo-
rary restraining order or permanent injunction in the Court of Chancery.
In his discretion, the Secretary may endeavor by conciliation to obtain com-
pliance with all requirements of this chapter. Conciliation shall be giving
written notice to the responsible party (i) specifying the complaint, (ii)
proposing a reasonable time for its correction, (iii) advising that a hearing
on the complaint may be had if requested by a date stated in the notice, and
(iv) notifying that a proposed correction date will be ordered unless a hear-
ing is requested. If'no hearing is requested on or before the date stated in
the notice, the Secretary may order that the correction be fully implemented
by the proposed date or may, on his own initiative, convene a hearing, in
which the Secretary shall publicly hear and consider any relevant submis-
sion from the responsible party as provided in § 6006. (7 Del. C. 1953, § 6005;
59 Del. Laws, c. 212, § 1.)
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§ 6013. Criminal penalties.
(a) Any person who wilfully or negligently (1) violates § 6003 of this title or
violates any condition or limitation included in a permit issued pursuant to § 6003
of this title or (2) violates any requirements of a statute or regulation respecting
monitoring, recording, and reporting of a pollutant or air contaminant discharge;
or (3) violates a pretreatment standard or toxic effluent standard with respect
to introductions of pollutants into publicly owned treatment works shall be
punished by a fine of not less than $2,500 nor more than $25,000 for each day
of such violation.
(b) Any person who knowingly makes any false statement, representation, or
certification in any application, record, report, plan or other document filed or
required to be maintained under this chapter, or under any permit, rule, regula-
tion or order issued under this chapter, or who falsifies, tampers with, or know-
ingly renders inaccurate any monitoring device or method required to be
maintained under this chapter; shall upon conviction, be punished by a fine of
not less than $500 nor more than $5,000 or by imprisonment for not more than
6 months, or both.
(c) The Superior Court shall have jurisdiction of offenses under this section.
(7 Del. C. 1953, § 6013; 59 Del. Laws, c. 212,. § 1.)
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Fla. Stat. Ann. (1972) , &* amended, (Supp. 1975)
403.021 Legislative declaration; public policy
(1) The pollution of the air and waters of this state consti-
tutes a menace to public health and welfare, creates public nui-
sances, is harmful to wildlife, fish and other aquatic life, and
impairs domestic, agricultural, industrial, recreational, and oth-
er beneficial uses of air and water.
(2) It is declared to be the public policy of this state to con-
serve the waters of the state and to protect, maintain, and im-
prove the quality thereof for public water supplies, for the prop-
agation of wildlife, fish and other aquatic life, and for domestic,
agricultural, industrial, recreational, and other beneficial uses,
and to provide that no wastes be discharged into any waters of
the state without first being given the degree of treatment nec-
essary to protect the beneficial uses of such water.
(3) It is declared to be the public policy of this state and the
purpose of this act to achieve and maintain such, levels of air
quality as will protect human health and safety, and to the
greatest degree practicable, prevent injury to plant and animal
life and property, foster the comfort and convenience of the peo-
ple, promote the economic and social development of this state
and facilitate the enjoyment of the natural attractions of this
state.
(4) It is declared that local and regional air and water pollu-
tion control programs are to be supported to the extent practica-
ble as essential instruments to provide for a coordinated state-
wide program of air and water pollution prevention, abatement
and control for the securing and maintenance of appropriate lev-
els of air and water quality.
(5) It is hereby declared that the prevention, abatement and
control of the pollution of the air and waters of this state are af-
fected with a public interest, and the provisions of this act are
enacted in the exercise of the police powers of this state for the
purpose of protecting the health, peace, and safety, and general
welfare of the people of this state.
(6) The legislature finds and declares that control, regula-
tion, and abatement of the activities which are causing or may
cause pollution of the air or water resources in the state and
which are or may be detrimental to human, animal, aquatic, or
plant life, or to property, or unreasonably interfere with the
comfortable enjoyment of life or property be increased to insure
conservation of natural resources, to insure a continued safe en-
vironment, to insure purity of air and water, to insure domestic
water supplies, to insure protection and preservation of the pubi
lie health, safety, welfare, and economic well-being, to insure
and provide for recreational and wildlife needs as the population
increases and the economy expands, to insure a continuing
growth of the economy and industrial development.
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403.031 Definitions
In construing this chapter, or rules and regulations adopted
pursuant thereto, the words, phrases or terms, unless the context
otherwise indicates, shall have the following meanings:
SW "Department" is the department of pollution control.
(2) "Pollution" is the presence in the outdoor atmosphere or
waters of the state of any one or more substances, contaminants,
or noise in quantities which are or may be potentially harmful
or injurious to human health or welfare, animal or plant life, or
property, or unreasonably interfere with the enjoyment of life
or property, including outdoor recreation.
s-(8) "Waters" shall include, but not be limited to rivers, lakes,
streams, springs, impoundments, and all other waters or bodies
of water, including fresh, brackish, saline, tidal, surface or un-
derground. Waters owned entirely by one person other than the
state are included only in regard to possible discharge on other
property or water. Underground waters include, but are not
limited to, all underground waters passing through pores of rock
or soils or flowing through in channels, whether man-made or
natural.
(4) "Contaminant" is any substance which is harmful to
plant, animal or human life.
(5) "Wastes" means sewage, industrial wastes, and all other
liquid, gaseous, solid, radioactive, or other substances which
may pollute or tend to pollute any waters of the state.
* * *
(10) "Source" is any and all points of origin of the item de-
fined in subsection (4) of this section, whether privately or pub-
licly owned or operated.
(11) "Person" means the state or anyi agency or institution
thereof, any municipality, political subdivision, public or private
corporation, individual, partnership, association, or other entity,
and includes any officer or governing or managing body of any
municipality, political subdivision, or public or private corpora-
tion.
(12) "Effluent limitations" means any restriction established by the ae-
partment on quantities, rates, [or]« concentrations of chemical, physical, bio-
logical, [or] * other constituents which are discharged from sources into waters
of the state.
403.061 Department; powers and duties
The department shall have the power and the duty to control
and prohibit pollution of air and water in accordance with the
law and rules and regulations adopted and promulgated by it,
and for this purpose to:
(1) Approve and promulgate current and long-range plans
developed to provide for air and water quality control and pollu-
tion abatement.
(7) Adopt, modify and repeal rules and regulations to carry out the intent
«id tmrDOsesat this act. Any rules or regulations adopted pursuant to this
^.haTbTconsiTnt with provisions of federal law, If any, relating to con-
trol of emissions from motor vehicles, effluent limitations, pretreatment
requirements, or standards of performance.
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(10) Issue such orders as may be necessary to effectuate the
control of air and water pollution and enforce the same by all
appropriate administrative and judicial proceedings.
(11) Adopt a comprehensive program for the prevention, con-
trol, and abatement of pollution of the air and waters of the
state, and from time to time review and modify such program as
necessary.
(12) In order to develop a comprehensive program for the
prevention, abatement, and control of the pollution of the waters
of the state, a grouping of the waters into classes may be made
in accordance with the present and future most beneficial uses,
such classifications may from time to time be altered or modi-
fied; provided, however, before any such classification is made,
or any modifications made thereto, public hearings shall be held
by the department.
(13) Establish ambient air quality and water quality stand-
ards for the state as a whole or for any part thereof, and also
standards for the abatement of excessive and unnecessary noise.
The department shall cooperate with the department of highway
safety and motor vehicles in the development of regulations re-
quired by § 316.272 (1).
(27)' Perform any other act necessary to control and prohibit
air and water pollution, and to delegate any of its responsibili-
ties, authority and powers, other than rule-making powers, to
any state agency now or hereinafter established.
403.062 Pollution control; underground water, lakes, etc.
The department and its agents shall have general control and
supervision over underground water, lakes, rivers, streams, ca-
nals, ditches and coastal waters under the jurisdiction of the
state insofar as their pollution -may affect the public health or
impair the interest of the public or persons lawfully using them.
403.088 Water pollution operation permits; temporary per-
mits; conditions
(1) No person, without written authorization of the depart-
ment, shall discharge into waters within the state any waste
which, by itself or in combination with the wastes of other
sources, reduces the quality of the receiving waters below the
classification established for them.
(2) Any person discharging treated or untreated waste into
waters within the state on a regular, intermittent or continuous
basis prior to January 1, 1972 and who intends to continue such
discharges shall file a written report of such discharges with the
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subsection (3) may apply to the department for a temporary op-
eration permit. Application shall be made on a form prescribed
by the department and shall contain such information as the de-
partment may require. The department may require such per-
son to submit any additional information reasonably necessary
for proper evaluation.
(b) The department shall give notice to people resident in the
drainage area of the receiving waters for the proposed discharge
concerning the period during which they may present objections
to the proposed discharge.
403.121 Enforcement; procedure; remedies
The department shall have the following judicial and adminis-
trative remedies available to it for violations of this chapter, as
specified in §403.161(1).
(1) Judicial remedies:
(a) The department may institute a civil action in a court of
competent jurisdiction to establish liability and to recover dam-
ages for any injury to the air, waters, or property, including an-
imal, plant, and aquatic life, of the state caused by any violation;
and
(b) The department may institute a civil action in a court of
competent jurisdiction to impose and to recover a civil penalty
for each violation in an amount of not more than $5,000 per of-
fense. However, the court may receive evidence in mitigation.
Each day during any portion of which such violation occurs con-
stitutes a separate offense.
(c) It shall not be a defense to, or ground for dismissal of,
these judicial remedies for damages and civil penalties that the
department has failed to exhaust its administrative remedies,
has failed to serve a notice of violation, or has failed to hold an
administrative hearing prior to the institution of a civil action.
(2) Administrative remedies:
(a) The department may institute an administrative proceed-
ing to establish liability and to recover damages for any injury
to the air, waters, or property, including animal, plant, or aquat-
ic life, of the state caused by any violation. After a hearing, the
board may order that the violator pay a specified sum as dam-
ages to the state. Judgment for the amount of damages deter-
mined by the board may be entered in any court having jurisdic-
tion thereof and may be enforced as any other j udgment.
(b) If the department has reason to believe a violation has oc-
curred, it may institute an administrative proceeding to order
the prevention, abatement, or control of the conditions creating
the violation or other appropriate corrective action.
(c) An administrative proceeding shall be instituted by the
department's serving of a written notice of violation upon the al-
leged violator by certified mail. The notice shall specify the
provision of the law, rule, regulation, permit, certification, or
order of the department alleged to be violated and the facts al-
leged to constitute a violation thereof. An order for corrective
action may be included with the notice. However, no order shall
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become effective until after service and an administrative hear-
ing, if requested within twenty days after service. Failure to
request an administrative hearing within this time period shall
constitute a waiver thereof. Further conduct, procedure, discov-
ery, and pleadings for the administrative proceeding shall be
provided for by the rules and regulations of the department pur-
suant to chapter 120. All parties to an administrative proceed-
ing shall be afforded all rights of discovery permitted by the
Florida Rules of Civil Procedure, and the board or hearing ex-
aminer may issue appropriate orders to effectuate the purposes
of discovery.
(d) Nothing herein shall be construed as preventing any oth-
er legal or administrative action in accordance with law.
(3) Every order of the department is legally enforceable and
binding and reviewable only in accordance with the Administra-
tive Procedure Act, chapter 120, part III.
403.131 Injunctive relief, cumulative remedies
(1) The department may institute a civil action in a court of
competent jurisdiction to seek injunctive relief to enforce com-
pliance with this chapter or any rule, regulation, permit certifi-
cation, or order; to enjoin any violation specified in § 403.-
161(1); and to seek injunctive relief to prevent irreparable in-
jury to the air, waters, and property, including animal, plant,
and aquatic life, of the state and to protect human health, safe-
ty, and welfare caused or threatened by any violation.
(2) All the judicial and administrative remedies in this section
and § 403.121 are independent and cumulative except that the
judicial and administrative remedies to recover damages are al-
ternative and mutually exclusive.
403.141 Civil liability; joint and several liability '/
(1) Whoever commits a violation specified in § 403.1(51(1) is liable to the
state for any damage caused to the air, waters, or property, including animal,
plant, or aquatic life, of the state and for reasonable costs and expenses of
the state in tracing the source of the discharge, in controlling and abating the
source and the pollutants, and in restoring the air, waters, and property, in-
cluding animal, plant, and aquatic life, of the state to their former condition,
and furthermore is subject to the judicial imposition of a civil penalty for
each offense in an amount of not more than $10,000 per offense. However,
the court may receive evidence in mitigation. Each day during any portion
of which such violation occurs constitutes a separate offense. Nothing here-
in shall give the department the right to bring an action on behalf of any
private person.
(2) Whenever two or more persons pollute the air or waters
of the state in violation of this chapter or any rule, regulation,
or order of the department so that the damage is indivisible,
each violator shall be jointly and severally liable for such dam-
age and for the reasonable cost and expenses of the state in-
curred in tracing the source of discharge, in controlling and
abating the source and the pollutants, and in restoring the air,
waters, and property, including the animal, plant, and aquatic
life of the state, to their former condition. However, if said
damage is divisible and may be attributed to a particular viola-
tor or violators, each violator is liable only for that damage at-
tributable to his violation.
(3) In assessing damages for fish killed, the value of the fish
is to be determined in accordance with a table of values for indi-
vidual categories of fish which shall be promulgated by the de-
partment. At the time the table is adopted, the department
shall utilize tables of values established by the department of
natural resources and the game and fresh water fish commis-
sion. The total number of fish killed may be estimated by
standard practices used in estimating fish population.
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403.161 Prohibition!, violation, penalty, Intent
(1) It (ball be a violation of this chapter, and it shall be prohibited:
(a) To cause pollution, except as otherwise provided In this chapter, so aa
to harm or injure human health or welfare, animal, plant, or aquatic life or
property.
(b) To fall to obtain any permit required by .this chapter or by rule or reg-
ulation, or to violate or fail to comply with any rule, regulation, order, permit,
or certification adopted or Issued by the department pursuant to Its lawful
authority.
(c) To knowingly make any false statement, representation, or certification
In any application, record, report, plan, or other document filed or required
to be maintained under this chapter, or to falsify, tamper with, or knowingly
render Inaccurate any monitoring device or method required to be maintain-
ed under this chapter or by any permit, rule, regulation, or order issued un-
der this chapter.
(2) Whoever commits a violation specified In subsection (1) is liable to the
state for any damage caused and for civil penalties as provided In I 403.141.
(8) Any person who willfully or negligently commits a violation specified
In subsections (l)(a) and (b) shall be guilty of a misdemeanor of the first
degree punishable as provided In [Si 775.082(4)(a) and 775.083(7)] * by a
fine of not less than $2,600 or more than $25,000, or punishable by one year
In Jail, or by both for each offense. Each day during any portion of which
aach violation occurs constitutes a separate offense.
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Ga. Code Ann. (1971), as amended, (Supp. 1974)
17-502. Policy declared.—The people of the State of Georgia are
dependent upon the rivers, streams, lakes and subsurface waters of the
State for public and private water supply and for agricultural, industrial
and recreational uses; therefore, it is hereby declared to be the policy of
the State of Georgia that the water resources of the State shall be utilized
prudently to the maximum benefit of the people in order to restore and
maintain a reasonable degree of purity in the waters of the State, and to
require, where necessary, reasonable treatment of sewage, industrial
wastes, and other wastes prior to their discharge into the waters of the
State. To achieve this end, the. Government of the State shall assume
responsibility for the quality of said water resources and the establish-
ment and maintenance of a water quality control program adequate for
present needs and designated to care for the future needs of the State:
Provided that nothing contained herein shall be construed to waive the
immunity of the State for any purpose.
This requires that an agency of the State be created within the State
Department of Public Health and that this agency be charged with the
foregoing duty and that it have authority to require the use of reasonable
methods after having considered the technical means available for the
reduction of pollution and the economic factors involved to prevent and
control the pollution of the waters of the State.
Further, it is the intent of this Chapter to provide administrative
facilities and procedure within the executive branch of the Government
for determining pollution of the waters of the State, and to confer dis-
cretionary administrative authority upon the agency to take these and
related circumstances into consideration in its decisions and actions in
determining, under the conditions and specific cases, those procedures
to best protect the public interest.
17-503 Definitions
The following words and phrases as used in this Chapter shall, unless
different meaning is required by the context, have the following meaning:
(a) "Department" shall mean the Department of Public Health of the
State of Georgia.
(b) "Division" shall mean the Division of Georgia Water Quality
Control created within the Department of Public Health.
(c) "Board" shall mean the State Water Quality Control Board of the
State of Georgia as created by this Chapter.
(d) "Waters" or "waters of the State" includes any and all rivers,
streams, creeks, branches, lakes, reservoirs, ponds, drainage systems,
springs, wells, and all other bodies of surface or subsurface water, natural
or artificial, lying within or forming a part of the boundaries of the State
which are not entirely confined and retained completely upon the
property of a single individual, partnership, or corporation.
(e) "Person" means any individual, corporation and partnerships and
other unincorporated associations and may extend and be applied to
bodies politic and corporate.
(0 "Pollution," means the man-made or man induced alteration of
the chemical, physical, biological and radiological integrity of water.
(g) "Sewage" means the water-carried waste products or discharges
from human beings or from the rendering of animal products, or
chemicals or other wastes from residences, public or private buildings,
or industrial establishments, together with such ground, surface or storm
water as may be present.
(h) "Industrial wastes" means any liquid, solid or gaseous substance
or combination thereof resulting from a process of industry, manufacture,
or business or from the development of any natural resources.
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(i) "Other wastes" means liquid, gaseous, or solid substances, except
industrial wastes and sewage, which may cause or tend to cause pollution
of any waters of the State.
(j) "Sewage system" means sewage treatment works, pipelines or
conduits, pumping stations and force mains and all other constructions,
devices, and appliances appurtenant thereto, used for conducting sewage
or industrial wastes or other wastes to the point of ultimate disposal.
(k) The singular includes the plural, the plural the singular, and the
masculine, the feminine, when consistent with the intent of this Chapter.
(1) "Effluent limitation," means any restriction or prohibition
established under this Chapter on quantities, rates, or concentrations, or
a combination thereof, of chemical, physical, biological or other
constituents which are discharged from point sources into the waters of
the State, including, but not limited to, schedules of compliance.
(m) "Pollutant," means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt, industrial wastes, municipal waste and
agricultural waste discharged into the waters of the State. It does not
mean (1) sewage from vessels or (2) water, gas, or other material which
is injected into a well to facilitate production of oil or gas, or water derived
in association with oil or gas production and disposed of in a well, if the
well, used either to facilitate production or for disposal purposes, is
approved by the appropriate authorities of this State and if such
authorities determine that such injection or disposal will not result in
degradation of ground or surface water resources.
(n) "Point source," means any discernible, confined, or discrete
conveyance, including, but not limited to, any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft, from which
pollutants are or may be discharged.
(o) "Non-point source," means any source which discharges
pollutants into the waters of the State other than a point source.
17-505 Powers and duties of board
(a) In the performance of its duties, the board may:
* * *
(9) Adopt rules and regulations it deems necessary tor the proper
administration of this Chapter, which rules and regulations shall be
promulgated jointly by the Water Quality Control Board and the
Department of Public Health. Such rules and regulations shall contain
a date on which they are to become effective, and on such date they shall
become effective and have the force and effect of law. Copies of such rules
and regulations shall be made available to the public;
(10) Establish or revise standards of water purity for any of the waters
of this State, which specify the maximum degree of pollution permissible
in accordance with the public interest in water supply, the conservation
of fish, game and aquatic life, and. agricultural, industrial and
recreational uses. Prior to establishing or revising the standards of water
purity, the board shall consider the technical means available for the
reduction of pollution and. the economical factors involved;
(12) Make investigations and inspections to insure compliance with
this Chapter, the rules and regulations issued pursuant hereto, and any
orders that the board may adopt or issue;
(13) Issue an order or orders directing any particular person or
persons to secure within the time specified therein such operating results
as are reasonable and practicable of attainment toward the control,
abatement, and prevention of pollution of the waters of the State and the
preservation of the necessary quality for the reasonable use thereof;
(14) Exercise all incidental powers necessary to carry out the
purposes of this Chapter.
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(15) Establish or revise through rules and regulations or permit
conditions or both, effluent limitations based upon an assessment of
technology and processes unrelated to the quality of the receiving waters
of this State;
(16) Perform any and all acts necessary to carry out the purposes and
requirements of this Chapter and of the Federal Water Pollution Control
Act, as amended, relating to this State's participation in the National
Pollutant Discharge Elimination System established under that Act.
17-514. Investigations of violations; enforcement action.—The board
shall have authority to investigate any apparent violation and to take
any action authorized hereunder it deems necessary, and may, after a
public hearing has been provided, institute proceedings of mandamus or
other proper legal proceedings to enforce the provisions of this Chapter.
17-521.1. Civil liability.—(1) Any person who intentionally or negli-
gently causes or permits any sewage, industrial wastes or other wastes,
oil, scum, floating debris or other substance or substances to be" spilled,
discharged or deposited in the waters of the State, resulting in a con-
dition of pollution as denned by this Chapter, shall be liable in damages
to the State and any political subdivision thereof for any and all costs,
expenses and injuries occasioned by such spills, discharges or deposits.
The amount of the damages assessed pursuant to this section shall
include, but shall not be limited to, any costs and expenses reasonably
incurred by the State or any political subdivision thereof, as the case
may be, in cleaning up and abating such spills, discharges or deposits
and any costs and expenses reasonably incurred in replacing aquatic
life destroyed by such spills, discharges or deposits. Damages to the
State shall be recoverable in a civil action instituted in the name of the
Georgia Water Quality Control Board and shall be paid into the State
treasury to the credit of the general fund. Damages to a political
subdivision shall be recoverable in a civil action instituted by said
subdivision.
(2) Any person who intentionally, negligently or accidentally causes
or permits any toxic, corrosive, acidic, caustic or bacterial substance or
substances to be spilled, discharged or deposited in the waters of the
State, except by providential cause, in amounts, concentrations or com-
binations which are harmful to the public health, safety or welfare, or
to animals, birds or aquatic life shall be strictly liable in damages to the
State and any political subdivision thereof for any and all costs, ex-
penses and injuries occasioned by such spills, discharges or deposits.
Damages to the State shall be recoverable in a civil action instituted in
the name of the Georgia Water Quality Control Board and shall be
paid into the State treasury to the credit of the general fund. Damages
to a political subdivision shall be recoverable in a civil action instituted
by said subdivision.
17-621.2 Civil penalties and procedures for imposing such
penalties
(a) Civil penalties—Any person violating any provision of this
Chapter or any permit condition or limitation established pursuant to this
Chapter, or, negligently or intentionally, failing or refusing to comply
with any final or emergency order of the Director of the Division of
Environmental Protection of the Georgia Department of Natural
Resources issued as herein provided, shall be liable to a civil penalty not
to exceed $10,000 per day for each day during which such violation
continues.
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(b) Procedures—The director after a hearing shall determine
whether or not any person has violated any provision of this Chapter or
has, negligently or intentionally, failed or refused to comply with any
final or emergency order of the director and may upon a proper finding
issue his order imposing such civil penalties as herein provided. Any
person so penalized under this*section is entitled to judicial review. In this
connection, all hearings and proceedings for judicial review under this
section shall be in accordance with the Georgia Administrative Procedure
Act as herein provided. All penalties recovered by the director as herein
provided by this Chapter shall be paid into the State Treasury to the
credit of the general fund.
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Ha. Rev. Stat. (Supp. 1974)
^ §342-1 Definitions. As used in this chapter, unless- the context otherwise"
requires:
(1) "Complaint" means any written charge filed with or by the department
that a person is violating any provision of this chapter or any rule, reg-
ulation, or order promulgated pursuant to this chapter.
(2) "Department" means the department of health.
* * *
(5) "Permit" means authorization to discharge waste which, when
granted, takes into account the public interest and contains a schedule
of abatement approved by the director; or authorization to construct,
modify, or operate any air pollution source; or authorization to emit
excessive noise; or authorization to operate a sanitary landfill or open
dump.
(6) "Person" means any individual, partnership, firm, association, public
or private corporation, the State or any of its political subdivisions,
trust estate or any other legal entity.
(7) "Pollution" means air pollution, water pollution, or excessive noise as
hereinafter defined.
(8) "Treatment works" means any plant or other facility used for the pur-
pose of controlling pollution.
(9) "Variance" means authorization to discharge waste when, after public
hearing the director finds that the continuance of the function or oper-
ation causing the waste discharge to be in the public interest, the value
of the continuance to outweigh the harm caused by the waste dis-
charge, and which does not require an immediate schedule of abate-
ment.
(10) "Waste" means sewage, industrial and agricultural waste, excessive
noise and all other liquid, gaseous, of solid substance, including radio-
active substance, whether treated or not, which may pollute or tend to
pollute the atmosphere, lands or waters of this State. [L 1972, c 100, pt
of §1; am L 1973, c 118, §1(1)]
§342-31 Definitions. As used in this part, unless the context otherwise re-
quires:
(1) "Coastal waters" means all waters surrounding the islands of the State
from the coast of any island to a point three miles seaward from the
coast, and, in the case of streams, rivers, and drainage ditches, to j
point three miles seaward from their point of discharge into the so..
and includes those brackish waters, fresh waters and salt waters thai
are subject to the ebb and flow of the tide.
(2) "Drainage ditch" means that facility used to carry storm run-off only.
(3) "Effluent" means the discharge of any substance into state waters, in-
cluding, but not limited to, sewage, waste, garbage, feculent matter. of-
fal, filth, refuse, any. animal, mineral, or vegetable matter or substance.
and any liquid, gaseous, or solid substances.
(4) "Effluent sources" include, but are not limited to, sewage outfalls, re-
fuse systems and plants, water systems and plants, and industrui!
plants.
(5) "Sewerage system" means pipelines or conduits, pumping stations, anJ
force mains, and all other structures, devices, appurtenances, and facil-
ities used for collecting or conducting wastes to an ultimate point foi
treatment or disposal.
(6) "State waters" means all waters, fresh, brackish, or salt, around anJ
within the State, including, but not limited to, coastal waters, stream*.
rivers, drainage ditches, ponds, reservoirs, canals, ground waters anJ
lakes; provided that drainage ditches, ponds, and reservoirs required
as a part of a pollution control system are excluded.
(7) "Water pollution" means:
(A) Such contamination or other alteration of the physical, chemic.ii
or biological properties of any state waters, including change in
temperature, taste, color, turbidity, or odor of the waters, or
(B) Such discharge of any liquid, gaseous, solid, radioactive, or othc'
A-36
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substances into any state waters, as will or is likely to create a
nuisance or render such waters unreasonably harmful, detrimen-
tal or injurious to public health, safety or welfare, including
harm, detriment, or injury to public water supplies, fish and
aquatic life and wildlife, recreational purposes and agricultural
and industrial research and scientific uses of such waters or as
will or is likely to violate any water quality standards, effluent
standards, treatment and pretreatment standards or standards of
performance for new sources promulgated by the department.
(8) "Standard of performance" means a standard for the control of the
discharge of pollutants which reflects the greatest degree of effluent
reduction which the director determines to be achievable through ap-
plication of the best demonstrated control technology, processes, op-
erating methods, or other alternatives, including, where practicable, a
standard permitting no discharge of pollutants.
(9) "New source" means any source the construction of which is com-
menced after the adoption of regulations prescribing a standard of
performance which will be applicable to such source. [L 1972, c 100,
ptof§l;amL1973,cll8, §1(7)]
§34202 Powers and duties, specific. In addition to any other power or duty
prescribed by law and in this part, the director shall prevent, control, and abate
water pollution in the State. In the discharge of this duty, the director may:
(1) Establish by rule or regulation water quality standards, effluent stand-
' ards, treatment and pretreatment standards, and standards of per-
formance for specific areas and types of discharges in the control of
water pollution, thereby allowing for varying local conditions;
(9) Receive or initiate complaints of water pollution, hold hearings in con-
nection with water pollution, and institute legal proceedings in the
§342-33 Prohibition. No person, including any public body, shall use any
state waters for the disposal of waste or engage in activity which causes state
waters to become polluted, or violate any water quality permit or term or condi-
tion thereof without first securing approval in writing from the director.
No person, including any public body, shall knowingly establish, extend, or
alter any system of drainage, sewage, or water supply, or undertake any project
in sewage outfall areas where there may be a possibility of alteration of currents
depended upon for dilution without first securing approval in writing from the
director. [L 1972, c 100, pt of §2; am L 1973, c 118, § 1(9)]
§342-8 Cease and desist orders, (a) If the director determines that any per-
son is:
(1) Violating this chapter; or
(2) Violating any rule or regulation promulgated under this chapter;
he may cause written notice to be served upon the alleged violator or violators.
The notice shall specify the alleged violation and may contain an order specify-
ing a reasonable time during which the person shall be required to take such
measures as may be necessary to correct the violation and to give periodic prog-
ress reports. Any such order shall become final unless no later than twenty days
after the date of notice and order are served, the person or persons named
therein request in writing a hearing before the director. Upon such request, the
director shall require that the alleged violator or violators appear before him for
a hearing at a time and place specified in the notice and answer the charges com-
plained of.
In lieu of an order, the director may .require that the alleged violator or vio-
lators appear before him for a hearing at a time and place specified in the no-
tice and answer the charges complained of.
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(b) If after a hearing held pursuant to subsection (a) of this section, the di-
rector finds that a violation or violations have occurred, he shall affirm or mod-
ify his order previously issued or issue an appropriate order or orders for the
prevention, abatement or control of the violation or discharges involved, or for
the taking of such other corrective action as may be appropriate. If, after hear-
ing on an order contained in a notice, the director finds that no violation has oc-
curred or is occurring, he shall rescind the order. Any order issued as part of a
notice or after hearing may prescribe the date or dates by which the violation or
violations shall cease and may prescribe timetables for necessary action in pre-
venting, abating, or controlling the violation or discharges.
(c) Any violation of an order issued by the director may at the discretion of
the director subject the violator or violators to the penalties specified in section
342-11 and the injunction remedies specified in section 342-12.
The director is authorized to impose the penalty specified in section 342-
1 l(a) and section 342-1 l(c) and may institute a civil action in the name of the
State to recover the civil penalty which shall be a government realization.
In any proceeding to recover the civil penalty imposed, the director need
only show that notice was given, a hearing was held or the time granted for re-
questing a hearing has run without such a request, the civil penalty was impose^,
and that the penalty remains unpaid.
(d) Nothing in this section shall prevent the director from making efforts
to obtain voluntary compliance by warning, conference, or any other appropri-
ate means.
(e) In connection with any hearing held pursuant to this section, the direc-
tor shall have the power to subpoena the attendance of witnesses and the prod-
uction of evidence on behalf of all parties. [L 1972, c 100, pt of § 1; am L 1973, c
118, §1(4)]
[§342-9] Emergency powers; procedures, (a) Notwithstanding any other
law to the contrary, if the director determines that an imminent peril to the pub-
lic health and safety is or will be caused by discharge of waste or any combina-
tion of discharges of waste, or excessive noise, which requires immediate action,
he may, with the approval of the governor and without public hearing, order any
person causing or contributing to the discharge of waste or excessive noise to
immediately reduce or stop such discharge or emission or the director may take
any and all other actions as may be necessary. Such order shall fix a place and
time, not later than twenty-four hours thereafter, for a hearing to be held before
the director.
(b) Nothing in this section shall be construed to limit any power which the
governor or any other officer may have to declare an emergency and act on the
basis of such declaration, if such power is conferred by statute or constitutional
provision, or inheres in the office. [L 1972, c 100, pt of § 1]
§342-11 Penalties.
(d) Any person who willfully or negligently violates part III of this chapter
or any rule or regulation promulgated by the department pursuant to part III of
this chapter shall be punished by a fine of not less than $2.500 nor more than
$25,000, per day of violation or by imprisonment for not more than one year, or
both.
(e) Any person who denies, obstructs, or hampers the entrance and inspec-
tion by any duly authorized officer or employee of the department of any build-
ing or place which he is authorized to enter and inspect shall be fined not more
than $500. Any action taken to impose or collect the penalty provided for in this
subsection shall be considered a civil action. [L 1972, c 100, pt of § 1; am L 1973
c 118, §1(6); am L 1974, c 250, §1]
1 The Water Pollution Control Provisions
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Id. Code (1961), as amended, (Supp. 1974)
39-102. State policy on environmental protection.—It is hereby
recognized by the legislature that the protection of the environment
and the promotion of personal health are vital concerns and are there-
fore of great importance to the future welfare of this state. It is
therefore declared to be the policy of the state to provide for the
protection of the environment and the promotion of personal health
and to thereby protect and promote the health, safety and general
welfare of the people of this state. [1972, ch. 347, § 2, p. 1017.]
/ 39-103. Definitions.—Whenever used or referred to in this act, Unless
a different meaning clearly appears from the context, the following
terms shall have the following meanings:
8. "Water pollution" is such alteration of the physical, thermal,
chemical, biological or radioactive properties of any waters of the state,
or such discharge of any contaminant into the waters of the state as
will or is likely to create a nuisance or render such waters harmful or
detrimental or injurious to public health, safety or welfare or to do-
mestic, commercial, industrial, recreational, esthetic or other legitimate
uses or to livestock, wild animals, birds, fish or other aquatic life.
9. "Waters" means all the accumulations of water, surface and
underground, natural and artificial, public and private, or parts thereof
which are wholly or partially within, flow through or border upon this
state.
39-108. Investigation — Violation — Notice — Complaint — Hear-
ing—Orders and consent decrees—Penalty—Injunctions.—1. The di-
rector shall cause investigations to be made upon the request, of the
board or upon receipt of information concerning an alleged violation
of this act or of any rule or regulation promulgated thereunder, and
may cause to be made such other investigations as he shall deem ad-
visable.
2. The director or his designee shall have the authority to:
a. Conduct a program of continuing surveillance and of regular or
periodic inspection of actual or potential health hazards, air contamina-
tion sources, water pollution sources, noise sources, and of solid waste
disposal sites;
b. Enter at all reasonable times upon any private or public property
for the purpose of inspecting or investigating to ascertain possible
violations of this act or of rules, standards and regulations adopted and
promulgated by the board.
3. If an investigation discloses that there is a reasonable basis for
believing that a violation exists, the director or his designee shall
issue and serve upon the person complained against, a written notice,
together with a formal complaint, which shall specify the provision
of this law or the rule or regulation under which said person is said
to be in violation, and a statement of the manner in, and the extent
to, which such person is said to violate this law or rule or regulation,
and shall require the person so complained against to answer the charges
of such formal complaint at a hearing before the board or a designated
hearing officer at a time not less than twenty-one (21) days after the
date of notice. A copy of such notice and complaint shall also be sent
to any person who has complained to the department respecting the
respondent within the six (6) months preceding the date of the
complaint, and to any person in the county where the alleged offense oc-
curred who has requested notice of enforcement proceedings; twenty-
one (21) days' notice of such hearing shall also be published in a news-
paper of general circulation in such county. The respondent may file a
written answer and at such hearing the rules prescribed in this act shall
apply.
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4. After due consideration of the written and oral statements and the
testimony and arguments that shall be submitted at the hearing:, or up-
on default in appearance of the respondent on the return day specified
in the notice, the board shall issue, enter or make such final determina-
tion by order, including but not limited to orders to abate sources of
air or water pollution, as it shall deem appropriate under the circum-
stances. If the hearing is before a designated hearing officer, the hear-
ing officer shall submit a proposed decision, including proposed findings
of fact, to the board. The board shall give due consideration to the
proposed findings and decision as well as the transcript of the hearing.
In all such matters, the board shall file and publish a written opinion
stating the facts and the reasons leading to its decision. The board
shall immediately notify the respondent of such order in writing by
registered mail.
5. If such preventive or corrective measures are not taken in ac-
cordance with the order of the board, the director may institute a civil
action in any court of competent jurisdiction for injunctive or manda-
mus relief to prevent any further violation of such order, rule or
regulation. The district court in and for the county where the violation
occurred shall have power to grant the relief asked for, upon notice and
hearing.
6. Any person determined by the board to have violated any provi-
sion of this act or any rule or regulation promulgated pursuant to
this act shall be liable for a civil penalty not to exceed one thousand
dollars ($1,000) per day beginning with the tenth day after the expira-
tion of the time fixed for the taking of the preventive or corrective
measures in the board's order. The method of recovery of said penalty
shall be by action in the district court in and for the county where the
violation occurred. All civil penalties collected under this act shall be
paid into the general fund of the state.
7. In addition to such civil penalties, any person who violates this
act shall be liable for any expense incurred by the state in enforcing
the act, or in enforcing or terminating any nuisance, source of environ-
mental degradation, cause of sickness, or health hazard.
8. No action taken pursuant to the provisions of this act or of any
other environmental protection or health law shall relieve any person
from any civil action and damages that may exist for injury or damage
resulting from any violation of this law or of the rules and regula-
tions promulgated by the board.
9. The board may, in those cases where the person has given evi-
dence of a willingness to cooperate with the department, permit a per-
son against whom a complaint has been issued to waive formal pro-
ceedings and enter into a consent proceeding. The consent decree shall
have the same effect as an order by the board.
10. Notwithstanding other provisions of this act, in circumstances
of emergency creating conditions of immediate danger to the public
health, the prosecuting attorney or the attorney general may institute
a civil action for an immediate injunction to halt any discharge, emis-
sion or other activity in violation of provisions of this act or rules or
regulations promulgated thereunder. In such action the court may issue
an ex parte restraining order. [1972, ch. 347, § 8, p. 1017; am. 1974, ch.
23. § 52, p. 633.]
39-109. Employment of counsel—Criminal action authorized.—The
director may employ counsel or may retain private counsel. In addition,
the attorney general may bring any criminal action requested by the
board, or may delegate this authority to the prosecuting attorney of
the county in which a criminal action may arise. [1972, ch. 347 8 9
p. 1017; am. 1974, ch. 23, § 53, p. 633.]
•w?"n17' Viola.tlon — Penalty — Misdemeanor. _ Any person wh
wilfully or negligently violates any of the provisions of the pubH
health or environmental protection laws or the terms of any lav f ,
°$eu'Jerm% atandard, rule or regulation issued purs,
' Shal- £e/ullty of a misdemeanor and upon conviction them I
f punished by f fine of not more than three hundred dolhr
Srifach 8tT*ate violation- Each day upon which such viola ?o,
violation- [L c-§39-117'as
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111. Ann. Stat. ch. Ill 1/2 (Supp. 1975)
I 1003. Definition*
(n) "Water pollution" is such alteration of the physical, thermal, chemi-
cal, biological or radioactive properties of any waters of the Sta'te, or such
discharge of any contaminant into any waters of the State, as will or is
likely to create a nuisance or render such waters harmful or detrimental
or injurious to public health, safety or welfare, or to domestic, commercial,
Industrial, agricultural, rocrtatlonal, or other legitimate uses, or to livestock,
wild animals, birds, fish, or other aquatic life.
^ -face and undergroun
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§ 1012. Acts prohibited
No person shall:
(a) Cause or threaten or allow the discharge of any contaminants into the
environment in any State so as to cause or tend to cause water pollution in
Illinois, either alone or in combination with matter from other sources, or so
as to violate regulations or standards adopted by the Pollution Control Board
under this Act;
(b) Construct, install, or operate any equipment, facility, vessel, or aircraft
capable of causing or contributing to water pollution, or designed to prevent
water pollution, of any type designated by Board regulations, without a per-
mit granted by the Agency, or in violation of any conditions imposed by such
permit;
(c) Increase the quantity or strength of any discharge of contaminants
into the waters, or construct or install any sewer or sewage treatment facility
or any new outlet for contaminants into the waters of this State, without a
permit granted by the Agency;
(d) Deposit any contaminants upon the land in such place and manner so
as to create a water pollution hazard;
(e) Soil, offer, or use any article in any area in which the Board has by
regulation forbidden its sale, offer, or use for reasons of water pollution con-
trol:
(f) Cuu.se, threaten or allow the di.schiirge of any contaminant into (I,:
v.-aters of the Sta:e, as defined herein, including but not limited to, watri
to any sewage works, or into any well or from any point source within tin
• State, without an XPDES permit for point source discharges issued by tli.
Agencjr under Section o!j(b) of this Act, or in violation of any term or condi-
tion imposed by such permit, or in violation of any NPDES permit filing iv
quirement established under Section 39(b),i or in violation of any regulation-
adopted by the Board or of any order adopted by the Board with respect to Hi;'
NPDES program.
No permit shall be required under this subsection and under Section 3f)i!
application. For purposes of this provision, until implementing requirement
have been established by the Board and the Agency, all applications deemed
filed with the Administrator of the United States Environmental Protection
Agency pursuant to the provisions of the Federal Water Pollution Control
Act Amendments of 1972 (P.L. 92-500)* shall be deemed filed with the Agen-
cy.
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I 1048. Violation of Act, regulation, permit, determination or order-
Civil penalties—Liability (or value of fish or aquatic life—
Civil actions—Actions by State's Attorney or Attorney General
(a) Any person that violates any provisions of this Act or any regulation
adopted by the Board, or any permit or term or condition thereof, or that
violates any determination or order ot the Board pursuant to this
Act, shall be liable to a civil penalty of not to exceed $10,000 for said
violation and an additional civil penalty of not to exceed $1,000 for each
day during which violation continues;
However, any person thnt violates Section 12(f) of this Act » or any NPDES
permit or term or condition thereof, or any filing requirement, regulation
or order relating to the NPDES permit program shall be liable to a civil
penalty of not to exceed $10,000 per day of violation;
(b) Any person that violates this Act, or an order or other determination
ot the Board under this Act and causes the death ot fish or aquatic life
shall. In addition to the other penalties provided by this Act, be liable to
pay to the State an additional sum for the reasonable value of the fish or
aquatic life destroyed. Any money so recovered shall be placed in the Game
and Fish Fund In the State Treasury;
(c) The penalties provided for In this section may be recovered in a civil
action.
(d) The State's Attorney of the county in which the violation occurred,
or the Attorney General, may, at the request of the Agency or on his own
motion, institute a civil action for an injunction to restrain violations of
this Act
(e) The State's Attorney of the county in which the violation occurred, or
the Attorney General, shall bring such actions in the name of the people of
the State of Illinois.
§ 1043. Injunctions or other necessary actions
-------
§ 1044. Violations of Act, regulations or permits—Punishment—Con-
tamination of waters—False statements or representations
—Negligent contamination — Corporations — Venue — pro-
cedure
(a) It shall be a Class A misdemeanor to violate this Act or regulations
thereunder, or any permit or term or rendition thereof, or knowingly to sub-
mit any false information under this Act or regulations adopted thereunder,
or under any permit or term or condition thereof. It shall be the duty of
all State and local law-enforcement officers to enforce such Act and regula-
tions, and all such officers shall have authority to Issue citations for such
violations.
(b) Notwithstanding the provisions of subsection (a) of this Section, it shall
be a criminal offense for any person knowingly to violate subsection (f) of
Section 12 of this Act 1 or any provision of any regulation, standard or filing
requirement adopted under Section 13(b) or Section 39(b) of this Act,2 or any
NPDES permit issued under this Act, or term or condition thereof. Any
person that is convicted of such violation shall be fined not more than $25,000
per day of violation. In addition to any fines, an individual convicted of
such violation may be sentenced to a term of imprisonment not to exceed one
year.
(c) Notwithstanding the provisions of subsection (a) of this Section, it shall
be a criminal offense for any person to knowingly make any false statement,
representation or certification in an application for, or form pertaining to, an
NPDES permit, or in a notice or report required by the terms of such permit,
or to knowingly render inaccurate any monitoring device or record required
by the Agency or Board in connection with any such permit or with any dis-
charge which is subject to the provisions of subsection (f) of Section 12 of this
Act. Any person that is convicted of such violation shall be fined not more
than $10,000. In addition to any fine, an individual convicted of such viola-
tion may be sentenced to a term of imprisonment not to exceed six months.
(d) Notwithstanding the provisions of subsection (a) of this Section, it shall
be a business offense for any person negligently to violate subsection (f) of
Section 12 of this Act or any provision of any regulation, standard or filing
requirement adopted under Section 13(b) or Section 39(b) of this Act, or any
NPDES permit issued under this Act, or any term or condition thereof. Any
person that is convicted of such violation shall be fined not more than $25,000
per day of violation.
(e) A corporation shall be held responsible for any offenses described In
this section if
(i) an agent of the corporation performs the conduct which is an ele-
ment of the offense while acting within the scope of his office or employ-
ment and in behalf of the corporation; or
(li) the commission of the offense is authorized, requested, commanded
or performed by the board of directors or a high managerial agent who
Is acting within the scope of his employment in behalf of the corporation.
A corporation's proof that the high managerial agent having supervisory
responsibility over the conduct which is the subject matter of the offense ex-
ercised due diligence to prevent the commission of the offense shall not be a
defense available to the corporation.
(f) For the purposes of this Section, the term "person" shall include, in
addition to the definition contained in Section 3(J) of this Act,3 any person
legally accountable under the provisions of Article 5 of the Criminal Code of
1901, adopted July 28, 1961, as amended.'!
(g) Any action brought under this Section shall be brought by the State's
Attorney of the county in which the violation occurred, or by the Attorney
General, and shall be conducted in accordance with the applicable provisions of
the Code of Criminal Procedure of 1963, adopted August 14, 1063, as
amended.5
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Ind. Stat. Ann. (Burns 1973).
13-1-3-16 [68-532]. Terms defined.—Wherever the word "person" is
used in this act [13-1-8-1—13-1-3-18], it shall be construed to mean and
include person, persons, firm, partnership, corporation, municipal corpo-
ration, association and any and all other legal entities, whatsoever.
Wherever the words "water" or "waters" shall be used in this act, they
shall be construed to mean and include lakes, rivers, streams, drainage
ditches, roadside ditches, underground water and any and all other
surface and subsurface watercourses, underground reservoirs and basins
within the jurisdiction of this state: Provided, That the term "water or
waters" shall not mean any privately-owned pond: Provided further,
That the provisions of this amendatory act shall in no way affect the
administration and enforcement of the drainage and ditch laws of this
state. [Acts 1943, eh. 214, § 16, p. 624; 1957, ch. 64, § 2, p. 117.]
13-1-3-7 [68-523]. Polluted condition of water—Regulations and or-
ders—The stream pollution control board shall have the power to deter-
mine what qualities and properties of water shall indicate a polluted
condition of such water, in any of the streams or waters of this state,
that shall be deleterious to the public health or to the prosecution of any
industry or lawful occupation for which or in which any such waters may
be lawfully used or employed, or whereby the carrying on of any agricul-
tural, floricultural or horticultural pursuit may be or shall be in-
juriously affected, or whereby the lawful conduct of any livestock
industry, or the use of any such waters for domestic animals may be
prevented, injuriously affected or impaired, or whereby any lawful
use of any such waters by the state of Indiana, or by any political
subdivision, corporation, municipal corporation, association, partner-
ship, person, or any other legal entity, may be lessened or impaired or
materially interfered with, or whereby any fish life or any beneficial
animal or vegetable life in said waters may be destroyed, or the
growth or propagation thereof prevented or injuriously affected. Any
such determination made by the said stream pollution control board as
above provided, shall be filed of record in the office of the stream
pollution control board. The stream pollution control board shall have
the power to make regulations and orders restricting the polluting con-
tent of any waste material and polluting substances discharged or
sought to be discharged into any of the streams or waters of this state.
The stream pollution control board shall have the power to take ap-
propriate steps to prevent any pollution which shall be deemed by the
stream pollution control board to be unreasonable and against public
interests, in view of the existing condition in any stream or other
waters of this state. [Acts 1943, ch. 214, § 7, p. 624.]
13-1-3-5 [68-521 j. Enforcement powers.—The stream pollution con-
trol board shall have the power to bring any appropriate action in law or
in equity in the name of the state of Indiana as may be necessary to carry
out the provisions of this act [13-1-3-1—13-1-3-18], and to enforce any
and all laws and orders relating to the pollution of waters of this state, as
hereinafter provided. Said board shall have the power, after hearing as
hereinbelow set out, to order any person, corporation, municipal corpo-
ration, partnership or legal entity to acquire, construct, repair, alter or
extend such plants as may be necessary for the disposal or treatment
of organic and/or inorganic matter which is causing, or contributing to,
or about to cause or contribute to a polluted condition of the waters of
this state. It shall have the power to require the sealing of mines, oil
and gas wells, brine wells or any other subterranean strata causing,
contributing or about to cause or contribute to a polluted condition of
the waters of this state. [Acts 1943, ch. 214, § 5, p. 624.]
These statutory provision appear out of numerical sequence in
order to set them out in a way similar to other states in this
Appendix
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13-1-3-8 [68-524], Causing or contributing to polluted condition.—
It shall be unlawful for any corporation, municipal corporation, associa-
tion, partnership, person or any other legal entity .to throw, run, drain,
or otherwise dispose into any of the streams or waters of this state, or to
cause, permit or suffer to be thrown, run, drained, allowed to seep or
otherwise disposed into such waters, any organic or inorganic matter
that shall cause or contribute to a polluted condition of such waters,
according to any determination of the stream pollution control board,
as provided for in section 7 [13-1-3-7] of this act, determining what
shall constitute a polluted condition of such waters that shall be dele-
terious to the public health or to the prosecution of any industry or
lawful occupation for which or in which any such waters may be
lawfully used or employed, or whereby the carrying on of any agri-
cultural, floricultural or horticultural pursuit may or shall be adversely
affected, or whereby the lawful conduct of any livestock industry or
the use of any such waters by or for domestic animals, may be pre-
vented, injuriously affected or impaired, or whereby any lawful use of
such waters by the state of Indiana or any political subdivision, corpo-
ration, municipal corporation, association, partnership, person, or any
other legal entity, may be lessened or impaired or materially interfered
with, or whereby any fish life or any beneficial animal or vegetable life
in said waters may be destroyed, or the growth or propagation thereof
prevented or injuriously affected. [Acts 1943, ch. 214, § 8, p. 624.]
13-1-3-9 [68-525]. Order to cease violation — Conditions — Report
from offender—Provisos.—Whenever the stream pollution control board
shall determine that any corporation, municipal corporation, association,
partnership, person, or any other legal entity, is violating, or is about to
violate, the provisions of section 8 [13-1-3-8] of this act, the stream
pollution control board shall serve notice on the alleged offender by
registered mail, of its determination of the fact of such violation, and
shall include in such notice an order against such offender to cease
such violation and to abate such condition of pollution, fixing in such
notice and order a reasonable time within which such correction and
abatement shall be accomplished.
13-1-3-14 [68-530]. Failure to comply with final order—Misdemean-
or—Penalty.—It shall be the duty of each individual offender, and of each
member of partnership, and of each member of the common council or
board of town trustees of a municipal corporation, and of each member of
the board of directors or other governing body of a private corporation,
association or other legal entity, against whom a final order has been
issued, as herein provided, to begin appropriate action or proceedings
to comply with such order, within thirty [30] days from the receipt
thereof, if no action has been commenced in the circuit or superior
court of the county where such violation is alleged to exist to set
aside or vacate such order as provided in this act [13-1-3-1—13-1-3-18],
or, in case such action has been brought, within thirty [30] days from
the date of judgment affirming such order, or from the date of receipt of
such order, as modified in conformity with the judgment of such court.
Failure of the common council or board of town trustees, in the case
of a municipal corporation, or of the board of directors or other
governing body of any private corporation, association or other legal
entity, to provide for the financing and construction of such works
as may be necessary to carry out said order by appropriate ordinance
or resolution, shall constitute failure to begin appropriate action or
proceedings to comply with such order, as above provided. Any indi-
vidual offender, or any member of a partnership, or any officer or mem-
ber of the board of directors of a private corporation, association or
other legal entity, or any mayor, councilman, town trustee or member
of a board of public works and safety, of any municipal corporation,
who fails or refuses to discharge any duty imposed upon him by this
act or by such final order of the stream pollution control board, or
any duty imposed upon him by reason of any ordinance of the common
council or board of trustees of any municipal corporation, or resolution
of the board of directors or other governing body of any private corpo-
ration, association or other legal entity, pursuant to this act or to such
final order, may be deemed guilty of a misdemeanor, and upon convic-
tion thereof, shall be fined in any sum not less than twenty-five dollars
[$25.00] and not more than one hundred dollars [$100], to which
may be added imprisonment in the county jail for any period not to
exceed ninety [90] days. [Acts 1943, ch. 214, § 14, p. 624.]
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13-1-3-15 [68-531]. Extension of time fixed in final order—Condi-
tions—Process for recovery — Penalties recovered paid into common
school fund of state.—The stream pollution control board shall have the
authority, in its discretion, to extend the time fixed in any final order
issued by it, within which any offender is ordered to correct or abate
a condition of pollution of any water or waters, upon written petition filed
with such department not less than thirty [30] days prior to the time
fixed in such order, when it shall appear that a good faith effort to comply
with said order is being made, and that it will be impossible for such of-
fender to complete the project of work undertaken within the time so
fixed. Any person, corporation, municipal corporation, partnership, as-
sociation or other legal entity, who shall fail or refuse to correct or abate
such polluted condition in compliance with such order within the time
fixed or within the time additionally granted as herein provided, shall
be subject to a penalty of one hundred dollars [$100] for each day
that such polluted condition continues to exist after the time so fixed,
or as additionally granted, which may be recovered in a civil suit
brought in the name of the state of Indiana, and which penalty shall
be in addition to the penalties provided in section 14 [13-1-3-14] of this
act. It shall be the duty of the attorney-general to prosecute all actions
for penalties under this section, and all penalties so recovered shall be
paid into the common school fund of the state. The penalties accruing
for any two [2] or more days under the provisions of this section may
be recovered in one [1] complaint and may be joined in one [1] para-
graph of said complaint: Provided, however, That no order of the stream
pollution control board shall be enforceable in cases where material, sup-
plies and labor are unavailable. [Acts 1943, ch. 214, § 15, p. 624.]
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Iowa Code Ann. (1971), as amended, (Supp. 1974)
455B.30 Definitions
When used in part 1 of division III, unless the context otherwise requires:
1. "Sewage" means the water-carried waste products from resiliences, pub-
lic buildings, institutions, or other buildings, including the bodily discharges
from human beings or animals together with such ground water infiltration
and surface water as may be present.
2. "Industrial waste" means any liquid, gaseous, radioactive, or solid waste
substance resulting from any process of industry, manufacturing, trade or
business or from the development of any natural resource.
3. "Other waste" means garbage, municipal refuse, lime, sand, ashes, offal,
oil, tar, chemicals and all other substances which are not sewage or indus-
trial waste which may pollute the waters of the state.
4. "Water pollution" means the contamination of any water of the state
so as to create a nuisance or render such water unclean, noxious or impure
so as to be actually harmful, detrimental or injurious to public health, safety
or welfare, to domestic, commercial, industrial, agricultural or recreational
use or to livestock, wild animals, birds, fish or other aquatic life.
5. "Sewer system" means pipe lines or conduits, pumping stations, force
mains and all other constructions, devices and appliances appurtenant thereto
used for conducting sewage or industrial waste or other wastes to a point
of ultimate disposal.
6. "Treatment works" means any plant, disposal field, lagoon, holding or
flow-regulating basin, pumping station, or other works installed for the pur-
pose of treating, stabilizing or disposing of sewage, industrial waste or other
wastes.
7. "Disposal system" means a system for disposing, of sewage, industrial
waste and other wastes and includes sewer systems, treatment works, and dis-
persal systems.
8. "Detergent" means a cleaning compound composed' of inorganic com-
ponents, including surface active agents, soaps, water softening agents, build-
ers, dispersing agents, corrosion inhibitors, foaming agents, buffering agents.
brighteuers, fabric softeners, dyes, perfumes, enzymes, and fillers, which are
available for household, personal, laundry, industrial, and other uses in liquid.
bar, spray, tablet, flake, powder, or other form.
9. "Water of the state" means any stream, lake, pond, marsh, watercourse.
"waterway, well, spring, reservoir, aquifer, irrigation system, drainage system.
and any other body or accumulation of water, surface or underground, natural
or artificial, public or private, which are contained within, flow through or
border upon the state or any portion thereof.
10. ''Person" means the state or any agency or institution thereof, anj
municipality, governmental subdivision, public or private corporation, individ-
ual, partnership, or other entity and includes any officer or governing or
manajrnfr body of any municipality, governmental subdivision or public o:
private corporation.
* * *
455B.35 Criteria considered
In establishing, modifying, or repealing quality standards for the water of
the state, or in establishing, modifying, or repealing effluent standards for
disposal systems, the commission shall consider:
1. The protection of the public health;
2. The size, depth, surface area covered, volume, direction and rate of flow,
stream gradient, and temperature of the affected water of the state;
3. The character and uses of the land area bordering the affected water
of the state;
4. The uses which have been made, are being made, or may be made of
the affected water of the state for public, private, or domestic water supplies,
irrigation; livestock watering; propagation of wildlife, fish, and other aqua-
tic life; bathing, swimming, boating, or other recreational activity; trans-
portation ; and disposal of sewage and wastes;
5. The extent of contamination resulting from natural causes including the
mineral and chemical characteristics;
A-48
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6. The extent to which floatable or settleable solids may be permitted;
7. The extent to which suspended solids, colloids, or a combination of
solids with other suspended substances may be permitted;
8. The extent to which bacteria and other biological organisms may be
permitted;
9. The amount of dissolved oxygen that is to be present and the extent of
the oxygen demanding substances which may be permitted;
10. The extent to which toxic substances, chemicals or deleterious con-
ditions may be permitted.
455B.43 Injunction
Any person, firm, corporation, municipality, or any officer or agent thereof
causing water pollution as defined in section 455B.30 of any waters of the
state or placing or causing to be placed any sewage, industrial waste, or other
wastes in a location where they will probably cause pollution of any waters of
the state may be enjoined from continuing such action.
The attorney general shall, upon the request of the department, bring an
action for an injunction against any person, firm, corporation, municipality,
or agent thereof violating the provisions of this section. In any such action,
any previous findings of the department after clue notice and hearing shall he
prima-facic evidence of the fact or facts found therein.
Acts 1972 (64 G.A.) ch. 1110, § 44, eff. Jan. 1, 1073.
4558.44 Failure constitutes contempt
Failure to obry any order issued by the department with reference to mat-
ters pertaining to the pollution of water of the state shall constitute prima-
facie evidence of contempt. In such event the department may certify to
the district court of the county in which such alleged disobedience occurred
the fact of such failure. The district court after notice, as prescribed by the
court, to the parties in interest shall then proceed to hear the matter and if it
finds that the order was lawful and reasonable it shall order the party to
comply with the order. If the person fails to comply with the court order,
he shall be guilty of contempt and shall be fined not to exceed five hundred
dollars for each day that he fails to comply with the court order. The penal-
ties provided in this section shall be considered as additional to any penalty
which may be imposed under the law relative to nuisances or any other statute
relating to the pollution of waters of the state and a conviction under this
section shall not be a bar to prosecution under any other penal statute.
Acts 1972 (64 G.A.) ch. 1119, § 45, eff. Jan. 1, 1973.
455B.49 Penalties— burden of proof
1. Any person who violates any provision of part 1 of division III .of this
f diMs.on
1. ny person w .
chapter or any permit, rule, standard, or order issued under part 1 of diMs.on
raSthEffior shall be subject to a civil penalty not to exceed five thousand
dollars for J*> day of such violation. The civil penalty ^*™*%£.
live to any criminal penalty provided under part 1 of division III of this chap
^ \nv «er«on who willfully or negligently discharges any pollutants
in viofatL1 ofsectlon 455B.45 or iu violation of any conditior , or limi aUon
included in any permit issued under section 4uoB.4o of the Code or, \\itn re
z^^szss
thousand dollars for each day of violation.
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3. Any person who knowingly makes any false statement, representa-
tion, or certification in any application, record, report, plan or other docu-
ment filed or required to be maintained under part 1 of division III of this
chapter, or who falsifies, tampers with or knowingly renders inaccurate any
monitoring device or method required to he maintained under part 1 of divi-
sion III of this chapter or by any permit, rule, regulation, or order issued
under part 1 of division III of this chapter, shall upon conviction be punished
by a fine or not more than ten thousand dollars or by imprisonment in the
county jail for not more than six mouths or by both such fine arid imprison-
ment
4. The attorney general shall, at the request of the commission or the
executive director, institute any legal proceedings ncwssary to enforce the
penalty provisions of part 1 of division III of this chapter or to obtain com-
pliance with the provisions of part 1 of division III of this chapter or any.
rules promulgated or any provision of any permit issued under part 1 of divi-
sion III of this chapter.
T>. IH all proceedings with respect to any alleged violation of the provi-
sions of this part 1 of division III or any rule established By the commission
or the department, the burden of proof shall be upon the commission or the
department except in an action for contempt as provided in section 455B.44.
Acts 1972 (64 G.A.) cli. 1119, § 50, eff. Jan. 1, 1973. Amended by Acts 1973 (65
G.A.) ch. 261, § 5, eff. Aug. 15, 1973.
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Kan. Stat. Ann. (1972), as amended, (Supp. 1974)
65-164. Sewage; definition; complaints
and investigations as to pollution; appeal.
That no person, company, corporation, insti-
tution or municipality shall place or permit
to be placed or discharge or permit
to flow into any of the waters of the state
any sewage, except as hereinafter provided.
But this act shall not prevent the discharge
of sewage from any public sewer system
owned and maintained by a municipality or
sewerage company, provided such sewer sys-
tem was in operation and was discharging
sewage into the waters of the state on the
twentieth day of March, 1907; but this ex-
ception shall not permit the discharge of
sewage from any sewer system that shall
have oeen extended subsequent to the afore-
said date, nor shall it permit the discharge
of any sewage which, upon investigation by
the secretary of health and environment, as
hereinafter provided, shall be found to be
polluting the waters of the state in a manner
prejudicial to the health of the inhabitants
thereof.
For the purposes of this act, sewage is
hereby defined as any substance that contains
any of the waste products or excrementitious
Or other discharges from the bodies of human
beings or animals, or chemical or other wastes
from domestic, manufacturing or other forms
of industry.
Whenever complaint shall be made to the
secretary of health and environment by the
mayor of any city of the state, or by a county
health officer, or by a local board of health,
of the pollution or of the polluted condition
of any of the waters of the state situated
within the county within which the said city
or health officer or local board of health is
located, it shall be the duty of the secretary
of health and environment to make an in-
vestigation covering the pollution or the pol-
luted condition concerning which complaint
is made. Also, whenever the secretary of
health and environment shall have reason
to believe that any of the waters of the state
are being polluted in a manner prejudicial
to the health of any of the inhabitants of
the state, it may upon its own motion investi-
gate such pollution.
Whenever an investigation shall be under-
taken by the secretary of health and environ-
ment, under either of the foregoing provi-
sions, it shall be the duty of any person, com-
pany, corporation, institution or municipality
concerned in such pollution to furnish, on
demand, to the secretary of health and en-
vironment such information as may be re-
quired relative to the amount and character
of the polluting material discharged into the
said waters by such person, company, corpo-
ration, institution or muncipality. And if the
secretary of health and environment shall find
that any of the waters of the state have been
or are being polluted in a manner prejudicial
to the health of any of the inhabitants of the
state, the secretary of health and environment
shall have the authority to make an order
requiring such pollution to cease within a
reasonable time, or requiring such manner of
treatment or of disposition of the sewage or
other polluting material as may in his judg-
ment be necessary to prevent the future pollu-
tion of such waters, or both. It shall be the
duty of the person, company, corporation,
institution or municipality to whom such
order is directed to fully comply with the
said order of the secretary of health and en-
vironment.
If the person, company, corporation, in-
stitution or municipality shall consider the
requirements of the said order to be illegal
or unjust or unreasonable, it may, within
thirty (30) days after the making of the
said order, appeal therefrom to the district
court of the county in which the pollution
or polluted condition occurs; and the said
court shall hear the said case without delay,
and shall render a decision approving, setting
aside or modifying the said order, or fixing the
terms upon which said permit shall be granted,
and stating the reasons therefor. [K. S. A. 65-
164; L. 1974, ch. 352, § 25; July 1.]
65-167. Sewage discharge; penalties for
willful or negligent discharge of sewage with-
out permit or in violation of terms of permit.
Upon conviction, the penalty for the willful
or negligent discharge of sewage from the
sewer system of any municipality, township,
county, or legally constituted sewer district
by the public authorities having by law
charge thereof or by any person, company,
corporation, institution, municipality, or fed-
eral agency, into any of the waters of the state
without a duly issued permit, as required in
this act, or in violation of any term or condi-
tion of a permit issued by the secretary of
health and environment, or in violation of any
requirements made pursuant to K. S. A. 65-
164 or 65-166, or any amendments thereto,
shall be not less than two thousand five
hundred dollars ($2,500); and not more than
A-51
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twenty-five thousand dollars ($25,000), and
a further penalty of not more than twenty-five
thousand dollars ($25,000) per day for each
day the offense is maintained. The penalty for
the discharge of sewage from any sewage
system into any waters of the state without
filing a report, in any case in which a report
is required by this act to be filed shall be one
thousand dollars ($1,000) per day for each
day the offense is maintained. [K. S. A. 65-167-
L. 1973, ch. 242, § 1; L. 1974, ch. 352, § 29;'
July 1.}
65-17Ia. Stream pollution detrimental to
animal or aquatic life. The authority of the
secretary of health and environment in mat-
ters of stream pollution is hereby supple-
mented to include stream pollution found to
be detrimental to public health or detrimental
to the animal or aquatic life of the state
[KS.A. 65-171a; L. 1974, ch. 352, §36;'
Tlll\7 I l
65-171b. Same; abatement. It shall be
the duty of the attorney general, on presenta-
tion by the secretary of health and environ-
ment of evidence of abatable pollution of the
surface waters detrimental to the animal or
aquatic life in the state, to take such action
as may be necessary to secure the abatement
of such pollution. [K. S. A. 65-171b; L. 1974
ch. 352, §37; July L]
65-17If. Same; penalties for failure to
comply with rules and regulations. Every
public authority having by law the charge
of the sewer system of any municipality, town-
ship, county or legally constituted sewer dis-
trict or any person, company, corporation,
institution, municipality or federal agency that
shall willfully or negligently, fail to comply
with the rules, regulations and orders of the
secretary of health and environment autho-
rized by K. S. A. 65-171d, as amended, shall
be punished upon conviction by a fine of not
less than twenty-five t dollars ($25) and not
more than ten thousand dollars ($10,000).
Each day in which the failure to comply with
such requirements and orders continues shall
constitute a separate offense. [K. S. A. 65-171f;
L. 1973, ch. 243, § 1; L. 1974, ch. 352, §41;
July L]
65-171d. Prevention of surface and sub-
surface water pollution; standards; "pollu-
tion" defined; permits; exemption; orders;
hearings; appeals; fees. For the purpose of
preventing surface and subsurface water pol-
lution and soil pollution detrimental to public
'health or to the plant, animal and aquatic
life of the state, and to protect beneficial uses
of the waters of the state and to require the
treatment of sewage predicated upon tech-
nologically based effluent limitations, the
secretary of health and environment shall
make such rules and regulations, including
registration of potential sources of pollution,
as may in its judgment be necessary to pro-
tect the waters of the state from pollution by
oil, gas, salt water injection wells or under-
ground storage reservoirs; to control the dis-
posal, discharge or escape of sewage as de-
fined in K. S. A. 65-164, by or from municipali-
ties, corporations, companies, institutions, state
agencies, federal agencies, or individuals and
any plants, works, or facilities owned and/or
operated by them; and to establish water
quality standards for the waters of the state to
protect their beneficial uses. The secretary
of health and environment may adopt by
reference any regulation relating to water
quality and effluent standards promulgated
by the federal government pursuant to the
provisions of the federal water pollution con-
trol act and the 1972 amendments thereto,
which the secretary is otherwise authorized
by law to adopt. For the purposes of this act,
including K. S. A. 65-161 through 65-171h, or
any amendments thereto, pollution is hereby
defined (a) as such contamination or other
alteration of the physical, chemical or bio-
logical properties of any waters of the state as
will or is likely to create a nuisance or render
such waters harmful, detrimental or injurious
to public health, safety or welfare, or to the
plant, animal or aquatic life of the state or
to other designated beneficial uses, or (b)
as such discharge as will or is likely to exceed
state effluent standards predicated upon tech-
nologically based effluent limitations. In mak-
ing rules and regulations, the secretary of
health and environment, taking into account
the varying conditions that are probable for
each source of sewage and its possible place
of disposal, discharge, or escape, may provide
for varying the control measures required in
each case to those it finds to be necessary to
prevent pollution. The storage or disposal of
salt water, oil or refuse in surface ponds shall
be prohibited unless a permit for such storage
A-52
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or disposal shall first be obtained from the
secretary of health and environment, and
such permit shall be considered as granted
unless denied within ten (10) days. The
secretary of health and environment is au-
thorized to deny or revoke a permit for such
storage or disposal in any case where he finds
: such storage is causing or likely to cause pol-
lution: Provided, however, That where a
fresh water reservoir or farm pond is privately
owned and where complete ownership of land
bordering the reservoir is under common pri-
vate ownership, such fresh water reservoir or
farm pond shall be exempt from water quality.
standards except as it relates to water dis-
charge or seepage from the reservoir to wa-
ters of the state, either surface or ground-
water, or as it relates to the public health of
persons using the reservoir or pond or waters
therefrom. t
Whenever the secretary of health and en-
vironment or his duly authorized agents shall
find that the waters of the state are not being
protected from pollution by oil, gas,, salt
water injection wells, or underground storage
reservoirs, or that storage or disposal of salt
,water, oil or refuse in any surface pond is
causing or is likely to cause pollution of soil
or waters of the state, the secretary or duly
authorized agents designated by him, shall
issue an order prohibiting the operation or
.use of such oil, gas, salt water injection well,
underground storage reservoir, or surface
pond; such order to take effect ten (10) days
after service upon the owner, operator, con-
tractor or agents thereof. Any person aggrieved
by such order may within ten (10) days of ser-
vice of the order request a hearing on the
order.
Hearings may be conducted by the secretary
or hearing officers appointed by the secretary.
Such hearing officers shall have the power and
authority to conduct such hearings in the
name of the secretary at any time and place
and a record of the proceedings of such
hearings shall be taken and filed with the
secretary together with findings of facts. On
the basis or the evidence produced at the
hearing, the secretary shall make findings of
fact and conclusions of law and shall give
written notice of such findings and conclu-
sions to the alleged violator. The order of
the secretary shall be final unless appealed
to the courts within thirty (30) days after
' the order has been made.
Any notice, order or instrument issued by or
with the authority of the secretary may be
made by mailing a copy of the notice, order,
or other instrument by registered or certified
mail directly to the person affected at his
last known post-office address as shown by
the files or records of the secretary.
An appeal may be taken from any final
order or final determination of the secretary
by any person adversely affected, to the dis-
trict court of the county of residence of the ap-
pellant. Notice of appeal from any such final
order or determination shall be served on the
secretary. Failure to serve such notice of ap-
peal within thirty (30) days shall operate as
a waiver of the right of appeal. Notice of
appeal shall refer to the action of the secretary
appealed from and shall specify the grounds
for appeal. Copy of the original notice of
appeal with proof of service on the secretary
shall be filed by the appellant with the clerk
of the court within ten (10) days of the ser-
vice of the notice and thereupon the court
shall have jurisdiction of the appeal. Service
of a notice of appeal shall not operate as a
stay of the secretary's order; however, the
appellant has the right to apply to the secre-
tary for a stay, which the secretary in his
discretion may grant. Upon receipt by the
secretary of the notice of appeal, he shall,
within fitfteen (15) days, file with the clerk of
the district court a certified transcript of all
files and proceedings relating to the order or
decision appealed from. The review shall
be conducted by the court without a jury and
shall be de novo, except that in cases of al-
leged irregularities in procedure, testimony
thereon may be taken in the court. The court
may affirm the order or decision of the sec-
retary, or may reverse or modify said order.
Appeals may be taken to the supreme court
from the order or decision of the district court
in the same manner as in other civil cases.
The secretary shall fix fees to cover the cost
of services rendered under this act. [K. S. A.
65-171d; L. 1974, ch. 247, §2; L. 1974, ch.
352, § 39; July 1.1
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K«n. Rev. Stat. Ann. (1974)
224.005 Definitions. ^
As used in this chapter unless the context clearly in-
dicates otherwise:
* * *
(7) "Department" means the department of environ-
mental protection;
(8) "District" means an air pollution control district as
provided for in KRS Chapter 77;
(9) "Person" means any individual, public or private
corporation, political subdivision, government agency,
municipality, copartnership, association, firm, trust, es-
tate, or other entity whatsoever;
(10) "Seepage pit'' means a dry well, leaching pit or
any other cavity in the ground which receives the liquid
discharge of a septic lank;
(11) "Septic tank" means a septic toilet, chemical clos-
et and any other watertight enclosure used for storage
and decomposition of human excrement and domestic
wastes:
(12) "Sewage system" means individually or collec-
tively those constructions or devices used for collecting,
pumping, treating, and disposing of liquid or waterborne
sewage, industrial wastes or other wastes;
(13) "Solid waste" means all putrescible and nonpu-
trescible refuse in solid form. Solid waste includes but is
not limited to garbage, rubbish, ashes, incinerator resi-
due, street refuse, dead animals, demolition wastes, con-
struction wastes, solid commercial and industrial wastes,
and special wastes including explosives, pathological
wastes and radioactive materials;
(14) "Solid waste disposal site or facility" means any
place at which solid waste is disposed of by incineration,
landfilling or any other method;
(15) "Tank" means any container when placed on a
vehicle to carry in transport wastes removed from a
septic tank, cesspool or seepage pit;
(16) "Water pollution" means the alteration of the
physical, thermal, chemical, biological, or radioactive
properties of the waters of the Commonwealth in such a
manner, condition, or quantity that will be detrimental
to the public health or welfare, to animal or aquatic life
or marine life, to the use of such waters as present or fu-
ture sources of public water supply or to the use of such
waters for recreational, commercial, industrial, agricul-
tural or other legitimate purposes;
(17) "Water" or "waters of the Commonwealth"
means and includes any and all rivers, streams, creeks,
lakes, ponds, impounding reservoirs, springs, wells,
marshes and all other bodies of surface or underground
water, natural or artificial, situated wholly or partly
within or bordering upon the Commonwealth or within
its jurisdiction.
224.020 Policy and purpose.
(1) It is hereby declared to be the policy of this Com-
monwealth to conserve the waters of the Commonwealth
for public water supplies, for the propagation of fish .and
aquatic life, for fowl, animal wild life and arborous
growth, and for agricultural, industrial, recreational and
other legitimate uses; to provide a comprehensive pro-
gram in the public interest for the prevention, abatement
and control of pollution; to provide effective means for
the execution and enforcement of such program; and to
provide for cooperation with agencies of other states or
of the Federal Government in carrying out these objec-
tives.
(2) It is the purpose of KRS 224.010 to 224.060,
224.080 and 224.100 to safeguard from pollution the un-
contaminated waters of the Commonwealth; to prevent
the creation of any new pollution of the waters of the
Commonwealth: and to abate any existing pollution.
224.033 Powers and duties of department.
In addition to any other powers and duties vested in it
by law, the department shall have the authority, power,
and duty to:
(15) Formulate guides tor measuring presently
unidentified environmental values and relationships so
they can be given appropriate consideration along with
social, economic, and technical considerations in
decision making;
(16) Monitor the environment to afford more effec-
tive and efficient control practices, to identify changes
and conditions in ecological systems and to warn of
emergency conditions;
(17) Adopt, modify or repeal with the recommen-
dation of the commission any standard, rule, regulation
or plan specified in subsections (5) and (6) of KRS
224.045. . . .
(18) Issue, after hearing, orders abating activities in
violation of this chapter, or the provisions of 1972 1st
ex. ses., H 3, or the regulations promulgated pursuant
thereto and requiring the adoption of such remedial
measures as the department may deem necessary;
(19) Issue, continue in effect, revoke, modify or deny
under such conditions as the department may prescribe,
permits for the discharge of any sewage, industrial
wastes or other wastes, into any waters of the Common-
wealth, and for the installation, alteration, expansion, or
operation of any sewage system; the installation, alter-
ation, or use of any machine, equipment, device or other
article that may cause or contribute to air pollution or is
intended primarily to prevent or control the emission or
air pollution; or the establishment or construction and
the operation or maintenance of solid waste disposal sites
and facilities; and require that applications for sucn
permits be accompanied by plans, specifications, and
such other information as the department deems neces-
sary;
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(20) Require, by regulation, that any person engaged
in any operation regulated pursuant to this chapter in-
.stall, maintain, and use at such locations and intervals as
'the department may prescribe any equipment, device or
method to monitor the nature and amount of any sub-
stance emitted or discharged into the ambient air or
waters of the Commonwealth and to provide any infor-
mation concerning such monitoring to the department in
accordance with the provisions of subsection (21) of this
section;
(21) Require by regulation that any person engaged in
anyoperation regulated pursuant to this chapter file with
the department reports containing information as to
location, size, height, rate of emission or discharge, and
composition of any substance discharged or emitted into
the ambient air or into the waters of the Commonwealth,
and such other information as the department may
require; and
224.060 General prohibition against pollution.
No person shall, directly or indirectly, throw, drain,
run or otherwise discharge into any of the waters of the
Commonwealth, or cause, permit or suffer to be thrown,
drained, run or otherwise discharged into such waters
any sewage, industrial wastes or other wastes that shall
cause or contribute to the pollution of the waters of the
Commonwealth in contravention of the standards
adopted by the department or in contravention of any of
the rules, regulations or orders of the department or in
contravention of any of the provisions of KRS Chapter
224.
221992 Penalties for violation of ERS 224.220 to
224.2W.
Any person who shall violate or refuse to comply
with any of the provisions of KRS 224.220 to 224.237
shall be guilty of a misdemeanor punishable by a fine of
not less than twenty-five dollars nor more than out:
hundred dollars and when such violation is of a con-
tinuing nature, each day upon which a violation occurs
shall be deemed a separate offense. (1968 H 354, § 8,
Eff. 6-13-68)
y 224.993 Penalties.
(I) Any person who violates any of the provisions
of this chapter except as provided in KRS 224.992 or
who fails to perform any duties imposed by those sec-
tions, or who violates any determination or order of the
department promulgated pursuant thereto shall be liable
to a civil penalty of not to exceed the sum of $ 1,000 for
said violation, and an additional civil penalty of not 10
exceed $1,000 for each day during which such violation
continues, and in addition, may be enjoined from con-
tinuing such violations as hereinafter provided in this
section. Such penalties shall be recoverable in an action
brought in the name of the Commonwealth of Kentucky
by the attorney general.
(2) It shall be the duty of the attorney general, upon
the request of the department, to bring an action for the
recovery of the penalties hereinabove provided for, and
to bring an action for an injunction against any person
violating or threatening to violate any provision of this
chapter except as provided in KRS 224.992 or violating
or threatening to violate any order or determination of
the department promulgated pursuant thereto. In any
such action any finding of the department shall be prima
facie evidence of the fact or facts found therein.
(3) Any person who shall willfully violate any of the
provisions of this chapter except as provided in KRS
224.992 or any determination or order of the department
promulgated pursuant to those sections which has
become final shall be guilty of a misdemeanor and upon
conviction thereof shall be punished by a fine of not less
than $ 100 nor more than $ 1,000 or by imprisonment for
a term of not more than one year or by both fine and im-
prisonment for each separate violation. Each day upon
which such violation occurs shall constitute a separate
violation.
(4) The authority herein vested in the attorney gener-
al, upon request of the department, to bring actions for
injunctions for violations of KRS Chapter 224 except as
provided in KRS 224.992 or of any regulation, or order
issued thereto, shall be exclusive. Nothing herein con-
tained shall abridge the right of any person to recover ac-
tual compensatory damages resulting from any such
violation.
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La. Rev. Stat. Ann. (1952), as amended, (Supp. 1973)
§1440. Illegal discharge of waste
A. No person shall discharge or permit to bo discharged into any of the
waters of the state iiny waste or any pollution of any kind that will tend to
destroy fish or other aquatic life or wild or domestic animals or fowls or be
injurious to the public health or against the public welfare in violation of any
rule, order, or regulation of the commission.
Whoever violates this Section shall be guilty of a violation of this Part.
B. No person, engaged in a logging operation shall discharge and leave
or permit to be discharged and left into any of the navigable waters of the
state any trees or treetops.
For the purposes of this section, the term "treetop" shall be defined as
that topmost portion of a tree trunk, with limbs attached, measuring in ex-
cess of three inches at the base of the treetop stem.
C. Whoever violates Subsection (A) of this Section shall be guilty of a
violation of this Part.
D. Notwithstanding the provisions of R.S. 56:1444 whoever violates Sub-
section (B) of this section shall be fined one hundred dollars for each tree
or treetop.
§ 1444. Penalty for violation of Part; attorney general to prosecute
Whoever violates any of the provisions of this Part, or any written order of
the commission in pursuance thereof, shall be fined not less than one hundred
dollars nor more than two thousand dollars, and costs of prosecution, or im-
prisoned for not more than one year, or both. Each day upon which a vio-
lation of the provisions of this Part occurs is a separate and-additional vio-
lation. The attorney general shall have charge of and shall prosecute all
cases arising out of violation of the provisions of this Part, including the re-
covery of penalties.
S 1446. Pollution of waters; recovery of civil damages; attorney general
to Institute action; jurisdiction In district courts
A. Whenever any person without a certificate of approval, permit or other
document of approval authorized by law, or in violation of the terms and
conditions of such certificate of approval, permit, or other document of ap-
proval authorized by law, has negligently, carelessly or wilfully caused pollu-
tion of the waters of the state in such concentration or manner that wild
birds, wild quadrupeds, fisli or other aquatic life are killed as the result
thereof, or renders the water unfit for maintenance of the normal fish or
aquatic life characteristics of the waters or renders the water unfit for the
usages which have been established for the stream or other water body by
the commission, the commission may recover, in the name of the state, dam-
ages from such person.
B. The commission shall notify the person or persons responsible of the
amount of damages claimed by the commission and may effect such settle-
ments as it deems reasonable. If no settlement is reached within sixty days
the attorney general shall bring a civil action in the name of the state to re-
cover the damages, in either the district court of the parish in which the
damage has occurred or the district court of the parish in which the State
Capitol is located. The district courts shall have jurisdiction to hear and de-
termine such actions.
C. The measure of damages shall be the amount determined by the court
to he the replacement cost thereof or the cost of restoring the stream or
other water body to its former condition plus the cost of all reasonable and
necessary investigations made or caused to be made by the state in connec-
tion therewith.
D. No civil proceeding brought under this section shall limit or prevent
any other actions or proceedings in respect to the pollution of waters which
are authorized by this Part or other provisions of law.
E. The provisions of this Part shall not apply to any unintentional pol-
lution or contamination resulting from or in connection with the production of
agricultural products.
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S 1461. Definition
"Water pollution" includes the introduction into state water bodies of any
substance in concentration which results in the killing of fish or other aquatic
life in numbers or in a manner materially detrimental to the interests of the
state or renders the water unfit for maintenance of the normal fish or aquatic
life characteristics of the waters, or in any way adversely affects the in-
terests of the state in respect to its fish or other aquatic life.
§ 1462. Pollution of waters; discharge of Injurious substance
In order to prevent the pollution of any stream or other water body of the
state, the killing of fish or other aquatic life, or the modification of natural
conditions In any way detrimental to the interests of the state, no person
shall knowingly discharge or knowingly permit to be discharged into any
waters of the state, or into drains which discharge into such waters, any
substance which causes "Water Pollution" as defined in R.S. 56:1461; pro-
vided, however, that the provisions of this Part shall not apply to any un-
intentional pollution or contamination resulting from or in connection with the
production of agricultural products. Each separate day upon which a viola-
tion of this section occurs constitutes a separate offense.
,3 1463. Penalty for violation of Part
•• Whoever intentionally violates any of the provisions of this Part shall be
'fined for each offense not less than one hundred dollars nor more than two
(thousand dollars or imprisonment for not more than one hundred twenty days
jbr both.
! 1464.1 Prohibition
No person in this state shall wilfully and intentionally discharge or cause to
be discharged any untreated wastes into any body of public water in this state
provided further that at all times all such wastes will receive the best prac-
ticable secondary treatment or its equivalent, not later than December 31,1972.
Persons discharging untreated wastes in any body of public water of tLe
state on June 1, 1970 shall have until December 1, 1972 in which to construct
treatment works without being subject to the ten thousand dollars per day
civil penalty provided by this part. The date for compliance herewith may
be extended from December 31, 1972 by the Louisiana State Board of Health,
or the Louisiana Stream Control Commission (acting in cases pertinent to their
respective functions) in cases where there is a certification by the board of
health or the stream control commission (acting in cases pertinent to their
respective functions) that reasonable progress is made in the "circumstances
in abating a discharge existing on June 1, 1970. If technology of control does
not provide methodology, such advance treatment will be provided as SOOIH
as this methodology is developed. No portion of Sections 1464 through
1464.4 of Title 56 of the Louisiana Revised Statutes of 1950, as amended, shall
apply to the discharge of salt water or other wastes produced in the course
of operations for the exploration for, or production of, oil, gas, or other min-
erals; but the discharge of such salt water or other wastes shall remain
subject to all other applicable Louisiana laws and regulations.
Notwithstanding anything herein contained to the contrary, the provisions
of this Section shall not apply to any unintentional pollution or contamination
resulting from or in connection with the production of agricultural products.
Acts 1970, No. 499, § 2. Amended by Acts 1972, No. 157, § 1.
§ 1464.2 Enforcement; civil penalty
Whenever, upon the sworn complaint of any person, it is made to appear to
a district court of this state that a violation of this Part has occurred or
may be occurring, the district court shall immediately order a hearing on the
complaint to be held not less than two nor more than five days from the date
of the order. A copy of the order shall be served on the alleged violator. If,
at the hearing on the order, it appears to the satisfaction of the court that a
violation has occurred, or is occurring, the court may assess a civil penalty
not to exceed ten thousand dollars for each day during which the .violation
has occurred and all costs of the hearing. Where the violation is found to be
continuing, the court also may issue a preliminary injunction restraining the
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violation. The judgment of tlie court at the hearing, or subsequently on a
petition for fixing the penalty if the violation is a continuing one, shall fix the
total amount of the penalty due, which shall be collectible under the same pro-
cedures as now fixed by law for the collection of money judgments.
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Md. Code Ann. (1973), as amended, (Supp. 1974)
§ 8-101. Definitions.
(a) Generally. — In this title, the following words have the meanings
indicated:
* * *
(h) "Person" includes the state, any county, municipal corporation, or other
political subdivision of the state, or any of their units, or an individual,
receiver, trustee, guardian, executor, administrator, fiduciary, or
representative of any kind, or any partnership, firm, association, public or
private corporation, or any other entity.
(i) "Pollution" means every contamination or other alteration of the
physical, chemical, or biological properties, of any waters of the state,
including change in temperature, taste, color, turbidity, or odor of the waters,
or the discharge or deposit of any organic matter, harmful organism, liquid,
gaseous, solid, radioactive, or other substance into any waters of the state as
will render the waters harmful, detrimental, or injurious to public health,
safety, or welfare, domestic, commercial, industrial, agricultural, recreational,
other legitimate beneficial uses, or livestock, wild animals, birds, fish or other
aquatic life.
* * *
(k) "Waters of the state" includes both surface and underground waters
within the boundaries of the state subject to its jurisdiction, including that
portion of the Atlantic Ocean within the boundaries of the state, the
Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, public
ditches, tax ditches, and public drainage systems within the state, other than
those designed and used to collect, convey, or dispose of sanitary sewage. The
flood plain of free-flowing waters determined by the department on the basis
of the 50-year flood frequency is included as waters of the state.
§ 8-1401. Definitions.
(a) Generally. — In this subtitle, the following words have the meanings
indicated.
(b) "Discharge" means the addition, introduction, leaking, spilling, or
emitting any pollutant to state waters or the placing of any pollutant in a
location where it is likely to pollute.
(c) "Disposal system" means a system for disposing of wastes, either by
surface, above surface or underground methods, and includes treatment works,
disposal wells, and other systems.
(d) "Effluent limitations" means any restrictions or prohibitions established
under state or federal law including but not limited to parameters for toxic and
nontoxic discharges, standards of performance for new sources, or ocean
discharge criteria. The restrictions or prohibitions shall specify quantities,
rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged into state waters.
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(e) "Industrial user" means any person engaged in the manufacture,
fabrication, assemblage and such other classes of significant producers of
pollutants identified under regulations issued by the Secretary of Natural
Resources or by the Administrator of the United States Environmental
Protection Agency.
(f) "National pollutant discharge elimination system" shall mean the
national system for the issuance of permits as designated by the 1972
amendments to Federal Water Pollution Control Act.
(g) "Permit" means a permit to discharge pollutants into waters of the state
issued under this subtitle.
(h) "Pollutant" means any wastes or wastewaters discharged from any
publicly owned treatment works or industrial source and all other liquid,
gaseous, solid or other substances which will pollute any waters of the state.
* * *
(k) "Water quality criteria" means any criteria describing the required
quality of state waters adopted under state and federal law.
(1) "Water quality standards" means any water quality standards adopted
and effective under state and federal law.
§ 8-1402. Declaration of public policy.
Because the quality of the waters of this state is vital to the public and
private interests of its citizens and because pollution constitutes a menace to
public health and welfare, creates public nuisances, is harmful to wildlife, fish
and aquatic life, and impairs domestic, agricultural, industrial, recreational,
and other legitimate beneficial uses of water, and the problem of water
pollution in this state is closely related to the problem of water pollution in
adjoining states, it is state public policy to improve, conserve, and manage the
quality of the waters of the state and protect, maintain, and improve the
quality of water for public supplies, propagation of wildlife, fish and aquatic
life, and domestic, agricultural, industrial, recreational, and other legitimate
beneficial uses. Also, it is state public policy to provide that no waste is
discharged into any waters of this state without first receiving necessary
treatment or other corrective action to protect the legitimate beneficial uses of
this state's waters, and provide for prevention, abatement, and control of new
or existing water pollution. The department shall cooperate with the agencies
of other states and the federal government in carrying out these objectives.
(An. Code 1957, art. 96A, § 23; 1973, 1st Sp. Sess., ch. 4, § 1.)
§ 8-1403. Construction and purpose of subtitle; remedies
additional and cumulative.
This subtitle may not be construed as repealing any state law relating to
water pollution or conservation. This subtitle is supplementary to those laws,
except to the extent that the provisions are in direct conflict with one another.
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It is the purpose of this subtitle to provide additional and cumulative remedies
to prevent, abate, and control the pollution of the waters of the state. This
subtitle may not be construed to abridge or alter rights of action or remedies in
equity under existing common law, statutory law, criminal or civil, nor may
any provision of this subtitle, or any act done pursuant to it, be construed as
estopping any person, as riparian owner or otherwise, in the exercise of his
rights in equity, under the common law, or statutory law to suppress nuisances
or abate pollution. (An. Code 1957, art. 96A, § 28B; 1973,1st Sp. Sen., ch. 4, $
§ 8-1405. Powers and duties of administration generally.
(a) In general — The administration shall have and may exercise the
following powers and duties:
(7) Adopt, modify, repeal, and promulgate water quality standards for the
waters of the state, and effluent standards for waters discharged into the
waters of the state;
(8) Adopt, modify, repeal, and promulgate, after due notice and hearing, and
enforce rules and regulations implementing or effectuating its powers and
duties;
(9) Issue, modify, or revoke orders and permits prohibiting discharges of
pollutants into the waters of the state or require construction, modification,
extension, or alteration of new or existing disposal systems or treatment works
or parts of them or the adoption of other reasonable remedial measures to
prevent, control, or abate pollution or Undesirable changes in the quality of the
waters of the state;
* * *
(b) Water quality and effluent standards and rules and regulations. — The
administration may set water quality and effluent standards applicable to the
waters of the state or portions of it. The standards shall protect "public health,
safety, and welfare and the present and future use of the waters for public
water supply, the propagation of fish and other aquatic life and wildlife,
recreational purposes, and agricultural, industrial, and other legitimate uses.
All standards may be amended from time to time by the administration and
shall include but not be limited to:
(1) Water quality standards, specifying, among other things, the maximum
short-term and long-term concentrations of pollutants in the water, minimum
permissible concentrations of dissolved oxygen and other desirable matter in
the water and the temperature range for the water;
(2) Effluent standards specifying the maximum loading or concentrations
and the physical, thermal, chemical, biological, and radioactive properties of
wastes which may be discharged into the waters; standards shall be at least as
stringent as those specified by the national pollutant discharge elimination
system; '
(3) Rules and regulations defining technique for filling and sealing of
abandoned water wells and holes, for disposal wells, for mines both deep and
surface, and for landfills to prevent groundwater contamination, seepage, and
drainage into the waters of the state;
(4) Rules and regulations regarding the sale, offer, use or storage of
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pesticides, and other articles which constitute a water pollution hazard in the
determination of the administration;
(5) Rules and regulations outlining the procedures for water pollution
episodes or emergencies which constitute an acute danger to health or the
environment;
(6) Rules and regulations prescribing method, facilities, standards, and
devices for transfer, storage, separation, removal, treatment, and disposal of
oil and other unctuous substances;
(7) Rules and regulations specifying standards for equipment and
procedures for monitoring pollutants, collection of samples, logging and
reporting of the monitoring.
(c) Rules and regulations generally. — (1) The administration may adopt,
amend, or repeal procedural rules necessary to accomplish the purposes of this
subtitle. Notice of public hearing shall specify the general subject matter of the
regulation and, if appropriate, shall specify the waters for which the standards
or criteria are sought to be adopted, amended or repealed and shall publicly
circulate notice of its intended action and afford interested persons opportunity
to submit data or views, orally or in writing.
(2) The administration may adopt, amend, or repeal substantive regulations
as described in this paragraph. In promulgating regulations under this subtitle,
the administration shall take into account the existing physical conditions, the
character of the area involved, including the character of surrounding land
uses, priority ranking of waters with regard to effluent limits, zoning
classifications, the nature of the existing receiving body of watej, the technical
feasibility and economic reasonableness of measuring or' reducing the
particular type of water pollution, and any other standard as expressed in the
intent and purpose of this title. The generality of this grant of authority shall
only be limited by the specifications of particular classes of regulations
elsewhere in this subtitle. Any regulation may (i) prescribe different provisions
as required by circumstances for different pollutant sources and for different
geographical areas and (ii) apply to sources located outside this state which
cause, contribute to, or threaten environmental damage in Maryland and (iii)
make special provisions for alert and abatement standards and procedures
respecting occurrences or emergencies of pollution or on other short-term
conditions constituting an acute danger to health or to the environment.
(e) Investigation of damage to aquatic resources; responsibility for cleanup;
suit against persons liable for damage to aquatic resources. — Whenever there
occurs in the waters of the state any condition indicative of damage to aquatic
resources, including, but not limited to, mortality of fish and other aquatic life,
the department shall investigate the incident, determine the nature and extent
of the damage, and establish the cause and source of the occurrence. The
department shall act on these findings and require repair of any damage done
and restoration of water resources to a degree necessary to.protect the best
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interest of the people of the state. Any person who is determined to Be
responsible for the discharge or spillage of any such substance shall be
personally and/or severally responsible to immediately clean up and abate the
effects of the spillage and restore the natural resources of the state. If the
department believes instituting suit is advisable, it shall turn over to the
Attorney General all pertinent information and data. The Attorney General
then shall file suit against the person causing the condition. The person shall be
jointly and severally liable for the reasonable cost of rehabilitation and
restoration of the resources damaged and the cost of eliminating the condition
causing the damage, including the environmental monetary value of such
resources as established by regulation.
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Mass. Gen. Laws Ann. ch. 21 (1972), as amended, (Supp. 1974)
I 26A. Definitions
Unless the context otherwise requires, when used in sections twenty-ksix to fifty-
three, inclusive, the following words shall have the following meaningJ:
"Director", the director of the division of water pollution control, or his au-
thorized delegate or representative.
"Effluent limitation", a requirement, established under state or federal law,
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, to waters of the commonwealth or to a public
sewerage system.
"Person", any agency or political subdivision of the commonwealth, public or
private corporation or authority, individual, partnership or association, or other
entity, including any officer of a public or private agency or organization, upon
whom a duty may be imposed by or pursuant to any provision of sections twenty-
six to fifty-three, inclusive.
"Pollutant", any element or property of sewage, agricultural, industrial or com-
mercial waste, runoff, leachate, heated effluent, or other matter, in whatever
form and whether originating at a point or major nonpoint source, which is or
may be discharged, drained or otherwise introduced into any sewerage system^
treatment works or waters of the commonwealth.
"Treatment works" and "facilities", any and all devices, processes and proper-
ties, real or personal, used in the collection, pumping, transmission, storage, treat-
ment, disposal, recycling, reclamation or reuse of waterborne pollutants.
v>mrrs :ma "waters of the commonwealth", all waters within tne jurisdic-
tion of the commonwealth, including, without limitation, rivers, streams, lakes,
ponds, springs, impoundments, estuaries, coastal waters and groundwaters.
Added by St.1973, c. 546, § 2.
§ 27. Powers and duties of division
It shall be the duty and responsibility of the division to enhance the quality
and value of water resources and to establish a program for prevention, control,
and abatement of water pollution. Said division shall:
* * *
(5) Adopt standards of minimum water quality which shall be applicable to the
various waters or portions of waters of the commonwealth. Standards relating to
the public health shall not be adopted without the approval of the commissioner
of public health.
- (6) Prescribe effluent limitations, permit programs and procedures applicable
to the management and disposal of pollutants, including, where appropriate, pro-
hibition of discharges.
* * *
(12) Adopt, amend or repeal after hearing from time to time, with the approval
of the water resources commission, rules and regulations which it deems necessary
for the proper administration of the laws relative to water pollution control and to
the protection of the quality and value of water resources, including regulations
to control or prevent the discharge of sewage, garbage or other waste material from
watercraft of any type, including houseboats. Such rules and regulations as shall
relate to the public health shall not be adopted without the written approval
of the commissioner of public health.
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§ 42. Discharge into waters; violations of chapter, regulation, order or
permit; false representations; tampering with monitoring de-
vice or method; criminal and civil penalties
Any person who, directly or Indirectly, throws, drains, runs, discharges or al-
lows the discharge of any pollutant into waters of the commonwealth, except in
conformity with a permit issued-under section forty-three; or who violates any
provision of this chapter, any valid regulation, order or permit prescribed or issued
by the director thereunder; or who knowingly makes any false representation in
an application, record, report or plan, or falsifies, tampers with or renders inac-
curate a monitoring device or method, required under this chapter, (a) shall be
punished by a fine of not less than two thousand five hundred dollars nor more
than twenty-five thousand dollars for each day such'violation occurs or continues,
or by imprisonment for not more than one year, or by both; o.r (It) shall be subject
to a civil penalty not to exceed ten thousand dollars per day of such violation,
which may be assessed in an action brought on behalf of the commonwealth in-any
court of competent jurisdiction. «.
Nothing in this chapter shall be construed as. adversely affecting the rights
of any person to secure judicial relief against actual or potential waste dis-
chargers under other rules or provisions of law.
Np information submitted or made available for inspection in accordance with
requirements established by or under this chaptqr may be used in any criminal
proceeding against the individual who submits it, certifies it, or makes it available,
except in a prosecution for the making of a false statement or record, dr for
otherwise failing to comply with reporting or recording requirements under this
chapter.
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Me. Rev. Stat. Ann. tit. 38 (1964), as amended, (Supp. 1974)
§ 361-A. Del) nitrons
Unless the context otherwise indicates, the following words when used >»
any statute administered by the Department of Environmental Protection
shall have the following meanings:
I. Discharge. "Discharge" means any spilling, leaking, pumping, pourinp.
emptying, dumping, disposing or other addition of any pollutant to water nf
the State.
I-A. Coastal streams. "Coastal streams" means those waters of the Stntr
which drain directly or indirectly into tidal waters, except portions of stream*
subject to the rise and fall of the tide and those waters listed and classifii1''
in sections 368 and 3TO.
2. Fresh surface waters. "Fresh surface waters" means all waters of the
State other than tidal waters.
3. Municipality. "Municipality" means a city, town, plantation or unor-
ganized township.
4. Person. "Person" means an individual, firm, corporation, municipality,
quasi-municipal corporation, state agency, federal agency or other legal entity.
4-A. Pollutant. "Pollutant" means dredged spoil, solid waste, junk, in-
cinerator residue, sewage, refuse, effluent, garbage, sewage sludge, munitions,
chemicals, biological or radiological materials, oil, petroleum products or by-
products, heat, wrecked or discarded equipment, rock, sand, dirt and indus-
trial, municipal, domestic, commercial or agricultural wastes of any kind.
5. Tidal waters. "Tidal waters" means those portions of the Atlantic
Ocean within the jurisdiction of the State, and all other waters of the State
subject to the rise and fall of the tide except those waters listed and classified
in sections 368 and 369.
6. Transfer of ownership. "Transfer of ownership" means a sale, a lease,
a sale of over 50% of the stock of a corporation to one legal entity or a merger
or consolidation where the surviving corporation is other than the original li-
censee.
7. Waters of the State. "Waters of the State" means any and all surface
and subsurface waters which are contained within, flow through, or under or
border upon this State or any portion thereof, including the marginal and high
seas, except such waters as are confined and retained completely upon the
property of one person and do not drain Into or connect with any other waters
of the State.
I 363. Standards of classification of fresh waters
The commission shall have 4 standards for the classification of fresh surface
waters.
Class A shall be the highest classification and shall be of such quality that it
can be used for recreational purposes, including bathing, and for public water
supplies after disinfection. The dissolved oxygen content of such waters shall
not be less than 75% saturation or as naturally occurs, and contain not more
than 100 coliform bacteria per 100 milliliters.
These waters shall be free from sludge deposits, solid refuse and floating
solids such as oils, grease or scum. There shall be no disposal of any matter
or substance in these waters which would Impart color, turbidity, taste or odor
other than that which naturally occurs in said waters, nor shall such matter or
substance alter the temperature or hydrogen-ion concentration of these waters
or contain chemical constituents which would be harmful or offensive to hu-
mans or which would be harmful to animal or aquatic life. No radioactive
matter or substance shall be permitted in these waters other than that oc-
curring from natural phenomena.
There shall be no discharge of sewage or other wastes into water of this
classification unless specifically licensed by the commission upon finding that
no degradation will result to the quality of such waters, and no deposits of
such material on the banks of such waters in such a manner that transfer of
the material ino the waters is likely. Such waters may be used for log driv-
ing if such use will not lower its classification.
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Class B, the 2nd highest classification, shall be divided into 2 designated
groups as B-l and B-2.
B-l. Waters o£ this class shall be considered the higher quality of the Class
B group and shall be acceptable for recreational purposes, including wa-
ter contact recreation, for use as potable water supply after adequate treat-
ment and for a fish and wildlife habitat. The dissolved oxygen of sucn
waters shall be not less than 75% of saturation, and not less than 5 parts per
million at any time. The total coliform bacteria count is not to exceed dou per
100 milliliters. The fecal coliform bacteria shall not exceed 60 per 100 mil-
Mliters.
These waters shall be free from sludge deposits, solid refuse and float ng
solids such as oils, grease or scum. There shall be no disposal of any matter
or substance Jn these waters which imparts color, turbidity, taste or om
which would impair the usages ascribed to this classification nor shali suu
matter or substance alter the temperature or hydrogen-Ion concentration o
these waters so as to render such waters harmful to fish or other aquatic 11i*.
There shall be no discharge to these waters which will cause the hydrogen-in
concentration or "pH" of these waters to fall outside of the 6.0 to 8.5 ram.-
There shall be no disposal of any matter or substance that contains clieiiiH
constituents which are harmful to humans, animals or aquatic life or KUU.
adversely affect any other water use in this class.
No radioactive matter or substances shall be discharged to these waters
which will raise the radio-nuclide concentrations above the standards as estab-
lished by the United States Public Health Service as being acceptable for
drinking water. These waters shall be free of any matter or substance which
alters the composition of bottom fauna, which adversely affects the physical
or chemical nature of bottom material, or which interferes with the propaga-
tion of fish. . .
There shall be no disposal of sewage, industrial wastes or other wastes in
such waters, except those which have received treatment for the adequate re-
moval of waste constituents including, but not limited to, solids, color, turbidi-
ty, taste, odor or toxic material, such that these treated wastes will not lower
the standards or alter the usages of this classification, nor shall such disposal
of sewage or waste be injurious to aquatic life or render such dangerous for
human consumption.
B-2. Waters of this class shall be acceptable for recreational purposes in-
cluding water contact recreation, for industrial and potable water supplies
after adequate treatment, and for a fish and wildlife habitat The dissolved
oxygen of such waters shall not be less than 60% of saturation, and not less
than 5 parts per million at any time. The total coliform bacteria is not to
exceed 1,000 per 100 milliliters. The fecal coliform bacteria is not to exceed
200 per 100 milliUters.
These waters shall be free from sludge deposits, solid refuse and floating
solids such as oils, grease or scum. There shall be no disposal of any matter
or substance in these waters which imparts color, turbidity, taste or odor
which would impair the usages ascribed to this classification, nor shall such
matter or substance alter the temperature or hydrogen-ion concentration of
the waters so as to render such waters harmful to fish or other aquatic life.
There shall be no disposal of any matter or substance that contains chemical
constituents which are harmful to humans, animal or aquatic life, or which
adversely affect any other water use in this class. There shall be no discharge
to these waters which will cause the hydrogen-ion concentration or "pH of
these waters to fall outside of the 6.0 to 8.5 range.
No radioactive matter or substance shall be discharged to these waters
which will raise the radio-nuclide concentrations above the standards as es-
tablished by the United States Public Health Service as being acceptable for
drinking water. These waters shall be free of any matter or substance which
alters the composition of bottom fauna, which adversely affects the physical
or chemical nature of bottom material, or which interferes with the propaga-
tion of fish.
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There shall be no disposal of sewage, industrial wastes or other wastes in
such waters except those which have received treatment for the adequate
removal of waste constituents including, but not limited to, solids, color, tur-
bidity, taste, odor or toxic material, such that the~se treated wastes will not
lower the standards or alter the usages of this classification, nor shall such
disposal of sewage or waste be Injurious to aquatic life or render such dan-
gerous for human consumption.
. Class C waters, the 3rd highest classification, shall be of such, a quality as to
be satisfactory for recreational boating and fishing, for a fish and wildlife
habitat and for other uses except potable water supplies and water contact
recreation, unless such waters are adequately treated.
The dissolved oxygen content of such waters shall not be less than 5 parts per
million, except in those cases where the board finds that the natural dissolved
oxygen of any such body of water falls below 5 parts per million, in which
case the board may grant a variance to this requirement. In no event shall
the dissolved oxygen content of such waters be less than 4 parts per million.
The total coliform bacteria is not to exceed 5,000 per 100 milliliters. The fecal
coliform bacteria is not to exceed 1,000 per 100 milliliters.
These waters shall be free from sludge deposits, solid refuse and floating
solids such as oils, grease or scum. There shall be no disposal of any matter
or substance in these waters which imparts color, turbidity, taste or odor
which would impair the usages ascribed to this classification, nor shall such
matter or substance alter the temperature or hydrogen-ion content of the
waters so as to render such waters harmful to fish or other aquatic life.
There shall be no discharge to these waters which will cause the hydrogen-ion
concentration or "pH" of these waters to fall outside of the 6.0 to 8.5 range.
There shall be no disposal of any matter or substance that contains chemical
constituents which are harmful to humans, animal or aquatic life or which
adversely affect any other water use in this class. No radioactive material
or substance shall be discharged to these waters which will raise the radio-
nuclide concentrations above the standards as established by the United States
Public Health Service as being acceptable for drinking water.
There shall be no disposal of sewage, industrial wastes or other wastes in
such waters, except those which have received treatment for the adequate
removal of waste constituents including, but not limited to, solids, color, tur-
bidity, taste, odor or toxic material, such that these treated wastes will not
lower the standards or alter the usages of this classification, nor shall such
disposal of sewage or waste be injurious to aquatic life or render such dan-
gerous for human consumption.
Class D waters shall be assigned only where a higher water classification can-
not be attained after utilizing the best practicable treatment or control of
sewage or other wastes. Waters of this class may be used for power genera-
tion, navigation and industrial process waters after adequate treatment.
Dissolved oxygen of these waters shall not be less than 2.0 parts per million.
The numbers of coliform bacteria allowed in these waters shall be only those
amounts which will not, in the determination of the commission, indicate a
condition harmful to the public health or impair any usages ascribed to this
classification.
These waters shall be free from sludge deposits, solid refuse and floating
solids such as oils, grease or scum. There shall be no disposal of any matter
or substance in these waters which imparts color, turbidity, taste or odor which
would impair the usages ascribed to this classification, nor shall such matter or
substance alter the temperature or hydrogen-ion concentration of the waters to
impair the usages of this classification. There shall be no disposal of any
matter or substance that contains chemical constituents which are harmful
to humans or which adversely affect any other water use in this class. No
radioactive matter or substance shall be permitted in these waters which would
be harmful to humans, animal or aquatic life and there shall be no disposal
of any matter or substance which would result in radio-nuclide concentrations
in edible fish or other aquatic life thereby rendering them dangerous for hu-
man consumption.
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There shall he no disposal of sewage, Industrial wastes or other wastes in
such waters, except those which have received treatment for the adequate re-
moval of waste constituents including, but not limited to, solids, color, turbid-
ity, taste, odor or toxic material, such that these treated wastes will not lower
the standards or alter the usages of this classification. Treated wastes dis-
charging to these waters shall not create a public nuisance as defined in Title
17, section 2802, by the creation of odor-producing sludge banks and deposits
or other nuisance conditions.
With respect to all classifications hereinbefore set forth, the commission may
take such actions as may be appropriate for the best interest of the public,
when it finds that any such classification is temporarily lowered due to ab-
normal conditions of temperature or stream flow.
At such time as the State applies for and receives authority to issue permits
under the appropriate provisions of the Federal Water Pollution Control Act,
as amended,* no person may serve as a board member who receives, or during
the 2 years prior to his appointment has received, a significant portion of his
income directly or indirectly from license or permit holders or applicants for
a license or permit
I 364. Tidal or Marine Waters
. The commission shall have 5 standards for classification of tidal waters:
Class SA, shall be suitable for all clean water usages, including water con-
tact recreation, and fishing. Such waters shall be suitable for the harvesting
and propagation of shellfish and for a fish and wildlife habitat. These waters
shall contain not less than 6.0 parts per million of dissolved oxygen at all
times. The median numbers of coliform bacteria in any series of samples
representative of waters in the shellfish growing area or non-shellfish grow-
ing area shall not be in excess of 70 per 100 milliliters, nor shall more than
10% of the samples exceed 230 coliform bacteria per 100 milliliters.
The median numbers of fecal coliform bacteria in any series of samples
representative of waters in the shellfish growing area or non-shellfish grow-
ing area shall not be in excess of 15 per 100 milliliters, nor shall more than
10% of the samples exceed 50 fecal coliform bacteria per 100 milliliters.
There shall be no floating solids, settleable solids, oil or sludge deposits at-;
tributable to sewage, industrial wastes or other wastes and no deposit of
garbage, cinders, ashes, oils, sludge or other refuse. There shall be no dis-
charge of sewage or other wastes, except those which have received treatment
for the adequate removal of waste constituents including, but not limited to,
solids, color, turbidity, taste, odor or toxic material, such that these treated
wastes will not lower the standards or alter the usages of this classification,
nor shall such disposal of sewage or waste be injurious to aquatic life or
render such dangerous for human consumption.
There shall be no toxic wastes, deleterious substances, colored or other
waste or heated liquids discharged to waters of this classification either singly
or in combinations with other substances or wastes in such amounts or at
such temperatures as to be injurious to edible fish or shellfish or to the
culture or propagation thereof, or which in any manner shall adversely affect
the flavor, color, odor or sanitary condition thereof; and otherwise none in
sufficient amounts to make the waters unsafe or unsuitable for bathing or
impair the waters for any other best usage as determined for the specific
waters assigned to this class. There shall be no discharge which will cause
the hydrogen-ion concentration or "pH" of these waters to fall outside of the
6.7 to 8.5 range.
There shall be no disposal of any matter or substances that contains
chemical constituents which are harmful to humans, animal or aquatic life or
which adversely affect any other water use in this class. No radioactive matter
moval of waste constituents including, but not limited to, solids, color, tur-
bidity, taste, odor or toxic material, such that these treated wastes will not
lower the standards or alter the usages of this classification. Treated wastes
discharging to these waters shall not create a public nuisance as defined in
Title 17, section 2802, by the creation of odor-producing sludge banks and
deposits or other nuisance conditions.
With respect to all classifications hereinbefore set forth, the commission
may take such actions as may be appropriate for the best interests of the pub-
lic, when it finds that any such classification is temporarily lowered due to
abnormal conditions of temperature or stream flow.
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§ 419. Cleaning agents containing phosphate banned
I. Definitions.
A. Dairy equipment. "Dairy equipment", as used in this section, means
equipment used by farmers or processors for the manufacture or process-
ing of milk and dairy products.
B. Food processing equipment. "Food processing equipment", as used
in this section, means equipment used for the processing and packaging of
food for sale, except that equipment used at restaurants and similar
places of business shall not be included within the meaning of "food
processing equipment."
C. High phosphorous detergent. "High phosphorous detergent", as used
in this section, means any detergent, presoak, soap, enzyme or other
cleaning agent containing more than 8.7% phosphorous, by weight.
D. Industrial equipment. "Industrial equipment", as used in this sec-
tion, means equipment used by industrial concerns which concerns are
located on any brook, stream or river.
E. Person. "Person", as used in this section, means any individual,
firm, association, partnership, corporation, municipality, quasi-municipal
organization, agency of the State or other legal entity.
2. Prohibition. No person shall sell or use any high phosphorous deter-
gent after June 1, 1972.
3. Exception. Subsection 2 shall not apply to any high phosphorous de-
tergent sold and used for the purpose of cleaning dairy equipment, food
processing equipment and industrial equipment.
4. Penalty. Any person who violates this section shall be punished by n
fine of not more than $500 for each violation
§ 420. Certain deposits and discharges prohibited
No person, firm, corporation or other legal entity shall place, deposit, dis-
charge or spill, directly or indirectly, into the Inland or tidal waters of this
and any body of water artificially formed or increased which has a surface
area In excess of 30 acres, the shore of which is owned by 2 or more persons,
firms, corporations or other legal entities.
§ 423. Discharge of waste from watercraft
No person, firm, corporation or other legal entity shall discharge, spill or
permit to be discharged sewage, garbage or other waste material from water-
craft, as defined in section 201, subsection 14, and including houseboats, into
inland waters of this State, or on the ice thereof, or on the banks thereof in
such a manner that the same may fall or be washed into such waters, or in
such manner that the drainage therefrom may flow into such waters.
Any watercraft, as defined in section 201, subsection 14, including house-
boats, operated upon the inland waters of this State and having a perma-
nently installed sanitary waste disposal system shall have securely affixed to
the interior discharge opening of said sanitary waste disposal system a hold-
ing tank or suitable container for holding sanitary waste material so as tc
prevent its discharge or drainage into the inland waters of the State.
Whoever violates any provision of this section or any regulation adopted
under authority of this section shall be guilty of a misdemeanor and shall be
punished by a fine-of not more than $500.
§ 541. Findings; purpose
The Legislature finds and declares that the highest and best uses of the
seacoast of the State are as a source of public and private recreation and
solace from the pressures of an industrialized society, and as a source of
public use and private commerce in fishing, lobstering and gathering other
marine life used and useful in food production and other commercial activities.
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The Legislature further finds and declares that the preservation of these
uses is a matter of the highest urgency and priority and that such uses can
only be served effectively by maintaining the coastal waters, estuaries, tidal
flats, beaches and public lands adjoining the seacoast in as close to a pristine
condition as possible taking into account multiple use accommodations nec-
essary to provide the broadest possible promotion of public and private in-
terests with the least possible conflicts in such diverse uses.
The Legislature further finds and declares that the transfer of oil, petro-
leum products and their by-products between vessels and vessels and onshore
facilities and vessels within the jurisdiction of the State and state waters is
a hazardous undertaking; that spills, discharges and escape of oil, petroleum
products and their by-products occurring as a result of procedures involved
in the transfer and storage of such products pose threats of great danger and
damage to the marine, estuarine and adjacent terrestrial environment of the
State; to owners and users of shorefront property; to public and private
recreation; to citizens of the State and other interests deriving livelihood
from marine-related activities; and to the beauty of the Maine coast; that
such hazards have frequently occurred in the past, are occurring now
and present future threats of potentially catastrophic proportions, all of which
are expressly declared to be inimical to the paramount interests of the State
as herein set forth and that such state interests outweigh any economic bur-
dens imposed by the Legislature upon those engaged in transferring oil, pe-
troleum products and their by-products and related activities.
The Legislature intends by the enactment of this legislation to exercise
the police power of the State through the Environmental Improvement Com-
mission by conferring upon said commission the exclusive power to deal
with the hazards and threats of danger and damage posed by such transfers
and. related activities; to require the prompt containment and removal of
pollution occasioned thereby; to provide procedures whereby persons suffer-
ing damage from such occurrences may be promptly made whole; and to
establish a fund to provide for the inspection and supervision of such activi-
ties and guarantee the prompt payment of reasonable damage claims resulting
therefrom.
The Legislature further finds and declares that the preservation of the
public uses referred to herein is of grave public interest and concern to the
State in promoting its general welfare, preventing disease, promoting health
and providing for the public safety, and that the State's interest in such preser-
vation outweighs any burdens of absolute liability imposed by the Legislature
upon those engaged in transferring oil, petroleum products and their by-prod-
ucts and related activities.
§ 543. Pollution and corruption of waters and lands of the State prohibited
The discharge of oil, petroleum products or their by-products into or upon
any coastal waters, estuaries, tidal flats, beaches and lands adjoining the
seacoast of the State, or into any river, stream, sewer, surface water drain
or other waters that drain into the coastal waters of the State is prohibited.
Notwithstanding the prohibition of this section, the Board of Environ-
mental Protection may license the discharge of waste, refuse or effluent, in-
cluding natural drainage contaminated by oil, petroleum products or their
by-products, into or upon any coastal waters if, and only if, it finds that
such discharge will be receiving the best available treatment and that such
discharge will not degrade existing water quality nor perceptibly violate the
classification of the receiving waters, nor create any visible sheen upon the
receiving waters.
In acting upon an application for any such license, the board shall follow
the provisions of subchapter I insofar as they are applicable.
S 550. Enforcement, penalties
Whenever it appears after investigation that there is a violation of any
rule, regulation, order or license issued by the commission, the commission
shall proceed In accordance with the provisions of section 451, subsection 2.
Whoever violates any provisions of this subchapter or any rule, regulation
or order of the commission made hereunder shall be punished by a fine of
not less than $100 nor more than $5000. Each day that any violation shall
continue shall constitute a separate offense. The provisions of this section
shall not apply to any discharge promptly reported and removed by a licensee
in accordance with the rules, regulations and orders of the commission.
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S 451. Enforcement generally
After adoption of any classification by the Legislature for surface waters
or tidal flats or sections thereof, it shall be unlawful for any person, firm,
corporation, municipality, association, partnership, quasi-municipal body, state
agency or other legal entity to dispose of any sewage, industrialor other
waste, either alone or in conjunction with another or others, in such manner
as will, after reasonable opportunity for dilution, diffusion or mixture with
the receiving waters or heat transfer to the atmosphere lower the quality of
said waters below the minimum requirements of such classifications, or where
noising zones have been established by the commission, so lower the quality of
said waters outside such zones, notwithstanding any exemptions or licenses
which may have been granted or issued under sections 413 and 414.
All orders of the commission shall be enforced by the Attorney General. If
any order of the commission is not complied with within the time period
specified, the commission shall immediately notify the Attorney General of
this fact. Within 21 days thereafter, the Attorney General shall forthwith
commence an action in the Superior Court of any county where the violation
of the commission's order has occurred.
If the commission finds that the discharge of any materials into any waters
of this State constitutes a substantial and immediate danger to the health,
safety or general welfare of any person, persons or property, they shall forth-
with request the Attorney General to initiate immediate injunction proceed-
ings to prevent such discharge. Said injunction proceedings may be instituted
without recourse to the issuance of an order, as provided for in this section.
S 453. Penalties
Any person who violates any provision of this subchapter, any order, regu-
lation, license or decision of the board lawfully issued pursuant hereto, shall
be punished by a fine of not less than $200 nor more than $25,000 for each
day of such violation, failure, neglect or refusal after the expiration of any
time limit set by the board. When an appeal is taken from any such order,
no fine shall be imposed for that period of time during which said appeal is
pending.
§ 454. Injunctions, civil and criminal actions
In the event of any violation of any of the provisions of the laws which
the Department of Environmental Protection is responsible for administering,
or of any order, regulation, decision, license or permit of the board or decree
of the court as the case may be, the Attorney General may institute injunction
proceedings to enjoin the further violation thereof, a civil or criminal' action
or any appropriate combination thereof, without recourse to section 451. In
addition to any other, penalties provided by law, any person who violates ^any
provision of this subchapter or any rule, regulation, license or order .issued
or promulgated hereunder, shall be subject to a civil penalty, payable to the
State, not to exceed $10,000 per day of such violation.
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Mich. Stat. Ann. (Supp. 1974)
§3.523] Same; suits, enforcement of laws. SEC. 3. The com-
mission shall be authorized to bring any appropriate action in the
name of the people of the state of Michigan, either at law or in chan-
cery, as may be necessary to carry out the provisions of this act, and
to enforce any and all laws relating to the pollution of the waters of
this state. (CL '48. § 323.3; CL '29, § 280.)
§ 3.525 Pollution standards; powers, rules and orders.] SEC. 5.
The commission shall establish such pollution standards for lakes,
rivers, streams and other waters of the state in relation to the public
use to which they are or may be put, as it shall deem necessary. It
shall • [issue permits which will assure compliance with, state stan-
dards to regulate municipal, industrial and commercial discharges
or storage of any substance which may affect the quality of the
waters of the state. It may set permit restrictions which will assure
compliance with applicable federal law and regulations. It may]
ascertain and determine for record and in making its order what
volume of water actually flows in all streams, and the high and low
water marks of lakes and other waters of the state, affected by the
waste disposal or pollution of municipalities, industries, public and
private corporations, individuals, partnership associations or any
other entity. It • [may! make • [rules] and orders restricting
the polluting content of any waste material or .polluting sub-
stance discharged or sought to be discharged into any lake,
river, stream or other waters of the state. It shall • take all
appropriate steps to prevent any pollution which is deemed by
the commission to be unreasonable and against public interest
in view of the existing conditions in any lake, river, stream or
other waters of the state.
§3.529(1) Civil action; injunction; venue; civil penalty.]
SEC. 10. [(1) The commission may request the attorney general to
commence a civil action for appropriate relief, including a permanent
or temporary injunction, for a violation of this act or rules promul-
gated hereunder. An action under this subsection may be brought
in the circuit court for the county of Ingham or for the county in
which the defendant is located, resides, or is doing business. The court
has jurisdiction to restrain the violation and to require compliance.
In addition to any other relief granted under this subsection, the
court may impose a civil penalty of not more than $10,000.00 per day
of violation.
Misdemeanor; penalty; recovery of damages and costs; proba-
tion.] (2)] A person who discharges • [a] substance into the
waters of the state contrary to 4 [the provisions of this act,] or
contrary to the provisions of a permit, order, rule, or stipulation of
the commission, or who • [makes a fake statement, representation, or
certification in an application for, or form pertaining to a permit, or
in a notice or report required by the terms and conditions of an4 issued
permit, or who renders inaccurate a monitoring device or record re-
quired to be maintained by the commission,] is guilty of a "misde-
meanor and • [shall] be fined not [less than $2,500.00 nor] more
than [$25,000.00] for each violation. The court may impose an
additional fine of not more than [$25,000.00] for each day during
which the unlawful discharge occurred. [If the conviction is for a
violation committed after a first conviction of the person under this
subsection, the court may impose a fine of not more than $50,000.00
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per day of violation.] The circuit court for the county in which the
violation occurred has exclusive jurisdiction. However, the person
shall not be subject to the penalties of this [subsection] if the dis-
charge of the effluent is in conformance with and obedient to a rule,
order, or permit of the commission. In addition to 4 [a] fine, the
attorney general may file a suit in a court of competent jurisdiction
to recover the full value of the injuries done to the natural resources
of the state and the costs of surveillance and enforcement by the state
resulting from the violation. In addition to 4 fa] fine, the court in its
discretion may impose probation upon 4 £a] person for a violation
of this 4 Cactjj.
§ 3.533(109) Hazardous or nuisance conditions, or pollution;
correction, abatement, prevention; indemnification,] SEO. 9. If
the commission determines hazardous or nuisance conditions or that
•unlawful pollution of the waters of the state has resulted or may
result from the handling or disposal of liquid industrial wastes by a
licensee, it shall first notify the licensee thereof and shall afford him
the opportunity to take corrective action or to abate the pollution
or take the necessary means to prevent the occurrence of unlawful
pollution. If the licensee does not effect the correction, abatement
or prevention within a reasonable time, the commission shall do so
and shall be entitled to indemnification by the bond for the actual
costs thereof.
§3.533(110) Violation; license revocation; penalties; con-
tinuing violations.] SBC. 10. Any person who violates or refuses
to comply with any of the provisions of this act shall be subject
to the revocation of his license by the commission, and upon con-
viction thereof by a court of competent jurisdiction shall be fined
not less than $500.00 and costs of prosecution, and in default of pay-
ment of fine and costs, imprisoned for not less than 10 days nor
more than 30 days. "When the violation is of a continuing nature, each
day ut>on which a violation occurs is a separate offense.
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Minn. Stat. Ann, (1964), as amended, (Supp. 1974)
115.01 Definitions
Subdivision 1. The following words and phrases when used in chapter 115
ana, with respect to the pollution of the waters of the state, In chapter 116,
unless the context clearly indicates otherwise, shall have the meanings as-
cribed to them in this section.
Snbd. 2. "Sewage" means the water-carried waste products from resi-
dences, public buildings, institutions or other buildings, or any mobile source,
including the excrementitious or other discharge from the bodies of human
oeings or animals, together with such ground water infiltration and surface
water as may be present
Subd. 3. "Industrial waste" means any liquid, gaseous or sol-
id waste substance resulting from any process of industry, manu-
facturing trade or business or from the development of any nat-
ural resource.
Subd. 4. "Other wastes" mean garbage, municipal refuse, decayed wood
sawdust, shavings, bark, lime, sand, ashes, offal, oil, tar, chemicals, dredged
spoil, solid waste, incinerator residue, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, cellar dirt or municipal or agricultural waste, and all othei
substances not included within the definitions of sewage and industrial waste
set forth in this chapter which may pollute or tend to pollute the waters ol
the state.
Subd. 5. "Pollution of water", "water pollution", or "pollute the water"
means: (a) the discharge of any pollutant into any waters of the state or the
contamination of any waters of the state so as to create a nuisance or render
such waters unclean, or noxious, or impure so as to be actually or potentially
harmful or detrimental or injurious to public health, safety or welfare, to do-
mestic, agricultural, commercial, industrial, recreational or other legitimate
uses, or to livestock, animals, birds, fish or other aquatic life; or (b) the
man-made or man-induced alteration of the chemical, physical, biological, or
radiological integrity of waters of the state.
Subd. 6. "Sewer system" means pipe lines or conduits, pump-
ing stations, and force mains, and all other constructions, devices,
and appliances appurtenant thereto, used for conducting sew-
age or industrial waste or other wastes to a point of ultimate dis-
posal.
Subd. 7. "Treatment works" means any plant, disposal field,
lagoon, dam, pumping station, constructed drainage ditch or sur-
face water intercepting ditch, incinerator, area devoted to sani-
tary land fills, or other works not specifically mentioned herein,
installed for the purpose of treating, stabilizing or disposing of
sewage, industrial waste, or other wastes.
Subd. 8. "Disposal system" means a system for disposing of
sewage, industrial waste and other wastes, and includes sewer
systems and treatment works.
Subd. 9. "Waters of the state" means all streams, lakes,
ponds, marshes, watercourses, waterways, wells, springs, reser-
voirs, aquifers, irrigation systems, drainage systems and all oth-
er bodies or accumulations of water, surface or underground, nat-
ural or artificial, public or private, which are contained within,
flow through, or border upon the state or any portion thereof.
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Subd. 10. "Person" means the state or any agency or institution thereof, any
municipality, governmental subdivision, public or private corporation, individ-
ual, partnership, or other entity, including, but not limited to, association,
commission or any interstate body, and includes any officer or governing or
managing body of any municipality, governmental subdivision, or public or
private corporation, or other entity.
Subd. 11. "Agency" means the Minnesota pollution control agency.
Subd. 12. "Discharge" means the addition of any pollutant to the waters
of the state or to any disposal system.
Subd. 13. "Pollutant" means any "sewage," "industrial waste," or "other
wastes," as defined in chapter 115, discharged into a disposal system or to
waters of the state.
Subd. 14. "Toxic pollutants" means those pollutants, or combinations of
pollutants, including disease-causing agents, which after discharge and upon
exposure, ingestion, inhalation or assimilation into any organism, either di-
rectly from the environment or indirectly by ingestion through food chains,
will, on the basis of information available to the agency, cause death, disease,
behavioral abnormalities, cancer, genetic mutations, physiological malfunc-
tions, including malfunctions in reproduction, or physical deformation, in such
organisms or their offspring.
Subd. 15. "Point source" means any discernible, confined and discrete con-
veyance, including, but not limited to, any pipe, ditch, channel, tunnel, con-
duit, well, discrete fissure, container, rolling stock, concentrated animal feed-
ing operation, or vessel or other floating craft, from which pollutants are or
may be discharged.
Subd. 16. "Standards" means effluent standards, effluent limitations,
standards of performance for new sources, water quality standards, pretreat-
ment standards, and prohibitions.
Subd. 17. "Schedule of compliance" means a schedule of remedial mea-
sures including an enforceable sequence of actions or operations leading to
compliance with an effluent limitation, other limitation, prohibition; or stand-
ard.
115.03 Powers and duties
" Subdivision 1. The agency is herein- gh-en and charged with the following
powers and duties:
* * *
(c) To establish and alter such reasonable pollution standards for any wa-
ters of the state in relation to the public use to which they are or may be
put as it shall deem necessary for the purposes of chapter 115 and, with re-
spect to the pollution of waters of the state, chapter 116;
* * *
(e) To adopt, issue, reissue, modify, deny, or revoke, enter into or enforce
reasonable orders, permits, variances, standards, regulations, schedules of
compliance, and stipulation agreements, under such conditions as it may pre-
scribe, In order to prevent, control or abate water pollution, or for the instal-
lation or operation of disposal systems1 or parts thereof, or for other equip-
ment and facilities;
(1) Requiring the discontinuance of the discharge of sewage, industrial
waste or other wastes into any waters of the state resulting in pollution in
excess of the applicable pollution standard established under this chapter;
(2) Prohibiting or directing the abatement of any discharge of sewage, in-
dustrial waste, or other wastes, into any waters of the state or the deposit
thereof or the discharge into any municipal disposal system where the same
is likely to get into any waters of the state in violation of this chapter and,
with respect to the pollution of waters of the state, chapter 116, or standards
or regulations promulgated or permits issued pursuant thereto, and specifying
the schedule of compliance within which such prohibition or abatement must
-be accomplished;
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115.061 Duty to notify and avoid water pollution
It is the duty of every person to notify the agency immediately of the
discharge, accidental or otherwise, of any substance or material under Its
control which, if not recovered, may cause pollution of waters of the state,
and the responsible person shall recover as rapidly and as thoroughly as pos-
sible such substance or material and take immediately such other action as may
be reasonably possible to minimize or abate pollution of waters of the state
caused thereby.
115.07 Violations and prohibitions
Subdivision 1. Obtain permit. It shall be unlawful for any
person to construct, install or operate a disposal system, or any
part thereof, until plans therefor shall have been submitted to the
commission unless the commission shall have waived the submis-
sion thereof to it and a written permit therefor shall have been
granted by the commission.
Sobd. 2. Repealed by Laws 1973, c. 374, § 22.
Subd. 3. Permission for extension. It shall be unlawful for any person to
make any change in, addition to or extension of any existing disposal system
or point source, or part thereof, to effect any facility expansion, production
increase, or process modification which results in new or increased discharges
of pollutants, or to operate such system or point source, or part thereof as so
changed, added to, or extended until plans and specifications therefor shall
have been submitted to the agency unless the agency shall have waived the
submission thereof to it and a written permit therefor shall have been grant-
ed by the agency.
115.071 Enforcement
Subdivision I. Remedies available. The provisions of chapters 115 and
116 and all regulations, standards, orders, stipulation agreements, schedules
of compliance, and permits adopted or issued by the agency thereunder or
under any other law now in force or hereafter enacted for the prevention,
control, or abatement of pollution may be enforced by any one or any com-
bination of the following: criminal prosecution; action to recover civil
penalties; injunction; action to compel performance; or other appropriate
action, in accordance with the provisions of said chapters and this section.
Subd. 2. Criminal penalties, (a) Violations of laws; orders; permits. (1)
Any person who willfully or negligently violates any provision of chapter 115
or 116, or any standard, regulation, variance, order, stipulation agree-
ment, schedule of compliance or permit issued or adopted by the agency there-
under, which violation is not included in clause (2), shall upon conviction be
guilty of a misdemeanor.
(2) Any person who willfully or negligently violates any effluent standard
and limitation or water quality standard adopted by the agency, any National
Pollutant Discharge Elimination System permit issued by the agency or any
term or condition thereof, any duty to permit or carry out any recording, re-
porting, monitoring, sampling, information entry, access, copying, or other
inspection or investigation requirement as provided under applicable provi-
sions of chapter 115 and, with respect to the pollution of waters of the state,
chapter 116, or any National Pollutant Discharge Elimination System filing
requirement, shall upon conviction be punished by a fine of not less than
$2,500 in the event of a willful violation or not less than $300 in the event of
a negligent violation. In any case the penalty shall not be more than $25,000
per day of violation or by imprisonment for not more than one year, or both.
If the conviction is for conduct committed after a first conviction .of such
person under this subdivision, punishment shall be by fine of not more than
$50,000 per day of violation, or by imprisonment for not more than two years,
or both.
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(b) Information and monitoring. Any person who knowingly makes any
false statement, representation, or certification in any application, record, re-
port, plan, or other document filed or required to be maintained under chap-
ter 115 and, with respect to the pollution of the waters of the .state, chapter
116, or standards, regulations, orders, stipulation agreements, schedule of com-
pliance-or permits pursuant hereto, or who falsifies, tampers with, or know-
ingly renders inaccurate any monitoring device or method required to be
maintained under chapter 115 and, with respect to the pollution of waters of
the state, chapter 116, or standards, regulations, variances, orders, stipulation
agreements, schedules of compliance, or permits pursuant thereto, shall upon
conviction, be punished by a fine of not more than $10,000 per day of viola-
tion, or by imprisonment for not more than six months, or both.
(c) Duty of law enforcement officials. It shall be the duty of all county at-
torneys, sheriffs and other peace officers, and other officers having authority
in the enforcement of the general criminal laws to take all action to the ex-
tent of their authority, respectively, that may be necessary or proper for the
enforcement of said provisions, regulations, standards, orders, stipulation
agreements, variances, schedule of compliance, or permits.
Subd. 3. Civil penalties. Any person who violates any provision of chap-
ters 115 or 116, except any provisions of chapter 116 relating to air and
land pollution caused by agricultural operations which do not involve Na-
tional Pollutant Discharge Elimination System permits, or of (1) any effluent
standards and limitations or water quality standards, (2) any National Pollu-
tant Discharge Elimination System permit or term or condition thereof, (3)
any National Pollutant Discharge Elimination System filing requirements, (4)
any duty to permit or carry out inspection, entry or monitoring activities, or
(5) any rules, regulations, stipulation agreements, variances, schedules of com-
pliance, or orders issued by the agency, shall forfeit and pay to the state a
penalty, in an amount to be determined by the court, of not more than
810,000 per day of violation.
In addition, in the discretion of the court, the defendant may be required
to:
(a) forfeit and pay to the state a sum which will adequately compensate
the state for the reasonable value of cleanup and other expenses directly re-
sulting from unauthorized discharge of pollutants, whether or not accidental;
(b) forfeit and pay to the state an additional sura to constitute just com-
pensation for any loss or destruction to wildlife, fish or other aquatic life and
for other actual damages to the state caused by an unauthorized discharge of
pollutants.
As a defense to any of said damages, the defendant may prove that the vio-
lation was caused solely by (1) an act of God, (2) an act of war, (3) negligence
on the part of the state of Minnesota, or (4) an act or failure to act which
constitutes sabotage or vandalism, or any combination of the foregoing claus-
es.
The civil penalties and damages provided for in this subdivision may be re-
covered by a civil action brought by the attorney general in the name of the
state.
Subd. 4. Injunctions. Any violation of the provisions, regulations, stand-
ards, orders, stipulation agreements, variances, schedules of compliance, or
permits specified in chapters 115 and 116 shall constitute a public nui-
sance and may be enjoined as provided by law in an action, in the name of
the state, brought by the attorney general.
Subd. 5. Actions to compel performance. In any action to compel per-
formance of an order of the agency for any purposes relating to the preven-
tion, control or abatement of pollution under chapters 115 and 116, the
court may require any defendant adjudged responsible to do and perform any
and all acts and things within his power which are reasonably necessary to
accomplish the purposes of the order. In case a municipality or its governing
or managing body or any of its officers is a defendant, the court may require
him to exercise his powers, without regard to any limitation of any require-
ment for an election or referendum imposed thereon by law and without re-
stricting the powers of the agency to do any or all of the following, without
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limiting the generality hereof: to levy taxes, levy special assessments, pre-
scribe service or use charges, borrow money, issue bonds, employ assistance,
acquire real or personal property, let contracts or otherwise provide for the
doing of work or the construction, installation, maintenance, or operation of
facilities, and do all other acts and things reasonably necessary to accomplish
the purposes of the order, but the court shall grant the municipality the op-
portunity to determine the appropriate financial alternatives to be utilized in
complying with the court imposed requirements.
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Miss. Code Ann. (1972) , as amended, (Supp. 1974)
§ 49-17-3. Statement of policy.
Whereas, the pollution of the air and waters of the state
constitutes a menace to public health and welfare, creates a
public nuisance, is harmful to wildlife, fish and aquatic life, and
impairs domestic, agricultural, industrial, recreational and other
legitimate beneficial uses of air and water, and whereas, the
problem of air and water pollution in this state is closely related to
the problem of air and water pollution in adjoining states, it is
hereby declared to be the public policy of this state to conserve
the air and waters of the state and to protect, maintain and
improve the quality thereof for public use, for the propagation of
wildlife, fish and aquatic life, and for domestic, agricultural, indus-
trial, recreational and other legitimate beneficial uses; to maintain
such a reasonable degree of quality of the air resources of the
state to protect the health, general welfare and physical property
of the people, and to provide that no waste be discharged into any
waters of the state without first receiving the necessary treatment
or other corrective action to protect the legitimate beneficial uses
of such waters; to provide for the prevention, abatement and
control of new or existing air or water pollution; and to cooperate
with other agencies of the state, agencies of other states, and the
federal government in carrying out these objectives.
§ 49-17-5. Definitions.
For the purposes of sections 49-17-1 to 49-17-43, the follow-
ing words and phrases shall have the meanings ascribed to them in
this section:
(1) Water.
(a) "Pollution" means such contamination, or other alteration of
the physical, chemical or biological properties, of any waters of the
state, including change in temperature, taste, color, turbidity, or
odor of the waters, or such discharge of any liquid, gaseous, solid,
radioactive, or other substance into any waters of the state as will,
or is likely to, create a nuisance or render such waters harmful,
detrimental or injurious to public health, safety or welfare, or to
domestic, commercial, industrial, agricultural, recreational, or
other legitimate beneficial uses, or to livestock, wild animals, birds,
fish or other aquatic life.
(b) "Wastes" means sewage, industrial wastes, oil field wastes,
and all other liquid, gaseous, solid, radioactive, or other sub-
stances which may pollute or tend to pollute any waters of the
state.
(c) "Sewerage system" means pipelines or conduits, pumping
stations, and force mains, and other structures, devices, appurte-
nances and facilities used for collecting or conducting wastes to an
ultimate point for treatment or disposal.
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(d) "Treatment works" means any plant or other works, used
for the purpose of treating, stabilizing or holding wastes.
(e) "Disposal system" means a system for disposing of wastes,
either by surface or underground methods, and includes sewerage
systems, treatment works, disposal wells, and other systems.
(f) "Waters of the state" means all waters within the jurisdiction
of this state, including all streams, lakes, ponds, impounding
reservoirs, marshes, watercourses, waterways, wells, springs, irriga-
tion systems, drainage systems, and all other bodies or accumula-
tions of water, surface and underground, natural or artificial,
situated wholly or partly within or bordering upon the state, and
such coastal waters as are within, the jurisdiction of the state,
except lakes, ponds, or other surface waters which are wholly
landlocked and privately owned.
* * *
§49-17-17. Power and duties.
The commission shall have and may exercise the following
powers and dudes:
* * *
(h) To adopt, modify, or repeal and promulgate standards of
quality of the air and water of the state under such conditions as
the commission may prescribe for the prevention, control and
abatement of pollution;
(i) To adopt, modify, repeal, and promulgate, after due notice
and hearing, and to enforce rules and regulations implementing or
effectuating the powers and duties of the commission under
sections 49-17—1 to 49-17-43 and as the commission may deem
necessary to prevent, control and abate existing or potential
pollution;
(j) To issue, modify, or revoke orders (1) prohibiting, control-
ling or abating discharges of contaminants and wastes into the air
and waters of the state; (2) requiring the construction of new
disposal systems, or air-cleaning devices, or any parts thereof, or
the modification, extension or alteration of existing disposal sys-
tems, or air-cleaning devices, or any parts thereof, or the adoption
of other remedial measures to prevent, control or abate air and
water pollution; and (3) setting standards of air or water quality or
evidencing any other determination by the commission under
sections 49-17-1 to 49-17-43;
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§49-17-43. Penalties.
(a) Any person found by the commission violating any of the
provisions of sections 49-17-1 to 49-17-43, or any rule or regula-
tion or written order of the commission in pursuance thereof, shall
be subject to a penalty of not less than fifty dollars ($50.00) and
not more than five thousand dollars ($5,000.00), for each viola-
tion, such penalty to be assessed and levied by the commission
after a hearing as provided hereinabove. Appeals from the imposi-
tion of the penalty may be taken to the chancery court in the same
manner as appeals from orders of the commission. If the appellant
desires to stay the execution of a penalty assessed by the commis-
sion, he shall give bond with sufficient resident sureties of one or
more guaranty or surety companies authorized to do business in
this state, payable to the State of Mississippi, in a penalty equal to
double the amount of any penalty assessed by the commission, as
to which the stay of execution is desired, conditioned, if the
judgment shall be affirmed, to pay all costs of the assessment
entered against the appellant. Each day upon which a violation of
the provisions of sections 49-17-1 to 49-17-43 occurs shall be
deemed a separate and additional violation. Funds collected under
this section shall be deposited in the water pollution abatement
grant fund. Action pursuant to this section shall not be a bar to
enforcement of sections 49-17-1 to 49-17-43, rules and regula-
tions in force pursuant thereto and orders made pursuant to the
aforementioned sections, by injunction or other appropriate rem-
edy. The commission shall have power to institute and maintain in
the name of the state any and all such enforcement proceedings in
the chancery court of the county in which venue may lie.
(b) Any person who violates any of the provisions of, or fails to
perform any duty imposed by, sections 49-17-1 to 49-17-43 or
any rule or regulation issued hereunder, or who violates any order
or determination of the commission promulgated pursuant to such
sections, and causes the death of fish or other wildlife shall be
liable, in addition to the penalties provided in subsection (a)
hereof, to pay to the state an additional amount equal to the sum
of money reasonably necessary to restock such waters or replenish
such wildlife as determined by the commission after consultation
with the state game and fish -commission. Such amount may be
recovered by the commission on behalf of the state in a civil action
brought in the circuit court of the county in which venue may lie.
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(c) Any person who owns or operates facilities which, through
misadventure, happenstance or otherwise cause pollution necessi-
tating immediate remedial or cleanup action shall be liable for the
cost of such remedial or cleanup action and the commission may
recover the cost of same by a civil action brought in the circuit
court of the county in which venue may lie.
In the event of the necessity for immediate remedial or cleanup
action, the commission may contract for same and advance funds
from the water pollution abatement grant fund to pay the costs
thereof, such advancements to be repaid to the water pollution
abatement grant fund upon recovery by the commission as pro-
vided above.
(d) It is unlawful for any person to: (1) discharge pollutants in
violation of section 49-17-29 or in violation of any condition or
limitation included in a permit issued under section 49-17-29 or
(2) introduce pollutants into publicly owned treatment works in
violation of pretreatment standards or in violation of toxic effluent
standards; and, upon conviction thereof, such person shall be
punished by a fine of hot less than two thousand five hundred
dollars ($2,500.00) nor more than ten thousand dollars
($10,000.00) per day of violation.
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Mo. Rev. Stat. (1969), as amended, (Supp. 1973)
204.011. Statement of policy.—Whereas the
pollution of the waters of this state constitutes a
menace to public health and welfare, creates a
public nuisance, is harmful to wildlife, fish and
aquatic life and impairs domestic, agricultural,
industrial, recreational and other legitimate uses
of water, and whereas the problem of water
pollution in this state is closely related to the
problem of water pollution in adjoining states,
and whereas this state must possess the author-
ity required of states in the Federal Water
Pollution Control Act as amended if it is to
retain control of its water pollution control
programs, it is hereby declared to be the public
policy of this state to conserve the waters of the
state and to protect, maintain, and improve the
quality thereof for public water supplies and for
domestic, agricultural, industrial, recreational
and other legitimate beneficial uses and for the
propagation of wildlife, fish and aquatic life; to
provide that no waste be discharged into any
waters of the state without first receiving the
necessary treatment or other corrective action to
protect the legitimate beneficial uses of such
waters and meet the requirements of the Federal
Water Pollution Control Act as amended; to
provide for the prevention, abatement and con-
trol of new or existing water pollution; and to
cooperate with other agencies of the state, agen-
cies of other states, the federal government and
any other persons in carrying out these objec-
tives.
204.016. Definitions.—When used in sec-
tions 204.006 to 204.141 and in standards, rules
and regulations promulgated under authority of
sections 204.006 to 204.141, the following words
and phrases shall have the meanings ascribed to
them in this section unless the context clearly
requires otherwise:
(1) "Discharge", the causing or permitting of
one or more water contaminants to enter the
waters of the state;
(2) "Effluent control regulations", limitations
on the discharge of water contaminants;
(6) "Point source" means any discernible,
confined and discrete conveyance, including but
not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling
stock, concentrated animal* feeding operation, or
vessel or other floating craft, from which pollu-
tants are or may be discharged;
(7) "Pollution", such contamination or other
alteration of the physical, chemical or biological
properties of any waters of the state, including
change in temperature, taste, color, turbidity, or
odor of the waters, or such discharge of any
liquid, gaseous, solid, radioactive, or other sub-
stance into any waters of the state as will or is
reasonably certain to create a nuisance or ren-
der such waters harmful, detrimental or injuri-
ous to public health, safety or welfare, or to
domestic, industrial, agricultural, recreational,
or other legitimate beneficial uses, or to wild
animals, birds, fish or other aquatic life;
(12) "Water contaminant", any particulate
matter or solid matter or liquid or any gas or
vapor or any combination thereof, or any tem-
perature change which is in or enters any wa-
ters of the state either directly or indirectly by
surface runoff, by sewer, by subsurface seepage
or otherwise, which causes or would cause,
pollution upon entering waters of the state, or
which violates or exceeds any of the standards,
regulations or limitations set forth in sections
204.006 to 204.141 or any federal water pollu-
tion control act, or is included in the definition
of pollutant in such federal act;
(13) "Water contaminant source", the point
or points of discharge from a single tract of
property on which is located any installation,
operation or condition which includes any point
source defined in sections 204.006 to 204.141
and nonpoint source Tinder any federal water
pollution control act, which causes or permits a
water contaminant therefrom to enter waters of
the state either directly or indirectly;
(14) "Water quality standards", specified con-
centrations and durations of water contaminants
which reflect the relationship of the intensity
and composition of water contaminants to po-
tential undesirable effects;
(15) "Waters of the state", all rivers, streams,
lakes and other bodies of surface and subsurface
water lying within or forming a part of the
.boundaries of the state which are not entirely
Confined and located completely upon lands
owned, leased or otherwise controlled by a
single person or by two or more persons jointly
or as tenants in common and includes waters of
•he United States lying within the state.
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204.026. Powers and duties of the commis-
sion.—The commission shall
* * *
(8) Adopt, amend, promulgate, or repeal after
due notice and hearing, rules and regulations to
enforce, implement, and effectuate the powers
and duties of sections 204.006 to 204.141 and
any required of this state by any federal water
pollution control act, and as the commission
may deem necessary to prevent, control and
abate existing or potential pollution;
(9) Issue, modify or revoke orders prohibiting
or abating discharges of water contaminants
into the waters of the state or adopting other
remedial measures to prevent, control or abate
pollution;
* * *
- (W) Establish effluent and pretreatment and
toxic material control regulations to further the
purposes of sections 204.006 to 204.141 and as
required to insure compliance with all effluent
Imitations, water quality related effluent limita-
tions, national standards of performance and
tone and pretreatment effluent standards, and
aU requirements and any time schedules there-
under, as established by any federal water pollu-
tion control act for point sources in this state,
and where necessary to prevent violation of
water quality standards of this state;
(17) Prohibit all discharges of radiological,
chemical, or biological warfare agent or high-
level radioactive waste into waters of this state;
(23) Require persons owning'or engaged in
operations which do or could discharge water
contaminants, or introduce water contaminants
or pollutants of a quality and quantity to be
established by the commission, into any publicly
owned treatment works or facility, to provide
and maintain any facilities and conduct any
tests and monitoring necessary to establish and
maintain records and to file reports containing
information relating to measures to prevent,
lessen or render any discharge less harmful or
relating to rate, period, composition, tempera-
ture, and quality and quantity of the effluent,
and any other information required by any
federal water pollution control act or the execu-
tive secretary hereunder, and to make them
public, except as provided in subdivision (20) of
this section. The commission shall develop and
adopt such procedures for inspection, investiga-
tion, testing, sampling, monitoring and entry
respecting water contaminant and point sources
as may be required for approval of such a
program under any federal water pollution con-
trol act;
204.051. Prohibited acts—permits required,
when, fee—fund created—bond required of per-
mit holders, when.—1. It is unlawful for any
person
(1) To cause pollution of any waters of the
state or to place or cause or permit to be placed
any water contaminant in a location where it is
reasonably certain to cause pollution of any
waters of the state;
(2) To discharge any water contaminants into
any waters of the state which reduce the quality
of such waters below the water quality stan-
dards established by the commission if not
subject to effluent regulations adopted pursuant
to sections 204.006 to 204.141;
(3) To violate any pretreatment and toxic
material control regulations, or to discharge any
water contaminants into any waters of the state
which exceed effluent regulations or permit pro-
visions as established by the commission or
required by any federal water pollution control
act;
(4) To discharge any radiological, chemical,
or biological warfare agent or high-level radio-
active waste into the waters of the state.
2. It shall be unlawful for any person to
build, erect, alter, replace, operate, use or main-
tain any water contaminant or point source in
this state that is subject to standards, rules or
regulations promulgated pursuant to the provi-
sions of sections 204.006 to 204.141 unless he
holds a permit from the commission, subject to
such exceptions as the commission may pre-
scribe by rule or regulation. However, no permit
shall be required of any person for any emission
into publicly owned treatment facilities or into
publicly owned sewer systems tributary to pub-
licly owned treatment works.
3. Every proposed water contaminant or
point source which, when constructed or in-
stalled or established, will be subject to any
federal water pollution control act or sections
204.006 to 204.141 or regulations promulgated
pursuant to the provisions of such act shall
make application to the executive secretary for a
permit at least thirty days prior to the initiation
of construction or installation or establishment.
Every water contaminant or point source in
existence when regulations or sections 204.006
to 204.141 become effective shall make applica-
tion to the executive secretary for a permit
within sixty days after the regulations or sec-
tions 204.006 to 204.141 become effective,
whichever shall be earlier. The executive secre-
tary shall promptly investigate each application,
A-85
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which investigation shall include such hearings
and notice, and consideration of such comments
and recommendations as required by sections
204.006 to 204.141 and any federal water pollu-
tion control act. If he determines that the
source meets or will meet the requirements of
sections 204.006 to 204.141 and the regulations
promulgated pursuant thereto, he shall issue a
permit with such conditions as he deems neces-
sary to insure that the source will meet the
requirements of sections 204.006 to 204.141 and
any federal water pollution control act as it
applies to sources in this state. If the executive
secretary determines that the source does not
meet or will not meet the requirements of either
act and the regulations pursuant thereto, he
shall deny the permit under the applicable act
and issue any notices required by sections
204.006 to 204.141 and any federal water pollu-
tion control act.
204.076. Unlawful acts prohibited—false
statements and negligent acts prohibited—pen-
alty—exception.—1. It is unlawful for any per-
son to cause or permit any discharge of water
contaminants from any water contaminant or
point source located in Missouri in violation of
sections 204.006 to 204.141, or any standard,
rule or regulation promulgated by the commis-
sion. In the event the commission or its execu-
tive secretary determines that any provision of
sections 204.006 to 204.141 or standard, rules,
limitations or regulations promulgated pursuant
thereto, or permits issued by, or any final abate-
ment order, other order, or determination made
by the commission or the executive secretary, or
any filing requirement under sections 204.006 to
204.141 or any other provision which this state
is required to enforce under any federal water
pollution control act, is being, was, or is in
imminent danger of being violated the commis-
sion or executive secretary may c use to have
instituted a civil action in any cou.t of compe-
tent jurisdiction for the injunctive relief to pre-
vent any such violation or further violatio '. or
for the assessment of a penalty not to e ceed
ten thousand dollars per day for each d; ', or
part thereof, the violation occurred and cc itin-
ues to occur, or both, as th> court deems
proper. The commission or the executive secre-
tary may request either the attorney general or
a prosecuting attorney to bring any action au-
thorized in this section in th . name of the
people of the state of Missou i. Suit may be
brought in any county where (he defendant's
principal place of business is located or where
the water contaminant or point source is located
or was located at the time the violation iccur-
red.
2. Any person who knowingly makes any
false statement, representation or certification in
any application, record, report, plan, or other
document filed or required to be maintained
under sections 204.006 to 204.141 or who falsi-
fies, tampers with, or knowingly renders inaccu-
rate any monitoring device or method required
to be maintained under sections 204.006 to
204.141 shall, upon conviction, be punished by
a fine of not more than ten thousand dollars, or
by imprisonment for not more than six months,
or by bofh.
3. Any person who willfully or negligently
commits any violation set forth under subsec-
tion 1 shall, upon conviction, be punished by a
fine of not less than twenty-five hundred dollars
nor more than twenty-five thousand dollars per
day of violation, or by imprisonment for not
more than one year, or both. Second and suc-
cessive convictions for violation of the same
provision hereunder by any person shall be
punished by a fine of not more than fifty thou-
sand dollars per day of violation, or by impris-
onment for not more than two years, or both.
4. The liabilities which shall be imposed
pursuant to any provision of sections 204.006 to
204.141 upon persons violating the provisions of
sections 204.006 to 204.141 or any standard,
rule, limitation, or regulation adopted pursuant
thereto shall not be imposed due to any viola-
tion caused by an act of God, war, strike, riot,
or other catastrophe.
204.096. State or its subdivisions may re-
cover actual damages from violators.—In addi-
tion to other penalties prescribed in sections
204.006 to 204.141, the state, or any .political
subdivision or agency thereof, has a cause of
action against any person violating the provi-
sions of sections 204.006 to 204.141 for actual
damages, including all costs and expenses neces-
sary to establish or collect any sums under
sections 204.006 to 204.141, and the costs and
expenses of restoring any waters of the state to
their condition as they existed before the viola-
tion, sustained by it because of the violation.
The action shall be brought by the attorney
general or a prosecuting attorney in any court
where an action for injunctive relief hereunder
could be brought.
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Mont. Rev* Code Ann. ?$ 69-4801 to 69-4827 (1969), as amended,
(Supp. 1974 and Cum. Supp. 1974)
69-4802. Definitions. Unless the context requires otherwise in this
chapter: ;
(1) "Sewage" means water-carried waste products from residences,
public buildings, institutions, or other buildings including discharge from
human beings or animals together with ground water infiltration and sur-
face water present.
,(2) "Industrial waste" means any waste substance from the process of
business or industry r or from the development of any natural resource to-
gether with any sewage that may be present;
(3) "Other wastes" means garbage, municipal refuse, decayed wood,
sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, tar, chem-
icals, dead animals, sediment, and all other substances that may pollute
state waters;
(4) "Contamination" means impairment of the quality of state waters
by sewage, industrial wastes, or other wastes creating a hazard to human
health;
(5) "Pollution" means contamination, or other alteration of the phys-
ical,, chemical, or biological properties of any state waters, which exceeds
that permitted by Montana water quality standards, including, but not lim-
ited to, standards relating to change in temperature, taste, color, turbidity,
or odor, or discharge of any liquid, gaseous, solid, radioactive, or other
substance into any state water which will or is likely to create a uuisaiu-e
or render the waters harmful, detrimental, or injurious to public health,
recreation, safety, welfare, livestock, wild animals, birds, fish, or other wild-
life. A discharge which is permitted by Montana water quality standards
is not "pollution" under this chapter.
* * *
I 69-4808.2. Duties of board. (1) The board shall:
'. (a) Establish and modify the classification of all waters in accordance
with their present and future most beneficial uses.
(b) Formulate standards of water purity and classification of water
according to its most beneficial uses, giving consideration to the economics
of waste treatment and prevention.
* * *
(h) Adopt rules for the administration of this chapter.
(i) Adopt pretreatment standards for waste-water discharged int» .
municipal disposal system, adopt effluent standards as defined iiU *erti<"
69-4802(20), and establish standards of performance for new point sornv.
discharges.
J, 69-4820. Violation of chapter or rule—notice to violator—hearing be-
fore board—notice, procedure, order, rehearing. (1) When the depart-
toent has reason to believe that a violation of this chapter or a rule made
fender it has occurred, it shall have written notice served personally or by
aiail on the alleged violator or his agent. The notice shall state the provi-
iion alleged to be violated, the facts alleged to constitute the violation, the
inature of corrective action which the department requires, and the time
jrithin which the action is to be taken. For the purposes of this chapter,
service by mail is complete on the date of mailing.
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-; (.2) In a notice given under subsection (1) of this section, the depart-
ment may require the alleged violator to appear before the board for a
frablic hearing and to answer the charges made against him. The hearing
sliall be held no sooner than fifteen (15) days after service of the notice,
txcept that the board may set an earlier date for hearing if it is requested
io do so by the alleged violator. The board may set a later date for hearing
at the request of the alleged violator if the alleged violator shows good
iause for delay.
i, (3) If the department does not require an alleged violator to appear
|efore the board for a public hearing, he may request the board to conduct
the hearing. The request shall be in writing and shall be filed with the
department no later than thirty (30) days after service of a notice under
subsection (1) of this section. If a request is filed, a hearing shall be hold
within a reasonable time.
(4) If a hearing is held under this section, it shall be public and shall.
if the board considers it practicable, be held in a county in which the vio-
lation is alleged to have occurred.
(5) After a hearing or on failure of an alleged violator to make a
timely request for a hearing, the board may issue an appropriate order
for the prevention, abatement, or control of pollution. It shall state the
date or dates by which a violation shall cease and may prescribe timetables
for necessary action in preventing, abating, or controlling the pollution. The
alleged violator may petition the board for a rehearing, on the basis of new
evidence, which petition the board may grant for good cause shown.
(6) In addition to or instead of issuing an order, the board may direct
the department to initiate appropriate action for recovery of a penalty
under section 69-4823.
69-4821. Judicial remedies—review by district court. (1) An appeal
of an order of the board shall be in the district court of the county in
which the alleged source of pollution is located.
(2) A person interested in the order may intervene, in the manner pro-
vided by the Kules of Civil Procedure, if he shows good cause. An inter-
venor is a party for the purposes of this chapter.
(3) The attorney general shall represent the board if requested, or the
department may appoint special counsel for the proceedings, subject to the
approval of the attorney general. ;
(4) The initiation of an action for review or the taking of an appeal
does not stay the effectiveness of any order of the board, unless the court
finds that there is probable cause to believe:
(a) That refusal to grant a stay will cause serious harm to the affected
party, and
(b) That any violation found by the board:
(i) Will not continue, or
(ii) If it does continue, any harmful effects on state waters will be
remedied immediately on the cessation of the violation.
(5) If a court does not stay the effectiveness of an order of .the board,
it may enforce compliance with that order by issuing a temporary restrain-
ing order or an injunction at the request of the board.
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69-4823. Penalties for violation of provisions, rule, permit, effluent
standard, or order—purpose and construction of chapter. (1) A person
who violates a rule, permit, effluent standard, or order issued under the
provisions of this act shall be guilty of an offense and subject to a civil
penalty not to exceed ten thousand dollars ($10,000). Each day of viola-
tion constitutes a separate offense.
(2) A person who willfully violates section 69-4806, R. C. M. 1947, or
any pretreatment standard established pursuant to this act is guilty of an
offense and subject to a fine not to exceed twenty-five thousand dollars
($25,000) per day of violation or by imprisonment for not more than one
(1) year or both. Following an initial conviction under this subsection, sub-
sequent convictions shall subject a person to a fine of not more than fifty
thousand dollars ($50,000) per day of violation, or imprisonment for not
more than two (2) years, or both.
(3) Action under subsection (1) of this section does not bar enforce-
ment of this chapter or of rules or orders issued under it by injunction or
other appropriate remedy. The department shall institute and maintain any
Enforcement proceedings in the name of the state.
(4) A purpose of this chapter is to provide additional and cumulative
remedies to prevent, abate, and control the pollution of state waters. This
chapter does not abridge or alter rights of action or remedies in equity or
tinder the common law or statutory law, criminal or civil, nor does this
thapter or an act done under it estop the state or a municipality or person
•s owners of water rights or otherwise in the exercise of their rights in
equity or under the common law or statutory law to suppress nuisances or
to abate pollution.
(5) Fines collected shall be deposited to the state general fund.
(6) Any person who knowingly makes any false statement, representa-
tion, or certification in any application, record, report, plan or other docu-
ment filed or required to be maintained under this act or-who falsifies,
pampers with or knowingly renders inaccurate any monitoring device or
method required to be maintained under this act shall upon conviction be
(•mushed by a fine of not more than ten thousand dollars ($10,000), or by
•nprisonment for not more than six (6) months or both.
(7) In a civil action initiated by the department under this act, the
Department may ask for and the court is authorized to assess a violator for
fee cost of the investigation or monitoring survey which led to the estab-
fishment of the violation, and any expense incurred by the state in remov-
ing, correcting or terminating any of the adverse effects upon water quality
fesulting from the unauthorized discharge of pollutants.
69-4825. Injunctions. The department may bring an action for an in-
duction against the continuation of an alleged violation which has been the
fcasis of suspension or revocation of a permit by the department or against
» person who fails to comply with an emergency order issued by the depart-
ment under section 69-4824 or a final order of the board. The court to
•nich the department applies for an injunction may issue a temporary
•junction, if it finds that there is reasonable cause to believe that the
legations of the department are true, and it may issue a temporary
Retraining order pending action on the temporary injunction.
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Neb. Rev. Stat. (Supp. 1974),
81-1502. Department of Environmental Control; terms, defined.
As used in sections 81-1501 to 81-1532, unless the context otherwise
requires:
(14) Wastes shall mean sewage, industrial waste, and all other
liquid, gaseous, solid, radioactive, or other substances which may
pollute or tend to pollute any waters of the state;
(15) Refuse shall mean putrescible and nonputrescible solid
wastes, except body wastes, and includes garbage, rubbish, ashes, in-
cinerator ash, incinerator residue, street cleanings and solid market
and industrial wastes;
(20) Water pollution shall mean the manmade or man-induced al-
teration of the chemical, physical, biological, and radiological integ-
rity of water;
(21) Waters of the state shall mean all waters within the juris-
diction of this state including all streams, lakes, ponds, impounding
reservoirs, marshes, watercourses, waterways, wells, springs, irriga-
tion systems, drainage systems, and all other bodies or accumula-
tions of water, surface and underground, natural or artificial,
public or private, situated wholly or partly within or bordering upon
the state;
(22) Point source shall mean any discernible confined and discrete
conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, or
vessel or other floating craft, from which pollutants are or may
be discharged;
(23) Effluent limitation shall mean any restriction established
by the council on quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which are discharged from
point sources into waters of the state, including schedules of com-
pliance; and
(24) Schedule of compliance shall mean a schedule of remedial
measures including an enforceable sequence of actions or operations
leading to compliance with an effluent limitation, other limitation,
prohibition, or standard.
81-1504. Department of Environmental Control; powers; duties.
The department shall have and may exercise the following powers
and duties:
-------
(7) To issue, modify, or revoke orders: (a) Prohibiting or abating
discharges of wastes into the air, waters or land of the state; and
(b) requiring the construction of new disposal systems or any parts
thereof or the modification, extension of or the adoption of other
remedial measures to prevent, control or abate pollution;
81-1505. Environmental Control Council; rules and regulations;
standards of air. land, and water quality, (1) In order to carry
out the purposes of sections 81-1501 to 81-1532, the council shall
adopt rules and regulations which shall set standards of air, water
and land quality to be applicable to the air, waters and land of this
state or portions thereof. Such standards of quality shall be such
as to protect the public health and welfare. The council shall
classify air, water and land contaminant sources according to
levels and types of discharges, emissions and other characteristics
which relate to air, water and land pollution, and may require re-
porting for any such class or classes. Such classifications and
standards made pursuant to this section may be made for applica-
tion to the state as a whole or to any designated area of the
state, and shall be made with special reference to effects on
health, economic and social factors, and physical effects on property.
Such standards and classifications may be amended as determined
necessary by the council.
(2) In adopting the classifications of waters and water quality
standards, the primary purpose for such standards shall be to pro-
tect the public health and welfare, and the council shall give con-
sideration to: (a) The size, depth, surface or underground area cov-
ered, the volume, direction and rate of flow, stream gradient,
and temperature of the water; (b) the character of the area af-
fected by such classification or standards, its peculiar suitability for
particular purposes, conserving the value of the area, and encourag-
ing the most appropriate use of lands within such area for do-
mestic, agricultural, industrial, or recreational and aquatic life pur-
poses; (c) the uses which have been made, are being made, or are
likely to be made, of such waters for agricultural, transportation,
domestic and industrial consumption, for fishing and aquatic cul-
ture, for the disposal of sewage, industrial waste and other wastes,
or other uses within this state and, at the discretion of the council,
any such uses in another state on interstate waters flowing through
or originating in this state; and (d) the extent of present pollution
or contamination of such waters which has already occurred or re-
sulted from past discharges therein.
(3) In adopting effluent limitations or prohibitions the council
shall give consideration to the type, class, or category of dis-
charges, the quantities, rates, and concentrations of chemical,
A-91
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physical, biological, and other constituents which are discharged
from point sources into navigable or other waters of the state,
including schedules of compliance, best practicable control technol-
ogy, and best available control technology.
(4) In adopting standards of performance the council shall give
consideration to the discharge of pollutants which reflect the great-
est degree of effluent reduction which the council determines to
be achievable through application of the best available demon-
strated control technology, processes, operating methods, or other
alternatives, including, where practicable, a standard permitting no
discharge of pollutants.
(5) In adopting toxic pollutant standards and limitations the
council shall give consideration to the combinations of pollutants,
the toxicity of the pollutant, its persistence, degradability, the
usual or potential presence of the affected organisms in any waters,
the importance of the affected organisms and the nature and ex-
tent of the effect of the toxic pollutant on such organisms.
(6) In adopting pretreatment standards the council shall give
consideration to the prohibitions or limitations to noncompatible
pollutants, prohibitions against the passage through a publicly-
owned treatment works of pollutants which would cause interfer-
ence -with or obstruction to the operation of publicly-owned treat-
ment works, damage to such works, and the prevention of the dis-
charge of pollutants therefrom which are inadequately treated.
81-1506. Unlawful acls; permits for waste disposal. (1) It shall
be unlawful for any person:
(a) To cause pollution of any air, waters or land of the state or
to place or cause to be placed any wastes in a location where they
are likely to cause pollution of any air, waters or land of the
therein stated, and a certified copy thereof shall have like force and
effect.
(6) The hearings provided for in this section may be conducted
by the director, or by any member of the department acting in his
behalf, or the director may designate hearing officers who shall have
the power and authority to conduct such hearings in the name of
the director at any time and place. A verbatim record of the
proceedings of such hearings shall be taken and filed with the
director, together with findings of fact and conclusions of law made
by the director or hearing officer. Witnesses who are subpoenaed
shall receive the same fees and mileage as in civil actions in the
district court. In case of contumacy or refusal to obey a notice
of hearing or subpoena issued under the provisions of this section,
the district court shall have jurisdiction, upon application of the di-
A-92
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rector, to issue an order requiring such person to appear and testify
or produce evidence as the case may require and any failure to
obey such order of the court may be punished by such court as
Contempt thereof.
If requested to do so by any party concerned with such hearing,
the full stenographic notes, or tapes of an electronic transcribing
device, of the testimony presented at such hearing shall be taken
and filed. The stenographer shall, upon the payment of the ste-
nographer's fee allowed by the court therefor, furnish a certified
transcript of the whole or any part of the stenographer's notes to
any party to the action requiring and requesting the same.
81-1508. Violations: penalties; injunctions. (1) Any "person who
shall violate any of the provisions of sections 81-1501 to 81-1532, or
who fails to perform any duty imposed by the provisions of sec-
tions 81-1501 to 81-1532 shall:
• (a) For any violation except of a permit or permit condition or
limitation pursuant to the National Pollutant Discharge Elimi-
nation System, Public Law 92-500, be guilty of a misdemeanor and
shall, upon conviction thereof, be fined not less than one hundred
dollars nor more than five hundred dollars and a further fine of
ten dollars per day together with costs, for each day he violates the
provisions of or fails to perform any of the duties imposed by sec-
tions 81-1501 to 81-1532, and in default of the payment of such fine
and costs the person, and if such person is a corporation, then the
officers of such corporation may be imprisoned in the county jail for
a period of not more than sixty days, and in addition thereto may
be enjoined from continuing such violation. Each day upon which
such violation occurs shall constitute a separate violation;
(b) For willful or negligent violation of water quality stand-
ards, effluent standards and limitations, for failure to obtain a per-
mit or meet the filing requirements therefor, discharging without
a permit or for violation of a permit or any permit condition or
limitation under the National Pollutant Discharge Elimination Sys-
tem, Public Law 92-500, be guilty of a misdemeanor and shall, upon
conviction thereof, be punished by a fine of not more than five thou-
sand dollars for each day of such violation or by imprisonment for
not more than six months in the county jail, and in assessing the
amount of the fine the court shall consider the size of the operation
and the degree and extent of the pollution;
(c) For refusing the right of entry and inspection to any author-
ized departmental representative, violation of any effluent stand-
ards and limitations, filing requirements, monitoring requirements,
or water quality standards, or for failure to obtain a permit, or for
violation of a permit or any permit condition or limitation or any
A-93
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rules, regulations, or orders of the director under the National Pol-
lutant Discharge Elimination System, Public Law 92-500, be sub-
ject to a civil penalty of not more than five thousand dollars per
day, the amount of such penalty to be based on the size of the op-
eration and the degree and extent of the pollution; and
(d) For knowingly making any false statement, representation, or
certification in any application, record, report, plan, or other docu-
ment filed pursuant to the National Pollutant Discharge Elimina-
tion System, Public Law 92-500, or for falsifying, tampering with, or
knowingly rendering inaccurate any monitoring device or method
required under such system, be guilty of a misdemeanor and shall,
upon conviction thereof, be punished by a fine of not more than five
thousand dollars for each day that such violation occurs.
(2) Any person who violates any of the provisions of sections
81-1501 to 81-1532 or fails to perform any duty imposed by sections
81-1501 to 81-1532 or any regulation issued under sections 81-1501
to 81-1532 or who violates any order or determination of the di-
rector promulgated pursuant to sections 81-1501 to 81-1532, and
causes the death of fish or other wildlife shall, in addition to the
penalties provided in subsection (1) of this section, be liable to pay
to the state an additional amount equal to the sum of money reason-
ably necessary to restock waters with fish or replenish such wild-
life as determined by the director after consultation with the Game
and Parks Commission. Such amount may be recovered by the di-
rector on behalf of the state in a civil action brought in the district
court of the county wherein such violation or failure to perform
any duty imposed by sections 81-1501 to 81-1532 occurred.
(3) In addition to the penalties provided by this section, the di-
rector, whenever he has reason to believe that any person, firm, or
corporation is violating any provision of sections 81-1501 to 81-1532,
any regulation promulgated thereunder, or any order of the di-
rector, may petition the district court for an injunction. It shall be
the duty of each county attorney or the Attorney General to whom
the director reports a violation to cause appropriate proceedings to
be instituted without delay to assure compliance with the provisions
of Chapter 81, article 15.
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Nev. Rev. Stat. (1973)
445.132 Legislative declaration.
1. The legislature finds that pollution of water in this state:
(a) Adversely affects public health and welfare;
(b) Is harmful to wildlife, fish and other aquatic life; and
(c) Impairs domestic, agricultural, industrial, recreational and other
beneficial uses of water.
2. It is the public policy of this state and the purpose of MRS
445.131 to 445.354, inclusive, to:
(a) Restore and maintain the chemical, physical and biological integrity
of water within this state;
(b) Prevent, reduce and eliminate pollution;
Cc) Plan the development and use, including restoration, preservation
and enhancement of land and water resources; and
(d) Consult and otherwise cooperate with other states, state and inter-
state agencies and the Federal Government in carrying out these objec-
tives.
445.133 Definitions. As used in NRS 445.131 to 445.354, inclu-
sive, unless the context otherwise requires, the terms defined in NRS
445.141 to 445.196, inclusive, have the. meanings ascribed to them in
those sections.
445.151 "Discharge" defined. "Discharge" means any addition of
a pollutant or pollutants to water.
445.156 "Effluent limitation" defined. "Effluent limitation" means
any applicable state and federal water quality standard or limitation
which imposes any restriction or prohibition on quantities, rates and con-
centrations of chemical, physical, biological and other constituents which
are discharged from point sources into any waters of the state.
445.171 "Person" defined.
1. "Person" means the state or any agency or institution thereof, any
individual, partnership, firm, private corporation, trust, estate, commis-
sion, board, public or private institution, utility, cooperative, municipality
or other political subdivision of this state, any interstate body or any
other legal entity.
2. "Person" includes the United States, to the extent authorized by
federal law.
445.176 "Point source" defined. "Point source" means any discern-
ible, confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, roll-
ing stock, concentrated animal feeding operation, or vessel or other float-
ing craft, from which pollutants are or may be discharged.
445.178 "Pollutant" defined. "Pollutant":
1. Means dredged spoil, solid waste, incinerator residue, sewage, gar-
bage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal and agricultural waste discharged
into water;
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2. Does not mean water, gas or other material which is injected into
a well to facilitate production of oil or gas, or water derived in association
with oil or gas production and disposed of in a well, if the well is used
either for facilitating production or for disposal purposes and if the
department determines that such injection or disposal will not result in
the degradation of ground or surface water resources.
445.181 "Pollution" defined. "Pollution" means the manmade or
man-induced alteration of the chemical, physical, biological and radiolog-
ical integrity of water.
445.191 "Waters of the state" defined. "Waters of the state" means
all waters situated wholly or partly within or bordering upon this state.
including but not limited to:
1. All streams, lakes, ponds, impounding reservoirs, marshes, water
courses, waterways, wells, springs, irrigation systems and drainage sys-
tems; and
2. All bodies or accumulations of water, surface and underground,
natural or artificial.
445.196 "Water quality standard or limitation" defined. "Water
quality standard or limitation" means any applicable state and federal
water quality standard or limitation, including but not limited to water
quality criteria, water use classifications, implementation plans and com-
pliance schedules, effluent standards and limitations, prohibitions, stand-
ards of performance and pretreatment standards.
445.221 Unlawful discharge of pollutant without permit. Except as
authorized by a permit issued by the department under the provisions of
NRS 445.131 to 445.354, inclusive, and regulations promulgated under
such sections by the commission, it is unlawful for any person to dis-
charge from any point source any pollutant into any waters_of_the state
or any treatment works.
445.244 Water quality standards. Water quality standards shall be
established by the commission:
1. To protect the public health or welfare;
2. To enhance the quality of water;
3. To increase the use and value of public water supplies;
4. To promote the propagation of fish and wildlife; and
5. To enhance recreational, agricultural, industrial, navigational and
other beneficial uses.
445.247 Effluent limitations: Establishment; enforcement.
1. Effluent limitations shall be established and enforced for point
sources, including publicly owned treatment works, which require the
application of the best practicable control economically achievable.
2. In the case of a discharge into a publicly owned treatment plant in
existence on July 1, 1977, or federally approved prior to June 30, 1974,
effluent limitations shall be established and enforced which comply with
applicable pretreatment requirements or are based upon secondary treat-
ment as federally defined.
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_ 445.254 Unlawful to discharge radiological, chemical, biological war-
rare agent or high-level radioactive waste. It is unlawful to discharge any
radiological, chemical or biological warfare agent or high-level radio-
active waste into any waters of the state.
445.301 Radioactive and toxic wastes: Violations; penalties.
1. Any person who violates the provisions of NRS 445.287 to
445.301, inclusive, or the terms and conditions specified in a permit
issued under NRS 445.287 to 445.301, inclusive, is guilty of a gross mis-
demeanor.
2. Each day of violation is a separate offense.
445.317 Violations: Remedies.
1. Whenever the director finds that any person is engaged or is about
to engage in any act or practice which violates any provision of NRS
445.131 to 445.354, inclusive, or any rule, regulation or standard pro-
mulgated by the commission or permit issued by the department under
NRS 445.131 to 445.354, inclusive, the director may:
(a) Issue an order pursuant to NRS 445.324;
(b) Commence a civil action pursuant to NRS 445.327 or 445.331; or
(c) Request the attorney general to institute by indictment or informa-
tion a criminal prosecution pursuant to NRS 445.334 and 445.337.
2. Such remedies and sanctions for the violation of NRS 445.131 to
445.354, inclusive, are cumulative and the institution of any proceeding
or action seeking any one of such remedies or sanctions does not bar any
simultaneous or subsequent action or proceeding seeking any other of
such remedies or sanctions.
445.321 Violations: Specific remedies do not impair other rights.
No remedy or sanction provided for in NRS 445.131 to 445.354, inclu-
sive, impairs any right which the director or any person has under any
statute or common law.
445.324 Violations: Compliance orders.
1. Whenever the director finds that any person is engaged or is about
to engage in any act or practice which constitutes or will constitute a vio-
lation of any provision of NRS 445.131 to 445.354, inclusive, or of any
rule, regulation or standard promulgated by the commission, or of any
permit or order issued by the department under NRS 445.131 to
445.354, inclusive, the director may issue an order:
(a) Specifying the provision or provisions of NRS 445.131 to 445.354,
inclusive, or the regulation or order alleged to be violated or about to be
violated;
(b) Indicating the facts alleged which constitute a violation thereof; and
(c) Prescribing the necessary corrective action to be taken and a rea-
sonable time for completing that corrective action.
2. Any compliance order is final and is not subject to review unless
the person or persons against whom such order is issued, within 30 days
after the date such order is served, request by written petition a hearing
before the commission.
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445.327 Violations: Injunctive relief.
1. The director may seek injunctive relief in the appropriate court to
prevent the continuance or occurrence of any act or practice which vio-
lates any provision of NRS 445.131 to 445.354, inclusive, or any permit,
rule, regulation or order issued pursuant thereto.
2. On a showing by the director that a person is engaged, or is about
to engage, in any act or any practice which violates or will violate any of
the provisions of NRS 445.131 to 445.354, inclusive, or any rule, regu-
lation, standard, permit or order issued thereunder, the court may issue,
without bond such prohibitory and mandatory injunctions as the facts
may warrant, including temporary restraining orders issued ex parte or,
after notice and hearing, preliminary injunctions or permanent injunc-
tions.
3. Failure to establish lack of an adequate remedy at law or irrepar-
able harm is not a ground for denying a request for a temporary restrain-
ing order or injunction.
4. The court may require the posting of a sufficient performance bond
or other security to assure compliance with the court order within the
time prescribed.
445.331 Violations: Civil penalties.
L Any person who violates or aids or abets in the violation of any
provision of NRS 445.131 to 445.354, inclusive, or of any permit, rule,
regulation, standard or final order issued thereunder, shall pay a civil pen-
alty of not more than $10,000 for each day of such violation. The civil
penalty imposed by this subsection is in addition to any other penalties
provided pursuant to NRS 445.131 to 445.354, inclusive.
2. In addition to the penalty provided in subsection 1, the depart-
ment may recover from such person actual damages to the state resulting
from the violation of NRS 445.131 to 445.354, inclusive, or anv rule.
regulation or standard promulgated by the commission, or permit or final
order issued by the department
3. Damages may include any expenses incurred in removing, correct-
ing and terminating any adverse effects resulting from the discharge of
pollutants and may also include compensation for any loss or destruction
of wildlife, fish or aquatic life and any other actual damages caused by the
violation.
445.334 Violations: Criminal penalties.
1. Except as provided in NRS 445.337, any person who intentionally
or with criminal negligence violates NRS 445.221 or 445.254, or any
effluent limitation, standard of performance or toxic and pretreatment
effluent limitation established pursuant to NRS 445.247 and 445.251, or
the terms or conditions of any permit issued under NRS 445.227 to
445.241, inclusive, or any final order issued under NRS 445.324 is guilty
of a gross misdemeanor and shall be punished by a fine of not more than
$25,000 for each violation or by imprisonment in the county jail for not
more than 1 year, or by both fine and imprisonment.
2. If the conviction is for a second violation of the provisions indi-
cated in subsection 1, such person is guilty of a felony and shall be pun-
ished by a fine of not more than $50,000 for each violation or by
imprisonment in the state prison for not less than 1 year nor more than 6
years, or by both fine and imprisonment.
3. The penalties imposed by subsections 1 and 2 are in addition to
any other penalties, civil or criminal, provided pursuant to NRS 445.131
to 445.354, inclusive.
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N.H. Rev. Stat. Ann. (Supp. 1973)
Uf>': 1 Definitions. As used herein the following terms, unless the con-
text clearly indicates otherwise, shall have the following meanings:
I- "Sewage" means the water-carried waste products from buildings,
public or private, .together with such ground water infiltration and surface
water as may be present.
II. "Industrial waste" means any liquid, gaseous or solid waste substance
resulting from any process of industry, manufacturing trade or business
or from development of any natural resources.
III. "Other wastes" means garbage, municipal refuse, decayed wood,
sawdust, shavings, bark, lime, ashes, offal, oil, tar, chemicals and other
substances other than sewage or industrial wastes, and any other substance
harmful to human, animal, fish or aquatic life.
IV. "Waste" means industrial waste and other wastes.
V. "Surface waters of the state" means streams, lakes, ponds and tidal
waters within the jurisdiction of the state, including all streams, lakes, or
ponds bordering on the state, marshes, water courses and other bodies of
water, natural or artificial.
fVl. "Commission" means the New Hampshire water supply and pollution
xoutrol commission hereinafter established. [Amended 1967, 147:1, eff.
fuly 1,1967.]
VII. "Person" means any municipality, governmental subdivision, public
or private corporation, individual, partnership or other entity.
1VIIL "Ground waters" shall mean all areas below the top of the
iater table, including aquifers, wells and other sources of ground water.
|Added 1973,590:1, eff. Sept. 4,1973.]
149:3-a [New] Policies. It is hereby declared, as a matter of legis-
lative intent, that the water supply and pollution control commission shall,
in the administration and enforcement of this chapter strive to provide
that all sources of pollution within the state shall be abated within such
times and to such degrees as shall be required to satisfy the provisions
of state law or applicable federal law, whichever is more sttingent. To the
extent not inconsistent with the foregoing nor the aims of any joint
state-federal permit program that may from time to time be agreed upon
knd in force pursuant to this chapter and applicable federal law, the.
wanmission shall adhere to the following policies:
% I. Insofar as practicable, the initial objective of the control program
•jrill be to obtain the installation of primary treatment (with adequate dis-
infection where sewage discharges are involved) for all discharges of
Sewage and industrial wastes.
II. The second objective will be to require the installation of secondary
atment whenever such additional treatment is necessary to protect the
2S assigned to the particular stream classification.
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B.TII. The third objective, after all stream classification requirements
fhroughout the state have been satisfied, will* be to continue the program
gf pollution abatement by installing other forms of treatment desirable to
Maintain all surface waters of the state in as clean a condition as possible,
isistent with available assistance funds and technological developments.
|IV. Until such time as appropriate methodology and reasonable levels
financial assistance are made available, municipalities with combined
|ewer systems shall not be required to provide treatment facilities with
Capacity greater than that necessary to handle anticipated peak dry weather
BOWS.
149: 8 Enforcement of Classification.
I. After adoption of a given classification for a stream, lake, pond, tidal
water, or section thereof, the commission shall enforce such classification
by appropriate action in the courts of the state, and it shall be unlawful
for any person or persons to dispose of any sewage, industrial, or other
wastes, either alone or in conjunction with any other person or persons, in
such a manner as will lower the quality of the waters of the stream, lake,
pond, tidal water, or section thereof below the minimum requirements of
the adopted classification. In any instance when the commission shall set
a time limit for abatement of pollution under paragraph II, and it be-
comes apparent at any time during the compliance period that full com-
pliance with the adopted classification will not be attained by the end of
such period due to the failure of any person to take action reasonably cal-
culated to secure abatement of the pollution within the time specified, the
commission shall notify such person or persons in writing. If such person
or persons shall fail or neglect to take appropriate steps to comply with
the classification requirements within a period of thirty days after such
notice, the commission shall seek appropriate action in the courts of the
state. [Amended 1969, 337: 4, eff. Aug. 29,1969.J
[No change in paragraph II.]
III. (a) It shall be unlawful for any person or persons to discharge
or dispose of any sewage or waste to a surface water or ground water of
the state without first obtaining a written permit from the commission.
Applications for permits shall be made upon forms prescribed -by the
commission and shall contain such relevant information as the commis-
sion may require. The commission shall include in such permits effluent
limitations, which may be based upon economic and technological factors,
upon the classification enacted by the legislature, upon the projected best
use of the surface waters downstream or upon the requirements of the
Federal Water Pollution Control Act as amended from time to time, and
all regulations, guidelines and standards promulgated thereunder, which-
ever provides the most effective means to abate pollution. The commission
may also prescribe such other reasonable conditions as may be necessary
or desirable in order to fulfill the purposes of this chapter or applicable
A-100
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federal law. Such permits shall contain, in the case of sources not in
compliance with such effluent limitations at the time the permit is issued.
reasonable compliance schedules including provision for periodic reportin-r
by the source of increments of progress established therein. The com".
mission may prescribe a monitoring program to be performed by lhe
applicant with periodic reports to the commission, including, where ai>
propriate in terms of the nature of the effluent, continuous monitoring
Permits shall be issued for a fixed term, not to exceed five years. The
commission may revise, modify or suspend in whole or in part any permit,
following hearing, upon, a finding that just cause -exists for such action.
Further, whenever in its judgment, the purposes of this chapter will be
best served, the commission may require as a condition to the granting of
such permits that either the ownership (and operation) of the collection
and treatment facilities involved be vested in the municipality (or any
subdivision thereof) in which the system is located, if said municipality
by legal action agrees thereto, or such other reasonable conditions as will
ensure continuous and continuing operation and maintenance of the
facilities. No permit shall be granted to utilize the entire assets of the
surface water, or in any other case in which the commission determines
that the grant of a permit would be inconsistent with the purposes of this
chapter. Any determination by the commission under this paragraph shall
be subject to appeal as provided for in RSA149:14.
(b) Notwithstanding any other provision of law, no permit to dis-
charge sewage or waste shall be issued authorizing any of the following
discharges:
(1) The discharge of any radiological, chemical or biological
warfare agent or high-level radioactive waste;
(2) Any discharge into navigable waters which the secretary of the
army of the United States acting through the chief of engineers deter-
mines would substantially impair anchorage and navigation;
(3) Any discharge to which the regional administrator of the United
States Environmental Protection Agency, or his successor in jurisdiction,
has objected in writing pursuant to any right to object provided such
official in section 402 (d) of the Federal Water Pollution Control Act, as
amended from time to tune; provided, that this subparagraph and sub-
paragraph (2) above, shall not preclude the commission or any other
person from availing itself of any judicial review of any such objection,
or any determination by the secretary of the army, available under ap-
plicable federal law;
(4) Any discharge from a point source which is.in conflict with
a plan or amendment thereto approved pursuant to section 208 (b) of the
Federal Water Pollution Control Act, as amended from time to time.
[Amended 1967,147: 9,27: 4. 1973, 590: 8, eff. Sept. 4,1973.]
[No changes in paragraphs IV and V.]
VL (a) It shall be unlawful for any person to put or place, or cause
to be put or placed into a surface water of the state or on the ice over
such waters, or on the banks of such waters, any bottles, glass, crockery-
cans, scrap metal, junk, paper, garbage, tires, old automobiles or parts
thereof, trees, or similar litter.
(b) For any violation of this paragraph any authorized member or
agent of the commission shall order the immediate removal of material
A-101
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savolved in the violation, by the person responsible for the material in
restion.
(c) If the person or persons responsible for a violation of subpara-
•praph (a) above, refuses or fails to obey the order of any authorized mem-
|er or agent of the commission, said commission or authorized member
|r agent may contract for the removal of the material in question and the
lost of the removal shall be recoverable by the stale in an action of debt
irought by the attorney general in the name of the state.
"-(d) Any person responsible for a violation of subparagraph (a) above
uui be guilty of a violation if a natural person, or guilty of a misde-
tt&HgSHSSJft** 1%7> "" *' *""*' ^ M°! "'
ffl49:19 Penalties and Other Relief.
$1. Any person who shall wilfully or negligently violate any provisions of
this chapter, or any lawful regulation of the commission issued pursuant
to this chapter,' or any condition or limitation in a permit issued under this
Chapter or who knowingly makes any material false statement, representa-
tion or certification in any application, record, report, plan or other docu-
fcent required to be filed or maintained pursuant to this chapter or lawful
legulation of the commission made pursuant to it, or who knowingly
ganders inaccurate, falsifies or tampers with any monitoring device or
isethod required under this chapter or lawful regulation of the commission
joade under it or who knowingly fails, neglects or refuses to obey any law-
Id order of the commission, shall, notwithstanding the provisions of
LA Title LXH, be punished by a fine of not more than twenty-five thou-
ad dollars for each day of such violation, or imprisoned for not more
six months or both. '
Any person who shall violate any provisions of this chapter, or any
ful regulation of the commission issued pursuant to this chapter, or
ay .condition or limitation in a permit issued under this chapter or who
., iall fail, neglect or refuse to obey any order lawfully issued pursuant to
fhis chapter shall be subject to a civil penalty not to exceed ten thousand
iBollars per day of such violation.
IEHL The commission shall issue a written cease and desist order against
any discharge or act in violation of this chapter or lawful regulation of the
commission made under it or any condition of any permit lawfully issued
Sy the commission, and any such discharge or act may be enjoined by the
superior court upon application of the attorney general, whether the court
~iin term time or vacation.
The provisions of RSA 651: 1 shall not apply to offenses under this
apter.
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N.J. Stat. Ann. (1966), as amended, (Supp. 1975)
58:10-1. Pollution of potable waters prohibited; "department"; penalty
No excremental matter, domestic, factory, workshop, mill, gas house o*
slaughterhouse refuse, creamery or cheese factory waste, garbage, dyestuff,
coal tar, sawdust, tan bark, or other polluting matter shall be placed In, or
discharged Into, the waters of or placed or suffered to remain upon the ice
or banks of, any river, brook, stream, or any tributary or branch thereof,
lake, pond, well, spring or other reservoir, above the point from which any
municipality shall or may obtain its supply of water for domestic use.
Whoever violates any of the provisions of this section shall be liable to a
penalty of no more than $1,000.00 for the first violation and of no more than
$3,000.00 for each subsequent violation $Mft09 for eaeh effeaee. and each
greeted day's continuance of the violation shall constitute a separate «#e»ee
violation.
Nothing in this section shall be construed to modify or otherwise affect any
other law or statute conferring upon any local board of health the power or
authority to institute any proceedings in any court of this State for the re-
covery of any penalty for, or obtaining any injunction against, the polution of
any of the waters of this State.
58:10-2. Summary proceedings for recovery of penalty; jurisdiction; settle-
ment; disposition of moneys recovered
Any penalty incurred under any of the provisions of section 58:10-1 of this
Title may be recovered, with costs, in a summary proceeding pursuant to the
Penalty Enforcement Law (N.J.8. 2A:58-1 et seq.) in the name of the de-
partment or of en? toea} femed e* beattb «e corporation specified fe» ea44 eee-
tt«» SSilO 1.- the local board of health having jurisdiction over the place
where such violation was committed, or the local board of health of any mu-
nicipality or any authority, commission or other public body supplying water
for sale for potable purposes, the potable water supply of which municipality,
authority, commission or other .public body is or may be affected by such
violation.
«e«ftty district ee«rt «ad municipal eewt sbaH bare juriodiction e£
fliseb pfoeccdingo, within the territorial juriodiotion e£ the eawt? e£ «*y pro-
«f warrant. The Superior Court, County Court, county district court and
the municipal courts shall all have jurisdiction to enforce said Penalty En-
forcement Law in connection with this act.
The department is hereby authorized and empowered to compromise and
settle any claim for a penalty under this section in such amount in the dis-
cretion of the department as may appear appropriate and equitable under all
of the circumstances, Including, in the case of a first violation only, a rebate*
of any such penalty paid to the extent of 90% thereof where such person
satisfies the department within one year or such other period as the depart-
ment may deem reasonable that such violation has been removed or that such
order or injunction has been met or satisfied, as the case may be.
When the plaintiff in any such proceeding is the department, or any cor-
poration engaged in the business of supplying water for sale for potable pur-
poses, the moneys, when recovered, shall be paid to the department and by
it paid into the State treasury; and when the plaintiff in any such proceed-
ing is the local board of health of a municipality, or any authority, commis-
sion or other public body supplying water for sale for potable purposes the'
moneys recovered shall be paid into the treasury of the municipality or' the
treasury of «aid authority, commission or other public body.
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58:10-4. Injunctive relief against violations
I* any person, corporation, municipality, or any municipal authority, shall
violate any of the provisions of section 58:10-1 of this Title, the department,
whether or not the penalty prescribed by said section 58:10-1 shall have
been sued for or recovered, may institute a civil action in the Superior Court
in the name of the State on the relation of the department for injunctive re-
lief to prohibit the further violation of said section 58:10-1, and said court
may proceed in the action in a summary manner.
The local board of health having jurisdiction over the place where such
offence violation was committed, or the local board of health of any munici-
58:10—5. Pollution of fresh water prohibited; "fresh water"
defined; exceptions; "person" defined
No person shall discharge or permit to be discharged into any
fresh water any sewage, excremental matter, domestic refuse or
other polluting matter. The term "fresh water", as used in this
article, shall mean and include all water commonly known as fresh
water and which may be used for human consumption, whether or
not such water shall be found in a stream where the tide ebbs and
flows.
Nothing in this article shall be construed to apply to the efflu-
ent or other matter discharged from any sewage disposal or sew-
age treatment plant approved by the department, or approved
prior to April sixteenth, one thousand nine hundred and eight, by
the state sewerage commission, which said effluent or other mat-
ter so discharged is hereby expressly declared not to be sewage,
excremental matter, domestic refuse or other polluting matter.
The word "person" as used in this article shall be construed to im-
ply both the plural and the singular, as the case may demand, and
shall include corporations, companies, associations, societies and
municipal corporations, as well as individuals.
58:10—6. Penalty for violations; recovery
Whoever violates any of the provisions of this article shall be
liable to a penalty of fifty dollars for each offense, the same to be
recovered in an action at law by the department. All penalties
so recovered shall be paid into the state treasury.
58:10—10. Discharge of effluents regulated; penalty
No effluent from any sewage disposal system or any plant for
the purification or treatment of sewage or industrial wastes shall
be discharged into any of_the potable waters of this state, which,
in the opinion of the department, is of such a character as will or
may cause or threaten injury to the users of any of such waters.
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If after written notice given to any person or municipality by
the department to make such improvements as in its opinion are
required in order that an effluent satisfactory to it may be dis-
charged into such potable waters, the plans for which must be sub-
mitted to and approved by the department, such improvements
are not made within the time specified in the notice, the person
or municipality failing to make such improvements shall be liable
to a penalty of one hundred dollars, and each week's continuance
after the expiration of the time limit specified in the notice shall
constitute a separate offense.
58:10—11. Penalties, recovery of; jurisdiction; process; dis-
position
Any penalty incurred under the provisions of section 58:10-10
of this Title may be recovered, with costs, in a summary proceed-
ing in the name of the department pursuant to the Penalty En-
forcement Law (N.J.S. 2A:58-1 et seq.).
Every county district court and municipal court shall have ju-
risdiction of such a proceeding, because of the violation, within
the territorial jurisdiction of the court, of any provision of sec-
tion 58:10-10. Process shall be either in the nature of a sum-
mons or warrant. All moneys recovered under the provisions of
this article shall be paid into the State treasury.
-58:10-12. Injunctive relief against violations
Upon the violation of any of the provisions of section 58:10-10
of this Title, the department may, whether or not the penalty
prescribed by said section 58:10-10 shall have been sued for or
recovered, institute a civil action in the Superior Court in the
aarne of the State on the relation of the department, for injunc-
tive relief to prohibit the further violation of said section 58:10-
10.
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N.M. Stat. Ann. (1967) , as amended, (Supp. 1973)
75-39-2. Definitions.—As used in the Water Quality Act [75-39-1 to
75-39-12]:
A. "water contaminant" means any substance which alters the
physical, chemical or biological qualities of water:
B. "water pollution" means introducing or permitting the intro-
duction into water, either directly or indirectly, of one or more water
contaminants in such quantity and of such duration as may with
reasonable probability injure human health, animal or plant life, or
property, or to unreasonably interfere with the public welfare or the
use of property;
C. "wastes" means sewage, industrial wastes or any other liquid.
gaseous or solid substance which will pollute any waters of the state:
* * *
G. "water" means all water including water situated wholly or partly
within or bordering upon the state, whether surface or subsurface, pub-
lic or private, except private waters that do not combine with other
surface or subsurface water;
H. "person" means the state or any agency, institution or political
subdivision thereof, any public or private corporation, individual, part-
nership, association or other entity, and includes any officer, or govern-
ing or managing body of any political subdivision or public or private
corporation;
75-39-4.1. Permits—Appeals—Penalty.—A. By regulation the com-
mission may require persons to obtain from a constituent agency
designated by the commission a permit for the discharge of any water
contaminant either directly or indirectly into water.
* * *
P. A person who violates any provision of this section is guilty
of a misdemeanor and shall be punished by a fine of not less than
three hundred dollars ($300) nor more than ten'thousand dollars ($10,-
000) per day, or by imprisonment for not more than one [1] year,
or both.
Q. In addition to the remedy provided above, the trial court .may
impose a civil penalty for a violation of any provision of this section
not exceeding five thousand dollars ($5,000) per day.
* * *
75-39-9. Abatement of water pollution,—A. If, as a result of in-
vestigation, a constituent agency has good cause to believe that any
person is violating or threatens to violate any regulation of the com-
mission for the enforcement of which the agency is responsible, and, if
the agency is unable within a reasonable time to obtain voluntary com-
pliance, the commission may initiate proceedings in the district court
of the county in which the violation occurs. The commission may seek
injunctive relief against any violation or threatened violation of regula-
tions, and such relief shall be subject to the continuing jurisdiction and
supervision of the district court and the court's powers of contempt.
The attorney general shall represent the commission.
A-10 6
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B. In addition to the remedies provided in this section, the dis-
trict court may impose civil penalties not exceeding one thousand
dollars ($1,000) for each violation of the Water Quality Act [75-
39-1 to 75-89-12] or any regulation of the commission, and may
charge the person convicted of such violation with the reasonable
cost of treating or cleaning up waters polluted. Each day during any
portion of which a violation occurs constitutes a separate violation.
C. Any party aggrieved by any final judgment of the district
court under this section may appeal to the court of appeals as in
other civil actions.
D. As an additional means of enforcing the Water Quality Act
or any regulation of the commission, the commission may accept an
assurance of discontinuance of any act or practice deemed in vio-
lation of the Water Quality Act or any regulation adopted pursuant
thereto, from any person engaging in, or who has engaged in, such
act or practice, signed and acknowledged by the chairman of the
commission and the party affected. Any such assurance shall specify
a time limit during which such discontinuance is to be accomplished.
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N.Y. Environmental Conservation Law, (McKinney's 1972)/ as
amended, (McKinney's Supp. 1974)
§ 17-0101. Declaration of policy
It is declared to be the public policy of the state of New York
to maintain reasonable standards of purity of the waters of the
state consistent with public health and public enjoyment thereof,
the propagation and protection of fish and wild life, including
birds, mammals and other terrestrial and acquatic1 life, and the
industrial development of the state, and to that end require the
use of all known available and reasonable methods to prevent and
control the pollution of the waters of the state of New York.
§ 17-0103. Statement of purpose
It is the purpose of this article to safeguard the waters of the
state from pollution by preventing any new pollution and abating
pollution existing when the predecessor of this chapter was enact-
ed, under a program consistent with the declaration of policy
stated in section 17-0101.
§ 17—0105. Definitions applicable to portions of this article
When used in titles 1 to 11, inclusive, and title 19 of this ar-
ticle :
1. "Person" or "persons" means any individual, public or pri-
vate corporation, political subdivision, government agency, mu-
nicipality, industry, co-partnership, association, firm, trust, es-
tate or any other legal entity whatsoever.
2. "Waters" or "waters of the state" shall be construed to
include lakes, bays, sounds, ponds, impounding reservoirs.
springs, wells, rivers, streams, creeks, estuaries, marshes, inlets,
canals, the Atlantic ocean within the territorial limits of the state
of New York and all other bodies of surface or underground wa-
ter, natural or artificial, inland or coastal, fresh or salt, publu-
or private (except those private waters which do not combine or
effect a junction with natural surface or underground waters).
* * *
10. "Disposal system" means a system for disposing of sew-
age, industrial waste or other wastes, and including sewer sys-
tems and treatment works.
11. "Outlet" means the terminus of a sewer system, or tin-
point of emergence of any water-borne sewage, industrial waste
or other wastes or the effluent therefrom, into the waters of tin-
state.
12. "Shellfish" includes oysters, scallops, claims,2 mussels ami
other aquatic mollusks, and lobsters, shrimp, crawfish, crabs and
other aquatic crustaceans.
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13. "State Pollutant Discharge Elimination System" or "SPDES"
means the system established pursuant hereto for issuance of permits
authorizing discharges to the waters of the state.
14. "National Pollutant Discharge Elimination System" or "NPDES"
means the national system for the issuance of permits under the Federal
Water Pollution Control Act.1
15. ."Effluent standard and/or limitation" means any restriction on
quantities, quality, rates and concentrations of chemical, physical, bio-
logical, and other constituents of effluents which are discharged into or
allowed to run from an outlet or point source into waters of the state
promulgated by the federal government.
16. "Point source" means any discernible, confined and discrete con-
veyance, including but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling stock, concentrated ani-
mal feeding operation or vessel or other floating stock from which pol-
lutants are or may be discharged.
17. "Pollutant" means dredged spoil, solid waste, incinerator res>
due, sewage, garbage, sewage sludge, munitions, chemical wastes, bio-
logical materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand and industrial, municipal, and agricultural waste
discharged into water.
18. _ "Schedule of compliance" means a schedule of remedial measures
including an enforceable sequence of actions or operations leading to
compliance with an effluent limitation, other limitation, prohibition, or
standard.
19. "Toxic pollutant" means those pollutants, or combination of pol-
lutants, including disease-causing agents, which after discharge and
upon exposure, ingestion, inhalation or assimilation into any organism,
either directly from the environment or indirectly through food chains,
will, on the basis of information available to the department, cause
death, disease, behavorial abnormalities, cancer, genetic mutations, physi-
ological malfunctions, including malfunctions in reproduction, or phy-
sical deformations, in such organisms or their offspring.
20. "New source" means any source, the construction of which is
commenced after the publication of a standard or performance applica-
ble to such source under the provisions of the Act,1 provided such stand-
ard is thereafter promulgated and adopted.
21. "Standard of performance" means a standard for the control of
the discharge of pollutants which reflects the greatest degree of effluent
reduction which the federal government determines to be achievable
through application of the • best available demonstrated control tech-
nology, processes, operating methods, or other alternatives, including,
where practicable, a standard permitting no discharge of pollutants.
22. "Toxic and pretreatment effluent standard" means standards
adopted by the federal government pursuant to section 307 of the Act.2
As amended L.1973, c. 801, § 2.
§ 17—0303. General powers and duties applicable to por-
tions of this article
1. The provisions of this section shall apply only to titles 1 to
11, inclusive, and title 19 of this article.
2. The department shall have administrative jurisdiction to
abate and prevent the pollution of waters of the state in the
manner herein provided in accordance with the classification of
waters adopted by the department pursuant to section 17-0301.
3. The department, acting through the commissioner may,
from time to time, adopt, amend, or cancel administrative rules
and regulations governing the procedure to be followed with re-
spect to hearing, filing of reports, the issuance of permits, and all
other matters relating to procedure, and generally, may make such
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administrative rules and regulations, and do and perform any
and all acts, not inconsistent with the provisions of this article
listed in subdivision 1 of this section, as may be necessary or
proper to carry into effect such provisions of this article listed
in subdivision 1 of this section, and may make, amend and repeal
rules and regulations for the storage of liquids likely to pollute
the waters of the state including, but not limited to, standards
for the construction, installation, maintenance, protection and
diking of tanks used to store any such liquids and their associ-
ated structures, piping, valves, fittings, fixtures and outlets, in
conjunction with the promulgation of which, the commissioner
shall consider codes and practices of industries concerned with
the handling and storage of such liquids and the time required
for persons engaged in such industries to conform with such
rules and regulations. Such rules and regulations, before becom-
ing effective, shall be filed with the secretary of state for pub-
lication in the "Official Compilation of Codes, Rules and Regula-
tions of the State of New York" published pursuant to section
120 of the Executive Law.
4. The commissioner is hereby authorized to:
a. Hold public hearings, receive pertinent and relevant proof
from any party in interest who appears at such hearing, compel
the attendance of witnesses, make findings of fact and deter-
minations, and assess such penalties therefor as are hereinafter
prescribed, all with respect to the violations of the provisions of
this article listed in subdivision 1 of this section, or the orders
issued by the commissioner;
b. Make, modify or cancel orders requiring the discontinu-
ance of the discharge of sewage, industrial waste or other wastes
into any waters of the state in accordance with the provisions of
this article listed in subdivision 1 of this section, and specifying
the conditions and time within which such discontinuance must
be accomplished.
c. Institute or cause to be instituted in a court of competent
jurisdiction proceedings to compel compliance with the provisions
of this article listed in subdivision 1 of this section or the deter-
minations and orders of the commissioner;
d. Issue or deny permits, under such conditions as may 1"'
prescribed for the prevention and abatement of pollution, for iH'
discharge of sewage, industrial waste or other wastes, or for tU-
installation or operation of disposal systems or parts thereol:
e. Continue any permit heretofore or hereafter issued uncU-1'
the provisions of this article listed in subdivision 1 of this set-
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tion, or under the authority of laws previously enacted and there-
after repealed, whenever, after hearing thereon, the commission-
er determines that such continuation is necessary or desirable to
prevent or abate pollution of any waters of the state;
f. Revoke or modify any permit heretofore or hereafter is-
sued under the provisions of this article listed in subdivision 1
of this section, or under the authority of laws previously enacted
and thereafter repealed, whenever, after hearing thereon, the
commissioner determines that such revocation or modification is
necessary or desirable to prevent or abate pollution of any waters
of the state;
g. Conduct such investigations as may be deemed advisable
and necessary to carry out the intents and purposes of the pro-
visions of this article listed in subdivision 1 of this section;
h. Settle or compromise, with the approval of the attorney
general, any action or cause of action for the recovery of a penal-
ty under the provisions of this article listed in subdivision 1 of
this section as he may deem advantageous to the state; •
i. Perform such other and further acts as may be necessary,
proper or desirable, to carry out effectively the duties and re-
sponsibilities prescribed in the provisions of this article listed in
subdivision 1 of this section.
§ 71-0505. Suits and prosecution
1. The commissioner shall have the power to bring actions
suits or proceedings as in his judgment may be necessary or
proper to perform any of the powers, functions or duties imposed
upon him or upon the department or any division thereof by any
of the provisions of this chapter listed in section 71-0501 or un-
der titles 5 through 15 inclusive and title 33 of this article or to
prevent the violation by any person, public or private, of any of
the provisions thereof; and shall have the power to defend such
actions, suits or proceedings as may arise through the perform-
ance of any of the powers, duties or functions imposed upon him
or upon the department or any division thereof.
2. It shall be the duty of the Attorney General, when request-
ed by the department, to appoint an Assistant Attorney Genera!,
and such assistants as may be necessary and assign them to the
department. Such Assistant Attorney General and assistants
shall receive salaries, to be fixed by the Attorney General within
the appropriation therefor. It shall be the duty of such assistant,
in the name of the Attorney General, to conduct all prosecutions
for penalties imposed by the provisions of this chapter listed in
section 71-0501 or under titles 5 through 15 inclusive and title
33 of this article and to bring all actions, suits and proceedings,
which the department shall be authorized to institute and main-
tain, and to defend all actions, suits and proceedings brought
A-lll
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against the department, its officers or employees of or on account
of any act or any thing done by the said department, its officers
or employees when such act or thing was, in the opinion of the
Attorney General, done in the discharge of any official duty or
in reasonable exercise of authority.
3. No action, suit or proceeding in which the title to lands of
the state in forest preserve counties shall be involved shall bo
withdrawn or discontinued, nor shall judgment therein against
the state be entered on consent except on special permission of
the court and after application made in open court, on which ap-
ation all the terms and conditions of the settlement shall be
, stated in writing and the reasons therefor set forth at
'
§ 71-1929. Violation* ; civil liability
1. A person who violates any of the provisions of, or who fails to
perform any duty imposed by titles 1 through 11 inclusive and title
19 of article 17, or who violates a condition of a permit heretofore or
hereafter issued pursuant to title 8 of article 17 or subdivision 4 of
section 17-0701, or who violates a determination or order of the depart-
ment or of the commissioner, promulgated pursuant to titles 1 through
11 inclusive and title 19 of article 17 shall be liable to a penalty of not
to exceed ten thousand dollars per day of such violation, and, in addition
thereto, such person may be enjoined from continuing such violation
as hereinafter provided. Violation of a permit condition shall con-
stitute grounds for revocation of such permit, which revocation may be
accomplished either as provided in paragraph f of subdivision 4 of
section 17-0303 or by order of judgment of the supreme court as an
Alternate or additional civil penalty in an action brought pursuant to
subdivision 3 of this section.
2. Any penalties for violations of titles 1 through 11 inclu-
sive and title 19 of article 17 resulting in the killing of fish or
shellfish, shall be credited to the conservation fund established by
section 83 of the State Finance Law and shall be available for the
uses and purposes of such fund.
3. The penalties provided by subdivisions one and two shall
be recoverable in an action brought by the Attorney General.
4. An action or cause of action for the recovery of a penalty
under this title may be settled or compromised by the Attorney
General after proceedings are brought to recover such penalties
and prior to the entry for judgment therefor.
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§ 71-1933. Violations; criminal liability /
1. Any person who shall wilfully violate any of the provisions
of titles 1 through 11 inclusive and title 19 of article 17 or any
final determination or order of the commissioner made pursuant
to titles 1 through 11 inclusive and title 19 of article 17 shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not less than five hundred dollars nor more
than two thousand five hundred dollars or by imprisonment for
a term of not more than one year, or by both such fine and im-
prisonment, for each separate violation. Each day upon which
such violation occurs shall constitute a separate violation.
2. No prosecution under this section shall be instituted until
after final disposition of an appeal or review, if any, provided by
section 17-0909 or its predecessor, section 1244 of the Public
Health Law.
3. All prosecutions under this section shall be instituted by
the department or the commissioner and shall be conducted by
the Attorney General in the name of the people of the state of
New York.
4. In the prosecution of any criminal proceeding under this
section by the Attorney General and, in any proceeding before a
grand jury in connection therewith, the Attorney General shall
exercise all the powers and perform all the duties which the Dis-
trict Attorney would otherwise be authorized or required to
exercise or perform, and in such a proceeding the District Attor-
ney shall exercise such powers and perform such duties as are
requested of him by the Attorney General.
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stat. (1973) , as amended, (Supp. 1974)
public n"ohVv n^Sr!??11/* pu^c ?°Ucy- - lt is heret)y declared to be the
resowce9s Lrtwt8 ^ P,r,?Vlde *0r the conservation of its water and air
context of thi A^T"6,-' !t 'tthe mtent of the General Assembly, within the
™e' to aCh-6Ve and to maintain for the citizens of the State
, that the water and air
r - P«°Ple, the General Assembly affirms the
eK0Pruen
ourooVi Sfth,? A r f 7rces ^° be essential to *e general welfare, ft is the
purpose of this Article, to create an agency which shall administer a program
however, to be subject to the procedural requirements of this Article.
§143-214,2. Prohibited discharges. — (a) The discharge of any
radiological, chemical or biological warfare agent or high-level radioactive
waste to the waters of the State is prohibited.
(b) The discharge of any wastes to the subsurface or groundwaters of the
State by means of wells is prohibited.
§ 143-214.2. Prohibited discharges.
(c) The discharge of wastes, including thermal discharges, to the open waters
of the Atlantic Ocean over which the State has jurisdiction are prohibited, except
where such discharges are permitted pursuant to regulation duly adopted by
the Environmental Management Commission.
§ 143-215.6. Enforcement procedures. — (a) Civil Penalties. —
(1) A civil penalty of not more than five thousand dollars ($5,000) may be
assessed by the Environmental Management Commission against any
person who:
a. Violates any classification, standard or limitation established
pursuant to G.S; 143-214.1 or G.S. 143-215.
b. Is required but fails to apply for or to secure a permit required by
G.S. 143-215.1. or who violates or fails to act in accordance with
the terms, conditions, or requirements of such permit.
c. Violates or fails to act in accordance with the terms, conditions, or
requirements of any special order or other appropriate document
issued pursuant to G.S. 143-215.2.
d. Fails to file, submit, or make available, as the case may be, any
documents, data or reports required by this Article.
e. Refuses access to the Environmental Management Commission or
its duly designated representatives to any premises for the purpose
of conducting any investigations provided for in this Article.
f. Violates any duly adopted regulation of the Environmental
Management Commission implementing the ^provisions of this
Articfe.
(2) If any action or failure to act for which a penalty may be assessed under
this subsection is willful, the Environmental Management Commission
may assess a penalty not to exceed five thousand dollars ($5,000) per
day for so long as the violation continues.
(3) The Environmental Management Commission may assess the penalties
provided for in this subsection. Any person assessed shall be notified
of the assessment by registered or certified mail, and the notice shall
specify the reasons for the assessment. If the person assessed fails to
pay the amount of the assessment to the Department of Natural and
Economic Resources within 30 days after receipt of notice, or such
longer period, not to exceed 180 days, as the Environmental
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Management Commission may specify, the Environmental
Management Commission may institute a civil action in the superior
court of the county in which the violation occurred or, in the discretion
of the Environmental Management Commission, in the superior court
of the county in which the person assessed resides or has his or its
principal place of business, to recover the amount of the assessment.
In any such civil action, the scope of the court's review of the
Environmental Management Commission's action (which shall include
a review of the amount of the assessment), shall be as provided in G.S.
143-315.
(b) Criminal Penalties. —
(1) Any person who willfully or negligently violates any classification,
standard or limitation established pursuant to G.S. 143-214.1 or G.S.
143-215: any term, condition, or requirement of a permit issued
pursuant to G.S. 143-215.1 or of a special order or other appropriate
document issued pursuant to G.S, 143-215.2; or any regulation of the
Environmental Management Commission implementing any of the said
sections, shall be guilty of a misdemeanor punishable by a fine not to
exceed twenty-five thousand dollars ($25,000) per day of violation, or
by imprisonment not to exceed six months, or by both.
(2) Any person who knowingly makes any false statement, representation,
or certification in any application, record, report, plan, or other
document filed or required to be maintained under this Article or
regulations of the Environmental Management Commission
implementing this Article, or who falsifies, tampers with,.or knowingly
renders inaccurate .any recording or monitoring device or method
required to be operated or maintained under this Article or regulations
of the Environmental Management Commission implementing this
Article, shall be guilty of a misdemeanor punishable by a fine not to
exceed ten thousand dollars ($10,000), or by imprisonment not to exceed
six months, or by both.
(3) Anv person convicted of an offense under either subdivision (1) or
subdivision (2) of this subsection following a previous conviction under
such" subdivision shall be subject to a fine, or imprisonment, or both,
not exceeding twice the amount of the fine, or twice the term of
imprisonment provided in the subdivision under which the second or
subsequent conviction occurs.
(4) For purposes of this subsection, the term "person" shall mean, in
addition to the definition contained in G.S. 143-213, any responsible
corporate or public officer or employee; provided, however, that where
a vote of the people is required to effectuate the intent and purpose
of this Article by a county, city, town, or other political subdivision of
the State, and the vote on the referendum is against the means or
machinery for carrying said intent and purpose into effect, then, and
only then, this subsection shall not apply to elected officials or to any
responsible appointed officials or employees of such county, city, town,
or political subdivision.
(c) Injunctive Relief. — Whenever the Department of Natural and Economic
Resources has reasonable cause to believe that any person has violated or is
threatening to violate any of the provisions of this Article or any regulations
adopted by the Environmental Management Commission implementing the
provisions of this Article, the Department of Natural and Economic Resources
may, either before or after the institution of. any other action or proceeding
authorized by this Article, request the Attorney General to institute a civil action
in the name of the State upon the relation of the Department of Natural and
A-116
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Economic Resources for injunctive relief to restrain the violation or threatened
violation and for such other and further relief in the premises as the court shall
deem proper. The Attorney General may institute such action in the superior
court of the county in which the violation" occurred or may occur or, in his
discretion, in thejsu'perior court of the county in which the person responsible
for the violation or threatened violation resides or has his or its principal place
of busintss. Upon a determination by the court that the alleged violation of the
provisions of this Article or the regulations of the Environmental Management
Commission ha.s occurred or is threatened, the court shall grant the 'relief
necessary to prevent or abate .the violation or threatened violation. Neither the
institution of iht- action nor any of the proceedings thereon shall relieve any
party to. s.ueh proceedings from any, penalty prescribed for violation of this
Article.
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N.D. Cent. Code (Supp. 1973)
61-28-01. Statement of policy.—It is hereby declared to be the policy
of the state of North Dakota to act in the public interest to protect,
maintain and improve the quality of the waters in the state for con-
tinued use as public and private water supplies, propagation of wildlife,
fish and aquatic life, and for domestic, agricultural, industrial, recrea-
tional and other legitimate beneficial uses, to require necessary and
reasonable treatment of sewage, industrial, or other wastes and to
cooperate with other agencies in the state, agencies of other states
and the federal government in carrying out these objectives.
61-28-02. Definitions.—For the purposes of this chapter, the follow-
ing words and phrases shall have the meanings ascribed to them in this
section:
1. "Pollution" means such contamination, or other alteration of the
physical, chemical or biological properties, of any waters of the
state, including change in temperature, taste, color, turbidity, or
odor of the waters, or such discharge of any liquid, gaseous,
solid, radioactive, or other substance into any waters of the state
as will or is likely to create a nuisance or render such waters
harmful, detrimental or injurious to public health, safety or wel-
fare, or to domestic, commercial, industrial, agricultural, recrea-
tional, or other legitimate beneficial uses, or to livestock, wild
animals, birds, fish or other aquatic life.
2. "Wastes" means sewage, industrial wastes, and all other liquid,
gaseous, solid, radioactive, or other substances which may pollute
or tend to pollute any waters of the state.
* * *
61-28-05. Rules, regulations and standards.—The department may
adopt rules and regulations and, jointly with the state water pollution
control board, shall hold public hearings to consider the adoption,
amendment or repeal of rules, regulations, and standards of quality of
the waters of the state as provided in this chapter, and notice of such
public hearing or hearings shall be given by publication of a notice of
such hearings or hearing in each of the official county newspapers within
the state of North Dakota by at least two publications, one week apart,
the last publication being at least ten days prior to said hearing and
which hearing shall be held in the state capitol in Bismarck, at which
hearings interested parties may present witnesses and other evidence
pertinent and relevant to proposed rules, regulations, and standards,
and the state water pollution control board shall consider any other
matters related to the purposes of this chapter and shall advise the
department concerning the administration of this chapter.
61-28-06. Prohibitions.—
1. It shall be unlawful for any person:
a. To cause pollution of any waters of the state or to place or
cause to be placed any wastes in a location where they are
likely to cause pollution of any waters of the state; and
b. To discharge any wastes into any waters of the state which
reduce the quality of such waters below the water quality
standards established therefor by the department.
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2. It shall be unlawful for any person to carry on any of the follow-
ing activities unless he holds a valid permit for the disposal of
all wastes which are, or may be, discharged thereby into the
waters of the state:
a. The construction, installation, modification or operation of any
disposal system or part thereof or any extension or addition
thereto without plans and specifications previously approved by
the department and the state water commission.
b. Cause a material increase in volume or strength of any wastes
in excess of the permissive discharges specified under existing
approved plans.
c. The construction, installation, or operation of any industrial,
commercial, or other establishment or any extension or
modification or addition thereof, the operation of which would
cause an increase in the discharge of wastes into the waters
of the state or would otherwise alter the physical, chemical, or
biological properties of any waters of the state in any manner
not already lawfully authorized.
d. The construction or use of any new outlet for the discharge of
any wastes into the waters of the state.
61-28-08. Penalties—Injunctions.—
1. Any person Who willfully violates this chapter or any permit con-
dition or limitation implementing this chapter shall be punished
by a fine of not more than twenty-five thousand dollars per day
of violation, or by imprisonment in the county jail for not more
than one year, or both. If the conviction is for a violation com-
mitted after a first conviction of such person under this para-
graph, punishment shall be by a fine of not more than fifty
thousand dollars per day of violation, or by imprisonment in the
county jail for not more than two years, or by both.
2. Any person who knowingly makes any false statement, repre-
sentation, or certification in any application, record, report, plan
or other document filed or required to be maintained under this
chapter or who falsifies, tampers with, or knowingly renders in-
accurate any monitoring device or method required to be main-
tained under this chapter, shall upon conviction, be punished by
a fine of not more than ten thousand dollars or by imprisonment
in the county jail for not more than six months, or by both.
3. Any person who violates this chapter, or any permit condition or
limitation implementing the chapter, and-any person who violates
any order issued by the department shall be subject to a civil
penalty not to exceed ten thousand dollars per day of such viola-
tion.
4. The department may, in accordance with the laws of this state
governing injunctions or other process, maintain an action in the
name of the state against any person violating any provision of
this chapter or any rule, regulation or order issued thereunder.
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Ohio Rev. Stat. Ann. (Baldwin 1974) , as amended, (Supp. 1975)
6111.01 Definitions.
As used in sections 6111.01 to 611L08, inclusive, and
sections 6111.31 to 6111.38, inclusive, of the Revised
Code:
(A) "Pollution" means the placing of any noxious
or deleterious substances in any waters of the state or
affecting the properties of any waters of the state in a
manner which renders such waters harmful or inimical
to the public health, or to animal or aquatic life, or to
the use of such waters for domestic water supply, or
industrial or agricultural purposes, or for recreation.
(B) "Sewage" means any substance that contains
any of the waste products or excrementitious or other
discharge from the bodies of human beings or animals,
which pollutes the waters of the state.
(C) "Industrial waste" means any liquid, gaseous,
or solid waste substance resulting from any process of
industry, manufacture, trade, or business, or from the
development, processing, or recovery of any natural
resource, together with such sewage as is present, which
pollutes the waters of the state.
(D) "Other wastes" means garbage, refuse, decayed
wood, sawdust, shavings, bark, and other wood debria,
lime (except hydra ted or dehydrated lime), sand, ashes,
offal, night soil, oil, tar, coal dust, or silt, and other sub-
stances which are not included within the definitions of
sewage and industrial waste set forth in this section,
which pollute the waters of the state.
6111.04 Acts of pollution prohibited; exceptions
No person shall cause pollution or place or cause to
be placed any sewage, industrial waste, or other wastes
in a location where they cause pollution of any waters of
the state, and any such action is hereby declared to be a
public nuisance, except in such cases where the director
of environmental protection has issued a valid and unex-
pired permit, or renewal thereof, as provided in sections
6111.01 to 6111.08 of the Revised Code, or an applica-
tion for renewal is pending.
No person to whom a permit has been issued shall
place or discharge, or cause to be placed or discharged,
in any waters of the state any sewage, industrial waste,
or other wastes in excess of the permissive discharges
specified under such existing permit without first receiv-
ing a permit from the director to do so.
No person who is discharging or causing the dis-
charge of any sewage, industrial waste, or other wastes
into the waters of the state shall continue or cause the
continuance of such discharge, without first obtaining a
permit therefor issued by the director. The director shall
prescribe by regulation a reasonable filing period within
which applications may be filed to obtain permits for ex-
isting discharges that have not been authorized by per-
mit.
The director may require the submission of such
plans, specifications, and other information as he deems
relevant in connection with the issuance of permits.
This section does not apply to:
(A) Waters used in washing sand, gravel, other aggre-
gates, or mineral products, when such washing and the
ultimate disposal of the water used in such washing, in-
cluding any sewage, industrial waste, or other wastes
contained in such waters, are entirely confined to the
land under the control of the person engaged in the
recovery and processing of such sand, gravel, other ag-
gregates, or mineral products, and do not result in the
pollution of waters of the state;
(B) Water, gas, or other material injected into a well
to facilitate the production of oil or gas or for disposal
purposes, or water derived in association with oil or gas
production and disposed of in a well, in compliance with
a permit issued under Chapter 1509. of the Revised
Code. This division does not authorize, without a permit,
any discharge that is prohibited by, or for which a per-
mit is required by, regulation of the United States envi-
ronmental protection agency;
(Q Application of any materials to land for agricul-
tural purposes or runoff of such materials from such ap-
plication. This division does not authorize, without a
permit, any discharge that is prohibited by, or for which
a permit is required by, regulation of the United States
environmental protection agency;
(D) The excrement of domestic and farm animals
defecated on land or runoff therefrom into any waters of
the state. This division does not authorize, without a per-
mit, any discharge that is prohibited by, or for which a
permit is required by, regulation of the United States en-
vironmental protection agency;
(E) The discharge of sewage, industrial waste, or
other wastes into a sewerage system maintained by the
state or a political subdivision;
(F) Septic tanks or any other disposal systems for the
disposal or treatment of sewage from single-family, two-
family, or three-family dwellings in compliance with the
sanitary code and section 1541.21 or 3707.01 of the Re-
vised Code. This division does not authorize, without a
permit, any discharge that is prohibited by, or for which
a permit is required by, regulation of the United States
environmental protection agency.
The holder of a permit issued under section 402 (a)
of the "Federal Water Pollution Control Act Amend-
ments of 1972," 86 Stat. 880, 33 U.S.C.A. 1342, need
not obtain a permit for a discharge authorized by such
permit until its expiration date. The director of environ-
mental protection shall adminster and enforce such per-
mits within this state, and may modify the terms and
conditions thereof in accordance with division (J) of sec-
tion 6111.03 of the Revised Code.
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6111.07 (1261-lh). Prohibition; prosecution; injunc-
tion.
(A) No person shall violate or fail to perform any
duty imposed by, sections 6111.01 to 6111.08, inclusive,
of the Revised Code, or violate any order of the water
pollution control board promulgated pursuant to such
sections. Each day such violation continues after a
conviction for a violation of such sections or order of the
board and the final determination thereof is a separate
offense; provided the court may grant a reasonable
period of time for compliance.
Any person convicted of violating such sections may
also be enjoined, as provided in division (B) of this sec-
tion, from continuing such violation.
(B) The attorney general, upon the request of the
board, shall prosecute any person who violates, or who
fails to perform any duty imposed by, sections 6111.01 to
6111.08, inclusive, of the Revised Code, or who violates
any order of the board promulgated pursuant to such
sections.
The attorney general, upon request of the board, shall
bring an action for an injunction against any person
violating or threatening to violate such sections, or
violating or threatening to violate any order of the board
promulgated pursuant to such sections. In an action
for injunction to enforce any final order of the board
brought pursuant to this section, the finding by the
board, after hearing, is prima-facie evidence of the facts
found therein.
611159 Penalties
(A) Whoever violates section 6111.04, 6111.042,
6111.05, or division (A) of section 6111.07 of the Revised
Code shall be fined not more than twenty-five thousand
dollars or imprisoned not more than one year, or both.
(B) Whoever violates sections 6111.13 to 6111.15,
6111.45, or 6111.46 of the Revised Code, shall be fined
not more than five hundred dollars.
(Q Whoever violates division (Q of section 6111.07
of the Revised Code shall be fined not more than
twenty-five thousand dollars.
(D) Whoever violates section 6111.42 of the Revised
Code shall be fined not more than one hundred dollars
for a first offense; for each subsequent offense such per-
son shall be fined not more than one hundred fifty dol-
lars.
(E) Whoever violates section 6111.44 of the Revised
Code shall be fined not more than one hundred dollars.
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Okla. Stat. Ann. (1970), as amended, (Supp. 1974)
§ 932.1 Definitions
As used in this act, unless a different meaning is required by the con-
text, the following words and phrases shall have the following mean-
ings:
(a) "Environment" includes the outdoor atmosphere, on and under
the surface of the land, the land, and the waters of the state.
(b) "Board" is the Pollution Control Coordinating Board.
(c) "Director" is the Director of the State Department of Pollution
Control.
(d) "Pollution" is the presence in the environment of any substances
or contaminants, including noise, in quantities which are or may be po-
tentially harmful or injurious to human health, welfare or esthetic sensi-
bilities or to property, animals or plant life.
(e) "Waters" shall include but not be limited to rivers, lakes, streams,
springs, impoundments and all other waters or bodies of water, includ-
ing fresh, brackish, saline, surface or underground. Waters owned en-
tirely by one person other than the state are included only in regard to
possible discharge on other property or water. Underground waters in-
clude but are not limited to all underground waters passing through pores
of rock or soils or flowing through in channels, whether man-made or
natural.
(f) "Wastes" means sewage, industrial wastes, and all other liquid,
gaseous, solid, radioactive or other substances which may pollute or tend
to pollute any waters, the atmosphere or lands of this state.
(g) "Treatment works" and "disposal systems" mean any plant or
other works used for the purpose of treating, stabilizing or holding wastes.
(h) "Sewerage system" means pipelines or conduits, pumping stations,
force mains and all other structures, devices, appurtenances and facili-
ties used for collecting or conducting wastes to an ultimate point for
treatment or disposal.
(i) "Plant1;, is any unit operation, complex, area or multiple unit op-
erations that produce, process or cause to be processed any materials,
the processing of which can, or may, cause air, water, noise or land pollu-
tion.
(j) "Source" is any and all points of origin of excessive noises or con-
taminants whether publicly or privately owned or operated.
(k) "Person" means the state or any agency or institution thereof, any
municipality or political subdivision, public or private corporation, in-
dividual, partnership, association or other entity, and includes any officer
or governing or managing body of any municipality, political subdivision
or public or private corporation.
(I) "Non-point source" is the contamination of the, environment with
a pollutant(s) whose specific point of origin may not be well defined.
Laws 1971, c. 338, § 2, operative July 1, 1971. Amended by Laws 1974,
c. 78, § 1.
§ 935. Minimum standard of water quality
(a) The established water quality standards and designated beneficial
uses of the waters of the state in effect on the effective date of this act
shall be the minimum standard of water quality until otherwise desig-
nated by the Board.
(b) When the disposal of waste through a disposal system or the dis-
charge either directly or indirectly of any untreated or inadequately treat-
ed wastes reduces the quality of any waters of the state below such stand-
ards, it shall be prima facie evidence of water pollution and the Board
shall request the appropriate state agency to take immediate action to
secure such corrections as necessary to prohibit further pollution.
Amended by Laws 1971, c. 338, § 7, operative July 1, 1971.
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§ 937. Penalties—-Injunctions y'
(a) Any person who knowingly or willfully violates any properly pro-
mulgated order of the Pollution Control Coordinating Board shall be
guilty of a misdemeanor and upon conviction shall be punished by a fine
of not more than Five Hundred Dollars ($500.00) per day for each of the
first ten (10) days of continuous violation and One Thousand Dollars
($1,000,00) for each day thereafter, or by imprisonment for a term of
not more than ninety (90) days or by both such fine and imprisonment.
Each and every day the violation occurs shall constitute a separate viola-
tion.
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Ore. Rev. Stat. (1953) , as amended, (Supp. 1974)
468.035 Functions of department. (1)
Subject to policy direction by the commis-
sion, the department:
(a) Shall encourage voluntary coopera-
tion by the people, municipalities, counties,
industries, agriculture, and other pursuits,
in restoring and preserving the quality and
purity of the air and the waters of the state
in accordance with rules and standards
established by the commission,
* * *
(i) Shall make such determination of
priority of air or water pollution control pro-
jects as may be necessary under terms of
statutes enacted by the Congress of the
United States.
(j) Shall seek enforcement of the air and
water pollution laws of the state.
(k) Shall institute or cause to be insti-
tuted in a court of competent jurisdiction,
proceedings to compel compliance with any
rule or standard adopted or any order or
permit, or condition thereof, issued pursuant
to ORS 448.305, 454.010 to 454.040, 454.205
to 454.255, 454.315 to 454.355, 454.405 to
454.425, 454.505 to 454.535, 454.605 to
454.745 and this chapter.
(L) Shall encourage the formulation and
execution of plans in conjunction with air
and water pollution control agencies or with
associations of counties, cities, industries and
other persons who severally or jointly are or
may be the source of air or water pollution,
for the prevention and abatement of pollu-
tion.
468.060 Enforcement of rules by health
agencies. On its own motion after public
hearing, the commission may grant specific
authorization to the Health Division or to
any county, district or city board of health
to enforce any rule of the commission relat-
ing to air or water pollution or solid wastes.
^ 468.090 Complaint procedure. (1) In
case any written substantiated complaint is
filed with the department which it has cause
to believe, or in case the department itself
has cause to believe, that any person is vio-
lating any rule or standard adopted by the
commission or any permit issued by the de-
partment by causing or permitting water
pollution or air pollution or air contamina-
tion, the department shall cause an investiga-
tion thereof to be made. If it finds after such
investigation that such a violation of any
rule or standard of the commission or of any
permit issued by the department exists, it
shall by conference, conciliation and persua-
sion endeavor to eliminate the source or
cause of the pollution or contamination which
resulted in such violation.
(2) In case of failure to remedy the vio-
lation, the department shall commence en-
forcement proceedings pursuant to the pro-
cedures set forth in ORS chapter 183 for a
contested case.
" 468.180 Schedule of civil penalties; fac-
tors to be considered in imposing civil penal-
ties. (1) The commission shall adopt by rule
a schedule or schedules establishing the
amount of civil penalty that may be imposed
for a particular violation. Except as provided
in subsection (3) of ORS 468.140, no civil
penalty shall exceed $500 per day. Where the
classification involves air pollution, the com-
mission shall consult with the regional air
quality control authorities before adopting
any classification or schedule.
(2) In imposing a penalty pursuant to the
schedule or schedules authorized by this sec-
tion, the commission and regional air quality
control authorities shall consider^the follow-
ing factors:
(a) The past history of the person incur-
ring a penalty in taking all feasible steps or
procedures necessary or appropriate to cor-
rect any violation.
(b) Any prior violations of statutes, rules,
orders and permits pertaining to water or air
pollution or air contamination or solid waste
disposal.
(c) The economic and financial conditions
of the person incurring a penalty.
(3) The penalty imposed under this sec-
tion may be remitted or mitigated upon such
terms and conditions as the commission or
regional authority considers proper and con-
sistent with the public health and safety.
468.135 Procedures to collect civil penal-
ties. (1) Subject to the advance notice pro-
visions of ORS 468.125, any civil penalty im-
posed under ORS 468.140 shall become due
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and payable when the person incurring the
penalty receives a notice in writing from the
director of the department, or from the di-
rector of a regional air quality control au-
thority, if the violation occurs within its
territory. The notice referred to in this sec-
tion shall be sent by registered or certified
mail and shall include:
(a) A reference to the particular sections
of the statute, rule, standard, order or per-
mit involved;
(b) A short and plain statement of the
matters asserted or charged;
(c) A statement of the amount of the pen-
alty or penalties imposed; an d
(d) A statement of the party's right to
request a hearing.
(2) The person to whom the notice is ad-
dressed shall have 20 days from the date of
mailing of the notice in which to make writ-
ten application for a hearing before the com-
mission or before the board of directors of
a regional air quality control authority.
(3) All hearings shall be conducted pur-
suant to the applicable provisions of ORS
chapter 183.
(4) Unless the amount of the penalty is
paid within 10 days after the order becomes
final, the order shall constitute a judgment
and may be filed in accordance with the pro-
visions of ORS 18.320 to 18.370. Execution
may be issued upon the order in the same
manner as execution upon a judgment of a
court of record.
(5) All penalties recovered under ORS
468.140 shall be paid into the State Treasury
and credited to the General Fund, or in the
event the penalty is recovered by a regional
air quality control authority, it shall be paid
into the county treasury of the county in
which the violation occurred.
- 468.140 Civa penalties for specified vio-
lations. (1) In addition to any other penalty
provided by law, any person who violates any
of the following shall incur a civil penalty for
each day of violation in the amount prescribed
by the schedule adopted under ORS 468.130:
(a) The terms or conditions of any per-
mit required or authorized by law and issued
by the department or a regional air quality
control authority.
(b) Any provision of ORS 448.305,
454.010 to 454.040, 454.205 to 454.255,
454.315 to 454.355, 454.405 to 454.425,
454.505 to 454.535, 454.605 to 454.745 and
this chapter.
(c) Any rule or standard or order of the
commission adopted or issued pursuant to
ORS 448.305, 454.010 to 454.040, 454.205 to
454.255, 454.315 to 454.355, 454,405 to
454.425, 454.505 to 454.535, 454.605 to
454.745 and this chapter.
(d) Any rule or standard or order of a
regional authority adopted or issued under
authority of subsection (1) of ORS 468.535.
(2) Each day of violation under subsec-
tion (1) of this section constitutes a separate
offense.
(3) (a) In addition to any other penalty
provided by law, any person who intentionally
or negligently causes or permits the dis-
charge of oil into the waters of the state shall
incur a civil penalty not to exceed the amount
of $20,000 for each violation,
(b) In addition to any other penalty pro-
vided by law, any person who violates the
terms or conditions of a permit authorizing
waste discharge into the waters of the state
or violates any law, rule, order or standard
in ORS 448.305, 454.010 to 454.040, 454.205
to 454.255, 454.315 to 454.355, 454.405 to
454.425, 454.505 to 454.535, 454.605 to
454.745 and this chapter relating to water
pollution shall incur a civil penalty not to
exceed the amount of $10,000 for each day
of violation.
(4) Paragraphs (c) and (d) of subsection
(1) of this section do not apply to violations
of motor vehicle emission standards.
» 468.745 Liability for damage to fish or
wildlife or habitat; agency to which damages
payable. (1) Where the injury, death, con-
tamination or destruction of fish or other
wildlife or injury or destruction of fish or
wildlif e habitat results from pollution or from
any violation of the conditions set forth in
any permit or of the orders, rules or standr
ards of the commission, the person respon-
sible for the injury, death, contamination or
destruction shall be liable to the state in any
amount reasonably necessary to .restock or
A-125
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replace such fish or wildlife and to restore
natural fish or wildlife production in the af-
fected waters.
(2) In addition to the penalties provided
for by law, the state may seek recovery of
such damages in any court of competent jur-
isdiction in this state if the person respon-
sible under subsection (1) of this section fails
or refuses to pay for the restocking or re-
plenishing of such fish or wildlife or restor-
ing natural fish or wildlife production in the
affected waters within a period of 60 days
from the date of mailing by registered or cer-
tified mail of written demand therefor.
(3) Any action or suit for the recovery of
damages described in subsection (1) of this
section shall be brought in the name of the
State of Oregon upon relation of the depart-
ment or the Attorney General. Amounts re-
covered under this section shall be paid to the
state agency having jurisdiction over the fish
or wildlife or fish or wildlife production for
which damages were recovered.
(2) Refusal to produce books, papers
or information subpenaed by the commis-
sion or the regional air quality control au-
thority or any report required by law or by
the department or a regional authority pur-
suant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.315 to 454.355,
454.405 to 454.425, 454.505 to 454.535,
454.605 to 454.745 and this chapter is a Class
A misdemeanor.
(3) Violation of the terms of any per-
mit issued pursuant to ORS 468.065 is a
Class A misdemeanor. Each day of viola-
tion constitutes a separate offense.
468.990 Penalties. (1) Wilful or neg-
ligent violation of ORS 468.720 or 468.740
is a misdemeanor and a person convicted
thereof shall be punishable by a fine of not
more than $25,000 or by imprisonment in
the county jail for not more than one year,
or by both. Each day of violation consti-
tutes a separate offense.
(2) Violation of ORS 468.775 is a Class
A misdemeanor. Each day of violation con-
stitutes a separate offense.
(3) Violation of subsection (1) or (2)
of ORS 468.760 is a Class A misdemeanor.
(4) Violation of ORS 454.415 or 454.425
is a Class A misdemeanor.
[1973 c.835 §28]
468.992 Penalties for water pollution
offenses. (1) Wilful or negligent violation
of any rule, standard or order of the com-
mission relating to water pollution is a mis-
demeanor and a person convicted thereof
shall be punishable by a fine of not more
than $25,000 or by_ imprisonment in the
county jail for not more than one year, or
by both. Each day of violation constitutes a
separate offense.
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Pa. Stat. Ann. tit. 35 (1975)
§ 691.1 Definitions
The following words or phrases, unless the context clearly indicates
otherwise, shall have the meanings ascribed to them in thls^sectlon.
* * *
"Industrial waste" shall be construed to mean any liquid, gaseous, ra-
dioactive, solid or other substance, not sewage, resulting from any manu-
facturing or industry, or from any establishment, as herein defined, and
mine drainage, silt, coal mine solids, rock, debris, dirt and clay from
coal mines, coal collieries, breakers or other coal processing operations!
"Industrial waste" shall include all such substances whether or not gen-
erally characterized as waste.
"Pollution" shall be construed to mean contamination of any water*
of the Commonwealth such as will create or is likely to create a nuisance
or to render such waters harmful, detrimental or injurious to public
health, safety or welfare, or to domestic, municipal, commercial, indus-
trial, agricultural, recreational, or other legitimate beneficial uses, or to
livestock, wild animals, birds, fish or other aquatic life, including but
not limited to such contamination by alteration of the physical, chemical
or biological properties of such waters, or change in temperature, taste,
color or odor thereof, or the discharge of any liquid, gaseous, radioactive,
solid or other substances into such waters. The board shall determine
when a discharge constitutes pollution, as herein defined, and shall es-
tablish standards whereby and wherefrom it can be ascertained and de-
termined whether any such discharge does or does not constitute pollu-
tion as herein defined.
"Sewage" shall be construed to include any substance that contains any
of the waste products or excrementitious or other discharge from the
bodies of human beings or animals.
"Waters of the Commonwealth" shall be construed to include any and
all rivers, streams, creeks, rivulets, impoundments, ditches, water courses,
storm sewers, lakes, dammed water, ponds, springs and all other bodies or
channels of conveyance of surface and underground water, or parts there-
of, whether natural or artificial, within or on the boundaries of this
Commonwealth.
§ 091.4 Declaration of policy
(1) Clean, unpolluted streams are absolutely essential if Pennsylvania
is to attract new manufacturing industries and to develop Pennsylvania's
full share of the tourist industry;
(2) Clean, unpolluted water is absolutely essential if Pennsylvanians are
to have adequate out of door recreational facilities in the decades ahead;
(3) It is the objective of the Clean Streams Law not only to prevent
further pollution of the waters of the Commonwealth, but also to reclaim
and restore to a clean, unpolluted condition every stream in Pennsylvania
that is presently polluted;
(4) The prevention and elimination of water pollution is recognized
as being directly related to the economic future of the Commonwealth;
and
(5) The achievement of the objective herein set forth requires a com-
prehensive program of watershed management and control.
A-12 7
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§ 691.601 Abatement of nuisances; restraining -violations
(a) Any activity or condition declared by this act to be a nuisance, shall
be abatable in the manner provided by law or equity for the abatement of
public nuisances. In addition, suits to abate such nuisances or suits to
restrain or prevent any violation of this act may be instituted in equity or
at law in the name of the Commonwealth upon relation of the Attorney
General, or upon relation of any district attorney of any county, or upon
relation of the solicitor of any municipality affected, after notice has first
been served upon the Attorney General of the intention of the district at-
torney or solicitor to so proceed. Such proceedings may be prosecuted in
the Commonwealth Court, or in the court of common pleas of the county
where the activity has taken place, the condition exists, or the public af-
fected, and to that end jurisdiction is hereby conferred in law and equity
upon such courts: Provided, however. That no action shall be brought by
such district attorney or solicitor against any municipality discharging
sewage under a permit of the board heretofore issued or hereafter issued
under this act: And provided further, That, except in cases of emergency
where, in the opinion of the court, the exigencies of the cases require Im-
mediate abatement of said nuisances, the court may. In its decree, fix a
reasonable time during which the person or municipality responsible for
the nuisances may make provision for the abatement of the same.
(b) In cases where the circumstances require it or the public health
is endangered, a mandatory preliminary injunction or special injunction
may be issued upon the terms prescribed by the court, notice of the appli-
cation therefor having been given to the defendant in accordance with the
rules of equity practice, and in any such case the Attorney General, the
district attorney or the solicitor of any municipality shall not be required
to give bond.
§ 691.602 Penalties
(a) Any person or municipality who violates any provision of this act
or any rule or regulation or order of the board or any order of the depart-
ment issued pursuant to this act is guilty of a summary offense and, upon
conviction, shall be subject to a fine of not less than one hundred dollars
($100) nor more than one thousand dollars ($1,000) for each separate of-
fense, and, in default of the payment of such fine, the person, or if such
person be a partnership, then the members thereof, or if such person be a
corporation or association, then the officers, members, agents, servants or
employes thereof, shall be imprisoned in the county jail for a period of
sixty days.
(b) Any person or municipality vrho, after a conviction in a summary
proceeding within two years as above provided, violates any provision of
this act or any rule or regulation or order of the board or any order of
the department issued pursuant to this act is guilty of a misdemeanor r.rd,
upon conviction, shall be subject to a fine of not less than one hundred dol-
lars ($100) nor more than five thousand dollars ($5,000) for each sepa-
rate offense or to imprisonment in the county jail for a period of not more
than one year, or both. In the case of a partnership the members there-
of, and in the case of a corporation or an association the officers, mem-
bers, agents, servants or employes thereof, may be subject to any such
sentence of imprisonment.
(c) Each day of continued violation of any provision of this act or any
rule or regulation or order of the board or any order of the department is-
sued pursuant to this act shall constitute a separate offense under sub-
sections (a) and (b) of this section.
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§ 691.605 Civil penalties ,,
In addition to proceeding under any other remedy available at law or in
equity for a violation of a provision of this act or a rule or regulation of
the board or an order of the department, the board, after hearing, may
assess a civil penalty upon a person or municipality for such violation.
Such a penalty may be assessed whether or not the violation was wilful.
The civil pena.lty so assessed shall not exceed ten thousand dollars ($10,-
000), plus five hundred dollars ($500) for each day of continued violation.
In determining the amount of the civil penalty the board shall consider
the wilfullness of the violation, damage or Injury to the waters of the
Commonwealth or their uses, cost of restoration, and other relevant fac-
tors. It shall be payable to the Commonwealth of Pennsylvania and shall
be collectible in any manner provided at law for the collection of debts.
If any person liable to pay any such penalty neglects or refuses to pay the
same after demand, the amount, together with interest and any Costs that
may accrue, shall be a Hen in favor of the Commonwealth upon the prop-
erty, both real and personal, of such person but only after same has been
entered and docketed of record by the prothonotary of the county where
such is situated. The board may, at any time, transmit to the prothono-
taries of the respective counties certified copies of all such liens, and It
shall be the duty of each prothonotary to enter and docket the same of
record in his office, and to index the same as judgments are indexed, with-
out requiring the payment of costs as a condition precedent to the entry
thereof.
§ 681.610 Enforcement orders
The department may issue such orders as are necessary to aid in the en-
forcement of the provisions of this act. Such orders shall include, but
shall not be limited to, orders modifying, suspending or revoking permits
and orders requiring persons or municipalities to cease operations of an
establishment which, in the course of its operation, has a discharge which
Is in violation of any provision of this act. Such an order may be issued
if the department finds that a condition existing in or on the operation in-/
volved is causing or is creating a danger of pollution of the waters of the
Commonwealth, or if it finds that the permittee, or any person or munici-
pality is in violation of any relevant provision of this act, or of any rele-
vant rule, regulation or order of the board or relevant order of the depart-
ment: Provided, however, That an order affecting an operation not di-
rectly related to the condition or violation in question, may be issued only
if the department finds that the other enforcement procedures, penalties
and remedies available under this acf would probably not be adequate to
effect prompt or effective correction of the condition or violation. The
department may, in its order, require compliance with such conditions as
are necessary to prevent or abate pollution or effect the purposes of this
act. An order issued under this section shall take effect upon notice, un-
less the order specifies otherwise. An appeal to the board of the depart-
ment's order shall not act as a supersedeas: Provided, however, That, upon
application and for cause shown, the board or the Commonwealth Court
may issue such a supersedeas. The right of the department to issue an
order under this section is in addition to any penalty which may be im-
posed pursuant to this act. The failure to comply with any such order is
-hereby declared to be a nuisance.
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R.I. Gen. Laws Ann. (1970), as amended, (Supp. 1974)
46-12-1. Definition of terms.—As used in this chapter the follow-
ing terms shall, where the context permits, be construed as follows:
The term "sewage" shall be held to mean and to include any
human or animal excremental liquid or substance, any decomposed
animal or vegetable matter, garbage, offal, filth, waste, chemicals,
acid, dyestuff, starch, coloring matter, oil and tar, radio-active sub-
stances, and any compound, solution, mixture or product thereof,
and every substance which may be injurious to public health or com-
fort, or which would injuriously affect the natural and healthy propa-
gation, growth, or development of any fish or shellfish in the waters
of this state, or of the nourishment of the same, or which would in-
juriously affect the flavor, taste, or value as food of any such fish or
shellfish; or which would defile said waters or injure or defile any
vessel, boat, wharf, pier, or any public or private property upon, in
°r under said waters, or any shore thereof.
The term "waters" .shall include all tidewaters within the state
and all inland waters of any river, stream, brook, pond or lake.
The term "person" shall include an individual, firm or co-partner-
ship, and association, and a private or municipal corporation.
The term "pollution" shall be held to mean the entrance or dis-
charge of sewage into any of the waters of the state in such quantity,
either by itself or in connection with other sewage so discharged, as
to alter the physical or chemical properties, or biology, of said
waters, including change in temperature, taste, color, turbidity or
odor, and to cause or be likely to cause damage to the public, or to
any person having a right to use said waters for boating, fishing
or other purposes, or owning property in, under or bordering upon
the same.
The term "polluting" shall be held to mean the causing of pollu-
tion.
* * *
46-12-4. Prohibitions—Orders required.—(a) It shall be unlawful
for any person to cause pollution of any waters of the state or to
cause sewage to be placed in a location where it is likely to cause
such pollution, or to place or cause to be placed in any stream, river,
brook, pond or lake any solid waste materials, junk, or debris of any
kind whatsoever, organic or non-organic.
(b) It shall be unlawful for any person to discharge sewage into
the waters of the state without having obtained an order of the di-
rector approving the system or means he has adopted to prevent
pollution of said waters, provided however that this subsection shall
not apply to a discharge of sewage existing [on April 24, 1970] or
to the addition to an existing discharge from a system or means
approved by the director which does not exceed the capacity of
such system or means as approved.
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(c) It shall be unlawful for any person to construct, or install
any system or means to prevent pollution, or to extend or add to any
existing system or means to prevent pollution without having ob-
tained an order of approval of the director of such system or means.
(d) It shall be unlawful for any person operating or maintaining
a system or means to prevent pollution of the waters of the state
to permit increases in volume or strength of sewage reaching such
system or means beyond its capacity, as approved by the director.
(e) It shall be unlawful to construct or install any industrial,
commercial, or other establishment, or make any modification or ad-
dition thereto or to undertake any development which may result in
the discharge of any sewage into the waters of the state, unless such
discharge is made to a system or means to prevent pollution ap-
proved by the director.
46-12-8. Order to adopt pollution prevention system.—If any per-
son is polluting the waters of the state, and if after such investiga-
tion the director shall so find, he shall make his^findings in writing
to that effect and may enter an order directing such person to adopt
or use or to operate properly, as the case may be, some practicable
and reasonably available system or means to prevent such pollution,
having due regard for the rights and interests of all persons con-
cerned. Such order may specify the particular system or means to
be adopted, used or operated; provided, however, that where there
is more than one such practicable and reasonably available system or
means, such order shall give to the person complained of the right
to adopt or use such one (1) of said systems or means as he may
choose.
46-12-14. Penalty for violation of orders.—Any person who shall
be found guilty of violating any of the provisions of this chapter
or an order of the director shall be punished by a fine of not more
than five hundred dollars ($500) or by imprisonment for not more
than thirty (30) days, or by both such fine or imprisonment; and
every person shall be deemed guilty of a separate and distinct of-
fense for each day during which such violation shall be repeated or
continued. All complaints for violations of this chapter shall consist
of five (5) copies, to be executed by the law enforcement officer in-
volved as follows; one (1) copy to the department of health, one (1)
copy to the water resources board, one (1) copy to the attorney-gen-
eral, one (1) copy to the local police department, and one (1) copy
to the defendant.
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46-12-17. Prosecution of violations.—All prosecutions for the vio-
lation of any of the provisions of this chapter or any order of the
director shall be by complaint and warrant and shall be made in
the district courts of the state. The director, without being required
to enter into any recognizance or to give surety or costs, may in-
stitute such proceedings in the name of the state. It shall be the
duty of the chief counsel of the division of legal services of the
department of health to carry out all such proceedings brought by
said director.
46-12-19. Proceedings for enforcement.—The superior court shall
have jurisdiction in equity to enforce the provisions of this chapter
and any order made by the director, in conformity therewith. Pro-
ceedings under this section shall follow the course of equity and
shall he instituted and prosecuted in the name of the director by
the attorney general, but only upon the request of the director.
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S.C. Code Ann. (Supp. 1974)
§ 63-195. Citation of chapter; definitions.—This chapter may be cited
as the "Pollution Control Act" and, when used herein, unless the context
otherwise requires:
(1) "Person" means any individual, public or private corporation, po-
litical subdivision, government agency, municipality, industry, copartner-
ship, association, firm, trust, estate or any other legal entity whatsoever;
(2) "Waters" means lakes, bays, sounds, ponds, impounding reservoirs,
springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals,
the Atlantic Ocean within the territorial limits of the State and all other
bodies of surface or underground water, natural or artificial, public or
private, inland or coastal, fresh or salt, which are wholly or partially
within or bordering the State or within its jurisdiction;
(3) "Marine district" means the waters of the Atlantic Ocean within
three nautical miles from the coast line and all other tidal waters within
the State;
(4) "Sewage" means the water-carried human or animal wastes from
residences, buildings, industrial establishments or other places, together
with such ground water infiltration and surface water as may be present
and the admixture with sewage of industrial wastes or other wastes shall
also be considered "sewage";
(5) "Industrial waste" means any liquid, gaseous, solid or other waste
.substance or a combination thereof resulting from any process of industry,
manufacturing, trade or business or from the development of any natural
resources;
(6) "Other wastes" means garbage, refuse, decayed wood, sawdust,
shavings, bark, sand, clay, lime, cinders, ashes, offal, oil, gasoline, other
petroleum products or by-products, tar, dye stuffs, acids, chemicals, dead
animals, heated substances, and all other products, by-products or sub-
stances not sewage or industrial waste which may cause or tend to cause
pollution of the waters of the State;
(7) "Pollution" means the presence in the environment of any sub-
stance, including but not limited to sewage, industrial waste, other waste,
air contaminant, or any combination thereof in such quantity and of such
characteristics and durations as may cause, or tend to cause, the environ-
ment of the State to be contaminated, unclean, noxious, odorous, impure
or degraded, or which is, or tends to be, injurious to human health or wel-
fare ; or which damages property, plant, animal or marine life; or which
interferes with enjoyment of life or use of property;
(8) "Standard" or "standards" means such measure of purity or quality
for any waters in relation to their reasonable and necessary use as may
after hearing be established;
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§ 63-195.1. Declaration of policy.—It is declared to be the public policy
of the State to maintain reasonable standards of purity of the air and
water resources of the State, consistent with the public health, safety and
welfare of its citizens, maximum employment, the industrial development
of the State, the propagation and protection of terrestrial and marine flora
and fauna, and the protection of physical property and other resources.
It is further declared that to secure these purposes and the enforcement of
the provisions of this chapter, the Pollution Control Authority shall have
authority to abate, control and prevent pollution.
§ 63-195.6. Rules and regulations. — The Authority shall promulgate
rules and regulations to implement this chapter and to govern the pro-
cedure of the Authority with respect to meetings, hearings, filing of re-
ports, the issuance of permits and all other matters relating to procedure.
The rules and regulations for preventing contamination of the air may not
specify any particular method to be used to reduce undesirable levels, nor
the type, design, or method of installation or type of construction of any
manufacturing processes or other kinds of equipment.
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S.D. Compiled Laws (Supp. 1974)
46-25-23. Legislative findings and policy.—Whereas the pollu-
tion of the waters of this state constitutes a menace to public health
and welfare, creates public nuisances, is harmful to wildlife, fish
and aquatic life, and impairs domestic, agricultural, industrial, rec-
reational and other legitimate beneficial uses of water, and whereas
the problem of water pollution in this state is closely related to
the problem of water pollution in adjoining states, it is hereby
declared to be the public policy of this state to conserve the waters
of the state and to protect, maintain and improve the quality there-
of for water supplies, for the propagation of wildlife, fish and
aquatic life, and for domestic, agricultural, industrial, recreational
and other legitimate uses; to provide that no waste be discharged
into any waters of the state without first receiving the necessary
treatment or other corrective action to protect the legitimate and
beneficial uses of such waters; to provide for the prevention, abate-
ment and control of new and existing water pollution; and to co-op-
erate with other agencies of the stale, agencies of other states and
the federal government in carrying out these objectives.
Source: SL 1973, ch 280, § 1.
46-25-24. Definition of terms.—Terms used in this chapter, un-
less the context otherwise requires mean:
(1) "Pollution," such contamination, or other alteration of the
physical, chemical or biological properties, of any waters of
the state as exceeds that permitted by state effluent and/or
water quality standards, including but not limited to change
in temperature, taste, color, turbidity, or odor of the waters,
or such discharge of any. liquid, gaseous, solid, radioactive,
or other substance into any waters of the state as will or is
likely to create a nuisance or render such waters harmful,
detrimental or injurious to public health, safety or welfare,
or to domestic, commercial, industrial, agricultural, recrea-
tional, or other legitimate beneficial uses, or to livestock,
wild animals, birds, fish or other aquatic life;
(2) "Wastes," sewage, industrial wastes, ,and all other liquid,
gaseous, solid, radioactive, or other substances which may
pollute or tend to pollute any waters of the state;
(6) "Waters of the state," all waters within the jurisdiction of
this state, including all streams, lakes, ponds, impounding
reservoirs, marshes, watercourses, waterways, wells, springs,
irrigation systems, drainage systems, and all other bodies or
accumulations of water, surface and underground, natural or
artificial, public or private, situated wholly or partly within
or bordering upon the state;
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(10) "Point source," any discernible, confined and discrete con-
veyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock,
animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged;
(11) "Pollutant" means dredged spoil, solid waste, incinerator res-
idue, sewage, sewage sludge, garbage, trash, chemical waste,
biological material, radioactive material, heat, wrecked or
discarded equipment, rock, sand, or any industrial, municipal
or agricultural waste discharged into waters of the state; and
(12) "Publicly owned treatment works" means any facility for the
treatment of pollutants owned by the state or any political
subdivision thereof.
46-25-34.2. Violation of pretreatment standards for industrial
user unlawful.—It shall be unlawful for an industrial user of pub-
licly owned treatment works to violate toxic effluent standards and
pretreatment standards.
46-25-34.3. Enforcement of pretreatment standards for indus-
trial users.—The secretary shall have authority to enforce compli-
ance of toxic effluent standards and pretreatment standards for
pollutants introduced into publicly owned treatment works, pur-
suant to the enforcement procedures of this chapter, by industrial
users of such treatment works.
46-25-40. Reduction of existing water quality by discharge of
waste unlawful.—It shall be unlawful for any person to discharge
any wastes into any waters of the state which reduce the quality
of such waters below the water quality level existing on March 27
1973.
46-25-41. Violation as public nuisance.—Any action in violation
of § 46-25-39 or § 46-25-40 is hereby declared a public nuisance.
46-25-84. Emergency order by secretary to stop pollution—Ef-
fective immediately.—Notwithstanding any other provisions of this
chapter, if the secretary finds that a person is committing or is
about to commit an act in violation of this chapter or an order
or rule issued under it which, if it occurs or continues, will cause
substantial pollution, as herein defined, the harmful effects of which
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46-25-88. Action in circuit court for immediate restraint of pol-
lution.—In the alternative, upon receipt of evidence that a pollution
source or combination of sources is presenting an imminent and
substantial endangerment to the health of persons or to the welfare
of persons where such endangerment to welfare is to the livelihood
of such persons, the secretary may bring suit on behalf of the state
in the circuit court in which the violation is taking place to imme-
diately restrain any person causing or contributing to the alleged
pollution to stop the discharge of pollutants causing or contributing
to such pollution or to take such other action as may be necessary.
46-25-89. Action by board to enjoin violations—Temporary in-
junction and restraining order.—The board may bring an action
without furnishing of bond, for an injunction against the continua-
tion of any alleged violation which has been the basis for suspension
or revocation of a permit by the secretary, or against any person
who fails to comply with an emergency order issued by the secre-
tary by virtue of § 46-25-84, or any final order of the secretary or
board. The court to which the board applies for an injunction may
issue a temporary injunction, if it finds that there is reasonable
cause to believe that the allegations of the board are true, and it
may issue a temporary restraining order pending action on the tem-
porary injunction.
46-25-90. Initiation of action to recover penalties.—In addition
to or instead of issuing an order, the secretary or board may initiate
appropriate action for recovery of a penalty, pursuant to §§ 46-25-91
to 46-25-95, inclusive.
46-25-91. Criminal penalties for violation of chapter or terms of
permit—Increased penalty for repeat violations.—Any person who
violates this chapter or any permit condition or limitation imple-
menting the chapter shall be punished by a fine of not more than
twenty-five thousand dollars per day of violation, or by imprison-
ment for not more than one year in the county jail or both. If the
conviction is for a violation committed after a first conviction of
such person under this section, punishment shall be by a fine of
not more than fifty thousand dollars per day of violation, or by
imprisonment for not more than one year in the county jail or both.
46-25-92. Civil penalty for violation of chapter or terms of per-
mit.—Any person who violates this chapter, or any permit condition
or limitation implementing the chapter, or any person who violates
any order issued pursuant to § 46-25-69, § 46-25-76 or § 46-25-78
shall be subject to a civil penalty not to exceed ten thousand dollars
per day of violation.
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46-25-93. Penalties for false representations or tampering with
monitoring devices.—Any person who makes any false statement,
representation, or certification in any other document filed or re-
quired to be maintained under this chapter, or who falsifies, tam-
pers with, or knowingly renders inaccurate any monitoring device
or method required to be maintained under this chapter shall upon
conviction, be punished by a fine of not more than ten thousand dol-
lars, or by imprisonment for not more than six months, or by both.
Source: SL 1973, eh 280, § 14 (2).
46-25-94. Alternative remedies not barred by invoking penalties.
—Any action pursuant to §§ 46-25-91 to 46-25-93, inclusive, does not
bar enforcement of the chapter, or of rules or orders issued pur-
suant to it by injunctive or other appropriate remedy.
Source: SL 1973, ch 280, § 14 (4).
46-25-95. Remedies under chapter alternative to remedies under
other law.—A purpose of this chapter is to provide additional and
cumulative remedies to prevent, abate, and control the pollution of
state waters. This chapter shall not be construed to abridge or alter
rights or action of remedies in equity or under the common law or
statutory law, criminal or civil, nor shall any provision of this chap-
ter be construed as estopping the state or any municipality or per-
son as owners of water rights or otherwise in the exercise of their
rights in equity or under the common law or statutory law to sup-
press nuisances or to abate pollution.
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Tenn. Code Ann. (Supp. 1974)
70-325. Declaration of policy and purpose.—Recognizing that the
waters of the state of Tennessee are the property of the state and are
held in public trust for the use of the people of the state, it is declared
to be the public policy of the state of Tennessee that the people of
Tennessee as beneficiaries of this trust have a right to unpolluted waters.
In the exercise of its public trust over the waters of the state, the
government of the state of Tennessee has an obligation to take all
prudent steps to secure, protect, and preserve this right.
It is further declared that the purpose of this law is to abate existing
pollution of the waters of Tennessee, to reclaim polluted waters, to
prevent the future pollution of the waters, and to plan for the future
use of the waters so that the water resources of Tennessee might be
used and enjoyed to the fullest extent consistent with the maintenance
of unpolluted waters. [Acts 1971, ch. 164, § 2.]
70-326. Definitions.—The terms used in §§70-824—70-342 are de-
fined as follows:
(1) The term "board" means the Tennessee water quality control
board herein created.
(7) The term "industrial wastes" means any liquid, solid, or gaseous
substance, or combination thereof, or form of energy including heat,
resulting from any process of industry, manufacture, trade, or business
or from the development of any natural resource.
(8) The term "member" means a member of the Tennessee water
quality control board.
(9) The term "other wastes" means any and all other substances
or forms of energy with the exception of sewage and industrial wastes
which may result in the pollution of any waters of this state includ-
ing, but not limited to, decayed wood, sand, garbage, silt, municipal
refuse, sawdust, shavings, bark, lime, ashes, offal, oil, tar, sludge, or
other petroleum by-products, radioactive material, chemicals, and heated
substances.
(10) The term "person" means any and all persons, including in-
dividuals, firms, partnerships, associations, public or private institu-
tions, municipalities or political subdivisions or officers thereof, depart-
ments, agencies, or instrumentalities, or public or private corporations
or officers thereof, organized or existing under the laws of this or any
other state or country.
(11) The term "pollution" means such alteration of the physical,
chemical, biological, bacteriological, or radiological properties of the
waters of this state including but not limited to changes in tempera-
ture, taste, color, turbidity, or odor of said waters,
(i) as will result or will likely result in harm, potential harm or
detriment to the public health, safety, or welfare; or
(ii) as will result or will likely result in harm, potential harm, or
detriment to the health of animals, birds, fish, or aquatic life; or
(iii) as will render or will likely render the waters substantially
less useful for domestic, municipal, industrial, agricultural, recreational,
or other reasonable uses; or
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(iv) as will leave or will likely leave the waters in such condition
as to violate any standards of water quality established by the board.
(12) The term "sewage" means water-carried waste or discharges
from human beings or animals, from residences, public or private
buildings, or industrial or agricultural establishments, or boats, to-
gether with such other wastes and ground, surface, storm, or other
water as may be present.
(13) The term "sewerage system" means the conduits, sewers, and
all devices and appurtenances by means of which sewage and other
waste is collected, pumped, treated, or disposed of.
(14) The term "waters" means any and all water, public or prfc
vate, on or beneath the surface of the ground, which are contained
within, flow through, or border upon the state of Tennessee or any
portion thereof except those bodies of water confined to and retained
within the limits of private property in single ownership which do
not combine or effect a junction with natural surface or underground
waters. [Acts 1971, ch, 164, § 3.]
70-328. Duties and authority of the board.—The board shall hav
and exercise the following powers, duties, and repsonsibilities:
(a) To establish and adopt standards of quality for all water
of the state. The general assembly recognizes that due to variot
factors, no single standard of quality and purity is applicable to &.
waters of the state or to different segments of the same waters. Tfc
board shall classify all waters of the state and adopt water qualit
standards pursuant to such classifications. Such classifications shall fc
made in accordance with the declaration of policy and purpose in § 7(-
325. In preparing the classification of waters and the standards c:
quality mentioned above, the board shall give consideration to: the siaj
depth, surface area covered, volume, direction, and rate of flow, strearj
gradient, and temperature of the water; the character of the law
bordering, overlying, or underlying the waters of the state and ir
particular suitability for particular uses, with a view to conservinj!
the value of said land, encouraging the most appropriate use of th<
same for economic, residential, agricultural, industrial, recreational
and conservation purposes; the past, present, and potential uses of th;
waters for transportation, domestic and industrial consumption, recrea
tion, fishing and fish culture, fire prevention, the disposal of sewage
industrial and other wastes, and other possible uses. The state wate:
quality plan provided for in subdivision (e) of this section shall contai:
standards of quality and purity for each of the various classes of wate:
in accordance with the best interests of the public. In preparing sud
standards, the board shall give due consideration to all physical, chemi
cal, biological, bacteriological, or radiological properties that may to
necessary for preserving the quality and purity of the waters of the
state. The board may amend and revise such standards and classifies
tions, including revisions to improve and upgrade the quality of water
(b) To adopt, modify, repeal, promulgate after due notice, anc
enforce rules and regulations which the board deems necessary fo;
the proper administration of §§ 70-324—70-342, the prevention, con
trol, and abatement of pollution, or the modification of classification.1
and the upgrading of the standards of quality in accordance with sub
division (a) of this section.
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(c) To adopt, modify, repeal, and promulgate after due notice, al
necessary rules and regulations for the purpose of controlling the dis-
charge of sewage, other wastes, and other substances from any boats.
70-336. Causing pollution or refusing to furnish information.—-It
shall be unlawful for any person to discharge any substance to the
waters of the state or to place or cause any substance to be placed
in any location where such substances, either by themselves or in
combination with others, cause any of the damages as denned in § 70-
326(11), unless such discharge shall be due to an act of God, an un-
avoidable accident, or unless such action has been properly authorized.
Any such action is declared to be a public nuisance. In addition, it shall
be unlawful for any person to act in a manner or degree which is
violative of any provision of §§ 70-324—70-342 or of any rule, regula-
tion, or standard of water quality promulgated by the board or of any
permits or orders issued pursuant to the provisions of §§ 70-324—70-342;
or to fail or refuse to file an application for a permit as required in
§ 70-330; or to refuse to furnish, or to falsify any records, information,
plans, specifications, or other data required by the board or the com-
missioner under §§70-324—70-342. The plea of financial inability to
prevent, abate, or control pollution shall not be a valid defense under
the provisions of §§70-324—70-342. [Acts 1971, ch. 164, §13; 1972
(Adj. S.), ch. 631, § 2.]
70-337. Penalties.—(a) Any person unlawfully polluting the waters
of the state or violating or failing, neglecting, or refusing to comply
with any of the provisions of §§ 70-324—70-342 shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine of not less than fifty dollars ($50.00) nor more than five thousand
dollars ($5,000). Each day upon which such violation occurs shall con-
stitute a separate offense.
(b) Any person who willfully and knowingly falsifies any records,
information, plans, specifications, or other data required by the board
or the commissioner or who willfully and knowingly unlawfully pollutes
the waters of the state or willfully fails, neglects, or refuses to comply
with any of the provisions of §§ 70-324—70-342 shall be guilty of a
felony and shall be punished by a fine of not more than ten thousand
dollars ($10,000) or imprisonment not to exceed two (2) years or both.
(c) Provided however, that person for the purpose of any criminal
prosecution shall not mean a municipality or political subdivision or
officers thereof, departments, agencies, or instrumentalities it being the
purpose of §§ 70-324—70-342 to enforce all regulations against a muni-
cipality by injunctive relief.
And further provided, that no process by warrant, presentment or
indictment shall be issued except upon application of the board or
commissioner or such application for process authorized by them.
(d) No warrant, presentment, or indictment shall be issued except
upon application by the board or the commissioner, or upon such appli-
cation authorized in writing by them. [Acts 1971, ch. 164, § 14; 1971,
ch. 386, §7; 1972 (Adj. S.), ch. 631, §3.]
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70-338. Damages to the state.—(a) The commissioner may assess
the liability of any polluter or violator for damages to the state result-
ing from any person's pollution or violation, failure, or neglect in com-
plying with any rules, regulations, or standards of water quality promul-
gated by the board or permits or orders issued pursuant to the
provisions of §§ 70-324—70-342. If an appeal from such assessment is not
made to the board by the polluter or violator within ten (10) days of
notification of such assessment, he shall be deemed to have consented
to such assessment and it shall become final. Damages may include
any expanses incurred in investigating and enforcing §§ 70-324—70-342,
in removing, correcting, and terminating any pollution, and also com-
pensation for any loss or destruction of wildlife, fish, or aquatic life
and tiny other actual damages caused by the pollution or violation.
Whenever any assessment has become final because of a person's failure
to appeal within the time provided, the commissioner may apply to the
apropriate court for a judgment, and seek execution on such judgment.
The court, in such proceedings, shall treat the failure to appeal such
assessment as a confession of judgment in the amount of the assess-
ment. [Acts 1971, ch. 164, § 15.]
70-339. Injunctions.— (a) When there is reason to believe that a
person is causing or is about to cause or has caused pollution or is
violating or is about to violate or has violated any of the provisions of
§§ 70-324—70-342 or any permits or orders issued thereunder, the
commissioner may institute proceedings in the appropriate court for
injunctive relief to prevent continuance of such action or to correct
the conditions resulting in or about to result in such pollution or both.
The court shall grant the injunction without the necessity of showing a
lack of adequate remedy at law upon a showing by the commissioner
that such person is polluting or is about to pollute the water of this
state or to violate one or more of the provisions of §§ 70-324—70-342.
In such suits, the commissioner may obtain permanent or temporary
injunctions, prohibitory or mandatory, and restraining orders.
(b) The commissioner may bring suit for injunctive enforcement
of any order made by him when such order has become final as a result
of any person's failure to appeal to the board, and such person has
failed to comply with the order. In such suits all findings of fact con-
tained in the order and complaint shall be deemed to be final, and not
subject to review except as to receipt of notice of the order, but the
defendant may offer evidence showing that he has in fact complied
with the commissioner's order. The order made by the commissioner
in such cases shall be prima facie reasonable and valid, and it shall be
presumed that the commissioner has complied with all requirements
of the law. The board may likewise bring suit for enforcement of any
order made by it, which has become final either by the failure of any
person to appeal the board's order or by an appellate court's decision
against any person who fails to comply with such final order. In such
suits the board's decision shall not be subject to challenge as to matters
of law or fact, but the polluter or violator may proffer evidence showing
that he has in fact complied with the board's order.
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(c) Any suit for an injunction brought by the commissioner shall
be filed in the chancery court of Davidson County or in the chancery
court of the county in which all or a part of the pollution or violation
has or is about to occur, in the name of the department, by the staff
attorney at the direction of the commissioner or the board and under
the supervision of the attorney-general. Such proceedings shall not
be tried by jury. Appeals from judgments or decrees of the chancery
court in proceedings brought under the provisions of §§ 70-324—70-342
shall lie to the Supreme Court despite the fact that controverted ques-
tions of fact may be involved. [Acts 1971, ch. 164, § 16; 1972 (Adj. S.),
ch. 444, § 1.]
70-340. Other remedies.—(a) Any person may file with the com-
missioner a signed complaint against any person allegedly violating
any provisions of §§70-324—70-342. Unless the commissioner deter-
mines that such complaint is duplicitous or frivolous, he shall im-
mediately serve a copy of it upon the person or persons named therein,
promptly investigate the allegations contained therein, and shall notify
the sUeged violator of what action, if any, he will take. In all cases he
shall notify the complainant of his action or determination. If either
the complainant or the alleged violator believes that the commissioner's
action or determination is or will be inadequate or too severe, he may
appeal to the board for a hearing which will be conducted pursuant
to § 70-332. Such appeal must be made within ten (10) days after re-
ceipt of the notification sent by the commissioner. If the commissioner
fails to take the action stated in his notification, the complainant may
make an appeal to the board within twenty (20) days from the time
at which the complainant knows or has reason to know of such failure.
The department shall not be obligated to assist a complainant in gather-
ing information or making investigations or to provide counsel for
the purpose of drawing his complaint.
(b) The penalties, damages, and injunctions provided for in §§ 70-
337—70-340 are intended to provide additional and cumulative remedies
to prevent, abate, and control the pollution of the waters of the state.
Nothing herein contained shall be construed to abridge or alter rights
of action or remedies in equity or under common law or statutory law,
criminal or civil, nor shall any provision of §§ 70-324—70-342 or any
act done by virtue thereof, be construed as estopping the state or any
municipality or person, as riparian owners or otherwise, in the exer-
cise of their rights in equity or under the common law or statutory
law to suppress nuisances, to abate pollution, or to recover damages
resulting from such pollution. [Acts 1971, ch. 164, §17; 1971, ch.
386, §8.]
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Tex. Water Code Ann. (Vernon's 1972), as amended, (Supp. 1974)
§ 21.003. Definitions
As used in this chapter:
(1) "Board" means the Texas Water Quality Board.
(2) "Executive director" means the executive director of the
Texas Water Quality Board.
(3) "Water" or "water in the state" means grounchvater, per-
colating or otherwise, lakes, bays, ponds, impounding- reservoirs,
springs, rivers, streams, creeks, estuaries, marshes, inlets, canals,
the Gulf of Mexico inside the territorial limits of the state, and
all other bodies of surface water, natural or artificial, inland or
coastal, fresh or salt, navigable or nonnavigable, and including
the beds and banks of all watercourses and bodies of surface wa-
ter, that are wholly or partially inside or bordering the state or
inside the jurisdiction of the state.
(4) "Waste" means sewage, industrial waste, municipal waste,
recreational waste, agricultural waste, or other waste, as defined
in this section.
(5) "Sewage" means waterborne human waste and waste from
domestic activities, such as washing, bathing, and food prepara-
tion.
(6) "Municipal waste" means waterborne liquid, gaseous, or
solid substances that result from any discharge from a publicly
owned sower system, treatment facility, or disposal system.
C!) "Recreational waste" means waterborne liquid, gaseous, or
sol if! substances that emanate from any public or private park,
be:u-h, or recreational area.
(8) "Agricultural waste" means waterborne liquid, gaseous, or
solid substances that arise from the agricultural industry and ag-
ricultural activities, including without limitation, agricultural
amiml feeding pens and lots, structures for housing and feeding
agricultural animals, and processing facilities for agricultural
products. The term "agricultural waste" does not include tail wa-
ter or runoff water from irrigation, or rainwater runoff from
cultivated or uncultivated rangeland, pastureland, and farmland.
(9) "Industrial waste" means waterborne liquid, gaseous, or
solid substance that results from any process of industry, manu-
facturing, trade, or business.
(10) "Other waste" means garbage, refuse, decayed wood, saw-
dust, shavings, bark, sand, lime, cinders, ashes, offal, oil, tar,
dyestuffs, acids, chemicals, salt water, or any other substance,
other than sewage, industrial waste, municipal waste, recreational
waste, or agricultural waste, that may cause impairment of the
quality of water in the state. "Other waste" also includes tail wa-
ter or runoff water from irrigation, or rainwater runoff from
cultivated or uncultivated range land, pasture land, and farm-
land that may cause impairment of the quality of the water in
the state.
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(11) "Pollution" means the alteration of the physical, ther-
mal, chemical, or biological quality of, or the contamination of,
any water in the state that renders the water harmful, detrimen-
tal, or injurious to humans, animal life, vegetation, or property
or to public health, safety, or welfare, or impairs the usefulness
or the public enjoyment of the water for any lawful or reasonable
. purpose.
(17) "To discharge" includes to deposit, conduct, drain, emit,
throw, run, allow to seep, or otherwise release or dispose of, or to
allow, permit, or suffer any of these acts or omissions.
.§ 21.066. Enforcement Proceedings
The board, or the executive director when authorized by the board,
may institute court proceedings to compel compliance with the provi-
sions of this chapter or the rules, orders, permits, or other decisions
of the board.
§ 21.251. Unauthorized Discharges Prohibited
(a) Except as authorized by a rule, regulation, permit, or other or-
der issued by the board, or the executive director when authorized by
the board, no person may:
\ (1) discharge sewage, municipal waste, recreational waste, ag-
ricultural waste, or industrial waste into or adjacent to any water
in the state;
N (2) discharge other waste into or adjacent to any water in the
state which in itself, or in conjunction with any other discharge
or activity, causes, continues to cause, or will cause pollution of
any of the water in the state; or
(3) commit any other act or engage in any other activity,
which in itself, or in conjunction with any other discharge or ac-
tivity, causes, continues to cause, or will cause pollution of any of
the water in the state, unless the activity is under the jurisdiction
of the Parks and Wildlife Department, the General Land Office,
or the Texas Railroad Commission, in which case this Subdivision
(3) does not apply.
(b) In the enforcement of Subdivisions (2) and (3) of Subsection
(a) of this section, consideration shall be given to the state of exist-
ing technology, economic feasibility, and the water quality needs of
the waters that might be affected.
(c) No person may cause, suffer, allow, or permit the discharge of
any waste or the performance of any activity in violation of this chap-
ter or of any rule, regulation, permit, or other order of the board.
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§ 21.253. Enforcement by Board
(a) Whenever it appears that a person has violated or is violating,
or is threatening to violate, any provision of this chapter, or any rule,
regulation, permit, or other order of the board, then the board, or the
executive director when authorized by the board, may have a civil suit
instituted in a district court for injunctivc relief to restrain the per-
son from continuing the violation or threat of violation, or for the as-
sessment and recovery of a civil penalty of not less than $50 nor more
than $1,000 for each act of violation and for each day of violation, or
for both injunctive relief and civil penalty.
(b) Upon application for injunctive relief and a finding that a
person is violating or threatening to violate any provision of this
chapter or any rule, permit, or other order of the board, the district
court shall grant the injunctive relief the facts may warrant.
(c) At the request of the board, or the executive director when au-
thorized by the board, the attorney general shall institute and conduct
a suit in the name of the State of Texas for injunctive relief or to re-
cover the civil penalty or for both injunctive relief and penalty, as
authorized in Subsection (a) of this section.
§ 21.254. Enforcement by Others
(a) Whenever it appears that a violation or threat of violation of
any provision of Section 21.251 of this code or any rule, regulation,
permit, or other order of the board has occurred or is occurring with-
in the jurisdiction of a local government, exclusive of its extra-terri-
torial jurisdiction, the local government, in the same manner as the
board, may have a suit instituted in a district court through its own
attorney for the injunctive relief or civil penalties or both, as autho-
rized in Subsection (a) of Section 21.253 of this code, against the
person who committed, or is committing or threatening to commit, the
violation. This power may not be exercised by a local government un-
less its governing body adopts a resolution authorizing the exercise of
the power. In a suit brought by a local government under this sec-
tion, the board is a necessary and indispensable party.
(b) Whenever it appears that a violation or a threat of violation of
any provision of Section 21.251 of this code or any rule, regulation,
"permit, or other order of the board has occurred or is occurring that
affects aquatic life or wildlife, the Parks and Wildlife Department, in
the same manner as the board, may have a suit instituted in a district
court for injunctive relief or civil penalties or both, as authorized in
Section 21.253 (a) of this code, against the person who committed or
is committing, or is threatening to commit, the violation. The suit
shall be brought in the name of the State of Texas through the coun-
ty attorney or the district attorney, as appropriate, of the county
where the defendant resides or in the county where the violation or
threat of violation occurs.
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§ 21.552. Criminal Offense
(a) No person may discharge, or cause or permit the discharge of,
any waste into or adjacent to any water in the state which causes or
which will cause water pollution unless the waste is discharged in com-
pliance with a permit or other order issued by the Texas Water Quali-
ty Board, the Texas Water Development Board, or the Texas Railroad
Commission.
(b) No person to whom the Texas Water Quality Board has issued
a permit or other order authorizing the discharge of any waste at a
particular location may discharge, or cause or permit the discharge
of, the waste in violation of the requirements of the permit or order.
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Vt. Stat. Ann. tit. 10 (1973), as amended, (Supp. 1974)
§ 1251. Definitions
Whenever used or referred to in this chapter, unless a different
meaning1 clearly appears from the context:
(1) "Board" means the Vermont water resources board;
(2) "Department" means the department of water resources;
(3) "Discharge" means the placing, depositing or emission of
any wastes, directly or indirectly, into the waters of the state;
(4) "Person" means an individual, partnership, public or pri-
vate corporation, municipality, institution or agency of the state,
and includes any officer or governing or managing body of a .part-
nership, association, firm or corporation;
(5) "Public interest" means that which shall be for the greatest
benefit to the people of the state as determined by the standards
set forth in subsection (e) of section 1253 of this title;
(6) "Waste" means effluent, sewage or any substance or mate-
rial, liquid, gaseous, solid or radioactive, including heated liquids,
whether or not harmful or deleterious to waters;
(7) "Waters" shall include all rivers, streams, creeks, brooks,
reservoirs, ponds, lakes, springs and all bodies of surface waters,
artificial or natural, which are contained within, flow through or
border upon the state or any portion thereof.—Amended 1961, No.
100, § 2; 1964, No. 37 (Sp. Sess.), § 2; 1969, No. 252 (Adj. Sess.),
§ 1, eff. April 4,1970.
(8) "Effluent limitation" means any restrictions or prohibitions
established in accord with the provisions of this chapter or under
federal law including, but not limited to, effluent limitations,
standards of performance for new sources, and toxic effluent stand-
ards, on quantities, rates, and concentrations of chemical, physi-
cal, biological, and other constituents which are discharged to
waters of the state, including schedules of compliance;
(9) "Schedule of compliance" means a schedule of remedial
measures including an enforceable sequence of actions or opera-
tions leading to compliance with an effluent limitation or any other
limitation, prohibition, or standard, including any water quality
standard;
(10) "Secretary" means the secretary of the agency of environ-
mental conservation or his duly authorized representative.
(11) "Oil" means oil of any kind, including but not limited to
petroleum, fuel oils, oily sludge, waste oil, gasoline, kerosene, jet
fuel, tar, asphalt, crude oils, lube oil, insoluble or partially soluble
derivatives of mineral, animal or vegetable oils, or any product or
mixture thereof.
(12) "Hazardous materials" means any material determined by
the secretary to have an unusually destructive effect on water
quality if discharged to the waters of the state.
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§ 1259. Prohibitions
(a) On and after July 1, 1971, no person shall discharge any
waste, substance or material into waters of the state, nor shall
any person, after July 1, 1973, discharge any waste, substance or
material into a well or discharge into a publicly owned treatment
works any waste which interferes with, passes through without
treatment, or is otherwise incompatible with such works or would
have a substantial adverse effect on such works or on water quality,
without first obtaining a permit for such discharge from the secre-
taiy. This subsection shall not prohibit the proper application of
fertilizer to fields and crops, nor reduce or affect the authority or
policy declared in joint house resolution 7 of the 1971 session of
the general assembly.
(b) Upon notification by the secretary a holder of a permit under
this chapter including section 20 of Act 252 of the 1969 Adjourned
Session shall apply to the secretary for a national pollutant dis-
charge elimination system .permit. Any permit previously issued
under this chapter including section 20 of Act 252 of the 1989 Ad-
journed Session shall be revoked
(1) if a holder does not apply within 30 days after notifica-
tion by the secretary or
(2) upon the granting or denial of a National Pollutant Dis-
charge Elimination system permit application.
(c) Any records, reports or information obtained under this
permit program shall be available to the public for inspection and
copying, provided that upon a showing satisfactory to the secre-
tary that any records, reports or information or part thereof, other
than effluent data, would, if made public, divulge methods or proc-
esses entitled to protection as trade secrets, the secretary shall
treat and protect such records, reports or information as confi-
dential, provided, however, that any such records, reports or in-
formation accorded confidential treatment will be disclosed to au-
thorized representatives of the state and the United States when
relevant to any proceedings under this chapter.—Amended 1973,
No. 103, § 5, eff. April 24,1973.
§ 1272. Regulation of activities causing discharge
If the secretary finds that any person's action, or an activity,
results in the construction, installation, operation or maintenance
of any facility or condition which reasonably can be expected to
create or cause a discharge to waters in violation of this subchap-
ter, it may issue an order establishing reasonable and proper meth-
ods and procedures for the control of such activity and the manage-
ment of substances used therein which cause discharges in order
to reduce or eliminate such discharges. Any person who receives
an order pursuant to this section may appeal to the board as pro-
vided in section 1269 of this title.—Amended 1973, No. 103, § 10,
eff. April 24,1973.
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§ 1274. Enforcement
Notwithstanding any other provision or procedure set forth in
this subchapter, if the secretary finds that any person has dis-
charged or is discharging any waste in violation of this subchapter
or that any person has failed to comply with any provisions of any
order or permit issued in accordance with this subchapter, he may
bring suit in equity in the Washington county court or in any county
where the discharge or noncompliance has occurred to enjoin such
discharge and obtain compliance. Such suit shall be brought by the
attorney general in the name of the state. The court may issue a
temporary injunction or order in any such proceedings and may ex-
ercise all the plenary powers available to such court in addition
to the power to:
(1) enj oin future discharges;
(2) order the design, construction, installation or operation of
pollution abatement facilities or alternate waste disposal systems;
(3) order the removal of all wastes discharged and the resto-
ration of water quality;
(4) fix and order compensation for any public property destroyed,
damaged or injured;
(5) assess and award punitive damages; and
(6) levy civil penalties not to exceed $10,000.00 a day for each
day of violation.
(7) Order reimbursement to any agency of federal, state or lo-
cal government from any person whose discharge caused govern-
mental expenditures for pollution abatement under section 1282 of
Title 10.—Amended 1973, No. 103, § 11, eff. April 24,1973; No. 112,
§ 4, eff. April 25,1973.
§ 1275. Penalty
(a) Any person who violates any provision of this subchapter
or who fails, neglects or refuses to obey or comply with any order
or the terms of any permit issued in accordance with this sub-
chapter, shall be fined not more than §25,000.00 or be imprisoned
not more than six months, or both. Each violation shall be a sepa-
rate and distinct offense and, in the case of a continuing violation,
each day's continuance thereof shall be deemed a separate and
distinct offense.
(b) Any person who knowingly makes any false statement, rep-
resentation or certification in any application, record, report, plan,
or other document filed or required to be maintained under this
subchapter, or by any permit, rule, regulation or order issued
under this subchapter, or who falsifies, tampers with, or know-
ingly renders inaccurate any monitoring device or method required
to be maintained under this subchapter or by any permit, rule,
regulation, or order issued under this subchapter, shall upon con-
viction, be punished by a fine of not more than $10,000.00 or by im-
prisonment for not more than six months, or by both Amended
1973, No. 103, § 12, eff. April 24,1973.
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Utah Code Ann, (1968), as amended, (Supp. 1973)
73-14-1. Pollution of waters—Public policy of state.—Whereas the pol-
lution of t)io waters of this state constitutes a menace to public health
ami welfare, creates public nuisances, is harmful to wildlife, fish and
aqujitie lifo, aiid impairs domestic, agricultural, industrial, recreational and
otlu-r legitimate beneficial uses of water, and whereas such pollution is
contrary to. the best interests of the state and its policy for the conserva-
tion of the water resources of the state, it is hereby declared to be the
public poliey of this state to conserve the waters of the state and to pro-
tect, maintain and improve the quality thereof for public water supplies,
for the propagation of wildlife, fish and aquatic life, and for domestic,
•agricultural, industrial, recreational and other legitimate beneficial uses;
to provide that no waste be discharged into any waters of the state without
first being given the degree of treatment necessary to protect the legitimate
beneficial uses of such waters; to provide for the prevention, abatement and
control of new or existing water pollution; to place first in priority those
control measures directed toward elimination of pollution which creates
hazards to the public health; to insure due consideration of financial prob-
lems imposed on water polluters through pursuit of these objectives; and
to co-operate with other agencies of the state, agencies of other states and
thf federal government in carrying out these objectives.
73-14-2. Definitions.—For the purposes of this act, the following words
and phrases shall have the meanings ascribed to them in this section:
(a) "Pollution" means such contamination, or other alteration of the
physical, chemical or biological properties, of any waters of the state, or
such discharge of any liquid gaseous or solid substance into any waters
of the state as will create a nuisance or render such waters harmful or
detrimental or injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate bene-
ficial uses, or to livestock, wild animals, birds, fish or other aquatic life.
(b) "Wastes" means sewage, industrial waste and all other liquid,
gaseous or solid substances which pollute any waters of the state.
73-14-4. Powers and duties of state water pollution control board.—
The board shall have and may exercise the following powers and duties,
with the understanding that pollution which results in hazards to the
public health will be given first priority:
(a) To develop programs for the prevention, control and abatement of
new or existing pollution of the waters of the state.
(f) To adopt, modify or repeal and promulgate standards of quality of
the waters of the state and classify such waters according to their reason-
able uses in the interest of the public under such conditions as the board
may prescribe for the prevention, control and abatement of pollution.
(g) To adopt, modify, repeal, promulgate and enforce rules and reg-
ulations implementing or effectuating the powers and duties of the board
under this act.
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73-14-6. Classification of waters—Standards of purity and quality—
Public hearing's—Publication of orders of board—Time for compliance with
classification or standards.—(a) In order to effectuate a program for tliu
prevention, control and abatement of pollution of the waters of the state,
the board is authorized to group the waters of the state into classes accord-
ing to their present most reasonable uses. Subject to the approval of tile
legislature the board is authorized to upgrade and reelassify from time
to time the waters of the state to the extent that it-is practical and in
the public interest.
(b) It shall be unlawful for any person to carry on any of the
following activities without first securing such permit from the committee,
as is required by it, for the disposal of all wastes which are or may be
discharged thereby into the waters of the state: (1) The construction,
installation, modification or operation of any treatment works or part
thereof or any extension or addition thereto; (2) the increase in volume or
strength of any wastes in excess of the permissive discharges specified under
any existing permit; (3) the construction, installation, or operation of
any establishment or any extension or modification thereof or addition there-
to, the operation of which would cause an increase in the discharge of
wastes into the waters of the state or would otherwise alter the physical.
chemical or biological properties of any waters of the state in any manner
not already lawfully authorized; (4) the construction or use of any new
outlet for the discharge of any wastes into the waters of the state.
The committee under such conditions as it may prescribe may require
the submission of such plans, specifications and other information as it deems
to be relevant in connection with the issuance of such permits.
(c) The adoption of standards of quality of the waters of the state
and classification of such waters or any modification or change thereof
shall be effectuated by an order of the board which shall be published in
a newspaper of general circulation in the area affected. In classifying
waters and setting standards of water quality or making any modification
or change thereof, the board shall allow and announce a reasonable time
for persons discharging wastes into the waters of the state to comply with
such classification or standards.
Any discharge in accord with such classification or standards shall not
be deemed to be pollution for the purpose of this act.
73-14-10. Violations—Misdemeanors—Injunctions—Duties of attorney
general—Findings of committee to be prima facie evidence of facts found.—
(a) Any person who shall violate any of the provisions of, or who fails to
perform any duty imposed by this act or who after notice violates any
order of the committee promulgated pursuant to this act shall be guilty
of a misdemeanor and in addition thereto may be enjoined from
continuing such violation. Each day upon which such violation occurs
shall constitute a separate violation.
(b) It shall be the duty of the attorney general on the request of the
committee to bring an action for an injunction against any person violat-
ing the provisions of this act, or violating any order of the committee. In
any action for an injunction brought pursuant to this section, any finding
of the committee after hearing or due notice giving an opportunity to be
heard shall be prima facie evidence of the fact or facts found therein.
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Va. Code Ann. (1972) , as amended, (Cum. Supp. 1974)
§ 62.1-44.2. Short title; purpose. — The short title of this chapter is State
Water Control Law. It is the policy of the Commonwealth of Virginia and the
purpose of this law to: (1) protect existing high quality State waters and restore
all other State waters to such condition of quality that any such waters will
permit all reasonable public uses and will support the propagation and growth
of all aquatic life, including game fish, which might reasonably be expected to
inhabit them, (2) safeguard the clean waters of the State from pollution, (3)
prevent any increase in pollution, and (4) reduce existing pollution, in order to
provide for the health, safety, and welfare of the citizens of the
Commonwealth. (Code 1950, § 62-10; Code 1950 (Repl. Vol. 1968), § 62.1-14;
1968, c. 659; 1970, c. 638.)
§ 62.1-44.3. Definitions. — Unless a different meaning is required by the
context the following terms as used in this chapter shall have the meanings
hereinafter respectively ascribed to them:
(1) "Board" means the State Water Control Board;
(2) "Member"means a member of the Board;
(3) "Certificate" means any certificate issued by the Board;
(4) "State waters" means all water, on the surface and under the ground,
wholly or partially within or bordering the State or within its jurisdiction;
(5) "Owner" means the State or any of its political subdivisions, including,
but not limited to, sanitation district commissions and authorities, and public
or_private institution, corporation, association, firm or company organized or
existing under the laws of this or any other state or country, or any person or
group of persons acting individually or as a group;
(6) "Pollution" means such alteration of the physical, chemical or biological
properties of any State waters as will or is likely to create a nuisance or render
such waters (a) harmful or detrimental or injurious to the public health, safety
or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with
reasonable treatment for use as present or possible future sources of public
water supply; or (c) unsuitable for recreational, commercial, industrial,
agricultural, or other reasonable uses; provided that (i) an alteration of the
physical, chemical, or biological property of State waters, or a discharge or
deposit of sewage, industrial wastes or other wastes to State waters by any
owner which by itself is not sufficient to cause pollution, but which, in
combination with such alteration of or discharge or deposit to State waters by
other owners is sufficient to cause pollution; (ii) the discharge of untreated
st'\v;itf( by arty owner into Stale waters; and (Hi) contributing to the
contravention of standards uf water quality duly established by the Board, are
"jwllutiwn" for the terms and purposes of this chapter;
(t) "tfcumye" means the water-carried human wastes from residences,
buildings, industrial establishments or other places together with such
industrial wastes, underground, surface, storm, or other water, as may be
present;
(fc) "Itiduxtriiil u'uxteti" means liquid or other wastes resulting from any
process of industry, manufacture, trade or business, or from the development
jof any natural resources;
(9)'"Other wastes" means decayed wood, sawdust, shavings, bark, lime,
garbage, refuse, ashes, offal, tar, oil, chemicals, and all other substances,
except industrial wastes and sewage, which may cause pollution in any State
waters;
(10) "Eatabli.thment" means any industrial establishment, mill, factory,
tannery, paper or pulp mill, mine, coal mine, colliery, breaker or
coal-processing operations, quarry, oil refinery, boat, vessel, and each and
every other industry or plant or works the operation of which produces
industrial wastes or other wastes or which may otherwise alter the physi-
cal, chemical or biological properties of any State waters;
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§ 62.1-44.4. Control by State as to water quality. — (1) No right to
continue existing quality degradation in any State water shall exist nor shall
such right be or be deemed to have been acquired by virtue of past or future
discharge of si>\vage, industrial wastes or other wastes or other action by any
owner. The right and control of the State in and over all State waters is hereby
expressly reserved and reaffirmed. (2) Waters whose existing quality is better
than the established standards as of the date on which such standards become
effective will be maintained at high quality; provided that the Board has the
power to authorize any project or development, which would constitute a new
or an increased discharge of effluent to high quality water, when it has been
affirmatively demonstrated that a change is justifiable to provide necessary
economic or social development; and provided, further, that the necessaryt
degree of waste treatment to maintain high water quality will be required
where physically and economically feasible. Present and anticipated use of
such waters will be preserved and protected.
§ 62.1-44.5. Public policy regarding waste discharges pr other quality
alterations of State waters. — it is hereby declared to be against public policy
for any owner vho docs not have a certificate issued by the Board to (1)
discharge into State waters inadequately treated sewage, industrial wastes,
other wastes, or any noxious or deleterious substances, or (2) otherwise alter
the physical, chemical or biological properties of such State waters and muke
them detrimental to the public health, or to animal or aquatic life, or to the
uses of such waters for domestic or industrial consumption, or for recreation,
or for other uses.
§ 62.1-44.16. Industrial wastes. — (1) Any owner who erects, constructs,
opens, reopens, expands or employs new processes in or operates any
establishment from which there is a potential or actual discharge of industrial
wastes or other wastes to State waters shall first provide facilities approved by
the Board for the treatment or control of such industrial wastes or other
wastes.
Application for such discharge shall be made to the Board and shall be
accompanied by pertinent plans, specifications, maps, and such other relevant
information as may be required, in scope and details satisfactory to the Board.
(a) Public notice of every such application shall be given by notice published
once a week for two successive weeks in a newspaper of general circulation in
the county or city where the certificate is applied for or by such other means as
the Board may prescribe.
(b) The Board shall review the application and the information that
accompanies it as soon as practicable and making a ruling within a period of
four months from the date the application is filed with the Board approving or
disapproving the application and stating the grounds for conditional approval
or disapproval. If the application is approved, the Board shall grant a
certificate for the discharge of the industrial wastes or other wastes into
State waters or for the other alteration of the physical, chemical or biological
properties of State waters, as the case may be. If the application is
disapproved, the Board shall notify the owner as to what measures, if any, the
owner may take to secure approval.
(2) (a) Any owner operating under a valid certificate issued by the Board
who fails to meet water quality standards established by the Board solely as a
result of a change in water quality standards or in the law shall provide the
necessary facilities approved by the Board within a reasonable time to meet
such new requirements; provided, however, that such facilities shall be
reasonable and practicable of attainment giving consideration to the public
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interest and the equities of the case. The Board may amend such certificate, or
revoke it and issue a new one to reflect such facilities after proper hearing,
with at least thirty days' notice to the owner of the time, place and purpose
thereof. If such revocation or amendment of a certificate is mutually agreeable
to the Board and the owner involved, the hearing and notice may be dispensed
with.
(b) The Board shall revoke the certificate in case of a failure to comply with
all such requirements and may issue a special order under § 62.1-44.15 (8).
(1970, c. 638.)
§ 62.1-44.17. Other wastes. — (1) Any owner who handles, stores,
distributes or produces other wastes as defined in § 62.1-44.3 (9), any owner
who causes or permits same to be handled, stored, distributed or produced or
any owner upon or in whose establishment other wastes are handled, stored,
distributed or produced shall upon request of the Board install facilities
approved by the Board or adopt such measures approved by the Board as are
necessary to prevent the escape, flow or discharge into any State waters when
the escape, flow or discharge of such other wastes into any State waters would
cause pollution of such State waters.
(2) Any owner under this section requested by the Board to provide facilities
or adopt such measures shall make application therefor to the Board. Such
application shall be accompanied by a copy of pertinent plans, specifications,
maps, and such other relevant information as may be required, in scope and
details satisfactory to the Board.
(3) The Board shall review the application and the information that
accompanies it as soon as practicable and make a ruling within a period of four
months from the date the application is filed with the Board approving or
disapproving the application and stating the grounds for conditional approval
or disapproval. If the application is approved, the Board shall grant a
certificate for the handling, storing, distribution or production of such other
wastes. If the application is disapproved, the Board shall notify the owner as to
what measures the owner may take to secure approval.
§ 62.1-44.31. Violation of special order or certificate or failure to
cooperate with Board. — It shall be unlawful for any owner to fail to comply
with any special order adopted by the Board, which has become final under the
provisions of this chapter, or to discharge sewage, industrial waste or other
waste in violation of any condition contained in a certificate issued by the
Board or in excess of the waste covered by such certificate, or to fail or refuse
to furnish information, plans, specifications or other data reasonably necessary
and pertinent required by the Board under this chapter. '"
§ 62.1-44.32. Penalties. — (a) Any owner who violates any provision of this
chapter, or who fails, neglects or refuses to comply with any special final order
of the Board, or final order of a court, lawfully issued as herein provided, shall
be subject to a civil penalty not to exceed ten thousand dollars for each
violation within the discretion of the court. Each day of violation shall
constitute a separate offense.
(b) Any owner who willfully or negligently violates any provision of this
chapter, or who fails, neglects or refuses to comply with any special final order
of the Board, or final order of a court, lawfully issued as herein provided, or
who knowingly makes any false statement in any form required to be
submitted under this chapter or knowingly renders inaccurate any monitoring
device or method required to be maintained under this chapter, shall be fined
not less than one hundred dollars nor more than twenty-five thousand dollars
for each violation within the discretion of the court. Each day of violation shall
constitute a separate offense.
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Rev. Cade of Wash. (1974)
90.48.010 Policy enunciated. It is declared to be the
public policy of the state of Washington to maintain the
highest possible standards to insure the purity of all
waters of the state consistent with public health and
public enjoyment thereof, the propagation and protec-
tion of wild life, birds, game, fish and other aquatic life,
and the industrial development of the state, and to that
end require the use of all known available and reason-
able methods by industries and others to prevent and
control the pollution of the waters of the state of
Washington. Consistent with this policy, the state of
Washington will exercise its powers, as fully and as ef-
fectively as possible, to retain and secure high quality
for all waters of the state. The state of Washington in
recognition of the federal government's interest in the
quality of the navigable waters of the United States, of
which certain portions thereof are within the jurisdic-
tional limits of this state, proclaims a public policy of
working cooperatively with the federal government in a
joint effort to extinguish the sources of water quality
degradation, while at the same time preserving and vig-
orously exercising state powers to insure that present
and future standards of water quality within the state
shall be determined by the citizenry, through and by the
efforts of state government, of the state of Washington.
90.48.020 Definitions. Whenever the word "person"
is used in this chapter, it shall be construed to include
any political subdivision, government agency, munici-
pality, industry, public or private corporation, copart-
nership, association, firm, individual or any other entity
whatsoever. Wherever the words "waters of the state"
shall be used in this chapter, they shall be construed to
include lakes, rivers, ponds, streams, inland waters, un-
derground waters, salt waters and all other surface wa-
ters and watercourses within the jurisdiction of the state
of Washington. Whenever the word "pollution" is used
in this chapter, it shall be construed to mean such con-
tamination, or other alteration of the physical, chemical
or biological properties, of any waters of the state, in-
cluding change in temperature, taste, color, turbidity, or
odor of the waters, or such discharge of any liquid,
gaseous, solid, radioactive, or other substance into any
waters of the state as will or is likely to create a nui-
sance or render such waters harmful, detrimental or in-
jurious to the public health, safety or welfare, or to
domestic, commercial, industrial, agricultural, recrea-
tional, or other legitimate beneficial uses, or to live-
stock, wild animals, birds, fish or other aquatic life.
Wherever the word "commission" is used in this chap-
ter it shall mean the water pollution control commission
as created in RCW 90.48.021. Whenever the word "di-
rector" is used in this chapter it shall mean the director
as provided for in RCW 90.48.023.
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90.48.037 Authority of commission to bring legal ac-
tions to (enforce chapter. The commission, with the as-
sistance of the attorney general, is authorized to bring
any appropriate action at law or in equity, including
action for injunctive relief, in the name of the people of
the state of Washington as may be necessary to carry
out the provisions of this chapter.
90.48.080 Discharge of polluting matter in waters
prohibited. It shall be unlawful for any person to throw,
drain, run, or otherwise discharge into any of the waters
of this state, or to cause, permit or suffer to be thrown,
run, drained, allowed to seep or otherwise discharged
into such waters any organic or inorganic matter that
shall cause or tend to cause pollution of such waters
according to the determination of the commission, as
provided for in this chapter.
90.48.140 Penalty. Any person found guilty of wil-
fully violating any of the provisions of this chapter, or
any Anal written orders or directive of the department
or a court in pursuance thereof shall be deemed guilty
of a crime, and upon conviction thereof shall be pun-
ished by a fine of up to ten thousand dollars and costs
of prosecution, or by imprisonment in the county jail
for not more than one year, or by both such fine and
imprisonment in the discretion of the court. Each day
upon which a wilful violation of the provisions of this
chapter occurs may be deemed a separate and addi-
tional violation.
90.48.142 Violations Liability in damages for in-
jury or death of fish, animals, vegetation Action to
recover. Any person who violates any of the provisions
of this chapter, or fails to perform any duty imposed by
this chapter, or violates an order or other determination
of the commission or the director made pursuant to the
provisions of this chapter, including the conditions of a
waste discharge permit issued pursuant to RCW 90.48-
.160, and in the course thereof causes the death of, or
injury to, fish, animals, vegetation or other resources of
the state, or otherwise causes a reduction in the quality
of the state's waters below the standards set by the
commission, thereby damaging the same, shall be liable
to pay the state damages in an amount equal to the sum
of money necessary to restock such waters, replenish;
such resources, and otherwise restore the stream, lake
or other water source to its condition prior to the inju-
ry, as such condition is determined by the commission.
Such damages shall be recoverable in an action brought
by the attorney general on behalf of the people of the
tate of Washington in the superior court of the county
which such damages occurred: Provided, That if
"j
F
A-15 7
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damages occurred in more than one county the attorney
general may bring action in any of the counties where
the damages occurred. Any money so recovered by the
attorney general shall be transferred to either the state
game fund or the department of fisheries to use for food
fish or shellfish management purposes and propagation,
or to any other agency of the state having jurisdiction
over the resource damaged and for which said moneys
were recovered, as appropriate: Provided, That the
agency receiving such money shall utilize not less than
one-half of said money on activities or projects within
the county where the action was brought by the attor-
ney general. No action shall be authorized under this
section against any person operating in compliance with
the conditions of a waste discharge permit issued pur-
suant to RCW 90.48.160.
90.48.144 Violations Civil penalty Proce-
dure Appeals. Every person who:
(1) Violates the terms or conditions of a waste dis-
charge permit issued pursuant to RCW 90.48.180 or
*this amendatory act, or
(2) Conducts a commercial or industrial operation or
other point source discharge operation without a waste
discharge permit as required by RCW 90.48.160 or *this
amendatory act, or
(3) Violates the provisions of RCW 90.48.080, shall
incur, in addition to any other penalty as provided by
law, a penalty in an amount of up to five thousand dol-
lars a day for every such violation. Each and every such
violation shall be a separate and distinct offense, and in
case of a continuing violation, every day's continuance
shall be and be deemed to be a separate and distinct
violation. Every act of commission or omission which
procures, aids or abets in the violation shall be consid-
ered a violation under the provisions of this section and
subject to the penalty herein provided for. The penalty
herein provided for shall be imposed by a notice in
writing, either by certified mail with return receipt re-
quested or by personal service, to the person incurring
the same from the director of the department or his au-
thorized delegate describing such violation with reason-
able particularity. The director or his authorized
delegate may, upon written application therefor re-
ceived within fifteen days after notice imposing any
penalty is received by the person incurring the penalty,
and when deemed in the best interest to carry out the
purposes of this chapter, remit or mitigate any penalty
provided for in this section upon such terms as he in his
discretion shall deem proper, and shall have authority
to ascertain the facts upon all such applications in such
manner and under such regulations as he may deem
proper. Any person incurring any penalty hereunder
may appeal the same to the hearings board as provided
A-15 8
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for in chapter 43.2IB RCW. Such appeals shall" be filed
within thirty days of receipt of notice imposing any
penalty unless an application for remission or mitiga-
tion is made to the department. When an application
for remission or mitigation is made, such appeals shall
be filed within thirty days of receipt of notice from the
director or his authorized delegate setting forth the dis-
position of the application. Any penalty imposed here-
under shall become due and payable thirty days after
receipt of a notice imposing the same unless application
for remission or mitigation is made or an appeal is filed.
When an application for remission or mitigation is
made, any penalty incurred hereunder shall become due
and payable thirty days after receipt of notice setting
forth the disposition of the application unless an appeal
is filed from such disposition. Whenever an appeal of
any penalty incurred hereunder is filed, the penalty
shall become due and payable only upon completion of
all review proceedings and the issuance of a final order
confirming the penalty in whole or in part. If the
amount of any. penalty is not paid to the department
within thirty days after it becomes due and payable, the
attorney general, upon the request of the director, shall
bring an action in the name of the state of Washington
in the superior court of Thurston county or of any
county in which such violator may do business, to re-
cover such penalty. In all such actions the procedure
and rules of evidence shall be the same as an ordinary
civil action except as otherwise in this chapter provided.
All penalties recovered under this section shall be paid
into the state treasury and credited to the general fund.
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W.Va. Code Ann. (1973)
§ 20-5A-1. Declaration of policy.
It is declared to be the public policy of the State of West Virginia to
maintain reasonable standards of purity and quality of the water of the
State consistent with (1) public health and public enjoyment thereof;
(2) the propagation and protection of animal, bird, fish, aquatic and plant
life; and (3) the attraction, development, maintenance and expansion of
agriculture, mining, manufacturing and other business and industry.
§ 20-5A-2. Definitions.
Unless the context in which used clearly requires a different meaning,
as used in this article:
(a) "Director" shall mean the director of the department of natural
resources;
(b) "Board" shall mean the state water resources board;
(c) "Chief" shall mean the chief of the division of water resources of
the department of natural resources;
(d) "Person," "persons" or "applicant" shall mean any public or pri-
vate corporation, institution, association, firm or company organized or
existing under the laws of this or any other state or country; State of
West Virginia; governmental agency; political subdivision; county court;
municipal corporation; industry; sanitary district; public service district;
drainage district; soil conservation district; watershed improvement dis-
trict; partnership; trust; estate; person or individual; group of persons
or individuals acting individually or as a group; or any other legal entity
whatever;
(e) "Water resources," "water" or "waters" shall mean any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this State, or
bordering this State and within its jurisdiction, and shall include, without
limiting the generality of the foregoing, natural or artificial lakes, rivers,
streams, creeks, branches, brooks, ponds (except farm ponds, industrial
settling basins and ponds and water treatment facilities), impounding
reservoirs, springs, wells and watercourses;
(f) "Pollution" shall mean (1) the discharge, release, escape, deposit
or disposition, directly or indirectly, of treated or untreated sewage, in-
dustrial wastes, or other wastes, of whatever kind or character, in or near
any waters of the State, in such condition, manner or quantity, as does,
will, or is likely to (A) contaminate or substantially contribute to the
contamination of any of such waters, or (B) alter or substantially con-
tribute to the alteration of the physical, chemical or biological properties
of any of such waters, if such contamination or alteration, or the result-
ing contamination or alteration where a person only contributes there-
to, is to such an extent as to make any of such waters (i) directly ^r
indirectly harmful, detrimental or injurious to the public health, safety
and welfare, or (ii) directly or indirectly detrimental to existing animal,
A-160
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bird, fish, aquatic or plant life, or (jii) unsuitable for present or future
iloirti^Uc, commercial, industrial, agricultural, recreational, acenic or
other legitimate use«; and shall also mean (2) the discharge, release, es-
cape, ilyp'usut, or disposition, directly or indirectly of treated or untreated
sewage, iiiitastrial v/astes'or other wastes, of whatever kind or character,
in or near any waters of the State in such condition, manner or quantity,
as does, will, or is likely to reduce the quality of the waters of the State
below the standards established therefor in the rules and regulations of
the board;
(g) "Sewage" shall mean water-carried human or animal wastes from
residences, buildings, industrial establishments or other places, together
with such ground water infiltration and surface waters as may be present;
(h) "Industrial wastes" shall mean any liquid, gaseous, solid or other
waste substance, or a combination thereof, resulting from or incidental to
any process of industry, manufacturing, trade or business, or from or
incidental to the development, processing or recovery of any natural re-
sources; and the admixture with such industrial wastes of sewage or other
wastes, as hereinafter defined, shall also be considered "industrial wastes"
within the meaning of this article;
(i) "Other wastes" shall mean garbage, refuse, decayed wood, sawdust,
shavings, bark and other wood debris and residues, sand, lime, cinders,
ashes, offal, night soil, silt, oil, tar, dyestuffs, acids, chemicals, and all other
materials and substances not sewage or industrial wastes which may
cause or might reasonably be expected to cause or to contribute to the
pollution of any of the waters of the State;
(j) "Establishment" shall mean an industrial establishment, mill, fac-
tory, tannery, paper or pulp mill, mine, colliery, breaker or mineral pro-
cessing operation, quarry, refinery, well, and each and every industry or
plant or works or activity in the operation or process of which industrial
-wastes, or other wastes are produced;
* * *
§ 20-5A-3. General powers and duties of chief of division and
board with respect to pollution.
* * *
(b) In addition to all other powers and duties of the water resources
board, as prescribed in this article or elsewhere by law, the board shall
have and may exercise the following powers and authority and shall per-
form the following duties:
(1) To cooperate with any interstate agencies for the purpose of for-
mulating, for submission to the legislature, interstate compacts and agree-
ments relating to the control and reduction of water pollution; and
(2) To adopt, modify, repeal and enforce rules and regulations, in
accordance with the provisions of chapter twenty-nine-A [§ 29A-1-1 et
seq.] of this Code, (A) implementing and making effective the declaration
A-161
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of policy contained in section one [§ 20-5A-1] of this article and the pow-
ers, duties and responsibilities vested in the board and the chief by the
provisions of this article and otherwise by law; (B) preventing, control-
ling and abating pollution; and (C) establishing standards of quality for
the waters of the State under such conditions as the board may prescribe
for the prevention, control and abatement of pollution.
§ 20-5A-5. Prohibitions; permits required.
(a) It shall be unlawful for any person, unless he holds a permit there-
for from the department, which is in full force and effect, to:
(1) Allow sewage, industrial wastes, or other wastes, or the effluent
therefrom, produced by or emanating from any establishment to flow in-
to the waters of this State;
(2) Make, cause or permit to be made any outlet, or substantially en-
large or add to the load of any existing outlet, for the discharge of sew-
age, industrial wastes, or other wastes, or the effluent therefrom, into
the waters of this State;
(3) Acquire, construct, install, modify or operate a disposal system or
part thereof for the direct or indirect discharge or deposit of treated
or untreated sewage, industrial wastes, or other wastes, or the effluent
therefrom, into the waters of this State, or any extension to or addition
to such disposal system;
(4) Increase in volume or concentration of any sewage, industrial
wastes or other wastes in excess of the discharges or disposition specified
or permitted under any existing permit;
(5) Extend, modify or add to any establishment, the operation of which
would cause an increase in the volume or concentration of any sewage,
industrial wastes or other wastes discharging or flowing into the waters
of the State;
(6) 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 de-
partment'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; or
(7) Operate any disposal well for the injection or reinjection under-
ground of any industrial wastes, including, but not limited to, liquids or
gases, or convert any well into such a disposal well or plug or abandon any
such disposal well
(b) Where a person has a number of outlets emerging into the waters
of this State in close proximity to one another, such outlets may be treated
as a unit for the purposes of this section, and only one permit issued for
all such outlets. (1964, c. 20; 1967, c. 143; 1969, c. 96.)
§ 20-5A-l 7. Injunctive relief.
Upon application by the chief, the circuit courts of this State or the
judges thereof in vacation may by injunction compel compliance with
A-162
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and enjoin violations of the provisions of this article, the rules and regu-
lations of the board, the terms and conditions of any permit granted un-
der the provisions of this article, or any order of the chief or board, and
the venue of any such, action shall be the county in which the violation
or noncompliance exists or is taking place or in any county in which the
waters thereof are polluted as the result of such violation or noncom-
pliance. The court or the judge thereof in vacation may issue a prelim-
inary injunction in any case pending a decision on the merits of any
application filed. Any other section of this Code to the contrary notwith-
standing, the State shall not be required to furnish bond as a prerequi-
site to obtaining injunctive relief under this article.
An application for an injunction under the provisions of this section
may be filed and injunctive relief granted notwithstanding that all of the
administrative remedies provided for in this article have not been pur-
sued or invoked against the person or persons against whom such relief
is sought and notwithstanding that the person or persons against whom
such relief is sought have not been prosecuted or convicted under the
provisions of this article.
The judgment of the circuit court upon any application filed under the
provisions of this article shall be final unless reversed, vacated or modi-
fied on appeal to the supreme court of appeals. Any such appeal shall be
sought in the manner provided by law for appeals from circuit courts
in other civil cases, except that the petition seeking such review must be
filed with said supreme court of appeals within ninety days from the
date of entry of the judgment of the circuit court.
Legal counsel and services for the chief or the board in all injunction
proceedings in the circuit courts and in the supreme court of appeals of
this State shall be provided by the attorney general or his assistants and
by the prosecuting attorneys of the several counties as well, all with-
out additional compensation, or the chief or the board, with the written
approval of the attorney general, may employ counsel to represent him or
it in a particular proceeding. (1964, c. 20; 1967, c. 143; 1969, c. 96.)
§ 20-5A-l8. Priority of actions.
All applications under section seventeen [§ 20-5A-17] of this article and
all proceedings for judicial review under section sixteen [§ 2Q-5A-16] of
this article shall take priority on the docket of the circuit court in which
pending, and shall take precedence over all other civil cases. Where such
applications and proceedings for judicial review are pending in the same
court at the same time, such applications shall take priority on the docket
and shall take precedence over proceedings for judicial review.
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§ 20-5A-19. Violations; criminal penalties.
Any person who causes pollution or who fails or refuses to discharge
any duty imposed upon him by this article or by any rule or regulation
of the board, promulgated pursuant to the provisions and intent of this
article, or by any order of the chief or board, or who fails or refuses
to apply for and obtain a permit as required by the provisions of this
article, or who fails or refuses to comply with any term or condition of
such permit, shall be guilty of a misdemeanor, and, upon conviction there-
of, shall be punished by a fine of not less than one hundred dollars nor more
than one thousand dollars, or by imprisonment for a period not exceeding
six months, or by both such fine and imprisonment. Any person who wil-
fully violates any provision of this article, or any rule or regulation of
the board, or any order of the chief or board, or any term or condition
of a permit, shall be guilty of a misdemeanor, and, upon conviction there-
of, shall be punished by a fine of not less than one thousand nor more
than ten thousand dollars or by imprisonment not exceeding six months
or by both such fine and imprisonment. Each day upon which such fail-
ure continues shall constitute a separate offense.
Any person who fails or refuses to discharge any duty imposed upon
him by this article, or by any rule or regulation of the board, or by an
order of the chief or board, or who fails or refuses to apply for and. ob-
tain a permit as required by the provisions of this article, or by any rule
or regulation of the board or who fails or refuses to comply with any term
or condition of such permit, may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the administrative
remedies provided for in this article have been pursued or invoked against
said person and notwithstanding that an application for an injunction
under the provisions of this article has not been filed against such person.
Where a person holding a permit is carrying out a program of pollution
abatement or remedial action in compliance with the conditions and terms
of such permit, he shall not be subject to criminal prosecution for pollution
recognized and authorized by such permit. (1964, c. 20; 1967, c. 143;
1969, c. 96.)
§ 2Q-5A-19a. Civil liability; natural resources game-fish and aquatic
life fund; use of funds.
If any loss of game-fish or aquatic life results from :\ person's or per-
sons' failure or refusal to discharge any duty imposed upon him by this
article, the West Virginia department of natural resources :->'ia!l have a
cause of action on behalf of theJState^ of West Virginia to recuver from
such person or persons causing such loss a sum equal to the cost of re-
placing such {rame-fi.-ih or aquatic life. Any moneys so collected by the
director shall be deposited in a special revenue fund entitled "natural re-
seurcrs game-fish and aquatic life fund" and shall be expended as herein-
after provided. The fund shall be expended to stock waters of this State
with game-fish and aquatic life. Where feasible, the director shall use
A-164
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any sum collected in accordance with the provisions of this section to stock
waters in the area in which the loss resulting in the collection of such
sum occurred. Any balance of such sum shall remain in said fund and be
expended to stock state-owned and operated fishing lakes and ponds,
wherever located in this State, with game-fish and aquatic life. (1964, c.
20; 1965, c. 113.)
§ 20-5A-20. Exceptions as to criminal liabilities.
The criminal liabilities imposed by section nineteen [§ 20-5A-19] of this
article shall not be construed to include any violation resulting from ac-
cident or caused by an act of God, war, strike, riot or other catastrophe as
to which negligence or wilful misconduct on the part of such person was
not the proximate cause.
§ 20-5A-22. Existing rights and remedies preserved; article for
benefit of State only.
It is the purpose of this article to provide additional and cumulative
remedies to abate the pollution of the waters of the State and nothing
herein contained shall abridge or alter rights of action or remedies now
or hereafter existing, nor shall any .provisions in this article, or any act
done by virtue of this article, be construed as estopping the State, munici-
palities, public health officers, or persons as riparian owners or otherwise,
in the exercise of their rights to suppress nuisances or to abate any pollu-
tion now or hereafter existing, or to recover damages.
The provisions of this article inure solely to and are for the benefit of
the people generally of the State of West Virginia, and this article is not
intended to in any way create new, or enlarge existing rights of riparian
owners or others. An order of the chief or of the board, the effect of which
is to find that pollution exists, or that any person is causing pollution, or
any other order, or any violation of any of the provisions of this article
shall give rise to no presumptions of law or findings of fact inuring to
or for the benefit of persons other than the State of West Virginia.
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Wise. Stat. Ann. (1974)
144.01 Definitions
The following terms as used in this chapter mean;
(1) "Waters of the state" includes those portions of Lake Michi-
gan and Lake Superior within the boundaries of Wisconsin, and all
lakes, bays, rivers, streams, springs, ponds, wells, impounding reser-
voirs, marshes, watercourses, drainage systems and other surface or
ground water, natural or artificial, public or private, within the state
or its jurisdiction.
(2) "Sewage," the water carried wastes created in and to be
conducted away from residences, industrial establishments, and public
buildings as defined in s. 101.01(2), with such surface or ground wa-
ter as may be present.
(3) "Waterworks," or "water system/' all structures, conduits
and appurtenances by means of which water is delivered to consum-
ers except piping and fixtures inside buildings served, and service
pipes from building to street main.
(4) "Water supply," the sources and their surroundings from
which water is supplied for drinking or domestic purposes.
(5) "Sewerage system," all structures, conduits and pipe lines by
which sewage is collected and disposed of, except plumbing inside and
in connection with buildings served, and service pipes from building
to street main.
(6) "System or plant" includes water and sewerage systems and
sewage and refuse disposal plants.
(7) "Refuse," all matters produced from industrial or communi-
ty life, subject to decomposition, not defined as sewage.
(8) "Owner," the state, county, town, town sanitary district,
city, village, metropolitan sewerage district, corporation, firm, com-
pany, institution or individual owning or operating any water supply,
sewerage or water system or sewage and refuse disposal plant.
(9) "Industrial wastes" include liquid or other wastes resulting
from any process of industry, manufacture, trade or business or the
development of any natural resource.
(10) "Other wastes" include all other substances, except in-
dustrial wastes and sewage, as the latter term is defined in s. 144.01,
which pollute any of the surface waters of the state. The term also
includes "unnecessary siltation" resulting from operations such as the-
washing of vegetables or raw food products, gravel washing, strippinL-
of lands for development of subdivisions, highways, quarries and
gravel pits, mine drainage, cleaning of vehicles or barges or gross iu--
glect of land erosion.
(11) "Pollution" includes contaminating or rendering unclean or
impure the waters of the state, or making the same injurious to pub-
lic health, harmful for commercial or recreational use, or deleterious
to fish, bird, animal or plant life.
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144.025 Department of natural resources—water resources
(1) Statement of policy and purpose. The department of natu-
ral resources shall serve as the central unit of state government to
protect, maintain and improve the quality and management of the
waters of the state, ground and surface, public and private. Contin-
ued pollution of the waters of the state has aroused widespread public
concern. It endangers public health and threatens the general wel-
fare. A comprehensive action program directed at all present and
potential sources of water pollution whether home, farm, recreation-
al, municipal, industrial or commercial is needed to protect human
life and health, fish and aquatic life, scenic and ecological values and
domestic, municipal, recreational, industrial, agricultural and other
uses of water. The purpose of this act is to grant necessary powers
and to organize a comprehensive program under a single state agency
for the enhancement of the quality management and protection of all
waters of the state, ground and surface, public and private. To the
end that these vital purposes may be accomplished, this act and all
rules and orders promulgated pursuant thereto shall be liberally con-
strued in favor of the policy objectives set forth in this act. In or-
der to achieve the policy objectives of this act, it is the express policy
of the state to mobilize governmental effort and resources at all levels,
state, federal and local, allocating such effort and resources to ac-
complish the greatest result for the people of the state as a whole.
Because of the importance of Lakes Superior and Michigan and Green
Bay as vast water resource reservoirs, water quality standards for
those rivers emptying into Lake Superior and Michigan and Green
Bay shall be as high as is practicable.
(2) Powers and duties, (a) The department shall have general
supervision and control over the waters of the state. It shall formu-
late no later than July 1,1968, a long-range, comprehensive state wa-
ter resources plan for each region, as fixed by the department under
sub. (4), to guide the development, management and protection of
water resources. Such plan shall thereafter be carried out by the de-
partment. Such plan shall be reviewed and projected by the depart-
ment every 2 years and a report thereon submitted to the governor
by September 1 of each odd-numbered year. The department also
shall formulate plans and programs for the prevention and abatement
of \vakr pollution and for the maintenance and improvement of wa-
ter quality.
(b) The department shall adopt rules setting standards of water
quality 10 be applicable to the waters of the state, recognizing that
different standards may be required for different waters or portions
thereof. Such standards of quality shall be such as to protect the
public imerest, which include the protection of the public health and
welfare and the present and prospective future use of such waters for
public and private water supplies, propagation of fish and aquatic life
A-167
-------
and wildlife, domestic and recreational purposes and agricultural,
commercial, industrial and other legitimate uses. In all cases where
the potential uses of water are in conflict, water quality standards
shall be interpreted to protect the general public interest.
(c) The department may issue general orders, and adopt rules
applicable throughout the state for the construction, installation, use
and operation of practicable and available systems, methods and
means for preventing and abating pollution of the waters of the state.
Such general orders and rules shall be issued only after an opportuni-
ty to be heard thereon has been afforded to interested parties.
(d) 1. The department may issue special orders directing par-
ticular owners to secure such operating results toward the control of
pollution of the waters of the state as the department prescribes,
within a specified time. Pending efforts to comply with any order,
the department may permit continuance of operations on such condi-
tions as it prescribes. If any owner cannot comply with" an order
within the time specified, he may, before the date set in the order,
petition the department to modify the order. The department may
modify the order, specifying in writing the reasons therefor. If any
order is not complied with within the time period specified, the de-
partment shall immediately notify the attorney general of this fact.
Within 30 days thereafter, the attorney general shall forthwith com-
mence an action under s. 144.536.
2. The department may issue temporary emergency orders
without prior hearing when the department determines that the pro-
tection of the public health necessitates such immediate action. Such
emergency orders shall take effect at such time as the department
determines. As soon as is practicable, the department shall hold a
public hearing after which it may modify or rescind the temporary
emergency order or issue a special order under subd. 1.
(r) If the department finds that a system or plant tends to cre-
ate a nuisance or menace to health or comfort, it shall order the own-
er or the person in charge to secure such operating results as the de-
partment prescribes, within a specified time. If the order is not com-
plied with, the department may order designated changes in opera-
tion, and if necessary, alterations or extension to the system or plant,
or a new system or plant. If the department finds that the absence
of a municipal system or plant tends to create a nuisance or menace
to health or comfort, it may order the city, village, town or town san-
itary district embracing the area where such conditions exist to pre-
pare and file complete plans of a corrective system as provided by s.
144.04, and to construct such system within a specified time.
A-168
-------
Wyo. Stat. Ann. (Supp. 1973)
§ 35-502.2. Policy and purpose.—Whereas pollution of the air, water and
land of this state will imperil public health and welfare, create public or private
nuisances, be harmful to wildlife, fish and aquatic life, and impair domestic, agri-
cultural, industrial, recreational and other beneficial uses; it is hereby declared to
be the policy and purpbse of this act [§§ 35-502.1 to 35-502.56] to enable the state
to prevent, reduce and eliminate pollution; to preserve, and enhance the air, water
and reclaim the land of Wyoming; to plan the development, use, reclamation,
preservation and enhancement of the air, land and water resources of the state;
to preserve and exercise the primary responsibilities and rights of the State of
Wyoming; to retain for the state the control over its air, land and water and to
secure cooperation between agencies of the state, agencies of other states, interstate
agencies, and the federal government in carrying out these objectives,
jc iv?£~502l3t Definitions.—(a) For the purpose of this act [§§ 35-502.1 to
55-502.561. unless the context otherwise requires:
(c) Specific definitions applying to water quality:
(i) "Pollution" means contamination or other alteration of the physical, chemical
or biological properties of any waters of the state, including change in temperature,
taste, color, turbidity or odor of the waters or any discharge of any acid or toxic
male-rial, chemical or chemical compound, whether it be liquid, gaseous, solid, radio
active or other substance, including wastes, into any waters of the state which
creates a nuisance or renders any waters harmful, detrimental or injurious to
public health, safety or welfare, to domestic, commercial, industrial, agricultural,
recreational or other legitimate beneficial uses, or to livestock, wildlife or aquatic
life, or which degrades the water for its intended use, or adversely affects tilt-
environment. This term does not mean water, gas or other material which is injected
into a well to facilitate production of oil, or gas or water, derived in association
with oil or gas production and disposed of in a well, if the well used either to
facilitate production or for disposal purposes is approved by.authority of the state,
ana if the state determines that such injection or disposal well will not result in
the degradation of ground or surface or water resources. This term does not mean
waters diffused across meadow lands or crop lands for irrigation purposes, or
return flows, whether diffused or collected in drains, from such water diffused
across meadow or crop lands;
(ii) "Wastes" means sewage, industrial waste and all other liquid, gaseous, solid,
radioactive, or other substances which may pollute any waters of the state;
§ 35-502.6. Powers, duties, functions and regulatory authority.—(a
All powers, duties, functions and regulatory authority vested in the air resounv-
council, the water pollution advisory council, the air quality section and the sanitan
engineering services branches of the division of health and medical services, and tlv.
open cut land reclamation section of the office of the commissioner of public land-
are transferred to the department, as of the effective date of this act [§§ 35-502.1 t<
35-502.561. The performance of such acts or functions by the department of the*
respective divisions shall have the same effect as if done by the former department
councils, divisions, sections or branches as referred to or designated by law, contract
or other document. The reference or designation to the former department, council?.
divisions, sections or branches shall now apply to the department.
(b) All rules, regulations and orders of the former department, councils, divi
sions, sections or branches lawfully adopted prior to the effective date of this ac:
are adopted as the rules, regulations and orders of the department and shall con
tinue to be effective until revised, amended, repealed or nullified pursuant to law-
A-169
-------
§ 35-502.18. Prohibited acts.—(a) No person, except when authorized
by a permit issued pursuant to the provisions of this act [§§ 35-502.1 to 35-502.561,
shall:
(i) Cause, threaten or allow the discharge of any pollution or wastes into the
waters of the state;
(ii) Alter the physical, chemical, radiological, biological or bacteriological prop-
erties of any waters of the state;
fiii) Construct, install, modify or operate any sewerage system, treatment works,
disposal system or other facility, capable of causing or contributing to pollution;
(iv) Increase the quantity or strength of any discharge;
(v) Construct, install, modify or operate any public water supply. (Laws 1973,
ch. 250, § I.)
Editor's note. — There is no subsection
(b) in this section as it appears in the
printed acts.
§ 35-502.19. Administrator's authority to recommend rules, regula-
tions, etc.— fa) The administrator, after consultation with the advisory board,
shall recommend to the director rules, regulations, standards and permit systems to
promote the purposes of this act [§§ 35-502.1 to 35-502.56]. Such rules, regula-
tions, standards and permit systems shall prescribe:
(i) Water quality standards specifying the maximum short-term and long-term
concentrations of pollution, the minimum permissible concentrations of dissolved
oxygen and other matter, and the permissible temperatures of the waters of the
state;
fii) Effluent standards and limitations specifying the maximum amounts or
concentrations of pollution and wastes which may be discharged into the waters
of the state;
fiii) Standards for the issuance of permits for construction, installation, modifi-
cation or operation of any sewerage system, treatment works, disposal system or
other facility, capable of causing or contributing to pollution;
(iv) Standards for the definition of technical competency and the certification
of operating personnel for public water supply and sewerage systems, treatment
works and disposal systems and for determining that the operation shall be under
the supervision of certified personnel;
(v) Standards for the issuance of permits as authorized pursuant to section
•102(b) of the Federal Water Pollution Control Act as amended in 1972, and as
it may be hereafter amended;
(vi) In recommending any standards, rules, regulations, or permits, the adminis-
trator and advisory board shall consider all the facts and circumstances bearing
upon the reasonableness of the pollution involved including:
(A) The character and degree of injury to or interference with the health and
well being of the people, animals, wildlife, aquatic life and plant life affected;
(B) The social and economic value of the source of pollution;
(C) The priority of location in the area involved;
(D) The technical practicability and economic reasonableness of reducing or
eliminating the source of pollution; and
(E) The effect upon the environment;
fvii) Such reasonable time as may be necessary for owners and operators of
pollution sources to comply with rules, regulations, standards or permits.
A-170
-------
§ 35-502.49. Violations of act; penalties.-—(a) Any person who violate-
any provision of this act [§§ 35-502.1 to 35-502.56], or any rule, regulation, stan-
dard or permit adopted hereunder or who violates any determination or order of
the council pursuant to this act or any rule, regulation, standard, permit, license,
or variance is liable to a penalty of not to exceed $10,000 for each day during
which violation continues, which may be recovered in a civil action, and such per-
son mnv be enjoined from continuing the violation as hereinafter provided. Dam-
ages are to be assessed by the court.
(b) Any person who violates this act, rule, regulation, or causes the death of
fish, aquatic life or game or bird life is, in addition to other penalties provided by
this act, liable to pay to the state, an additional sum for the reasonable value of
the fish, aquatic life, game or. bird life destroyed. Any monies so recovered shall lie-
placed in the general fund of Wyoming, state treasurer's office. All actions pursuant
to this article [§§ 35-502.49, 35-502.50] shall be brought in the county in which
the violation occurred by the attorney general in the name of the people of Wy-
oming.
(c) Any person who willfully violates any provision of this act or any rule, reg-
ulation, standard, permit, license, Or variance or limitations adopted hereunder or
who willfully violates any determination or order of the council pursuant to this
act or any rule, regulation, standard, permit or limitation issued under this act
shall be fined not more than $25,000 per day violation, or imprisoned for not more
than one year, or both. If the conviction is for a violation committed after a first
conviction of such person under this act, punishment shall be by a fine of not more
than $50,000 per day of violation or by imprisonment of not more than two years,
or by both.
(d) Any person who knowingly makes any false statement, representation or
certification in any application, record, report, plan or other document filed or re-
quired to be maintained under this act or who falsifies, tampers with, or know-
ingly renders inaccurate any monitoring device or method required to be main-
tained under -this act, shall upon conviction, be fined not more than $10,000 or
imprisoned for not more than six months, or both.
(e) Pollution which is a direct result of the malfunctioning or breakdown of
any pollution source or related operating equipment beyond the control of the
person owning or operating such source or equipment shall not be deemed in vio-
lation of this act, provided that prior to the initiation of any action hereunder by
ihe administrators, th<- m\iu-r ur operator advises llji: proper administrator ot thi1
circumstances and outlines an acceptable corrective program.
(f) Nothing in this act shall be construed to abridge, limit, impair, create, en-
large or otherwise affect substantively or proccdurntly the right of any person to
damages or other relief on account of injury to persons or property and to main-
tain any action or other appropriate proceeding therefor. (Laws 1973, ch. 250,
S 1.)
§ 35-502.50. Civil or criminal remedy.—Nothing in this act [§§ 35-502.1
to 35-502.56] shall in any way limit any existing civil or criminal remedy for any
wrongful action arising out of a violation of any provision of this act or any rule,
regulation, standard, permit, license, or variance or order adopted hereunder.
A-171
-------
Table 1
WATER POLLUTION CONTROL LAWS
STATE
STATE
Alabama
Alaska
Arkansas
Arizona
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
*1. Pollution from nonpoint sources specifically within scope of statute.
2. Pollution from nonpoint sources probably within scope of statute.
3. Pollution from nonpoint sources probably not within scope of statute.
4. Pollution from nonpoint sources specifically not within scope of statute.
COVERAGE*
UUVEKAUE"
3
2
2
2
2
3
3
2
3
1
2
3
2
2
4***
4***
2
3
3
2
1
3
3
2
2
Montana
Nebraska
Nevada
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
3
3
4
3
3
2
2
3
2
2
3
3
2**
2
2
3
2
2
2
3
2
2
3
2
2
**Pennsylvania regulations include restrictions on -nonpoint sources of pollution.
***Statutes do not explicitly omit nonpoint sources but the language Is such that it would be
almost impossible to construe the statutes to Include nonpoint sources.
-------
Table 2
APPROPRIATIONS
ACT: AGRICULTURAL - ENVIRONMENTAL AND CONSUMER PROTECTION APPROPRIATIONS ACT
P.L. 93-135, 87 STAT 468, OCT. 24, 1973
(1)
AMOUNT
$10.8 million
(2) (a)
$15 million to carry out
Act, $160 million for soil
building and soil and water
conservation
(b)
$10 million to remain
available until expended
PURPOSE OF APPROPRIATION
CD
Expenses of Office of Secretary of Agriculture including
dissemination of agricultural information and coordination
of informational work and programs
(2) (a)
To carry out the purposes of Soil Conservation and
Domestic Allotment Act (16 U.S.C.A. $ 590g to 590q)
(b)
The Water Bank Act (16 U.S.C.A. $$ 1301 to 1312)
(3)
$150.0 million to remain
available until expended
(3)
Rural Water and Waste Disposal Grants authorized under
7 U.S.C.A. $ 1926
(4)
$2.5 million
(4)
Council on Environmental Improvements - to enforce the
National Environmental Policy Act of 1969 and the National
Environmental Act of 1970 (42 U.S.C.A. $ 4321 et seq. and
42 U.S.C.A. $ 4371 et seq., respectively)
$161.8 million
(6)
$257.1 million to remain
available until expended
(5)
Research and Development for EPA
(6)
Pollution abatement and control activities
-------
AMOUNT
$600 million to remain
available until expended
PURPOSE OF APPROPRIATION
To finance construction authorized under the Federal Water
Pollution Control Act, 53 U.S.C.A. $ 1283 et seq.
(8)
$46.2 million
(8)
Enforcement activities
(9)
$160.0 million to remain
available until expended
(9)
Soil Conservation Service activities, including inter alia
soil and water conservation and research regarding watersheds
and waterways
$134.0 million to remain
available until expended
To carry out the purposes of the Watershed Protection and
Flood Prevention Act
(11)
$51.9 million
(11)
To carry out the Croplands Adjustment Program
(12)
$17.2 million to remain
available until expended
(12)
To carry out projects for resource conservation and
development and for sound land use—as provided for in the
Bankhead-Jones Land Tenancy Act and others
ACT: APPROPRIATIONS ACT, 1974
P.L. 93-162, 87 STAT 636, NOV. 27, 1973
AMOUNT
$12 million to remain
available until expended
(1)
Act
PURPOSE OF APPROPRIATION
To carry out the provisions of the Coastal Zone Management
-------
ACT: 2ND SUPPLEMENTAL APPROPRIATIONS ACT OF 1973
P.L. 93-50, 87 STAT 99, JULY 1, 1973
AMOUNT
(1)
$6.3 million to remain
available until expended
PURPOSE OF APPROPRIATION
(1)
Environmental Protection Agency abatement and control
activities
(2)
$20.0 million to remain
available until expended
(2)
Department of Agriculture runoff retardation and soil
erosion prevention activities under the Flood Control Act
(33 U.S.C.A. $ 701 b-1)
ACT: D.C. APPROPRIATIONS ACT OF 1974
P.L. 93-91, 87 STAT 306, AUG. 14, 1973
AMOUNT
$45.0 million of which
$11.9 million is payable from
the water fund
PURPOSE OF APPROPRIATION
(1)
Environmental Services
ACT: APPROPRIATIONS - DEPARTMENT OF THE INTERIOR
P.L. 93-120, 87 STAT 429, OCT. 4, 1973
AMOUNT
PURPOSE OF APPROPRIATION
(1)
Not to exceed $76.2 million
(1)
To carry out the provisions of the Land and Water
Conservation Fund Act of 1965
(2)
$152.2 million
(2)
Bureau of Mines - conservation, development, production
and use of mineral resources, waste recycling and reclamation
activities and other mine-related activities
-------
(3)
AMOUNT
$80.4 million
PURPOSE OF APPROPRIATION
(3)
Bureau of Sport, Fisheries and Wildlife - for conservation,
management and use of sport fishery wildlife resources, inter alia
(4)
$13.7 million
(4)
To carry out the purposes of the Water Resources Research Act
of 1964 (42 U.S.C.A. U 1961 to 1961 c-7)
$3.6 million to remain
available until expended
(5)
To carry out the purposes of the Saline Water Conversion Act
(42 U.S.C.A. n 1959 to 1959h)
(6)
$257.4 million
(6)
Forest Service activities pertaining to forest land management
(7)
$27.8 million
(7)
State and private forestry cooperation including! inter alia,
tree planting, forest management, advice to timberland owners
(8)
25% of the aggregate
of all receipts during the
fiscal year, to remain
available until expended
(8)
Oregon and California Grant Lands - road construction,
reforestation and other improvements
-------
Summary Tables
-------
AGRICULTURE Page 1
1
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1
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H.J. Stat. Ann. 0 4:24-1
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W.D. Cent. Code ££ 4-22-
01 to -51
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AGRICULTURE Page 2
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Utah Code Ann. £2-2-1-1
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Kan. Stat. Ann. $$ 2-2001
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Tex. Rev. Civ. Stat. art.
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Cal. Aqri. Code gjS 12751
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AGRICULTURE; Page 3
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AGRICULTURE Page 4
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Utah Code Aim. $ 44-30 to
-40
Va. Code Ann. # 3.1-189
to -249
W.Va. Code Ann. $$ 19-16A
-1 to -13
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Wise. Stat. Ann. $$ 94.67
to .71
Fertilizers
Cal. Agri. Code %% 14501
to 14552
Mass. Gen. Laws Ann. ch.
128, %% 64 to 83
N.J. Rev. Stat. %% 4:9-15.
1 to .42; 4:9-21.1 to .10
Va. Code Ann. %% 3.1-126.1
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CONSTRUCTION Page 1
1
STATUTE
Cal. Gvt. Code $$ 66411.-
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Hawaii Rev. Stat. ## 264-6,
-8, -9, -12
Hawaii Rev. Stat. $$ 62-34
Ind. Ann. Stat. $$ 18-5-10
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Ind. Ann. Stat. $$ 8-13-1-1
to 8-14-2-2
Kan. Stat. Ann. $$ 68-401
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Kan. Stat. Ann. # 14-1307
Kan. Stat. Ann. $$ 13-1903,
13-1904
Mass. Gen. Laws Ann.
Ch. 131, #£ 40-42
Mass. Gen. Laws Ann.
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CONSTRUCTION Page 2
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STATUTE
Mich. Comp. Laws Ann.
$$ 67.22, 67.23
Mich. Comp. Laws Ann.
££ 472.13, 472.19
Mich. Comp. Laws Ann.
$$ 281.131, .132, .132b,
.135, ?$ 322.703-.715
Mich. Comp. Laws Ann.
££ 103.3-103.5, 89.1, 89.2
Minn. Stat. Ann. $$ 160.27
N.J. Stat. Ann. $$ 27:7-21,
27:7-21.1
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N.J. Stat. Ann.
gjf 40-180-1, 40:180-2
N.J. Stat. Ann. £g 40:67-1,
40:67-16.5
1 N.J. Stat. Ann.
W 40:55A-5, 40:55A-9 to
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CONSTRUCTION Page 3
STATUTE
N.D. Cent. Code £# 49-11-04
to 49-11-25, 49-01-02, etc
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! N.D. Cent. Code $% 24-05-20
to 24-05-22, etc.
N.D. Cent. Code $$ 58-03-
07, -11, -14
Utah Code Ann. , title 27
Va. Code Ann. $$ 15.1-854,
15.1-863, etc.
Va. Code Ann. $$ 33.1-12,
; 33.1-13, etc.
Va. Code Ann. jt$ 56-366.1,
.2, 56-362
Va. Code Ann. $$ 36-97 to
39-119
Va. Code Ann. %% 15.1-465
to 15.1-485
Va. Code Ann. $$ 62.1-116
to 62.1-127
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CONSTRUCTION Page 4
^
STATUTE
Va. Code Ann. ## 5.1-1 to
5.1-58
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Va. Code Ann. ## 56-46.1,
56-449, 56-462, 56-468
Va. Code Ann. %% 46.1-180.3
King Co. , Wash. Ord.
No. 1488
King Co. , Wash. Ord.
No. 2231
Bellevue, Wash. Ord.
; No. 1803
I King Co. , Wash. Ord.
No. 2096
W. Va. Code Ann.
%% 17-2A-4, -8, 17-3-1 to
17-3-10, 17-4-31
W. Va. Code Ann.
$% 17-4-31, 17-4-1,
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CONSTRUCTION Page 5
STATUTE
I
W. Va. Code Ann. %$ 8-12-5,
8-12-13, 8-12-14
1
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1 Wise. Stat. Ann. $$ 31.01-
j 31.06, 31.38, etc.
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MINING Page 1
•i
1
STATUTE
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Strip and Surface Mining
Colo. Rev. Stat. Ann. ££
34-32-101 to 34-32-118
Hawaii Rev. Stat. % 181-1
to 181-10
Hawaii Rev. Stat. % 183-42
Idaho Code Ann. ?? 47-1312
to 47-1324
Idaho Code Ann. ?£ 47-1501
! to 47-1518
Ind. Ann. Stat. %% 13-4-6-
1 to 13-4-6-13
Ind. Ann. Stat. %% 14-4-2-
1 to 14-4-2-14
Ind. Ann. Stat. £0 14-4-2.
1-1 to 14-4-2.1-8
Kan. Stat. Ann. $1 49-401
to 49-424
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MINING Page 2
7
i
STATUTE
Mich. Comp. Laws Ann. ##
425.181 to 425.188
Minn. Stat. Ann. $$ 93.43,
93.44 to 93.51
Mo. Rev. Stat. ## 444.500
to 444.755
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1 Mo. Rev. Stat. $$ 444.760
! to 444.786
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Mont. Rev. Codes Ann. ##
j 50-1034 to 50-1057
Mont. Rev. Codes Ann. $$
50-1201 to 50-1226
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i Mont. Rev. Codes Ann. $$
\ 50-1501 to 50-1516
Mont. Rev. Codes Ann. ##
50-1601 to 50-1617
tf.D. Cent. Code #0 38-14-
01 to 38-14-13
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MINING Page 3
STATUTE
Va. Code Ann. 00 45.1-180
to 45.1-197.2
Va. Code Ann. 00 45.1-198
to 45.1-215
Va. Code Arm. 00 45.1-216
to 45.1-220
W.Va. Code' Ann. 00 20-6-1
to 20-6-32
Coal Mining
Ind. Ann. Stat. 00 22-10-
! 2-4, 22-10-8-1, 22-10-8-
i 2, 22-10-13-2
1
Kan. Stat. Ann. 00 49-251,
49-252
Mont. Rev. Codes Ann.
00 50-1401 to 50-1409
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; W. Va. Code Ann. 00 20-6C-
1 to 20-6C-8, 20-7-9, 22-
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MINING Page 4
!
I
1
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STATUTE
i
Sand and Gravel
Hawaii Rev. Stat. 00 205-
31 to 205-37
Ind. Ann. Stat. 00 14-3-1-
13, 14-3-1-14, 14-3-1-17,
14-3-1-22
! Kan. Stat. Ann. 00 70a-
101 to 70a-I16
Tex. Rev. Civ. Stat. Ann.
art. i415g
Va. Code Ann. 0 62.1-190
.to 62.1-193
Oil and Gas
Idaho Code Ann. 00 47-315
to 47-330
Ind. Ann. Stat. 00 13-4-5-
1 to 13-4-5-11
Ind. Ann. Stat. 00 13-4-7-
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STATUTE
Kan. Stat. Ann. 00 55-101
to 55-142
Mich. Comp. Laws Ann. 00
319.1 to 319.27
Mich. Comp. Laws Ann. 00
319.211 to 319.236.
Mich. Comp. Laws Ann. 00
322.427a to 322.429
N.D. Cent. Code 00 38-08-
04 to 38-08-17, 38-12-01
-to 38-12-05
Tex. Rev. Civ. Stat. Ann.
art. 5351, 5366
Tex. Rev. Civ. Stat. Ann.
art. 5421c (6)
1 Tex. Rev. Civ. Stat. Ann.
arts. 6008, 6014, 6016
Tex. Rev. Civ. Stat. Ann.
art. 6029, 6029A
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STATUTE
Utah Code Ann. %$ 40-6-1
to 40-6-17
Va. Code Ann. $$ 45.1-105,
45.1-108 to 45.1-115, 45.
1-141 to 45.1-143
W.Va. Code Ann. #£ 22-4-1
to 22-4-19
W.Va. Code Ann. ££ 22-4A-1
22-AA-15
Water Wells and Salt Wells
; Mich. Comp. Laws Ann. #
319.251 to 319.253
Minn. Stat. Ann. $% 156A.
01 to 156A.08
Texas Water Code Ann. ££
23.001 to 23.004
Miscellaneous
Hawaii Rev. Stat. % 183-41
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STATUTE
Ind. Ann. Stat. % 18-1-6*-
15
j King Co . , Wash. Grading
Ord. No. 1488, Jan. 22,
1973
; Mich. Comp. Laws Ann.
% 425.171
Minn. Stat. Ann. ## 93.282
93.34, 93.43
Tex. Rev. Civ. Stat. Ann.
i art. 5421b-l
Wise. Stat. Ann. % 107.05,
107.06
Plugging
Ind. Ann. Stat. $% 13-4-
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STATUTE
Kan. Stat. Ann. 00 19-2504
'to 19-2506
Tex. Rev. Civ. Stat. Ann.
art. 6005
Tex. Rev. Civ. Stat. Ann.
art. 8280-137 0 28
Va. Code Ann. 0 45.1-128
to 45.1-131, 45.1-136 to
45.1-144
W.Va. Code Ann. 0 22-7-1
i to 22-7-12, 22-4-la
Disposal
Kan. Stat. Ann. 00 55-
1003 to 55-1007
Tex. Water Code Ann.
00 22.001 to 22.104
Va. Code Ann. 00 45.1-221
to 45.1-225
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SILVICULTURE Page 1
STATUTE
Hawaii Rev. Stat. ## 186-1
to 186-12
i
Hawaii Rev. Stat. # 183-41
Idaho Code #0 38-1301 to
38-1312
Idaho Code $$ 38-301 to
38-312
Indiana Ann. Stat. #0 6-8-
2-1 to 6-8-2-20
Indiana Ann. Stat. 00 19-7-
1-4, 19-7-1-7, 19-7-2-7,
19-7-2-2
India-na Ann. Stat. 00 14-5-
4-1 to 14-5-4-6
Indiana Ann. Stat. 00 19-7-
17.5-1 to 19-7-17.5-8
Kansas Stat. Ann. 00 76-
425d, 76-425f, 76-435
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STATUTE
Mass. Gen. Laws Ann.
I Ch. 132, $$ 1,6,9,31,34
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Mass. Gen. Laws Ann.
j Ch. 102, $? 17,19,22,28
Mass. Gen. Laws Ann. Ch.
132 $? 40-46, Ch. 91, ?$
30,30A
Mass. Gen. Laws Ann.
Ch. 48, % 16-20
Mass. Const. Amend. Ar. 41
Mich. Comp. Laws Ann.
i £? 320.101-320.107
i
Mich. Comp. Laws Ann.
$$ 320.201-320.210
Mich. Comp. Laws Ann.
?? 247.381-247.385
Mich. Comp. Laws Ann.
$$ 320.41-320.48
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SILVICULTURE Page 3
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STATUTE
Mich. Comp. Laws Ann.
$? 320.301 to 320.314
j Minn. Stat. Ann.
$? 89.001-89.38
Minn. Stat. Ann. £ 92.321,
• 92.45
i
i Minn. Stat. Ann. $$ 270.31
| -270.39
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Minn. Stat. Ann. g# 88.01-
I 88.21 ;
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Minn. Stat. Ann. #£ 348.01
-348.05
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! 15.100 to 13:18-15.104,
13:lB-65
N.J. Stat. Ann. $$ 13:8-1
to 13:8-16
N.J. Stat. Ann. $$ 13:9-23
to_13j9-26f 13:9-36
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STATUTE
N.D. Cent. Code £# 57-57-0]
to 57-57-08
! Ore. Rev. Stat. %$ 527.610
to 527.990
Va. Code Ann. %$ 10-32,
10-33, 10-37, 10-43,
10-55, 10-84, to 10-90
Va. Code Ann. $ 29-23
Va. Code Ann. # 2.1-106.8
Va. Code Ann. $% 62.1-194,
62.1-194.2, 62.1-194.3
Va. Code Ann. # 10-90.20-
10-90.29
Wash. Rev. Code Ann.
$? 76.09.010 to 76.09.900
W.Va. Code Ann. $ 61-3-47
Wise. Stat. Ann. %$ 70.335,
77.01-77.16
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STATUTE
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GENERAL STATUTES Page 1
STATUTE
Citizen Suits
l Ind. 00 13-6-1-1 to
13-6-1-6
1
Mich. 00 691.1201-691.1206
Mass. Ch. 30A, Sec. 10A
Minn. 00 116B.01-116B.13
Wise. Stat. Ann. 0 227.06
Coastal Zone Protection
1
Cal. Pub. Res. Code
j 00 27000-27650
i
Haw. Tit. 13, 00 205A-1
to 205A-3
Mass. Ch. 130, 00 23, 24,
25, 26, 27
Mich. Comp. Laws Ann.
00 281.631-281.645
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GENERAL STATUTES Page 2
STATUTE
Minn. Stat. Ann.
00 105.485, 394.37,
462.362
Tex. Rev. Civ. Stat. Art.
5415e-l
Critical Areas
Minn. 00 116G. 01-116G. 14
Va. 00 10-187 to 10-196
Financial Incentives
N.J. 00 13:1H-1 to
13:lH-7
Va. 00 58-769.4-58-769.16
Floodplain Regulations
Kan. 00 12-734-12-735
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Mich. 00 41.181-41.183
Mich. 00 67.1, 67.49
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Haw. Tit. 9, 0 103-61
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STATUTE
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Mich. % 91.1
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STATUTE
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Wash. Co., Ore. Ord.
No. 59
Wash. Co. , Ore. Ord.
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GENERAL STATUTES Page 6
STATUTE
Minn. Stat. Ann. $g 394.21
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i Minn. Stat. Ann.
£? 462.351-462.364
N.J. Stat. Ann. $$ 40:55-
1.1 to 40:55-1.29
N.J. Stat. Ann. $$ 58:16A-
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N.D. Cent. Code $$ 11-33-
01 to 11-33-21
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Lane County Ore. Code
Ch. 9, £0 9.700-9.995
Va. Code Ann. $$ 15.1-486
to 15.1-503.2
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to 15.1-1452
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Res. No. 2007
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GENERAL STATUTES Page 7
STATUTE
W. Va. Code Ann. gg 8-24-1
to 8-24-38, 8-24-66 to
8-24-71
Wise. Stat. Ann. %% 59.97,
59.971, 87.30
Nuisances - Obstructions
Mich. Comp. Laws Ann.
#$ 66.2, 66.10, 67.20
Mich. Comp. Laws Ann.
%$ 89.2, 89.20, 90.12,
102.1, .11, .13, .14
Minn. Stat. Ann. %%
412.221, 412.231, 412.863
Minn. Stat. Ann. $>$
609.031, 609.032, 609.74,
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to 42-02-11
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GENERAL STATUTES Page 8
STATUTE
Tex. Rev. Civ. Stat. Art.
1015, 1146, 1175
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Va. Code Ann. %% 15.1-867,
15.1-901 to 15.1-907
W. Va. Code Ann. ## 8-21-
1 to 8-21-14
Prevention of Loads
Spilling on Highway
Mass. Gen. Laws Ann.
Ch. 85, % 36
> Mich. Comp. Laws Ann.
$$ 257.1-257.923
Minn. Stat. Ann. $$ 169.80
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j N.J. Stat. Ann. $$ 27:1-1
to 27:1-20, 27:7-44
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STATUTE
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27-12-146, 27-12-147
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Va. Code Ann. ## 46.1-16,
46.1-343
W. Va. Code Ann. $$ 17C-2
! -3, 17C-17-6, 17C-18-1
! Wise. Stat. Ann. g# 346.87-
346.95, 348.10, 348.11
Soil Erosion and
Sedimentation Control
Calif. Pub. Res. Code
! $$ 9000-9962
Haw. Rev. Stat. $$ 180-1
to 180-17
Haw. Rev. Stat. $$ 180C-1
to 180C-4
Rev. Ordinances of
Honolulu, Hawaii
%% 21-1104, 21-1301
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STATUTE
Ind. Ann. Stat. gg 13-3-1
-1 to 13-3-1-14
Kan. Stat. Ann. gg 2-1901
to 2-1918
Kan. Stat. Ann. gg 29-501
to 29-508
Kan. Stat. Ann. gg 2-2001
to 2-2011
Mont. Co., Md. Code 1972
gg 19-1 to 19-20
i Mass. Gen. Laws Ann.
| Ch. 21, gg 1-3D, 18-25
Mich. Comp. Laws Ann.
gg 282.101-282.117
Mich. Comp. Laws Ann.
gg 282.1-282.16
Minn. Stat. Ann.
gg 106.671-106.673
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GENERAL STATUTES Page 11
STATUTE
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$$ 40.005-40.15
N.J. Stat. Ann. £# 4:24-1
to 4:24-37
N.D. Cent. Code $$ 4-22-01
to 4-22-51
N.D. Cent. Code $$ 50-17-01
to 50-17-09
Tex. Rev. Civ. Stat. Art.
165A-4
Tex. Rev. Civ. Stat. Art.
165A-2, 165A-3
Tex. Rev. Civ. Stat. Art.
2372C
I Utah Code Ann. $$ 65-1-75,
i 65-1-82
Utah Code Ann. Jfjf 62-1-1
to 62-1-17
Va. Code Ann. $# 21-1 to
21-112.21
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GENERAL STATUTES Page 12
j
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STATUTE
City of Bellevue, Wash.
Resolution No. 2422
W. Va. Code Ann. £0 19-21A
-1 to 19-21A-14
W. Va. Code Ann. £0 19-21B
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Wise. Stat. Ann. ## 92.01
-92.20
Special Pollution Controls
Ind. ?$ 18-1-8-1, 18-1-21
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Mass. Ch. 21, % 17B
Mass. Ch. 40, % 8C
Mass. Ch. 132A, £2° 13-16
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GENERAL STATUTES Page 13
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STATUTE
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N.J. 00 13:17-1 to 13:17
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N.J. 00 13:18-1 to 13:18
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N.J. 0 26:3-31
N.D. 00 11-28-01 to
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N.D. 0 40-05-01
N.D. 00 61-16-01 to
61-16-49
Utah 0 10-8-15
Utah 00 63-11-17 to
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Va. 00 10-167 to 10-176
Va. 0 15.1-292
Va. 0 29-153
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GENERAL STATUTES Page 14
STATUTE
Va. #g 62.1-104 to 62.1-11
62.1-115
W. Va. %% 20-5B-1 to
20-5B-17
Removal of Ice and Snow
Salting of Roads
Mass. Gen. Laws Ann.
Ch. 85, $? 5, 7A
Mass. Gen. Laws Ann.
Ch. 161, $$ 85, 142
Minn. Stat. Ann, # 160.215
Wetlands Protection
Mass. Gen. Laws Ann.
Ch. 130, % 105
N.J. Stat. Ann. $$ 13:1B-1
-3, 13:10-1 to 13:10-19,
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
1. REPORT NO. 2.
EPA-440/9-75-011
4. TITLE AND SUBTITLE
Compilation of Federal, State and Local Laws
Controlling Nonpoint Pollutants
7. AUTHOR(S)
Gerald Siefert, Victor J. Yannacone, Jr. Esq.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Aspen Systems Corporation
20010 Century Boulevard
Germantown, Maryland 20767
12. SPONSORING AGENCY NAME AND ADDRESS
U.S. Environmental Protection Agency
Office of Water Planning and Standards
Washington, D.C. 20460
3. RECIPIENT'S ACCESSIOI*NO.
5. REPORT DATE
September 1975
6. PERFORMING ORGANIZATION CODE
8. PERFORMING ORGANIZATION REPORT NO.
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
68-01-2945
13. TYPE OF REPORT AND PERIOD COVERED
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
16. ABSTRACT
This Report is prepared in response to the requirements of P.L. 92-500,
Section 304(e)(l )(A,B,C).
The Report provides information on selected Federal , State end local regulations
for the control of pollutants associated with agricultural, silvicultural , mining
and construction activities. The Report was prepared by EPA for use by State
officials and concerned citizens as well as for use as a legislative reference tool
for planners, engineers, lawyers, resource managers and environmental organizations.
17. KEY WORDS AND DOCUMENT ANALYSIS
a. DESCRIPTORS b.lDENTIFI
Environmental statutes
13. DISTRIBUTION STATEMENT 19. SECURI
20. SECURI
ERS/OPEN ENDED TERMS
TY CLASS (This Report)
TY CLASS (This page)
c. COS AT I Field/Group
0504
21. NO. OF PAGES
520
22. PRICE
EPA Form 2220-1 (9-73)
* U. S. GOVERNMENT PRINTING OFFICE : 1975 633-286/85
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