v»EPA
United States
Environmental Protection
Agency
Robert S Kerr Environmental Research
Laboratory
Ada OK 74820
EPA-600 2-78-184
December 1 978
Research and Development
Achieving Irrigation
Return Flow
Quality Control
Through Improved
Legal Systems
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RESEARCH REPORTING SERIES
Research reports of the Office of Research and Development, U.S. Environmental
Protection Agency, have been grouped into nine series. These nine broad cate-
gories were established to facilitate further development and application of en-
vironmental technology. Elimination of traditional grouping was consciously
planned to foster technology transfer and a maximum interface in related fields.
The nine series are:
1 Environmental Health Effects Research
2. Environmental Protection Technology
3, Ecological Research
4. Environmental Monitoring
5. Socioeconomic Environmental Studies
6. Scientific and Technical Assessment Reports (STAR)
7 Interagency Energy-Environment Research and Development
8. "Special" Reports
9. Miscellaneous Reports
This report has been assigned to the ENVIRONMENTAL PROTECTION TECH-
NOLOGY series. This series describes research performed to develop and dem-
onstrate instrumentation, equipment, and methodology to repair or prevent en-
vironmental degradation from point and non-point sources of pollution. This work
provides the new or improved technology required for the control and treatment
of pollution sources to meet environmental quality standards.
This document is available to the public through the National Technical Informa-
tion Service. Springfield, Virginia 22161
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EPA-600/2-78-184
December 1978
ACHIEVING IRRIGATION RETURN FLOW QUALITY CONTROL
THROUGH IMPROVED LEGAL SYSTEMS
by
George E. Radosevlch
Gaylord V. Skogerboe
Resources Administration and Development, Inc.
Fort Collins, Colorado 80522
Grant No. R-80^303
Project Officer
James P. Law, Jr.
Irrigated Crop Production Section
Robert S. Kerr Environmental Research Laboratory
Ada, Oklahoma 7^820
ROBERT S. KERR ENVIRONMENTAL RESEARCH LABORATORY
OFFICE OF RESEARCH AND DEVELOPMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
ADA, OKLAHOMA 74820
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DISCLAIMER
This report has been reviewed by the Robert S. Kerr Environmental Re-
search Laboratory, U.S. Environmental Protection Agency, and approved for
publication. Approval does not signify that the contents necessarily reflect
the views and policies of the U.S. Environmental Protection Agency, nor does
mention of trade names or commercial products constitute endorsement or
recommendation for use.
i i
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FOREWORD
The Environmental Protection Agency was established to coordinate admin-
istration of the major Federal programs designed to protect the quality of our
envi ronment.
An important part of the Agency's effort involves the search for informa-
tion about environmental problems, management techniques and new technologies •
through which optimum use of the Nation's land and water resources can be
assured and the threat pollution poses to the welfare of the American people
can be minimized.
EPA's Office of Research and Development conducts this search through a
nationwide network of research facilities.
As one of these facilities, the Robert S. Kerr Environmental Research
Laboratory is responsible for the management of programs to: a) investigate
the nature, transport, fate, and management of pollutants in ground water;
b) develop and demonstrate methods for treating wastewaters with soil and
other natural systems; c) develop and demonstrate pollution control technol-
ogies for irrigation return flows; d) develop and demonstrate pollution con-
trol technologies for animal production wastes; e) develop and demonstrate
technologies to prevent, control, or abate pollution from the petroleum
refining and petrochemical industries; and f) develop and demonstrate tech-
nologies to manage pollution resulting from combinations of industrial waste-
waters or industrial/municipal wastewaters.
This report contributes to the knowledge essential if the EPA is to
meet the requirements of environmental laws that it establish and enforce
pollution control standards which are reasonable, cost effective and provide
adequate protection for the American public.
Wi11iam C. Galegar
Di rector
Robert S. Kerr Environmental
Research Laboratory
i i i
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PREFACE
This report is a companion study to a project and report entitled
Western Water Laws and Irrigation Return Flow. While this report is concerned
with an examination of the water quality control laws of the western states
and the extent to which the two legal systems (quantity and quality control)
interface, the companion study concentrates on a definition and explanation
of the state laws for water allocation and distribution in the seventeen
western states. A brief interpretive summary of present water laws of each
state is included. This report also explores the integration of legal con-
trols with physical/technical realities.
It is suggested that the interested reader refer to both reports for a
total picture of western water laws (quantity and quality control), water
administration, and potential legal/technical solution to the irrigation
return flow quality control issue in the West.
G. Radosevich
G. Skogerboe
IV
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ABSTRACT
Water pollution from Irrigated agriculture in the West has received
major attention during the past five years, primarily as a result of Federal
and state endeavors to identify irrigation return flow quality problems and
to develop a viable control strategy. The national goal of "cleaner water"
emerged as a result of the deterioration of water quality caused by degraded
discharges from various sources. Irrigation return flows contribute to the
problem through present water management and agricultural practices in the
use of water, land and agricultural chemicals. These return flows occur from
seepage losses, deep percolation and tailwater runoff that often contain such
pollutants as salinity, nitrates and phosphates (or nutrients), sediments,
biocides, and bacteria.
The key to irrigated agricultural return flow quality control is proper
utilization and management of the resource itself, and an accepted tool in our
society is the law. This project is designed to develop legal alternatives
that will facilitate the implementation of improved water management techno-
logies developed to reduce and control salinity, sediment, nutrients, and
other forms of water pollution emanating from agricultural uses of water and
other primary agricultural inputs for crop production.
In spite of several Federal efforts to introduce regulations to control
this pollutant discharge, strong resistance and little success summarizes the
status. The state agencies, particularly the water quality agencies, are very
much concerned with the implementabi1ity of any program to control irrigation
return flow quality. Most states are relying upon the 208 planning process to
handle the irrigation return flow problem, primarily because they consider it
to be a non-point source type of problem, or because early in their water
quality implementation process, irrigation return flow was not considered a
point source. Irrigation return flows were not considered point sources
definitively until after the Flannery decision in 1975. The state and local
agencies are awaiting the development by EPA of an implementable program.
Three recommendations are made for Federal and state activities to
achieve irrigation return flow quality control. Recommendation 1 is an action
program for adoption of EPA into subsequent regulations. Recommendation 2 is
a proposed course of action to implement the action program. Recommendation
3 identifies research needs. The action program proposed is called the "Influ-
ent Control Approach" and requests the states to: 1) designate areas for
irrigation return flow quality management and designate the responsible area
entity; 2) develop standards and criteria for beneficial use in designated
areas; 3) introduce incentives to use water more efficiently; k) include the
element of water quality in new or transferred and changed water rights;
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5) adopt and enforce a reporting and recording system for water rights;
6) recognize reasonable degradation from agricultural water use; 7) adopt an
Agricultural Practices Act; and 8) promote close cooperation or integration
of state water agencies and related functions.
This report was submitted in fulfillment of Grant No. R-80^303 by
Resources Administration and Development, Inc., under the sponsorship of the
U.S. Environmental Protection Agency. This report covers the period January
15, 1976 to September 30, 1977, and work was completed as of September 30,
1977-
vi
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CONTENTS
Preface iv
Abstract v
Figures 'x
Tables x
Acknowledgments xi
1 . Introduction , 1
Statement of the Problem 2
Purpose and Objectives of the Project , 3
Research Approach , 3
2. Conclusions 9
3. Recommendations T 16
Recommendation 1: Action , , 17
Recommendation 2: Implementation , 20
Recommendation 3: Research 20
A. The Technological - Legal Interface 21
Development of Irrigation Systems 22
Need for Water Control 23
Irrigation Return Flow Quality as a National Issue .... 27
Physical Characteristics of Irrigation Return Flow .... 29
Extent of Problem 33
Constraints to Implementing Technology 35
Evolution of a Problem 36
5. State Water Quality Law 38
Background 39
Water Quality Law k]
Special Legislation 53
Related Legislation 55
Regulations Affecting Irrigation Return Flow Quality ... 57
Summary , 60
6. Western Water Administration 62
Activities of Water Administration Affecting
Agriculture 62
Agency Duties 62
Status of State Water Administration 65
Trends and Potentials 69
v i
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1. Efforts to Control Irrigation Return Flow Quality ....... 77
Background of Federal Pollution Control ......... 78
Present Federal Approaches ................ 83
Results from Recent Governmental investigations ...... 105
Present State Activities ................. '^
8. An Alternative Approach to Irrigation Return Flow Quality
Control ......................... 123
Philosophy and Criteria for Effective Control. . ..... 124
An Influent Control Approach ............... 126
Epilogue ......................... 138
References
Appendices
A. State Reports ......................... 1^8
B. State Agencies and Personnel Consulted ............ 296
C. Water Newsletter and Associations ............... 299
VIII
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FIGURES
Number Page
1 Impact of Water Management and Agricultural Practices
Upon Irrigation Return Flow Quality ........... 11
2 Achieving Irrigation Return Flow Quality Control Through
Improved Legal Systems ................. 18
3 Schematic of Irrigation Systems Development ......... 2k
k The Water Delivery, Farm and Water Removal Subsystems .... 30
5 Types and Evolution of Water Administration Agencies by
Three Major Functions ................. 67
6 Water Agencies and Their Major Functions in Montana ...... 68
7 Water Agencies and Their Major Functions in Texas ...... 70
8 Organization of Water Functions in Colorado ......... 71
9 Utah Water Agencies and Their Functions ............ 71
10 Organization of Water Agencies in Nevada ........... 72
11 Organization of Water Agencies in Oregon ........... J2
12 Water Agencies and Their Major Functions in
California ....................... 73
13 Water Agencies and Their Major Functions in
Washington ....................... Ik
14 Theoretical Relationship of Section 402 with
Other Regulations .................... 89
15 Overview of NPDES Coverage .................. 92
16 Proposed Timetable ...................... 102
17 Proposed Permit Issuance Timetable .............. 103
ix
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18 Influent Control Approach to Irrigation Return
Flow Quality Management .................. '30
19 The Irrigation Return Flow Quality Problem
20 Achieving Irrigation Return Flow Quality Control
Through Improved Legal Systems
TABLES
Number Page
1 State Special Legislation Affecting Water Quality 5^
2 Status of NPDES Delegation in the 17 Western States 91
3 Coverage of Pollution Sources 93
4 Extent of Irrigation Return Flow Quality" Problems 115
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ACKNOWLEDGMENTS
In the preparation of the report, the authors have received the coopera-
tion and assistance of a great number of people. The guidance of Dr. James
P. Law, Jr., Project Officer, Robert S. Kerr Environmental Research Laboratory,
Ada, Oklahoma, is gratefully acknowledged. We particularly thank our research
assistants, Scott McColloch and Dennis Stickley, for the laborious hours
spent In law libraries identifying information contained in the state reports
found in Appendix A.
Of utmost importance to an effort of this nature is the cooperation and
feedback from the personnel in state agencies involved with the day-to-day
activity of carrying out the law and regulations. We are deeply indebted to
the many people we visited and communicated with by correspondence and tele-
phone in the water quality and quantity agencies of the seventeen western
states. The interest and enthusiasm they showed through their willingness to
provide materials, meet for numerous hours, and review the project reports
illustrates their concern with the irrigation return flow quality control
problem and the desire to serve the public in any effort to formulate an
implementable program to resolve the federal-state nature of this particular
problem and lead to improved water quality. Because it would be difficult
to identify all those in the state agencies who so generously provided com-
ments and information, the reader is requested to see the list set out in
Appendix B of this report.
x i
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SECTION 1: INTRODUCTION
CONTENTS
STATEMENT OF THE PROBLEM 2
PURPOSE AND OBJECTIVES OF THE PROJECT 3
RESEARCH APPROACH 3
Status of Problem and Control 3
Development of Solutions 4
Literature Search and Classification 5
Citations 7
Constitutional Provisions 7
Cases 8
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SECTION 1
INTRODUCTION
STATEMENT OF THE PROBLEM
In 1972, the Federal Government took a decisive step forward in attempt-
ing to achieve cleaner water in our Nation's streams and waterways with the
passage of the Federal Water Pollution Control Act Amendments of 1972, P.L.
92-500. This action placed the Federal Government in a preemptive position to
control discharge to waters of the United States including territorial seas.
The amendments culminated from a succession of charges since the first com-
prehensive water pollution control act was passed in 19^8. The new strategy
for control under the 1972 Act included use of effluent discharge limitation
standards instead of sole reliance upon water quality standards, a permit sys-
tem for point-source dischargers, target dates for implementation of technolo-
gical practices to bring discharges up to the limitations set, and a series
of land and regional planning and management efforts.
To carry out this law, the Environmental Protection Agency has promul-
gated regulations for the permit program to cover various categories of point
source discharges. One of the categories includes irrigation return flows.
Salt loading, sediment and nutrients in the streams and rivers have reduced
effective utilization of water in several western river basins at a time when
demands for suitable quantities of water for a wide range of uses have in-
creased enormously from regional growth and improved standards of living. In
the Colorado River Basin, water users in Mexico and the Lower Basin states are
beginning to feel the economic effects of salinity concentrations in the river
and to recognize the external diseconomies from degraded irrigation return
flows. Treaty and compact commitments are being examined and questions of
responsibility are being raised.
Water pollution from irrigated agriculture in the West has received major
attention during the past five years, primarily as a result of Federal and
state endeavors to identify irrigation return flow quality problems and to
develop a viable control strategy. But, in spite of several efforts to intro-
duce control regulations for this pollutant discharge, strong resistance and
little success summarizes the status.
To assist the Federal Government in its efforts to control water pollu-
tion, a national research and development program was created by EPA to find
practical and economical solutions to control salinity, sediment and nutrient
concentrations introduced into our river systems through irrigation return
flows. Research and demonstrations in selected areas of the western states
are now disclosing appropriate and feasible water management technologies,
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but Implementation still remains questionable if underlying institutional con-
straints remain unchanged.
The key to control of irrigated agricultural return flows is proper uti-
lization and management of the resource itself, and an accepted tool in our
society is the law.
PURPOSE AND OBJECTIVES OF THE PROJECT
This project is designed to develop legal alternatives that will facili-
tate the implementation of improved water management technologies developed to
reduce and control salinity, sediment, nutrients, and other forms of water
pollution emanating from agricultural uses of water and other primary agri-
cultural inputs for crop production.1 To accomplish this goal, four major
objectives were delineated and are addressed:
1. The water quality control laws relevant to irrigated agriculture for the
seventeen western states are described to include: a) statutes; b) reg-
ulations; and c) implementation organizations (see Section 5).
2. The degree of interface of the law between water quantity allocation and
management and water quality control is defined (see Section 6) to in-
clude a summary of present state efforts to control irrigation return
flow quality (see Section 7)•
3. The characteristics of the irrigation system (consisting of three sub-
systems—water delivery, on-farm use, and water removal) and appropriate
technological solutions for achieving irrigation return flow quality
control are to be related to the legal systems for water quantity and
quality control found in the seventeen western states (see Section 4).
k. Modifications and enactments affecting both parameters of the legal sys-
tem at the state and federal level are proposed in order to achieve
irrigation return flow quality control (see Sections 7 and 8).
RESEARCH APPROACH
Status of Problem and Control
The history of EPA efforts to formulate permit program regulations for
irrigation return flows is set out in Section 7 of this report. Events were
changing rapidly at the federal level during 1975 and 1976. Regulations were
promulgated in 1973 excluding certain return flows, then overturned in the
famous Flannery Decision (NRDC v. Train, 396 F. Supp. 1393, 7 ERC 1881, D.D.C.
1975). New regulations were proposed in 1976 and were still being reviewed
by the state water quality agencies during the course of this investigation.
1 A companion study by G. Radosevich entitled Western Water Laws and
Irrigation Return Flow Quality Control is available (see Preface).That
report contains a description of the water quantity laws of the 17 western
states.
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In the meantime, some states adopted legislation allowing them to carry on the
NPDES program, others assisted the EPA Regional Offices in implementing the
program, while still others did nothing.
To effectively and realistically prepare alternative approaches to qual-
ity control of irrigation return flows, it was necessary to determine by
interview how the program was being accepted in each state and what problems
were being encountered in implementing the regulations. This was done through
pre-arranged visits with state water quantity and quality agency personnel in
charge of permits, monitoring, water allocation, and in some cases water plan-
ning and development. States in Group One through Four were visited and^those
of Group Five were conferred with by conference telephone calls. Appendix B
contains the list of state agencies and personnel contacted and visited.
Again, the enthusiastic exchanges that took place reflect the genuine concern
of these states regarding the irrigation return flow quality control problem.
Most often the enthusiasm was not to earnestly engage in control, but rather
concern over why the program was formulated, what it really was, and how it
could be employed effectively. The meetings were informal and followed a
pre-structured interview guide. The topics discussed included:
1. Extent of the irrigation return flow problem in the state.
2. Approaches to irrigation return flow quality and quantity problems.
3. Extent of control and action taken.
k. Legal authority for action taken.
5. Water users affected.
6. Agency resources.
7. Interface with other state agencies.
8. Attitudes toward federal legislation.
9. Reaction to aIternatives--an influent control approach.
Development of Solutions
The fourth objective of the project required the preparation of modifica-
tions or enactments to either or both water quantity and quality control laws
in order to achieve irrigation return flow quality control. An approach to
improving the quality of receiving waters of irrigation return flow was being
formulated from the inception of the project as problem areas and constraints
in water laws and their operation were identified. Likewise, the project in-
vestigators weighted and incorporated many suggestions by state agency per-
sonnel and successful state practices. One of the underlying convictions to
developing a workable solution for this particular problem is to utilize and
build on existing concepts, practices and organizations as much as possible
in order to facilitate understanding, acceptance and ease of implementation.
The result is the Influent Control Approach described in Section 8.
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Literature Search and Classification
This project is an interdisciplinary attempt to examine the legal and
physical/technical aspects of irrigation return flow quality. As such, ortho-
dox approaches applied by either discipline alone must be modified to accommo-
date a broader perspective of the issue and analysis. It also requires an
almost constant assurance that terminology, meaning and understanding are
consistent.
The initial task was a systematic review of source material and the dev-
elopment of the parameters of the literature classification system. Because
the project heavily emphasizes the legal dimensions of the water quality prob-
lem, the sources of materials and tools to identify them were primarily of the
legal nature. To insure that all relevant materials were identified for this
project, the traditional criteria for classifying legal material was applied.
These materials fall into three categories: primary, secondary and books of
index. The primary authorities are those sources most persuasive to the
courts, i.e., statutory materials and judicial decisions. Secondary authori-
ties consist of legal encyclopedias, texts and periodicals. The books of
index are the tools for definitely researching and identifying judicial deci-
sions and law review articles such as the digests for reporter systems and
Index to Legal Periodicals. Non-legal reference sources included state and
federal agency and consultant reports, university studies, periodicals,
newspaper accounts, etc.
Upon completion of the initial literature review and classification of
materials identified as relevant, a more precise research plan was formulated
to gather additional information, analyze the data, and present it in a logi-
cal format. This plan consisted of three components: preparation of state
reports on water quality statutes and administrative procedures, determination
of state and federal implementation status of P.L. 92-500 regarding irrigation
return flows, and formulation of alternatives to irrigation return flow qual-
ity control and preparation of the final report.
State Reports
In order to determine a state's ability to carry out water quality con-
trol for irrigation return flows, it was necessary to prepare state-of-the-art
reports on the water quality laws and related matters for each of the seven-
teen western states. In compliance with Objective 1 of this study, all state
water quality statutes and relevant judicial decisions and agency regulations
were identified and obtained for subsequent analysis.
Appendix A contains the individual state reports on water quality for
each of the seventeen western states. Each report is coded by a number alpha-
betically assigned the states as follows:
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Code State Code State Code State
1 Arizona 7 Nebraska 13 S. Dakota
2 California 8 Nevada 14 Texas
3 Colorado 9 N. Mexico 15 Utah
4 Idaho 10 N. Dakota 16 Washington
5 Kansas 11 Oklahoma 17 Wyoming
6 Montana 12 Oregon
The reports follow a systematic format for uniformity and comparative
analysis between states. The first digit refers to the state code number
assigned above. The second digit refers to the major topic and the third
refers to the first subtopic. Reference in the main body of this report to
state material is cited by this digit system. The outline for each state
report is as follows:
1. Summary of Water Quality Laws
1.1 Background
1.2 Policy
1.3 Class i fication
1.4 Standards
1.5 Permi t System
1.6 Sanctions and Enforcement Measures
2. Administration of the Laws
3. Special Legislation
*t. Related Legislation
5. Summary of Regulations Affecting Agriculture
6. Summary of Case Law
7. Information Sources
Preparation of the draft state reports was handled in such a fashion that
it allowed early testing of the report outline and use of data gathered. The
states were placed into five groups:
Group One: Colorado, Nebraska, Utah, Wyoming.
Group Two: New Mexico, Oklahoma, Texas.
Group Three: Idaho, Oregon, Washington.
Group Four: Arizona, California, Nevada.
Group Five: Kansas, Montana, North Dakota, South Dakota.
This grouping allowed the principal investigators to visit initially the clos-
est state water quantity and quality agencies (Group One) in order to test the
draft outline for conducting the state water agency interviews, determine
whether or not there were additional source materials pertinent to this study,
and evaluate the extent of activities in irrigation return flow quality control
Part of the data gathered for the state reports was in response to cor-
respondence requesting: 1) agency rules and regulations for carrying out
the state's water quality laws or related to control over exercise of water
rights; 2) organization charts; and 3) relevant reports such as state water
plans, section 303(e) reports, etc. Information on state incentive programs
for water use efficiency and sediment control was also requested.
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The materials and responses received were indicative of the state concern
in this topic. Without exception, the state agencies provided information
valuable to the study. The materials received are cited in the Information
Sources section of the state reports (Appendix A).
Ci tations
As an alternative to the usual legal practice of placing citations at the
end of the report or page in footnote or end note fashion, they are contained
in the text. This method is adopted to enable the reader, regardless of dis-
cipline, to use the references to his best advantage. For citation of cases
and statutory materials, the following procedure is applied:
i.e., The East Bay Utility Department was formed and
functions under the Municipal Utility District Act (Pub.
Util. Code, div. 6, §11501, et. seq.). in Ivanhoe I I,
the court noted that Water Code Section 23195 authorized
irrigation districts to enter into contracts with the
United States (Ivanhoe Irr. Dist. v. All Parties, 53
Cal. 2d 692 at p. 706, I960). it also noted several
sections of the Water Code are contrary to federal law
(Id. at p. 706).
The format used throughout this report for citing constitutional and
statutory provisions, cases and other references is described below.
Constitutional Provisions—
I.e., Arizona: Ariz. Const. Art. XVII, Sec. 1.
State Statutes--
#State Statute Title Abbr. Example
1.
2.
3-
4.
5.
6.
7.
8.
9.
10.
11.
12.
13-
14.
15.
16.
17.
Ar izona
Cal i fornia
Colorado
Idaho
Kansas
Montana
Nebraska
Nevada
New Mexico
N. Dakota
Oklahoma
Oregon
S. Dakota
Texas
Utah
Washington
Wyomi ng
Arizona Revised Statutes
California Water Code
Colorado Revised Statutes
Idaho Code Annotated
Kansas Statutes Annotated
Revised Code of Montana
Reissue Revised Statutes
of Nebraska
Nevada Revised Statutes
N. Mexico Statutes Annotated
N. Dakota Century Code
Annotated
Oklahoma Statute Annotated
Oregon Revised Statutes
S. Dakota Compiled Laws
Annotated
Vernon's Texas Code
Annotated Water
Utah Code Annotated
Revised Code of Washington
Wyoming Statutes Annotated
7
A.
C.
C.
1.
K.
R.
R.
N.
N.
N.
0.
0.
S.
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.S.
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.S.
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.M.
.S.N.
.S.
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.5.
.C.
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.M.
.S.
.S.
.S.
.C.
.A.
.S.
.L.
.A.
.A.
.W.
.A.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
N. Sec
Sec.
Sec.
Sec.
45-107
1240
38-6-201
42-204
82a-713
89-2917
. 46-201
533-355
75-1-35
61-04-14
82 Sec. 1205
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
537.250
46-5-65
5.001
73-3-18
90.48.162
41-206
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Where other state statute compilations are used, a full citation is
provided. States also have yearly session laws. These laws are cited, i.e.,
Colo. S. L. and date. Where the law has been codified into the statutes and
the date of enactment is significant, this reference will be made as follows:
i.e.: C.R.S. Sec. 38-6-201, L. 1974, meaning enactment of 1974.
Cases--
The standard system for case citations is followed by both federal and
state decisions. State decisions have both a reference to a state reporter
and the West National Reporter for the region. The state citations provide
the volume, state and page, i.e.: 437 Ariz. 526, respectively, and the
National Reporter system provides the volume, reporter and page, i.e.: 321
P.2d. 726, respectively, meaning volume 321, Pacific Reporter 2nd Series,
page 726. The national reporters for the seventeen western states are:
Reporter States Example Citation
Pacific Reporter Arizona, California, Colorado, 726 P.2d 324
Idaho, Kansas, Montana, Nevada,
New Mexico, Oklahoma, Oregon,
Utah, Washington, Wyoming
North Western North Dakota, South Dakota, 426 N.W. 78
Nebraska
South Western Texas 126 S.W. 2d 900
The date of the decision follows the citation. Thus, a complete citation
would appear as follows: Jones v. Smith (78 Ariz. 563, 126 P. 728, 1935).
Other References —
The procedure used for reference to published works is as follows:
i.e., (Jones, 1947).
i.e., " " (Jones, p. 52, 1947).
i.e., (A Legislative History..., p. 693, 1975)
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SECTION 2: CONCLUSIONS
CONTENTS
General (1, 2, and 3) 10
State Agencies' Activities (4) 10
State Legal Authority to Control Return Flow (5) 12
State Control Programs' Resources (6) 13
State Organizational Arrangement (7) 13
State Agency Opinion vs Federal Law (8) 13
Irrigation Return Flow Control Objectives (9) T*
Irrigation Return Flow Control Criteria (10) 14
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SECTION 2
CONCLUSIONS
1. The national goal of "cleaner water" emerged as a result of the deteri-
oration of water quality caused by degraded discharges from various
sources. Irrigation return flows contribute to the problem through pre-
sent water management and agricultural practices in the use of water,
land and agricultural chemicals. These return flows occur from seepage
losses, deep percolation and tailwater runoff that often contain such
pollutants as salinity, nutrients, sediments, biocides, and bacteria
(see Figure 1).
2. There have been rapid changes and an accelerating awareness and interest
in irrigation return flow during the past five years.
3. With respect to the extent of the irrigation return flow problem, there
are areas throughout the western part of the United States that have
been identified, primarily because they were obvious or there have been
some problems associated with downstream beneficial uses of water. How-
ever, there are undoubtedly many areas that have not been identified,
primarily because irrigation return flow quality control has not been a
high priority of the state water quality agency activities. Also, it is
less likely that water quality problems from subsurface return flows
will be as readily identified compared to surface return flows which
are more visible.
k. The state agencies, particularly the water quality agencies, are very
much concerned with the implementation of any program to control irri-
gation return flow quality. Regarding current activities for resolving
irrigation return flow problems:
a. Several permits have been issued by various agencies under the pre-
vious NPDES regulations issued by EPA in 1972. In most cases,
these permits only included monitoring and not control. California,
however, has modified that permit program to a joint permit approach
in which all entities within a given area are allowed to cosign on
the permit for monitoring of irrigation return flows, which are not
classified as either point or non-point pollution sources.
b. Most states are relying upon the 208 planning process to handle the
irrigation return flow problem, primarily because they consider It
to be a non-point source type of problem, or because early in their
water quality implementation process, irrigation return flow was not
10
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IRRIGATED AGRICULTURE
WATER MANAGEMENT PRACTICES
Water Use
AGRICULTURAL PRACTICES
Land Use
(
CONVEYANCE
(Diversion and
iDelivery System
APPLICATION
Irrigation
Methods and
Practices
\
\
CROPLAND
Agronomic
Practices
/\
Use of Agr. Chemicals
SOURCES OF
RETURN FLOW
Seepage Losses
(Subsurface
Return Flows)
Deep Percolation
(Subsurface Return
Flows )
DEGRADING
j CONSTITUENTS: |
Salinity
i
Salinity
Nitrates
1
I
Tailwater Runoff
(Surface Return
Flows )
1
Sediment
Phosphates
Crop Residue
Bacteria
Biocides
I
Degraded Irrigation Return Flows
THE IMPACT
Deterioration of Ground Water and Surface Water Quality
( Radosevich 8 Skogerboe 1977
Figure 1. Impact of Water Management and Agricultural Practices
Upon Irrigation Return Flow Quality
11
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considered point sources definitively until after the Flannery
decision in late ^^7k.
c. Most state agencies are awaiting the development by EPA of an
implementable program.
d. In a few instances, the waste statutes and beneficial use provi-
sions have been used to curtail excessive tailwater.
e. In the Yakima Valley, the Department of Ecology, in cooperation with
the Soil Conservation Service and the water users, has set up a pilot
project to demonstrate to local farmers sediment control measures,
and from this pilot project they will hopefully develop a program
that can be implemented throughout the Valley.
f. In the Wei I ton-Mohawk Irrigation and Drainage District, the Soil
Conservation Service has implemented a program of improved on-farm
water management practices, which relies upon economic incentives to
achieve the goals of salinity control. These practices are accomp-
lished on farmers' fields under a cost-sharing arrangement in which
the Federal Government pays 75 percent of the costs.
5- Legal authority commonly used to control irrigation return flow
varies as follows:
a. There have been ten states that have adopted an NPDES program which
would also include control of irrigation return flows as a point
source.
b. Most states rely upon the water quality law and the water quality
standards to control significant problem areas.
c. A few states have adopted specific regulations for irrigation return
f1ows.
d. The power and authority under the water quantity laws—for example,
the waste and beneficial use provisions—are not used to their full-
est extent, primarily because of the lack of coordination between
the water quantity and quality agencies and also because the water
quantity agencies do not enforce the law for concern over the
adverse.reaction from their constituency.
e. There is a conditional exclusion of irrigation return flow in:
1) New Mexico's statutory recognition of reasonable degradation;
and 2) Montana's definition of naturally occurring pollution.
f. There is authority in Nevada under its duty of water provision which
allows the state agency the flexibility to actually determine what
quantity of water is necessary to irrigate various crops under the
particular climatic and soil conditions in that area.
12
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6. State agency resources to carry out an irrigation return flow program
range accordingly:
a. California is about the only state that has developed an appropriate
staff to implement a program.
b. Some states have one or two agricultural engineers on their water
quality agency staff.
c. Most states are inadequately staffed and look to the SCS to provide
assistance; however, there is a universal feeling that the SCS is
presently not capable of providing the necessary assistance.
d. Many of the states are inadequately staffed because irrigation
return flow quality control is a low priority with the state.
7- In controlling irrigation return flows, there is a wide variation in
organizational arrangements and cooperation among state agencies. The
variation ranges from total integration to cooperation for information
only:
a. Washington is the only western state having total integration in
which all three functions—water quantity, quality and development
--are under the jurisdiction of one state agency, the Department
of Ecology. The second variation occurs in California, in which
water quantity and quality functions are under the State Water
Resources Control Board, and the Department of Water Resources has
the planning and development functions.
b. The joint committee type is exemplified by the Pollution Control
Coordination Board in Oklahoma, and the Water Policy Review Board
of Oregon.
c. Regularly scheduled liaison type meetings between various state
agencies to coordinate their activities, such as the monthly
"interdepartmental conference" of Wyoming.
d. A limited, non-structured communication that occurs only when par-
ticular problems arise.
e. Perhaps the most general are those states in which cooperation
exists only to the extent of exchanging information.
8. Attitudes toward federal legislation:
a. There was a universal negative reaction to EPA's earlier permit
program. Not only have state agencies felt the past program was
not implementable, but there was strong opposition expressed by
farmer-water interest groups to any permit-type program.
b. Many states expressed a strong opinion that they had been left
dangling by EPA when this program was curtailed, that consequently
13
-------
led to the development of a credibility problem between the state
agency and the water users.
c. There is almost a universal opinion among the state agencies that
the EPA general permit program (40 C.F.R. 124, 41 F.R. 28493, July
12, 1976) will have little to offer in the way of water quality
benefits.
d. Most states, partly because of a lack of staff to really address the
problems of irrigation return flow, are awaiting the development of
a program by EPA that would be truly implementable with water users.
9. Based upon an examination of past efforts to carry out programs affect-
ing irrigation return flows and the objectives of the federal water
pollution legislation:
a. The ultimate goal to be achieved by federal and state agencies
should be improved water quality by way of improved water management.
b. Any program to attain this goal should promote social and economic
well-being through cooperative action.
c. Direct efforts to attack the problem of irrigation return flow
quality in a state should only take place after the problem has been
identified by location and extent.
d. Voluntary compliance is more desirable than forced or involuntary
compliance in implementing a management or control program.
10. An implementable and sustaining approach to irrigation return flow
quality control must meet the following criteria:
a. result in improved water management practices and improved agricul-
tural practices;
b. prevent social disruption and polarization between water users
(e.g., individuals, companies and districts) and state and federal
agencies;
c. be palatable to water users;
d. be feasible, flexible and allow for state agency discretion in
working with local water users;
e. improve the credibility of state and federal agencies;
f. utilize existing institutions (e.g., laws and organizations) and
accepted concepts (e.g., designation of problem areas such as criti-
cal ground water basins, beneficial use and duty of water) as much
as possible.
-------
adjust the roles of local water entities, such as irrigation dis-
tricts, soil conservation districts, drainage districts, etc., to
become a more integral part of irrigation-related water pollution
control.
15
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SECTION 3: RECOMMENDATIONS
CONTENTS
RECOMMENDATIONS 17
RECOMMENDATION 1: ACTION 17
RECOMMENDATION 2: IMPLEMENTATION 20
RECOMMENDATION 3: RESEARCH 20
16
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SECTION 3
RECOMMENDATIONS
Three recommendations are made for federal and state activities to
achieve Irrigation return flow quality control. Recommendation 1 is an action
program for adopt ion by EPA into subsequent regulations. Recommendation 2 is a
proposed course of action to implement the action program. Recommendation 3
identifies research needs.
RECOMMENDATION 1: ACTION
It is recommended that EPA adopt an Influent Control Approach for irri-
gation return flow quality control. The Influent Control Approach is designed
to improve water quality by reducing excessive seepage, tailwater runoff and
deep percolation, reducing sediment in return flows through erosion control
and reducing chemical concentrations in return flows through licensing and/or
control over application of pesticides and fertilizers. Since irrigation
return flow quality problems differ from one irrigation system to another,
the approach provides the latitude to introduce change and control according
to the nature of the local problem, without requiring unnecessary compliance
by those irrigators outside problem areas.
The Influent Control Approach (ICA) is based upon the assumption that
improved water management (IWM) plus improved agricultural practices (IAP)
will significantly contribute to improved water quality (IWQ):
IWM + IAP - IWQ
and the conclusion that best management practices (BMP) and best agricultural
practices (BAP) will yield irrigation return flow quality control (IRFQC),
which in turn contributes significantly to the national goal of cleaner water
through improved water quality:
BMP + BAP = IRFQC >• IWQ.
The Influent Control Approach consists of eight specific components.
The first six components pertain to improving local water management, with
components 1 and 2 having application in the problem area only and components
3 to 6 having statewide jurisdiction. Component 7 pertains to land use and
chemical applications affecting water quality and has statewide jurisdiction.
Component 8 focuses upon the functional ability of agencies to carry out the
program (see Figure 2). The Influent Control Approach requests the states to:
17
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A SOLUTION:
An Influent Control Approach (ICA)
ASSUMPTION:
Improved Agricultural Practices + Improved Water Managements Improved Water Quality
( IAP + IWM = IWQ )
CONCLUSION:
Best Management Practices + Best Agricultural Practices = Irrigation Return Flow Quality Control
( BMP+ BAP = IRFQC -IWQ )
DEFINITIONS:
BMP = Improved Local Water Management ( ILWM)
BAP = Proper Land Use (PLU)and Proper Application of Agricultural
Chemicals ( PAAC)
PROGRAM
INFLUENT CONTROL APPROACH (ICA)
ACTION
BEST MANAGEMENT
PRACTICES (BMP)
Improved Local Water
Management (ILWM)
Proper Land
Use (PLU)
BEST AGRICULTURAL
PRACTICES ( BAP)
.
Proper Application of
Agricultural Chemicals (PAAC)
COMPONENTS
PROBLEM AREA |
I. Designate area
and area entity.
2. Develop standards
and criteria for
beneficial use.
| STATEWIDE |
3. Introduce incentives
for ILWM.
4. Add water quality to
water rights.
5. Add reporting and
recording for water
rights.
6. Recognize reasonable
degradation from irri-
gation return flows.
STATEWIDE
7. Adopt Agricultural Practices
Act.
Sediment
and erosion
Licensing and control
over application of
agricultural chemicals:
fertilizers and biocides
J
8. Promote close cooperation or integration of state water
agencies and other related functions.
( Radosevich 8 Skogerboe , 1977 )
Figure 2. Achieving Irrigation Return Flow Quality
Control Through Improved Legal Systems
18
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1. Designate areas for irrigation return flow quality management, designate
the responsible area entity, and where necessary, provide sufficient
legislative authority so that the local entity can assume responsibility.
2. Develop standards and criteria for beneficial use in designated areas.
3. Introduce incentives to use water more efficiently.
k. Include the element of water quality in new or transferred and changed
water rights.
5. Adopt and enforce a reporting and recording system for water rights.
6. Recognize reasonable degradation from agricultural water use.
7. Adopt an Agricultural Practices Act.
8. Promote close cooperation or integration of state water agencies and
related functions.
The Influent Control Approach is premised upon ten specific assumptions:
1. Achieving the goals of P.L. 92-500, the Federal Water Pollution Control
Act of 1972, arid policies of federal and state laws to improve the use
of our national resources is highly desirable.
2. The concept of property rights in water and other constitutional guaran-
tees will be maintained.
3. The legal procedures of the judiciary and agencies will be utilized.
k. Improved agricultural practices and improved water management will
result in improved water quality.
5. Irrigation return flow problems and appropriate solutions to these
problems are site specific.
6. Water users (farmers) will respond when it has been demonstrated that
there is a problem to which they are contributing.
7. Technical and legal solutions to identified problems must be appropriate
and viable (technically sound, economically feasible, legally implement-
able, and socially acceptable).
8. Many irrigators will respond on a voluntary compliance basis.
9. Those users who do not respond will feel a local social pressure as a
result of being "out-of-tune" with the newly evolved customs of the
community.
10. Regardless of approach, there will be some users who will not respond
or will resist change, thereby requiring some authority for state agency
enforcement.
19
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RECOMMENDATION 2: IMPLEMENTATION
1. The Federal Water Pollution Control Act (P.I. 92-500) should be amended to
exclude mandatory inclusion of irrigation return flows under the Section
402 NPDES program. The states can use their authority under Section kQ2
when an irrigation-related pollution source has been identified as being
detrimental, and the user has failed to respond.
2. Disseminate the Influent Control Approach and evaluate its acceptance:
a. through seminars conducted by EPA regional offices, and followed by;
b. seminars and workshops in each state involving water users and state
and federal water and related agencies.
3. Incorporate the feedback from the evaluation into preparation of final
regulations.
RECOMMENDATION 3= RESEARCH
Determine the state-of-the-art on laws, regulations and programs on all
administrative levels for control of agricultural practices related to sedi-
ment and erosion control and application of agricultural chemicals (fertilizers
and pesticides) and the extent that such laws and programs are being carried
out. Based upon these findings and analyses, formulate a model Agricultural
Practices Act with alternative provisions according to regionalization of
certain problems or practices.
20
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SECTION A: THE TECHNOLOGICAL - LEGAL INTERFACE
CONTENTS
THE TECHNOLOGICAL - LEGAL INTERFACE 22
DEVELOPMENT OF IRRIGATION SYSTEMS 22
NEED FOR WATER CONTROL 23
IRRIGATION RETURN FLOW QUALITY AS A NATIONAL ISSUE 27
Recognition of Problem 27
Federal Legislation 27
Irrigation Return Flow Research 28
PHYSICAL CHARACTERISTICS OF IRRIGATION RETURN FLOW 23
Physical Definition of an Irrigation System 29
Pollution Characteristics 29
Point and Non-Point Sources of Pollution 32
Technological Solutions 32
EXTENT OF PROBLEM 33
CONSTRAINTS TO IMPLEMENTING TECHNOLOGY 35
EVOLUTION OF A PROBLEM 3&
21
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SECTION k
THE TECHNOLOGICAL - LEGAL INTERFACE
DEVELOPMENT OF IRRIGATION SYSTEMS
The development of irrigation systems began thousands of years ago. Early
civilizations were created and thrived near natural irrigable alluvial soils.
Their success at developing an irrigation system that would produce agricul-
tural products for their populations is well known. As early as 2627 B.C.,
the Chinese irrigated lands through a system of canals, the largest—the
Imperial Canal — being 700 miles long and large enough also to be used for
navigation. Large irrigation systems were developed by the Aryans in the
naturally fertile arid valleys of the Tigris and Euphrates. Engineering skill
was highly developed for the times as noted by the large irrigation reservoir,
42 miles across and 35 feet deep, which captured flood waters for use in the
irrigation system, and by the high cement and brick embankments on both sides
of the Euphrates, designed to protect ancient Babylon.
The history of Babylon also exemplified remarkable development in the
legal area, particularly in water law. Local customs and practices in the
art cf irrigation were given specific provision in a written code, the Code of
Hammurabi, promulgated about 2050 B.C. This code provided guidelines for water
use and penalties for individuals violating rules within the water system.
Other civilizations have contributed greatly to the use of water and
development of irrigation systems. The Egyptians, Carthaginians, Greeks, and
Romans have added elements which, combined, provide a wealth of ingenuity and
skill. Canals, aqueducts, reservoirs, and tunnels for domestic, irrigation,
and sanitary uses were constructed, some of which are still in operation.
On the American continents, the earliest developments appeared in Peru,
a semi-arid country where canals and aqueducts conveyed and spread water over
lowland deserts; as well as lands along the Gila River in Arizona, which were
irrigated centuries ago by Indians. Irrigation was practiced in Mexico in the
early Christian Era, and spread northward to the areas now comprising Cali-
fornia, New Mexico and Arizona, by the Spaniards and missionaries. Later,
groups of Mormons entered the Salt Lake Valley in Utah and began diverting
water through ditches to irrigate crops. Shortly thereafter, pioneers in
Colorado and California developed irrigation systems that are still in exist-
ence (Baker, 1973).
The evolutionary process of an irrigation system is directly related to
the social interaction, system of tenure and state of technology of the
22
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civilization with respect to the availability of water supplies. Thus, an
irrigation system is both the institutional and physical facility by which the
acquisition, distribution, use, and reclamation of waters contribute to the
increased agricultural production in a particular area. Irrigation occurs
under three main conditions: 1) when the water supply is inadequate; 2) when
the water supply is unreliable; and 3) when the water supply may be used as a
supplemental means of control and regulation.
^Early irrigation systems in the arid western states grew from need, custom
and ingenuity of the settlers. Once built, the physical characteristics of
the early systems were modified only to expand water supplies for system en-
largement or provide low cost improvements. A concept of property rights to
water was developed that further solidified the permanency of the system; and,
concurrently, individual pride in, attachment for, and fear of loss of his
segment of the system emerged.
Irrigated agriculture has an important role in the development of the
West. Without the application of water, these arid lands were usually worth-
less. Hence, development depended upon the availability of a water supply.
Where an adequate supply and climatic conditions conducive to irrigated crop
growth existed, settlement grew. The Federal Government,having adopted a pol-
icy of encouraging western growth in the late 19th century, contributed
greatly to the rapid increase of the agricultural sector.
During the pioneer development period, settlements were formed on the
streams where water supplies were available. Even the smallest creeks have
a small community at their mouths and much of the water for irrigation in the
West comes from small mountain streams.
The early pioneers in the West engaged in the construction of diversion
structures and canals in order to irrigate reclaimed lands. Initially, the
lands placed under irrigation were located adjacent to the river, thereby min-
imizing the effort required to deliver water to the fields. Later settlers
would then undertake the construction of diversion works and a water delivery
system to serve newly cultivated lands immediately above the original canal
(Figure 3). Usually, this accomplishment resulted from a cooperative effort
among the farmers to be served by the new canal. This process was continued
until either land or water resources became limiting. As a result, an irri-
gated valley would consist of a series of fairly parallel canals traversing
the valley. Many of these early canals are still in existence today.
NEED FOR WATER CONTROL
Coinciding with the physical development of water resources was the legal
development of the right to use water. Initially, water was regarded as a com-
munity property available for use by all. But as development in the semi-arid
West took place, investments made upon a dependable water supply, as well as
recognizing the value of water, resulted in the early miners and settlers
respecting a property interest to the water user. At this point, the benefits
of a predictable water supply exceeded the costs of internalizing externali-
ties prevalent in the community property status of this resource. The pioneer
23
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River
Canal
Refers to order of
development, first,
second, etc.
Figure 3- Schematic of Irrigation Systems Development
-------
was willing to recognize an interest in others in order to gain the same treat-
ment for his use of the water. Through custom, miners had previously developed
a moral code prohibiting claim jumping, and this same respect was accorded the
use of water. ^As a consequence, a firm "property right" developed, subject to
certam^restramts (i.e., beneficial use and nonwaste), but accorded the same
protection under the law as real property. Legally described as a usufructuary
right, the possessor could use the water once it was captured and it then be-
came his personal property, but this right did not attach to any specific
waters because of the resource's fugitive nature.
Since the inception of the property right concept in-water, there have
emerged several basic doctrines, multitude of institutional arrangements and
volumes of cases and agency rules to protect and insure its existence. The
humid East adopted the English "riparian water law," giving owners of land
adjacent to a water body a proportionate right to use the water. This "water
right" was undependable and indefinite, and existed by virtue of land location.
In the 17 western states, the doctrine of prior appropriation was adopted.
The gold rush days of 1849 in California provided its foundation. In 1855,
the customary law was accepted by the courts in Irwin v. Phi 11ips (5 Cal. 140).
The court recognized a right of use for the person who was first to appropri-
ate and divert water from the stream for mining purposes regardless of land
proximity to the water source. A case in Montana in the mid-18001s decided
that shooting a man for taking another's water was not a legitimate way to
settle a dispute. Shortly thereafter, Colorado was the first to include the
doctrine in its constitution in 1876. Since that date, it has been adopted
by constitution or statute in the other 17 western states.
The details of the various water law systems in the West are covered in
Section 5, Vol. I. However, a short summary here placed the role and develop-
ment of these laws in perspective with physical developments. Basically, this
doctrine is stated as "first in time is first in right." The early pioneers
who first developed the water obtained the first rights to use the stream,
while later settlers acquired junior rights. Many of the original water
rights are for direct flow only, while some of the later rights combined
storage rights with flood flow diversion.
There are certain basic principles which exist in all the appropriation
states, even though statutes and cases have modified the doctrine. The first
is that beneficial use must be made of the water. Many different uses have
been recognized, some given statutory preference such as domestic and munici-
pal uses, and recent trends witness acceptance of such uses as aesthetics and
recreation. In the past, emphasis has been placed on "type" rather than
"method" to determine beneficial use, with most states also applying a non-
waste concept.
The second principle is that priority of use shall determine water allo-
cation among users when a water deficit occurs, thus closing diversions in an
inverse order of priority regardless of type of use. Those uses given legal
preference have the right to condemn and compensate non-preferred users for
a water supply.
25
-------
The third principle is that a water right is for a definite quantity and
does not depend upon land location adjacent to a body of water, nor is the
right holder required to share the amount flowing in the stream upon a pro-
ration basis. The last major principle is that so long as beneficial use of
the water is made, a property right in perpetuity exists. Over the past dec-
ade, several states have adopted a term-permit or periodic evaluation of the
water right. Also, definition and application of beneficial use varies from
state to state and among uses.
The tier states along the West Coast and from North Dakota to Texas
applied both the riparian and appropriation doctrines to surface flows.
Ground water laws, which were enacted much later—actually as late as
the mid-19601s in some states--applied many of the same principles
as did the state surface water laws. But here again, each state adopted and
modified the law to fit its particular needs or legislative fancy so that,
with four instead of two distinct systems as found in surface water law, there
is an even greater lack of uniformity between states.
The prior appropriation doctrine provided the needed security of a water
supply for mining, agricultural, municipal, and industrial interests. This
doctrine also provided an administrative system with judicial review to allo-
cate and distribute waters and resolve disputes between competing users. It
also provided flexibility by allowing transfer to take place. As a conse-
quence, the users molded institutional sophistication to meet their needs.
With the enactment of constitutional provisions and statutes for water
control, states also had to insure the laws were administered, and that water
development occurred in an orderly fashion with the necessary control assented
and not assumed. In almost all the western states, a state water agency was
created for centralized administration (Montana is a most notable exception;
not until the early 19/0's was an office created equivalent to the State
Engineer in other states). State administration was carried out by an agency
called the Office of State Engineer, State Water Commissioner, State Reclama-
tion Engineer, or Chief Engineer. This office is commonly referred to in the
West as the State Engineer. With time, and particularly during the past two
decades, the emphasis and reorganization has been more toward a Department or
Division of Water Resources, with broader powers in water planning and manage-
ment.
In most of the states, administration is regionalized by creating water
divisions along hydrologic basin or political boundaries, with further sub-
division into districts where irrigation systems developed. To assist the
State Engineer or Director of the water resources agency and his division,
engineers or superintendents, local water masters, or commissioners are often
employed and, in many cases, paid for out of the assessments levied upon water
users in the area.
26
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IRRIGATION RETURN FLOW QUALITY AS A NATIONAL ISSUE
Recognition of Problem
Irrigation return flow constitutes a large portion of the flow In many
streams and rivers of the western United States. The water quality problems
associated with irrigation return flow are of special concern because irri-
gated agriculture is the largest consumer of western water resources. Water
quality degradation from irrigated agriculture will become increasingly sig-
nificant in the future as greater and greater demands are placed upon exist-
ing water resources as a result of increasing irrigated acreage, urbanization
and industrialization (including energy development) in the West.
One of the earliest studies regarding irrigation return flow quality
was reported by Wilcox (1962), who investigated increasing salinity levels in
the Rio Grande resulting from irrigation. Salt balance studies were conducted
between Santa Fe, New Mexico and Fort Quitman, Texas (below El Paso) for a
20-year period beginning in the late 1930's. The total salt load was reported
as doubled, with El Paso Valley receiving much of the detriments from this
increased salt load.
An extensive irrigation return flow study was undertaken in the Yakima
Valley in central Washington during the early 1960's by Sylvester and Seabloom
(1963). The major water quality problems occurring in the Yakima River result-
ing from irrigation return flows are: a) nitrates and salinity in subsurface
return flows; and b) sediments, nematodes, phosphorus, high bacterial (coli-
form) content, and increased temperature of surface return flows.
The major water quality problem resulting from irrigation return flows
in the western United States is salinity, with the Colorado River Basin being
one of the more serious problem areas. Extensive studies over a ten-year
period (1961-1971) by the U.S. Environmental Protection Agency (and its pred-
ecessor agencies) determined the salt loads from irrigated agriculture,
mineralized springs, municipalities and industries, and other natural sources.
This comprehensive investigation (U.S. EPA, 1971) brought national attention
to the salinity problems along the Colorado River, which has led to the
development of an action Water Quality Improvement Program with the U.S.
Bureau of Reclamation being the lead agency.
Federal Legislation
A comprehensive approach to pollution control was first adopted at the
federal level in 1948 with the Water Pollution Control Act (P.L. 80-845). The
lav; was amended in 1956 by the Federal Water Pollution Control Act (P.L. 84-
660) which has been the basic water pollution legislation to date. This act
has been amended seven times since (see Section 7, infra), including the
dramatic changes that took place in the 1972 amendments to the act (P.L. 92-
500). From 1948 to 1965, it was the federal policy that it was the states'
right to lead in the national effort to prevent, control and abate water pol-
lution with the federal role limited to providing technical and financial
assistance (Senate Report, 92-414, 1971, p. 1)-
27
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In the last decade, a major shift in federal-state relations has taken
place, which has demanded a change in the attitude that highly degraded return
flows could not be corrected. First, Congressional dissatisfaction with the
mandates of pre-1965 water pollution contol legislation, and the efforts of
states to take the initiative to control pollution, led to a declaration in
1965 that the purpose of this act (Water Pollution Control Act as amended)^is
now "to enhance the quality and value of our water resources and to establish
a national policy for the prevention, control and treatment of water pollu-
tion" (P.L. 89-234, Sec. l(a)(l)). The Water Quality Act of 1965 further
required that all states establish water quality standards for their inter-
state and coastal waters or else federal standards would apply. Crucial
decisions were required regarding the uses of water resources, quality cri-
teria to support these uses, and specific plans for achieving such levels of
quality. The water quality standards were, in effect, the guides to an
effective cleaner water program.
This change in position from the Federal Government playing only a sup-
portive role to one of still maintaining that states have primary responsibil-
ity in water pollution control has given the objective national recognition
and concern. However, if the states fail, it is the duty of the Federal Gov-
ernment to insure that a "cleaner water" objective is achieved. This means
for putting that objective into operation did not really come, however, until
the 1972 amendments to the Federal Water Pollution Control Act (P.L. 92-500).
As described more definitively in Section 7 of this report, these amendments
introduced a "check and balance" approach to attacking the pollution problems.
The main features include: control through effluent limitations backed up
with existing water quality standards; enforcement through an effluent dis-
charge permit system; continuous and areawide pollution management planning
for point and non-point source control; and target dates to achieve specified
levels of abatement. Although the major efforts to date appear to be in the
treatment and control of municipal and industrial wastes, agriculture is by
no means exempted from the fight against water quality degradation.
Irrigation Return Flow Research^
A research program has been underway for nearly ten years to identify the
water quality problems resulting from irrigation return flows, to develop
technological solutions for alleviating these problems, and to evaluate
institutional constraints and facilitators in implementing control programs.
A state-of-the-art report, "Characteristics and Pollution Problems of
Irrigation Return Flow," was completed in 19&9 (Utah State University Founda-
tion), which also cited literature on this topic through 19&7. Literature
beginning in 1968 is published annually by EPA in a series of "Irrigation
Return Flow Quality Abstracts." In 1971, the "Research Needs for Irrigation
Return Flow Quality Control" was published (Skogerboe and Law), with the
"National Irrigation Return Flow Research and Development Program" (Law, 1971)
also appearing during that same year. These latter documents essentially
detailed the EPA research program that has been followed to date. The mat-
erial reported herein represents one project under this program.
28
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For the purposes of this report, the EPA research program in irrigation
return flow is not only important in having identified problems, developed
solutions and evaluated the processes for implementing control program; but,
this program has also played an important role in developing an awareness of
irrigation return flow problems and solutions among water users and state
agencies in those areas where research and demonstration projects have been
conducted.
PHYSICAL CHARACTERISTICS OF IRRIGATION RETURN FLOW
Physical Definition of an Irrigation System
The irrigation system can be subdivided into three major subsystems
(Figure k): a) the water delivery system; b) the farms; and c) the water
removal system. The water delivery system can be further subdivided into two
components, namely: a) the transport of water and pollutants from the head-
waters of the watershed to the cross-section along the river where water is
diverted to irrigate croplands; and b) the transport of water and pollutants
from the river diversion works to the individual farm. The farm subsystem is
defined vertically as beginning at the ground surface and terminating at the
bottom of the root zone. The water removal subsystem consists of: a) the
surface runoff from the tail end of the farm (tailwater runoff); and b) the
water moving below the root zone (deep percolation).
j
In most instances, the quality problems in the water removal subsystem
are minimized by having highly efficient water delivery and farm subsystems.
Minimizing the quantity of surface runoff will assist in alleviating quality
problems due to sediments, phosphates and pesticides; whereas minimizing deep
percolation losses from irrigated lands will reduce quality problems due to
salts, including nitrates, in areas where salt pickup occurs.
Pollution Characteristics
Usually, the quality of water coming from the mountainous watershed in
the West is excellent. At the base of the mountain ranges, large quantities
of water are diverted to valley croplands. Much of the diverted water is lost
to the atmosphere by evapotranspiration (perhaps one-half to two-thirds of the
diverted water), with the remaining water supply being irrigation return flow.
This return flow will either be surface runoff, shallow horizontal subsurface
flow, or will move vertically through the soil profile until it reaches a
perched water table or the ground water reservoir, where it will remain to be
pumped or be transported through the ground water reservoir until it reaches
a river channel.
That portion of the water supply which has been diverted for irrigation
but lost by evapotranspiration (consumed) is essentially salt-free. There-
fore, the irrigation return flow will contain most of the salts originally in
the water supply. The surface irrigation return flow will usually contain
only slightly higher salt concentrations than the original water supply, but
in some cases the salinity may be increased significantly. Thus, the water
percolating through the soil profile contains the majority of salt left behind
29
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VjO
O
Open Drain
(Surface Removal)
/::::":::T::::!r^TW:^:"*:n*':;Jf??JTO^n: •••--
(b) Farm Subsystem
(c)Water Removal Subsyste'm
Subsurface Removal
^"#£^S^#^*^
(a)Water Delivery Subsystem
Figure k. The Water Delivery, Farm and Water Removal Subsystems
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by the water returned to the atmosphere as vapor through the phenomena of
evaporation and transpiration. Consequently, the percolating soil water con-
tains a higher concentration of salts. This is referred to as the "concentrat-
ing" effect.
As the water moves through the soil profile, it may pick up additional
salts by dissolution. In addition, some salts may be precipitated in the
soil, while there will be an exchange between some salt ions in the water and
in the soil. The additional salts picked up by the moisture movement through
the soil are termed salt "pickup." The total salt load is the sum of the
original mass of salt in the applied water as the result of the concentrating
effect plus the salt pickup.
Whether irrigation return flows come from surface runoff or have returned
to the system via the soil profile, the water can be expected to undergo a
variety of quality changes due to varying exposure conditions. Drainage from
surface sources consists mainly (there will be some precipitation runoff) of
surface runoff from irrigated land. Because of its limited contact and
exposure to the soil surface, the following changes in quality might be
expected between application and runoff: a) dissolved solids concentration
only slightly increased; b) addition of variable and fluctuating amounts of
pesticides; c) addition of variable amounts of fertilizer elements; d) an
increase in sediments and other colloidal material; e) crop residues and other
debris floated from the soil surface; and f) increased bacterial content.
Drainage water that has moved through the soil profile will experience
different changes in quality from surface runoff. Because of its more inti-
mate contact with the soil and the dynamic soil-plant-water regime, the
following changes in quality are predictable: - a) considerable increase in
dissolved solids (salt) concentration; b) the distribution of various cations
and anions may be quite different; c) variation in the total salt load depend-
ing on whether there has been deposition or leaching; d) little or no sediment
or colloidal material; e) generally, increased nitrate content unless the
applied water is unusually high in nitrates; f) little or no phosphorus con-
tent; g) general reduction of oxidizable organic substances; and h) reduction
of pathogenic organisms and coliform bacteria. Thus, either type of return
flow will affect the receiving water in proportion to respective discharges
and the relative quality of the receiving water.
The quality of irrigation water and return flow is determined largely by
the amount and nature of the dissolved and suspended materials they contain.
In natural waters, the materials are largely dissolved inorganic salts leached
from rocks and minerals of the soils contacted by the water. Irrigation,
municipal and industrial use and reuse of water concentrates these salts and
adds additional kinds and amounts of pollutants. Many insecticides, fungi-
cides, bactericides, herbicides, nematocides (biocides), as well as plant
hormones, detergents, salts of heavy metals, and many organic compounds,
render water less fit for irrigation and other beneficial uses.
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Point and Non-Point Sources of Pollution
In the water delivery subsystem, there are two sources of return flow,
namely, bypass water and seepage. Canal or lateral bypass water would usually
be discharged into a waste channel or drain and would be considered a point
source of pollution. Seepage losses from water delivery channels would perco-
late through the soil and be considered a non-point source; however, some of
this percolated water could reach open or tile drains, in which case this por-
tion would be considered a point source.
In the on-farm water use subsystem, there are also two sources of return
flow, namely, deep percolation losses and tailwater runoff. Deep percolation
losses would be considered a non-point source, unless some of this water
reaches open or tile drains, in which case that portion of the deep percolation
losses would become a point source. Tailwater runoff from the croplands is
considered a point source, unless a downstream water user diverts this water
into his portion of the water delivery subsystem for irrigating his croplands.
The water removal subsystem consists of: a) surface return flows (which
are point sources) from open drains and tile drains; or b) subsurface flows
consisting of seepage losses and deep percolation losses that reach the ground
water reservoir, where the water can be returned to irrigate cropland by pump-
ing, or can return to the water as a non-point source to the river.
Technological Solutions
Point sources (surface return flows such as by-pass water) from the water
delivery subsystem would generally not be expected to result in significant
pollution problems. Possibly, problems of sediment erosion in the waste chan-
nel could occur, but a more likely problem would be the concentrating effect
upon pollutants already in solution in the bypass water as a result of evapo-
transpiration by phreatophytes. Therefore, potential solutions would be
stabilizing the channel banks to prevent erosion, phreatophyte eradication,
or lining the waste channel. However, the most effective solution would be
to minimize the quantities of bypass water by more effective methods of
operating the water delivery subsystem, and then having small storage ponds
located throughout the irrigation system to receive bypass water (e.g.,
during rainstorms when irrigation water is not wanted by the farmers).
Subsurface return flows (channel seepage) from the water delivery sub-
systems, which would be considered a non-point source, can be highly signifi-
cant in irrigated areas which contribute to increased downstream salt loads.
The most effective technologies are converting from open channels to pipelines,
or lining the water delivery channels (e.g., concrete lining, gunnite, asphalt,
plastic membranes, soil-cement, chemical sealants, etc.).
Surface return flows from the on-farm water use subsystem (tailwater run-
off.) can be most effectively controlled technologically by using better irri-
gation methods such as sprinkler irrigation or trickle irrigation, which will
completely eliminate tailwater runoff if properly designed and operated; or
by "tuning up" present surface irrigation methods to reduce the quantities of
tailwater runoff. Another possibility is the use of tailwater recovery and
32
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reuse systems which consist of a small storage pond at the end of the field
and a pumping system to convey this water back to the farm head ditch so that
it can be reused in irrigating the field. TaiIwater recovery and reuse systems
have already become popular in those irrigated areas using ground water for the
irrigation supply, because the energy costs for pumping ground water have
risen dramatically in recent years. For surface irrigation methods (except
basin irrigation, where precision land leveling is probably the best techno-
logical approach, along with improved water management practices), an optimal
solution will result in "tuning up" the present surface irrigation methods in
order to reduce the quantities of taiIwater runoff, which in turn will reduce
the cost of the taiIwater recovery and reuse system.
Deep percolation losses (non-point source) from the on-farm water use
subsystem constitutes the greatest cause of downstream pollution in many
irrigated systems. To sustain irrigated agriculture, some deep percolation
is required in order to satisfy the leaching requirements for maintaining a
salt balance in the root zone; otherwise, crop yields will decline and event-
ually the land may become barren. The most effective technological controls
are improved on-farm management practices, such as "tuning up" the present
irrigation methods, using advanced irrigation methods (sprinkler irrigation
or trickle irrigation), and irrigation scheduling (including the use of flow
measuring devices). Proper use of fertilizers and improved farm cultural
practices are also important.
Surface return flows in the water removal subsystem, which are point
sources, consist primarily of flows in open drains or tile drainage discharg-
ing into open drains. The most effective controls are improved on-farm water
management practices. However, these return flows can be collected and then
treated or evaporated, but the costs of appropriate treatment methods are
usually very high and evaporation ponds may also be either extremely expensive
or undesirable because the water is consumed.
Subsurface flows in the water removal subsystem are encountered in the
underlying ground water reservoir. Again, the most effective controls are to
minimize these subsurface return flows by improved on-farm water management
practices. Pumping from the ground water reservoir may be desirable if the
ground water quality is good enough to allow beneficial use of the pumped
water. If the ground water quality is poor, then pump drainage in conjunction
with treatment can be employed, but the costs will generally be very high.
EXTENT OF PROBLEM
Two examples of major river basins having high utilization of the water
resources and experiencing deleterious water quality effects are the Colorado
River Basin and the Rio Grande Basin. The water users in the Lower Colorado
River Basin, especially Mexico, the Imperial and Coachella Valleys, experience
difficulties at the present time due to high salt concentrations in the river.
Salt concentrations in the Lower Colorado River at the turn of the century
(year 2000) due to anticipated water resource development projects are ex-
pected to increase significantly. Projects are presently nearing completion
for exporting additional quantities of high quality water from Colorado River
33
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watersheds to satisfy water demands in the more populous regions of Utah,
Colorado and New Mexico. The authorized Central Arizona Project will divert
large quantities of flow from the Colorado River to Salt River Valley, which
is within the basin, but the return flows to the Colorado River will be almost
nil. However, the irrigation return flows will have long-term effects on the
salt balance in the Salt River Valley. In addition, large quantities of water
will be diverted, with no return flows, for use by present and future power
plants in the four corners region (Utah, Colorado, New Mexico, and Arizona).
A salinity control program, which would be a combination of controlling min-
eralized springs and irrigation return flows, would negate a large portion of
the damage which will result from recently constructed and anticipated water
resource development projects that will export good quality water to adjacent
river basins, thereby leaving less water within the Colorado River Basin for
diluting irrigation return flows.
The Rio Grande Basin is another example of an area already experiencing
serious water quality problems, with the outlook for even more serious prob-
lems. Rapid population growths in Albuquerque, El Paso and Juarez alone
foretell of immediate difficulties. Whereas studies have been made in the
Colorado River Basin which predict future water quality problems due to basin
development, such comprehensive studies have not been undertaken in the Rio
Grande Basin. Future water quality problems in this basin could easily re-
sult in international problems somewhat similar to those recently experienced
in the Lower Colorado River. However, there is sufficient information in the
Rio Grande Basin to show that the water quality problems are primarily related
to the consumptive use of water by man's activities (with much of the consump-
tive use resulting from irrigated agriculture), which results in a "concen-
trating" effect of the salts present in the system.
There are numerous examples of irrigation return flow quality problems
throughout the Upper Missouri River Basin. Most of the quality problems that
can be cited are the result of increased salinity, but this is largely due to
a combination of two factors. First of all, the water supplies are fairly
plentiful, which tends to mask quality degradation. Secondly, there is a real
lack of documented studies regarding irrigation return flow quality in this
region of the United States. The present knowledge on quality problems is the
result of irrigation system failures or recent investigations undertaken for
the purpose of expanding irrigated agriculture (e.g., the Oahe Project in
South Dakota or the Garrison Diversion Unit in North Dakota).
Areas in North Dakota and South Dakota, which are experiencing irriga-
tion development, will face many salinity problems. Many of these lands are
underlain by soils high in natural salts. Because of soils having low perm-
eability, drainage will be required for many of these irrigation projects to
insure their success. At the same time, irrigation return flow quality prob-
lems will increase substantially.
The Garrison Diversion Unit in North Dakota may be cited as an example
which also has an international dimension because the irrigation return flows
will enter Canada. The plan for development involves the diversion of Missouri
River water from Garrison Reservoir into the Red River of the North Basin to
irrigate ultimately a total of one million acres. Recent developments in
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prediction techniques have allowed some valid estimates of the impact of the
irrigation return flows on the quality of Red River water. At the insistence
of irrigators and water district personnel, the original plans were revised to
include lined canals and pipeline distribution systems. Advantages of the re-
vised plan include: adaptability to sprinkler methods and reduced land prep-
aration costs; increased water control and water use efficiencies; reduced
weed control requirements; limited subsurface drainage needs; and lower opera-
tion and maintenance costs.
The problem areas cited above represent the most significant water qual-
ity problems resulting from irrigation return flows in the West. At the same
time, however, it must be recognized that there is a paucity of data regarding
irrigation return flow quality (see Water Quality, p. M-173 and p. 11-182,
1976). Consequently, as time goes by and more data is collected, other prob-
lem areas will be identified. The problem areas that have been identified
to date primarily are the result of significant water quality degradation
downstream from an irrigated area that has impaired other beneficial uses of
the water. Since every irrigated area has a water quality impact on under-
lying ground water reservoirs or downstream surface waters, the quality of
irrigation return flows from an area becomes a problem when such return flows
impair other beneficial uses of either the ground water or surface water
supplies.
CONSTRAINTS TO IMPLEMENTING TECHNOLOGY
Although the water pollution resulting from any particular irrigated area
may be dominated by either surface return flows (point sources} or subsurface
return flows (non-point sources), most irrigated areas will experience both.
In fact, for the irrigation return flow quality problems identified to date,
subsurface return flows are creating much more water pollution problems than
surface return flows. Consequently, irrigation return flow quality is mostly
a problem of non-point source pollution.
One of the greatest problems in alleviating water quality degradation
from irrigated agriculture is that each area is "site specific." In other
words, the technological solutions that are most appropriate for one irri-
gated area will not likely be the most appropriate combination of technologies
for another irrigated area. Thus, considerable effort is required in collect-
ing sufficient field data for determining the sources of pollutants in a par-
ticular area, as well as evaluating technological solutions for reducing the
pollutant loads.
In most cases, the key to minimizing irrigation return flow quality prob-
lems is to improve water management practices on the croplands. However, a
strong technical assistance capability is required in interacting with farmers
In order to implement effectively many of these practices. This technical
assistance is not only required to arrive at appropriate technologies peculiar
to each farmer's needs, but it must be recognized that capital improvements
only represent an increased potential for improved water management, and that
the operation and maintenance of these improvements really dictate the degree
of improved water management actually achieved.
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After identifying that there is an irrigation return flow quality problem,
after determining the sources of the pollutant loads and developing appropriate
technologies acceptable to the farmers, there is still one significant con-
straint that will likely impede implementation—water rights! Water has been
allocated to irrigated agriculture in the majority of the 17 western states
under the doctrine of prior appropriation since as early as the mid-1800's.
Under the practice of granting a water user first in time to divert and apply
to beneficial use a property right to continue to use the water that is senior
to all later appropriations, a system of water rights evolved which has become
institutionalized and resistant to change. Water has continued to be diverted
for agriculture since the inception of the right and often by the same convey-
ance and application practices employed at the time the right was created.
Fear of loss of the right through nonuse compels water users to divert their
full entitlement, so that change in irrigation water management practices will
only likely occur if strong incentives are provided. And by no means does
water quality enhancement for some downstream user have the necessary appeal
to cause an automatic change in this institution. The objective of the water
right is satisfied once the water is applied and hence any water quality deg-
radation sustained downstream from surface (tailwater) runoff or subsurface
(seepage and deep percolation) return flows is of no direct concern to the
appropriator.
EVOLUTION OF A PROBLEM
This is the situation. We have an established legal and institutional
system existing with many water users satisfied and unwilling to change.
Water is a scarce resource and water requirements have multiplied rapidly
in recent years, while the political and social structures of our society
have changed significantly. The laws and institutions have not remained
static; they have changed and remain flexible to a certain degree. But
the solutions to the water supply needs of the past century have created
a new dimension in water resources planning, development and quantity man-
agement"the need to incorporate water quality control into the process.
For agriculture this dimension has to be promoted and accepted into an
institutionalized system of water rights and water organizations in which the
federal and state governments and agencies have promoted and even subsidized
the activity of irrigation. To suddenly embrace a component that could poten-
tially cause an economic hardship cannot be expected from this group of
Americans that have spent their lives planning, developing, delivering, and
using water for irrigation.
To make the evaluation of this problem a less difficult one to cope with,
we should briefly examine the way in which the new dimension has been injected.
Initially in our history, the water quality problem was viewed as one to be
corrected for the adverse health effects it caused. But in the mid-1950's
water quality control legislation began to emerge. Agriculture was not ser-
iously affected except where sediment and agricultural chemicals produced a
pronounced problem. The emphasis was on municipal and industrial discharges
and the health and sanitation problems that followed. The people primarily
working in this field were, appropriately, sanitary engineers.
36
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Then adverse effects upon the beneficial use of water generally began to
emerge, and states enacted pollution control laws in the late 1960's, with the
encouragement of the Federal Government, to protect these beneficial uses
recognized under state law as the basis for allocating water. The same people
who implemented the discharge control approach for M&l return flows tried to
apply this same approach to solve the irrigation return flow problem. Un-
fortunately, most were not fully aware of the institutional arrangements in
irrigated agriculture, the temperament of the water users, nor the true
nature of the problem.
In summary, we have observed several problems emerge and solutions car-
ried out to mitigate or resolve them. The remainder of the report goes into
the water quality control efforts by the federal and state governments. And,
while reading these sections, keep in mind that the solution to incorporating
the water quality dimension into the complex livelihood in the West may well
be in understanding the people and the problem before positive steps toward
control can be taken.
37
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SECTION 5: STATE WATER QUALITY LAW
CONTENTS
STATE WATER QUALITY LAW 39
BACKGROUND 39
WATER QUALITY LAW 41
Water Quality Control Policy 41
Criteria for Water Quality Control 45
Control Activities 50
Sanctions and Enforcement Measures 52
SPECIAL LEGISLATION 53
RELATED LEGISLATION 55
REGULATIONS AFFECTING IRRIGATION RETURN FLOW QUALITY 57
SUMMARY 60
38
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SECTION 5
STATE WATER QUALITY LAW
BACKGROUND
Water pollution control has actually had a long history in the United
States, dating back to the local laws for sewage control in the colonial times,
In the late 19th century, laws were passed at the state level to protect navi-
gation and protect the public health from contamination of domestic water
supplies^and spreading of diseases.1 In the West, several states had enacted
legislation to prohibit pollution of water used for domestic and farm purposes
(Montana, 1895; Oregon, 1889). Then, by the early 20th century most of the
western states passed laws to deal with specific water pollution problems
(i.e., Colorado, 1908; Idaho, 1909; Kansas, 1907; Montana, 1901; Nevada, 1903;
North Dakota, 1900; Texas, 1913).2
California adopted a constitutional amendment in 1928 that made all water
rights subject to the limitation of reasonable beneficial use and providing
that no right be extended to waste or the unreasonable use, method of use, or
method of diversion. It is perhaps the first instance where quantity and
quality were combined to provide state capability of administration. During
this same period, other states enacted laws not only to provide public health
and welfare protection, but to protect the beneficial uses of water to which
people acquired property rights under the quantity allocation laws (e.g.,
Wyoming, 1921). Most of the administration of these early laws down through
the 19^0's was carried out by local health departments.
In the 1930's a new dimension to water pollution was being experienced
by many mid-western and western states. A drought had set in and when rains
did occur, there was a great deal of erosion, including top soil which clogged
canals and made stream water costly to divert. Many states turned to conserv-
ation legislation (Kansas, 1939; Nevada, 1931). These laws provided for the
formation of local districts to conserve soil resources, control and prevent
soil erosion, and protect the quality of the water resources to meet the
needs of the people.
1 See Reitz, 1972, Chapter k, for an account of the early pollution
problems to health.
2 See A Review of the Laws Forbidding the Pollution of Inland Waters
in the United States, 1905 and Stream Pollution, ~
39
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By 1948, when the first significant piece of federal legislation was en-
acted, most states throughout the country had adopted some form of pollution
control legislation (Gindler, 1967, p. 28). State and local health departments
were responsible for carrying out the law. There was little activity between
the federal and state governments up to that point, for no federal program
existed. The federal attitude was that pollution control was primarily a
state responsibility. In fact, this view prevailed until 1965 when the
Federal Government declared it would initiate control where states failed to
adopt standards and enforcement procedures (Water Quality Control Act of 1965,
P.L. 89-23*0.
During the late 1940's, 1950's and 1960's, new and amended legislation
was enacted by each of the western states in response to federal legislation
and programs. The federal laws and programs, outlined in Section 7 below,
required the states to have basic provisions and consistent programs in order
to qualify for federal grants and other assistance. The most notable changes
in state laws occurred in the late 1960's with the promulgation of water qual-
ity standards and implementation plans as required by the Federal Water Qual-
ity Control Act of 1965. To many states, this also required amending their
basic legislation, which in some cases was enacted as early as 1907 (Kansas).
The majority of western states did, however, adopt basic laws in the 1950's
and I9601s in response to federal action. The main reason for the change in
federal attitude was the lack of successful pollution control at both the
federal and state levels during the preceding 20 years.
An important administrative trend is evident at the state level during
this period, however, that makes present-day control more likely. That trend
was the shift from a multitude of agencies having pollution control functions
to designating one agency with overall authority, and creation of boards or
commissions to provide policy guidance. Gindler reports another noticeable
trend which has significant connotations (1967, Ch. 14). Beginning in the
early 1960's, water quality and pollution control were starting to be consid-
ered components of an overall problem with emphasis either upon: a) water and
the related problems of quantity and quality; or b) upon the total environment
with water as one component. The latter trend became exceedingly apparent
during the late 1960's and early 1970's as a result of the National Environ-
mental Policy Act of 1969 and the new environmental canon ethic that prevailed
until the energy crisis focus in 1975.
At present, all of the western states have established water pollution
control laws that, are highly uniform in purpose, control and enforcement
approaches, and administrative implementation. The legislative enactments
and promulgations of rules that have taken place in the past four years have
been primarily to qualify for new grants under P.L. 92-500 (Water Pollution
Control Act Amendments of 1972), and to adopt a permit discharge system com-
parable to the federal NPDES permit program.
This degree of uniformity does not exist between states in their water
quantity allocation and administration laws. But, then, again, there is noth-
ing comparable at the federal level for quantity control as found in quality
control. The most obvious current trend, aside from uniformity in the law, is
agency reorganization or coordination of quantity and quality control.
kO
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California and Washington have integrated administrative systems and a number
of other western states are considering similar action (i.e., Kansas, Texas).
The remainder of this section will discuss the basic water pollution law
as currently found in the 17 western states, the special and related legisla-
tion and the law as it specifically affects irrigated agriculture. This sec-
tion is a synthesis of materials on state water quality laws found in Appendix
A. A brief report on each state under similar headings can be found in that
appendix.
WATER QUALITY LAW
As stated previously, by 1973 all of the 17 western states had passed
water quality control acts, or made water pollution control a part of the
broader environmental protection legislation. In many instances, the amended
acts were recodificat ions of past laws into a comprehensive package with addi-
tional administrative authority in order to comply with federal requirements.
The pattern of present state water quality control legislation is very
similar to the components and declarations found in P.L. 92-500. As a general
statement, basic state acts consist of five components:
1. Water quality policy.
2. Criteria for pollution control:
a. classifications of waters;
b. water quality standards;
c. effluent discharge standards.
3. Control activities:
a. permit system;
b. construction grants and programs;
c. public participation in planning and setting of standards.
4. Sanctions and enforcement measures.
5. Administrative structure.
Each of these components will be discussed in turn with important varia-
tions in state law noted. In addition, subsections address special and related
laws and regulations. This discussion is based upon information contained
primarily in the state reports found in Appendix A of this report. For
specific provisions or conditions in particular states, the reader should
consult the state report.
Water Quality Control Policy
The foundation for water quality control within each state is found in
policy declarations introducing the legislation, or in pronouncements by the
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agency charged with administering the law. Fifteen of the states have policy
statements which are very similar. The policy of California exemplifies the
broadest declaration:
The Legislature finds and declares that the people of the state
have a primary interest in the conservation, control, and uti-
lization of the water resources of the state, and that the qual-
ity of all the waters of the state shall be protected for use
and enjoyment by the people 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,
safety 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 pre-
pared to exercise its full power and jurisdiction to protect
the quality of waters in the state from degradation originat-
ing inside or outside the boundaries of the state; that the
waters of the state are increasingly influenced by interbasin
water development projects and other state-wide considerations;
that factors of precipitation, topography, population, recrea-
tion, agriculture, industry, and economic development vary
from region to region within the state; and that the state-
wide program for water quality control can be most effectively
administered regionally, within a framework of state-wide
coordination and policy (C.W.C. Sec. 13000).
The California State Water Resources Control Board is responsible for
formulating California's policy for water quality control (C.W.C. Sec. 13140),
which must be periodically reviewed (C.W.C., Sec. 13143). To insure compli-
ance with state policy, all regional water quality control plans must be
approved by the State Board (C.W.C., Sec. 13245).
In addition, California policy for water quality control shall consist
of all or any of the following:
(a) Water quality principles and guidelines for long-range
resource planning, including ground water and surface water
management programs and control and use of reclaimed water.
(b) Water quality objectives at key locations for planning
and operation of water resource development projects and for
water quality control activities.
(c) Water quality control plans adopted by the state board
for interstate or coastal waters or other waters of interre-
gional or state-wide interest.
42
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(d) Other principles and guidelines deemed essential by the
State Board for Water Quality Control (C.W.C., Sec. 13142).
The State Board cannot adopt a state policy for water quality control un-
less a public hearing is held (C.W.C., Sec. 131^7). Sixty days in advance of
the hearing, the State Board must notify the appropriate regional board and
give notice of the hearing by publication.
Typical of the water policies found in the other states is the statutory
provision contained in Oregon's law:
(1) To conserve the waters of the state;
(2) To protect, maintain and improve the quality of the waters
of the state for public water supplies, for the propagation of
wildlife, fish and aquatic life and for domestic, agricultural,
industrial, municipal, recreational, and other legitimate bene-
ficial uses;
(3) To provide that no waste be discharged into any waters of
this state without first receiving the necessary treatment or
other corrective action to protect the legitimate beneficial
uses of such waters;
(k) To provide for the prevention, abatement and control of
new or existing water pollution; and
(5) To cooperate with other agencies of the state, agencies of
other states and the Federal Government in carrying out these
objectives (O.R.S., Sec. 468.710, emphasis added).
As a general proposition, the policy declaration also contains specific
reference to the protection of beneficial uses of water as provided in the
water allocation laws, non-degradation of waters that exceed current water
quality standards and target dates identical or close to those found in fed-
eral legislation. The specific policy of Idaho's Board of Health and Welfare
towards water quality is "to provide for an orderly and economically feasible
comprehensive water pollution control program, which program shall be adminis-
tered to conserve the waters of the State for all legitimate beneficial uses,
including uses for domestic purposes, agriculture, industry, recreation and
fish and wildlife propagation" (Water Quality Standards and Wastewater Treat-
ment Requirements, Idaho Dept. of Health and Welfare, June 1973).
Other important provisions found in state laws and policy statements
formulated by the agencies are the salinity policy of Arizona (Appendix A,
Sec. 1.1.2); emphasis upon soil erosion control and programs of Kansas (ibid. ,
Sec. 5.1.2) and Arizona (Ibid., Sec. 1.1.2); and the recognition by Colorado
that the problem of water pollution in Colorado is closely related to the
problem of water pollution in adjoining states (I bid., Sec. 3.1-1). Cali-
fornia is concerned over ground water quality and has declared that:
the State (has) a primary interest in the correction and pre-
vention of irreparable damage to, or impaired use of, the
ground water basins of this State caused by critical conditions
of overdraft, depletion, sea water intrusion or degraded water
quality (C.W.C., Sec. 12922).
A3
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California has also adopted a Water Reclamation Law, in which it is
declared that:
...the people of the state have a primary interest in the
development of facilities to reclaim water containing waste
to supplement existing surface and underground water supplies
and to assist in meeting the future water requirements of the
state (C.W.C., Sec. 13510)
The Legislature finds and declares that a substantial portion
of the future water requirements of this state may be econom-
ically met by beneficial use of reclaimed water.
The Legislature further finds and declares that the utiliza-
tion of reclaimed water by local communities for domestic,
agricultural, industrial, recreational, and fish and wildlife
purposes will contribute to the peace, health, safety, and
welfare of the people of the state. Use of reclaimed water
constitutes the development of 'new basic water supplies'
as that term is used in Chapter 5 (commencing with Section
12880) of Part 6 of Division 6 (C.W.C., Sec. 13511).
California's Water Reclamation Law further states that:
...it is the intention of the Legislature that the state
undertake all possible steps to encourage development of
water reclamation facilities so that reclaimed water may
be made available to help meet the growing water require-
ments of the state (C.W.C., Sec. 13512).
Several other states have policies providing guidelines for water quality
control in environmental acts (i.e., California, New Mexico and Nebraska).
Washington has also declared:
— that it is a fundamental and inalienable right of the
people of the state of Washington to live in a healthful and
pleasant environment and to benefit from the proper develop-
ment and use of its natural resources. The Legislature further
recognizes that as the population of our state grows, the need
to provide for our increasing industrial, agricultural, resi-
dential, social, recreational, economic, and other needs will
place an increasing responsibility on all segments of our
society to plan, coordinate, restore and regulate the utili-
zation of our natural resources in a manner that will protect
and conserve our clean air, our pure and abundant waters, and
the natural beauty of the state (R.C.W., Sec. A3.21A.010).
One of the most important declarations as far as irrigation return flow
is concerned is found in Montana's recent act. The law states that it is the
public policy of the state of Montana to:
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(a) conserve water by protecting, maintaining and improving
the quality and potability of water for public water supplies,
wildlife, fish and aquatic life, agriculture, industry, recre~
ation and other beneficial uses;
(b) provide a comprehensive program for the prevention, abate-
ment and control of water pollution (R.C.M., Sec. 69-48010)).
The section further states that "it is not necessary that wastes be treated
to a purer condition than the naturaj^ condition of the receiving stream as.
long as the minimum treatment requirements are met." "Natural" refers to
conditions or material present from runoff or percolation over which man has
no control "or from developed land where all reasonable land, soil and water
conservation practices have been applied .Conditions resulting from the
reasonable operation of dams at the effective date of this Act are natural"
(Ibid., Sec. 2, emphasis added). As a general rule, however, agricultural
return flows are included in the definition of "pollutant" in the state laws.
Criteria for Water Quality Control
There are three distinct criteria for control of water quality usually
found in state laws. They are classification of waters, water quality stand-
ards and effluent discharge standards. A few states also have set pretreat-
ment standards (i.e., South Dakota) and performance and toxic effluent
standards (i.e., Nebraska and Wyoming).
In most every state, the water quality control agency is directed to
classify the state waters and develop and maintain a comprehensive program
for prevention, control and abatement of water pollution. Except for New
Mexico and Oregon, all the states have developed a classification system
based upon the beneficial uses of water. These systems range from 2 to 14
classifications, but in general include domestic water supply, full body con'
tact recreation, partial body contact recreation, fish, wildlife and other
aquatic life protection, agricultural and industrial, and aesthetic uses.
Often, special provisions in the classifications are made for perennial and
non-perennial streams (Appendix A, Sec. 7.1-3), streams designated for no
future discharge, as return flow streams or streams requiring advanced waste
discharge (Ibid., Sec. 11.1.3)-
Texas has classified its surface waters into four categories; River
Basin Waters, Coastal Basin Waters, Bay Waters, and Gulf Waters. Wyoming
waters have been divided into the three classes:
Class I: Those waters which, based on information supplied by
the Wyoming Game and Fish Department, are determined to be pre-
sently supporting fish or have the hydrologic and natural water
quality potential to support game fish.
Class II: Those waters which, based on information supplied by
the Wyoming Game and Fish Department, are determined to be pre-
sently supporting non-game fish or have the hydrologic and nat-
ural water quality potential to support non-game fish.
Class III: Those waters which, based on information supplied
by the Wyoming Game and Fish Department, are determined as
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having the hydrologic or natural water quality to support fish
(W.W.Q.R.R., Ch. I, Sec. 4, 197*0.
Specific waters will be classified according to a priority system for classi-
fying those waters which receive pollutants first (Ibid., Ch. I, Sec. 5, 1974).
A stream must have been classified prior to issuance of a permit for discharge
into it (Ibid.). Most states require that classification of streams be
reviewed periodically, usually every three years.
In California, the regional water quality boards develop a classification
scheme according to the particular regional needs. New Mexico has not devel-
oped a classification scheme but instead has chosen to regulate water quality
according to specific geographical areas with water quality standards adopted
for the various river basins. Oregon has not adopted a classification system
for water quality control.
In conjunction with classification of state waters, all states have de-
veU'oed water quality standards according to bio-chemical composition that is
to be protected or limits not to exceed. The typical approach is to develop
general and specific standards with various parameters. Although the para-
meters vary in number from 6 to 15 and in quantitative terms, Oregon's gen-
eral standards are indicative of those found in other states. The parameters
defining pollution are:
(1) The dissolved oxygen content of surface waters to be less
than six (6) milligrams per liter unless specified otherwise by
special standards;
(2) The hydrogen-ion concentration (pH) of the waters to be
outside the range of 6.5 to 8.5 unless specified otherwise by
special standards;
(3) The liberation of dissolved gases, such as carbon dioxide,
hydrogen sulfide or any other gases, in sufficient quantities
to cause objectionable odors or to be deleterious to fish or
other aquatic life, navigation, recreation, or other reasonable
uses made of such waters;
(4) The development of fungi or other growths having a delet-
erious effect on stream bottoms, fish or other aquatic life,
or which are injurious to health, recreation or industry;
(5) The creation of tastes or odors or toxic or other conditions
that are deleterious to fish or other aquatic life or affect the
potability of drinking water or the palatability of fish or
shel1 fish;
(6) The formation of appreciable bottom or sludge deposits or
the formation of any organic or inorganic deposits deleterious
to fish or other aquatic life or injurious to public health,
recreation or industry;
(7) Objectionable discoloration, turbidity, scum, oily slick
or floating solids, or that coat the aquatic life with oil
fi1ms;
(8) Bacterial pollution or other conditions deleterious to
waters used for domestic purposes, livestock watering,
i rrigation, bathing, or shellfish propagation, or be
46
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otherwise injurious to public health;
(9) Any measurable increase in temperature when the receiving
water temperatures are 64°F or greater; or more than 0.5°F in-
crease due to a single-source discharge when receiving water
temperatures are 63.5°F or less; or more than 2°F increase due
to all sources combined when receiving water temperatures are
62°F or less;
(11) Radioisotope concentration to exceed Maximum Permissive
Concentrations (MFC's) in drinking water, edible fishes or
shellfishes, wildlife, irrigated crops, livestock and dairy
products or pose an external radiation hazard; or
(12) The concentration of total dissolved gas relative to
atmospheric pressure at the point of sample collection to
exceed one hundred and five percent (105%) of saturation,
except when streamflow exceeds the 10-year, 7-day average
flood (O.A.R. 340, Sec. 41-025, 1975, emphasis added).
Indicative of the parameters for specific standards are those found in
Idaho:
A. Coliform Concentration;
B. Dissolved Oxygen;
C. Hydrogen Ion Concentration;
D. Temperature;
E. Turbidity;
F. Total Dissolved Solids
(Water Quality Standards and Wastewater Treatment
Requ? rements, Idaho Dept. of Health and Welfare, Sec.
VIII, June 1973).
California does not use the term "standards" but rather water quality
objectives. The Porter-Cologne Act directs each Regional Board to formulate
and adopt water quality control plans for all areas within its region (C.W.C.,
Section 13240). These plans consist of "A" designation or establishment 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 (C.W.C., Sec. 13050; emphasis added).
Water quality objectives are defined as:
...the limits or levels of water quality constituents or
characteristics which are established for the reasonable
protection of beneficial uses of water or the prevention
of nuisance within a specified area (C.W.C., Sec. 13050
(h), emphasis added).
In establishing these objectives, the Boards must consider:
(a) Past, present and probable future beneficial uses of
water.
(b) Environmental characteristics of the hydrographic unit under
consideration, including the quality of water available thereto.
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(c) Water quality conditions that could reasonably be
achieved through the coordinated control of all factors
which affect water quality in the area.
(d) Economic considerations (C.W.C., Sec. 132^1).
Several states have specific reference to irrigated agriculture in their
water quality standards. Arizona requires their Water Quality Control Council
to consider, among fourteen other items:
15. The degree to which any particular waste is amenable to
treatment and the cost of such treatment, and shall take into
consideration the benefit to the state or the advantage to its
people by the prevention, abatement and control of water pol-
lution as compared to the resultant financial burden on the
water user or the unreasonable taking of his property.
16. In formulating any applicable standard pertaining to
agricultural irrigation and drainage waters, the Council shall
be guided by the principle that such waters are put to bene-
ficial use within the state for the irrigation of lands or
become return flows to the waters of the state and subsequently
reused, and that such standards shall not diminish the water
available for such uses nor deprive the state of such water
(A.R.S., Sec. 36.1857 A).
The above statute further commands the Council to:
1. Not require any present or future appropriator or user of
water 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 pollut-
ing any other waters of the state (A.R.S., Sec. 36.1857 B).
In Texas, standards for irrigation water were proposed in 1975 but have
not been adopted by the Texas Water Quality Board. These proposed standards
for irrigation waters are:
The suitability of water for irrigation is influenced by:
(1) the total salt concentration or salinity hazards;
(2) the total.amount of sodium and its relation to other
cations (positively charged ion);
(3) the concentration of boron and other constituents that
may be toxic; and
(4) the bicarbonate content in relation to calcium and
magnesium (Texas Water Quality Standards, V. p. k, 1975).
The suitability of water for irrigation is based on an irrigation water
classification system prepared by the USDA salinity laboratory. These irri-
gation water classifications are based on the salinity classes which follow:
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Class 1—Low-salinity water can be used for irrigation with most crops
on most soils with little likelihood that soil salinity will develop.
Class 2--Medium-salinity water can be used if a moderate amount of leach-
ing occurs. Plants with moderate salt tolerance can be grown in most cases
without special practices for salinity control.
Class 3--High-salinity water cannot be used on soil with restricted
drai nage.
Class 4—very high-salinity water is not suitable for irrigation under
ordinary conditions but may be used occasionally under special circumstances.
Thesoil must be adequate, irrigation water must be applied in excess to pro-
vide considerable leaching, and highly salt-tolerant crops must be selected.
South Dakota, on the other hand, has adopted specific water quality
parameters for irrigation waters. The specific areas covered by these reg-
ulations are as follows:
(1) Coliform organisms shall not exceed a MPN or MF of five
thousand per one hundred mill?liters, as a geometric mean based
on not less than five samples obtained during separate 24-hour
periods during any 30-day period, nor shall the number exceed
ten thousand per one hundred mill Miters in any one sample.
(2) Fecal Coliform organisms shall not exceed one thousand
per one hundred mi 111 liters as a geometric mean based on not
less than 5 samples obtained during separate 24-hour periods
during any 30-day period; nor shall the number exceed two
thousand per one hundred mill Miters in any one sample.
(3) Total dissolved solids shall not exceed 1500 milligrams
per liter with a variation allowed under Section 34:04:02:32(3).
(4) Conductivity shall not exceed 2500 micromohs/cm. at 25
degrees C with a variation allowed under Section 34:04:02:32(3).
(5) The sodium absorption ratio shall not exceed 10 with a
variation allowed under Section 34:04:02:32(3). (S.D. Board
of Environmental Protection, Surface Water Quality Standards,
Ch. 34:04:02:43, 1975).
The above criteria for irrigation waters is applicable only from May 15
to September 30. Also, the criteria for coliform and fecal organisms is
applicable only to water used to irrigate root crops.
AM western states have also developed waste discharge standards, but
have very little reference to irrigation return flows. In Colorado, the
Water Quality Control Commission has established standards for the discharge
of wastes, but these standards do not include agricultural return flow dis-
charges, except for the following statements on salinity:
The Commission presently has not adopted a standard regarding
salinity, but has reserved this section for such criteria.
Since Colorado has been collecting and analyzing stream samp-
les for a relatively short period of time, it is felt that
49
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insufficient data is available to set numerical standards at
this time. In addition, technological know-how has not
advanced to the point where all sources of salinity (irriga-
tion return flows, for example) can be resolved. Therefore,
Colorado proposes, where possible, to maintain salinity con-
centrations at or below present levels while gathering addi-
tional data so that meaningful numerical salinity standards
can be established at some future date. In the meantime,
Colorado will continue to take action against known dis-
charges contributing to the salinity problem where present
technology allows for such control; continue with demonstra-
tion projects, such as the Grand Valley Project; and, through
whatever means available, strive to educate the irrigator in
proper water management and irrigation practices.
With regard to the Colorado River system and its tributaries,
the State of Colorado will cooperate with other Colorado
River Basin states and the Federal Government to support
and implement the conclusions and recommendations adopted
April 27, 1972, by the reconvened 7th Session of the Con-
ference in the Matter of Pollution of the Interstate Waters
of the Colorado River and its tributaries.
In addition, as previously stated, some states have adopted performance,
pretreatment and toxic pollutant standards (i.e., Nebraska, South Dakota, and
Wyomi ng).
Control Activities
Basically, there are three control activities employed by the western
states water quality agencies to carry out the policies and criteria discussed
above. They are: 1) permit system for effluent discharges; 2) construction
grants and programs; and 3) planning and development with public participation
in setting various standards for water quality control. These tools are not
to be confused with the legal tools for enforcing the law against violators,
such as cease and desist orders and judgments.
The only activity to be discussed here is the permit system. The con-
struction grants and programs do not directly apply to irrigated agriculture;
at least there has been little if any use at the state level. The planning
activities are in conjunction with the federally developed and promoted "208
planning" (Sec. 208, P.L. 92-500) and other planning activities required by
federal law. *
A permit is required from the state water quality agency to discharge
lawfully or emit wastes into the surface waters of the state. Each state has
particular requirements and conditions for obtaining a permit. The conditions
normally consist of four, but may vary from state to state. They are:
1. Effluent limitations.
2. Schedule of compliance with interim dates.
50
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3. Special conditions.
4. A monitoring program if appropriate.
The usual activities requiring a permit include:
1. Discharge of any wastes into the waters of the state from any industrial
or commercial establishment or activity or any disposal system.
2. Construct, install, modify, or operate any disposal system or part there-
of, or any extension or addition thereto.
3. Increase in volume or strength of any wastes in excess of the permissive
discharges specified under an existing permit.
4. Construct, install, operate, or conduct any industrial, commercial, or
other establishment or activity or any extension or modification thereof
or addition thereto, the operation or conduct of which would cause an
increase in the discharge of wastes into the waters of the state or which
would otherwise alter the physical, chemical or biological properties of
any waters of the state in any manner not already lawfully authorized.
5. Construct or use any new outlet for the discharge of any wastes into the
waters of the state (O.R.S., Sec. 468.740).
Most permits are for a term of five years with renewal if the permittee
is still in compliance with the conditions set out in the permit and if other
conditions have remained unchanged. Permits can be modified or terminated if:
a) the permittee violates the conditions of the permit; b) the permit was ob-
tained by false or misrepresentation or failure to fully disclose all relevant
facts; or c) physical conditions change in the receiving waters that require
either a temporary or permanent reduction or elimination of the permitted
discharge.
In 1974, Montana enacted the Montana Pollutant Discharge Elimination
System (MPDES) in order to implement one common system for issuing permits for
point sources discharging pollutants into state waters pursuant to Section
69-4801, et. seq. R.C.M. (1947) and Section 402(b) of the Federal Water Pollu-
tion ContTo"! AcT Amendments of 1972, P.L. 92-500 and to meet the requirements
of the National Pollutant Discharge Elimination System program (M.A.C., Sec.
16-2.14(10)-S14460, Jan. 18, 1974). Section 402(b) provides for the transfer
of jurisdiction of the NPDES in Montana from the United States Environmental
Protection Agency to the state of Montana. On June 10, 1974, the Environmental
Protection Agency granted Montana the authority to issue NPDES permits (see
Environmental Reporter, Current Developments, May 1, 1974 to April 30, 1975,
p. 266).Permits issued under prior rules of Montana Administrative Code
(M.A.C.) 16-2.14(10)-S14460 and M.A.C. 16-2.14(10)-S14530 wi11 remain in
effect until a permit is issued under this rule.
The owner or operator of any point source which discharges pollutants
into state waters must comply with the following:
51
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(?) Have filed a complete Refuse Act permit application with
the U.S. Army Corps of Engineers which satisfies the filing
requirements for NPDES: or
(ii) Have filed a complete NPDES permit application with
EPA; or
(iii) File an appropriate MPDES perm!t application within
60 days following the effective date of this rule (March
8, 1972*, 16-2.1M10)-S14460, Ma)).
MPDES requirements are applicable to those discharges of irrigation return
flow under NPDES requirements (16-2.I^(]0)-Sl4460, Md); see the Federal
Register, July 5, 1973, Vol. 38, No. 128, Part 111).
In California, the Regional Boards must issue waste discharge require-
ments (permits) as authorized by the Federal Water Pollution Control Act
(C.W.C., Sec. 13377, see 33 U.S.C. 1151, £t_. seq.). These "permits" must
ensure compliance with any applicable effluent limitation, water quality
related effluent limitations, national standards of performance, and toxic
and pretreatment effluent standards (C.W.C., Sec. 13377)-
Any person who discharges, or proposes to discharge, waste into any
region must file a report of that discharge to the appropriate Regional Board
if that discharge could affect the quality of the water (C.W.C., Sec. 13260).
The report must be accompanied by a filing fee not to exceed $1,000 (C.W.C.,
Sec. 13260 (d)) and be filed no less than 180 days in advance of the date on
which it is desired to commense the discharge, or in sufficient time prior
to commencement of the discharge to ensure compliance with Section 306 of
P.L. 92-500 and any other applicable water quality standards, or effluent
standard (23 Calif. Adm. Code of Sec. 2235-1, Environment Reporter, State
Water Laws, Vol. 1, Sec. 721:0520 to :0526).
The permit programs of eleven western states have received EPA designa-
tion to administer the entire NPDES process, that is, to issue new permits,
reissue expired permits, monitor permit compliances, and enforce violations
(Water Quali ty, 1976, p. V-19). For a detailed discussion of an analysis of
the permit process and program through mid-1975, see Permit Program, The,
1975- Section 7 below provides a summary of the federal program and western
state activities. The states accepted by EPA to implement the NPDES program
are listed in Table 2 in Section 7, along with the reasons why the remaining
states have not received designations.
Sanctions and Enforcement Measures
The intent of federal and state water pollution control laws is to pre-
vent and abate discharges which are harmful to the public health and welfare
and the beneficial uses to which water is put. In so doing, the various laws
have described or granted administrative authority to determine what activi-
ties must be stopped because of immediate harm, what discharge limits will
be tolerated or excluded from control under certain conditions, such as dis-
charges into non-perennial streams, and what discharges require a permit and
compliance to an abatement and limitation schedule. Many of these points have
been discussed above.
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However, beyond a doubt, the sanctions which allow certain discharges
under permitted or excluded conditions do not constitute the basis for a right
to discharge. To dispel any notion that a discharge requirement is in the
nature of a permit to discharge, the Porter-Cologne Act specifically provides
that discharges do not receive the status of vested rights, but are in the
nature of a privilege (C.W.C., Sec. 13267(c)).
One of the major problems and complaints of pre-1972 state and federal
water pollution control legislation was the lack and inability of enforcement
of the law by the regulatory agencies. The problem was two-fold. First, the
legal mechanism was lacking or too weak. A polluter could "beat" the agency
in court. Second, where the legal procedure was adequate, the penalties were
often so small or minor that it "paid" to pollute rather than incur the cost
of pollution control. Also, political and economic interests often got in
the way of effective enforcement.
As a result of P.L. 92-500, the enforcement provisions are mandatory, not
discretionary, and the legal tools are more precise. In all the state laws
and regulations examined, the state water quality control agencies now have a
host of approaches with varying degrees of impact. The range begins with
notice to the polluter and an opportunity to voluntarily comply with the law.
This may be done by submitting a detailed plan and time schedule to come into
compliance. If the discharger fails to respond to this administrative noti-
fication or directive, the agencies have four other direct actions that can
be taken:
1. Issuance of a regulating order, commonly referred to as a cease and
desist order.
2. Initiation of court action to obtain a restraining order and/or injunc-
tion to prevent further discharges.
3. Levying of civil penalties.
4. Initiation of criminal proceedings by the county or district prosecutor
or state attorney general.
Several states also permit the state agency to expend monies to clean up the
waste (California) or restock fish killed (Nebraska) and charge the violator
with reasonable costs.
SPECIAL LEGISLATION
In addition to basic laws and regulations for water quality control, state
legislatures have also found it necessary to adopt special legislation to reg-
ulate particular activities affecting water quality. Because of the wide
range in special legislation and lack of uniformity among the seventeen west-
ern states, the legislation is cited in Table 1 and the reader is directed
to Section 3 of the respective state reports in the Appendix for a summary
of the law.
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TABLE 1. STATE SPECIAL LEGISLATION AFFECTING WATER QUALITY
State
Ar i zona
Ca 1 i forn ia
Colorado
Idaho
Kansas
Montana
Nebraska
Nevada
New Mexico
North Dakota
Oklahoma
Oregon
South Dakota
Texas
Utah
Wash! ngton
Appendix A
Section
1.3
2.3
3.3
4-3
5.3
6.3
7-3
8.3
9.3
10.3
none
12.3
none
14.3
15-3
16.3
Law
Geothermal Resources Act
Clean Water Bond Law, Geothermal Resources
Act, Water Reclamation Law
Individual Sewage Disposal Act, Recreation
Land Preservation Act
Water Pollution Control Fund-Waste Disposal
and Injection Well Act
Solid Waste Act
Public Water Supply Act, Sanitation in
Subdivisions Act
County Zoning Law, Water Pollution Control
Tax Refund
Solid Waste Disposal Act, County Sewage
and Waste Water Law
Severance Tax Bonding Act Amendment of
1976
Drainage Permits
Sewage Treatment and Disposal Act,
Solid Waste Management
Solid Waste Disposal Act, Injection
Well Act
Municipal and County Pollution Financing
Law
Protection from Water Pollution Act,
Wyoming
17-3
Environmental Coordination Procedures
Act
Health, Sanitary and Improvement, Water
and Sewer and Drainage District Laws
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RELATED LEGISLATION
There is a host of legislation for each state that has an impact or is
related to irrigation return flow quality and potential quality control. The
laws that are common to all the seventeen western states in some form are
those authorizing the formation and operation of public districts. These are
generally special purpose districts requiring approval of a certain percentage
of the^affected^landowners and often court or state agency supervision. Their
range includes irrigation, drainage, water improvement, water control, diking,
sanitation, water supply, soil and water conservation, reclamation, flood con-
trol, planning, and water and sewer districts.
Several features of these special districts are important to their poten-
tial involvement or effects upon water quality. The districts, as public or
quasi-public institutions, are generally held to be political subdivisions of
the state. As such, they have powers to levy assessments or taxes, issue
bonds, provide supervisory and regulatory functions, and act on behalf of
those being served by the district. They can often construct and operate
projects in furtherance of the special purpose. The extent of their liabil-
ity varies and in most cases has not been precisely defined, particularly
with respect to third party injury from failure to control the water use or
related activities of a member of the district. However, there is little
doubt that the water supply districts (including irrigation and conservation
districts) can withhold delivery if a user is committing waste.
As a general summary of the purposes and powers of these spectal districts,
the reader is referred to the discussion found in Appendix A, Oregon Report,
Section 12.4. The Natural Resources Conservation District Act of Arizona
illustrates the breadth of powers of special districts, as they may apply to
return flows from irrigated lands. This Act gives such a district the power
to:
Conduct surveys, investigations and research relating to
the character of the soil, erosion prevention within a farm
or ranch, methods of cultivation, farm and range practices,
seeding, eradication of noxious growths and such other meas-
ures as will aid farm and range operations, disseminate infor-
mation pertaining thereto, and carry on research programs with
or without the cooperation of the state, the United States or
agencies thereof (A.R.S., Sec. 45.205K1))-
Cooperate and enter into agreements with landowner, operator
or any agency or subdivision of the state or federal govern-
ment to carry on programs of soil erosion prevention, methods
of cultivation, cropping practices, land leveling and improve-
ment on agricultural lands, and programs limited to methods of
proper range use, reseeding and the eradication of noxious growth
on grazing lands, all within the limits of an individual farm
or range and subject to such conditions as the supervisors
deem necessary (A.R.S., Sec. *t5.205M3)) •
55
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This Act created the Division of Natural Resource Conservation as a division
of the State Land Department (A.R.S., Sec. 45.2011). In defining the boundar-
ies of such a district, the Commissioner of the Division of Natural Resources
Conservation must consider:
1. The topography of the area.
2. The character of soils.
3. The distribution of erosion.
4. Prevailing land use practices.
5. The desirability and necessity of including within the boundaries of
the district the particular lands under consideration and the benefits
to be received by such inclusion.
6. The relation of the proposed area to existing watersheds and agricultural
regions, and to other districts already organized or proposed for organ-
ization.
7. Such other physical, geographical and economic factors as are relevant
(A.R.S., Sec. 45.2033).
Several states have passed land use laws that require the inventorying
of current land use and compliance with regulations on future changes in use
patterns (i.e., Colorado, Montana, Nevada, and Washington). The Montana
Economic Land Development Act (R.C.M., Sec. 84-7501 to 7526, 1975 Supp.) was
enacted to enable local control and decisions to be foremost in determining
the growth patterns of the state (R.C.M., Sec. 84-7502). The Act was designed
to protect prime agricultural land and guide industrial and commercial devel-
opment among other things (R.C.M., Sec. 84-7503).
A complete inventory of the land and its usage must be included in the
governing bodies' plan and include:
(i) land types, based on federal standards;
(ii) the flood plain of all streams and rivers;
(iii) current vegetation patterns, i.e., cropland, irri-
gated land, rangeland, non-productive land;
(iv) development land; and
(v) all federal, state, or Indian lands.
Decisions shall be coordinated with the Department of
Revenue (R.C.M., Sec. 84-7505).
While this Act (and those of other states) may not directly deal with
water pollution, it is closely related to the State's policy of conserving
its resources and preserving its agricultural lands. California adopted the
Waste Reuse Law in 1974 (C.W.C., Sec. 460, et_. seq.). This act allows the
Department of Water Resources to conduct studies and investigations on the
availability and quality of waste water and the uses of reclaimed waste water
for beneficial purposes, including ground water recharge, municipal and
56
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industrial use, irrigation use, and cooling for thermal electric power plants
(C.W.C., Sec. 462). Section 461 of this act states:
...that the primary interest of the people of the state in
conservation of all available water resources requires the
maximum reuse of waste water in the satisfaction of require-
ments for beneficial uses of water.
Numerous other laws have been adopted by the states, such as the Indus-
trial Development Information and Filing Act in Wyoming, which impact water
quality. It is suggested that Section 4 in the state reports of Appendix A
be consulted for information on a particular state's laws or activities of a
related nature to water quality problems from irrigation return flow.
REGULATIONS AFFECTING IRRIGATION RETURN FLOW QUALITY
There has been very little legislative or agency rule-making activity by
the seventeen western states in the specific area of irrigation return flow
quality control up to this time. Only three states have adopted regulations
impacting the quality of these return flows. They are California, Idaho and
Nebraska, with Idaho's Department of Health and Welfare adopting regulations
requiring a permit to discharge from large irrigation projects (Envi ronment
Reporter, Vol. 7, No. 42, p. 1610, Feb. 18, 1977); however, the Idaho permit
regulations were rescinded by the 1977 state legislature.
North Dakota has adopted regulations pertaining specifically to salinity
but not to irrigation return flows generally. The regulations have focused on
the issue of salinity in the following manner:
High salinity (total dissolved solids) is recognized as a
significant water quality problem which often causes adverse
physical and economic impacts on water users. High salinity
is recognized as a problem in many streams and rivers in the
State. The Department will continue to cooperate with other
State and Federal agencies in determining problem areas and
salinity reductions through improved water management and
conservation practices.
The Department will take such steps as may be economically
and technically feasible to control specific controllable
sources by use of the antidegradation policy set forth in
these standards (Standards of Surface Water Quality State
of North Dakota, Section VII, North Dakota State Department
of Health, 1973).
Such a recognition of the problem of salinity by the Department certainly
leaves the "door open" to the possibility of controls on irrigation return
flow.
South Dakota has promulgated water quality standards that include refer-
ence to irrigation return flows. These standards were discussed earlier in
57
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this section. Regulations have been proposed, however, which do contain sig-
nificant reference to irrigation return flow. The key proposals are that as
a general rule, "Discharge of pollutants from agricultural and si 1vicultural
activities, including irrigation return flow and runoff from orchards, culti-
vated crops, pastures, rangelands, and forest lands, will not require an
NPDES permit provided such discharge does not fall under the requirements of
Section 34 R.606 to 34 R.611, inclusive" (S.D. Proposed NPDES Permit Regula-
tions, Ch. 34:04:06:05, 1975). Discharges from irrigation return flow do
require permits, described as follows:
Discharges of irrigation return flow, including but not limited
to, tailwaters, tile drainage flow, surfaced ground water flow,
and bypass water if there is a point source of discharge, whether
natural or artificial, and the return flow is from land areas of
more than one hundred sixty contiguous acres, or one hundred sixty
noncontiguous acres which use the same drainage system (S.D. Board
of Environmental Protection, NPDES Permit Regulations, Ch. 34:04:
06:09, 1975).
Finally, the Secretary of the Department of Environmental Quality has the
authority to require a permit under the NPDES system if the agricultural acti-
vity is causing a violation of Surface Water Quality Standards, as set out in
34:04:02 to 34:04:04 and the activity is of a continuing nature (S.D. Board
of Environmental Protection, NPDES Permit Regulations, Ch. 34:04:06:10, 1975).
As of January 1, 1977, these regulations have not been officially adopted,
the reason being that South Dakota has not been designated by EPA to administer
the NPDES program. South Dakota does, however, have an agriculture applicator
licensing program administered by The Department of Agriculture. Oklahoma has
adopted regulations for return flow streams and mixing zones, but not specif-
ically for the source of pollutant from irrigated agriculture.
The remaining states have no regulations per se on this topic. There are
features of many of the states' laws and activities that do need to be dis-
cussed, however. The remainder of this section addresses key features of
selected state laws and controls. The reader is directed to Section 7 and the
subsection pertaining to Present State Activities for further explanations of
state programs or lack thereof in this field of water quality control.
In most states, irrigation return flows are ignored, exempted, or subject
to qualifications in the application of control regulations. The Water Qual-
ity Control Council in Arizona may make a determination that water quality
standards do not apply when the entire flow in a watercourse that would other-
wise be dry is effluent from agricultural irrigation return flow (Arizona
Water Quality Standards, R9~21-210A). Furthermore, water quality standards
do not apply to the collection, return, or drainage of agricultural irrigation
return flows, excess or tailwaters to canals, laterals, or other manmade irri-
gation water delivery facilities within an irrigation system, or chemical
maintenance (algae and weed control) of irrigation facilities within an
irrigation system where agriculture is the only designated primary beneficial
use, or physical or mechanical maintenance of irrigation facilities within an
irrigation system. But, the law of Arizona does make it unlawful for any per-
son "...to discharge any agricultural, irrigation or drainage waters into
58
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waters of the state and thereby reduce the quality of such waters below the
water quality standards established therefor by the Council in violation of an
order issued pursuant to Section 36-1854" (A.R.S., Sec. 36.1858).
California applies a unique approach to handling the irrigation return
flow problem. First of all, irrigation return flow is not treated as a point
or non-point source. It is simply looked at as a water quality degradation
problem. The state is divided into various regions. Each region has the
authority to allocate the water quantity and control the water quality within
its region. The State Water Resources Control Board may adopt guidelines
which set forth minimum standards for the disposal of wastes (Calif. Regs.,
Sec. 2555), and each Regional Board develops its own system of regulations
to comply with the NPDES (23 Calif. Adm. Code, Chap. 3).
Regualtions in the Central Valley Region dealing with agricultural water
quality problems are indicative of regulations in other regions and will be
discussed in detail. A monitoring and planning program constitutes a water
quality control program for agricultural activities. Monitoring programs
will determine the quality and quantity of supply waters entering agricultural
areas and return flows from agricultural areas entering streams and/or receiv-
ing waters. A monitoring program may be carried out under permits which have
been issued to agricultural areas for either two or five-year periods. Through
the planning process, agricultural discharges which can be controlled by a
permit are to be identified and permits issues. These programs will develop
the best management practices for agriculture which will reduce pollutant
loads to surface waters, and develop policies or guidelines for individual
farm operations and basin-wide management problems. As has been stated be-
fore, the California approach to meeting EPA's requirements of issuing permits
for irrigation return flows as a point source -is to identify all entities with-
in an irrigation system or subsystem from which discharges can be identified
and monitored, and allow these entities to cosign the permit. This satisfies
EPA and enables the state to decentralize monitoring and management to the
local entities while retaining control and enforcement if necessary. On
August 12, 1974 the Agricultural Water Quality Advisory Committee made rec-
ommendations on the monitoring of irrigation return flows. These recommend-
ations cover the monitoring parameters, accepted measurement techniques,
monitoring period and quality control practices. Appendix 2-B of the Cali-
fornia report (Section 2 of Appendix A of this report) contains the recommen-
dation verbatim.
In Colorado, a permit is not required for any flow or return flow of
irrigation water unless a federal act or regulation so requires (C.R.S.,
Sec. 25-8-506). The Colorado General Assembly took particular issue with
this topic by defining irrigation return flow and separating water delivery
from return flow as follows:
'Irrigation return flow1 means tailwater, tile drainage, or
surfaced groundwater flow from irrigated land, in a system
operated by public or private organizations or individuals,
If:
(A) There is a point source of discharge (e.g., a pipe,
a ditch, or any other defined or discrete conveyance), whether
59
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an artificial or a natural feature of the land, purposely
maintained as a drainage structure;
(B) The return flow is from land areas of more than three
thousand contiguous irrigated acres or three thousand noncon-
tiguous irrigated acres which use the same artificial drainage
system or natural feature of the land purposely maintained as
a common drainage structure;
(C) The discharge from the lands (as opposed to the water
supply to the lands) is controlled by one public or private
organization or one individual. Irrigation return flow is
concerned with the drainage from irrigated lands. It does
not include the delivery of irrigation water (C.R.S., Sec.
25-8-502, emphasis added).
Idaho did accept the designation of irrigation return flows as point
source discharges, but has not been delegated by EPA to carry out the federal
NPDES program. Consequently, the regulations described above that have been
developed are for implementation under the state permit program. The approach
that Idaho prefers to follow for all other irrigation areas not included as
"large irrigation projects" is first simulated voluntary abatement through
development of on-farm techniques and better irrigation management practices.
The intent is to solve the problem voluntarily father than using mandatory
regulations which may require costly treatment facilities (see Appendix A,
Section 4.5.2).
Although Montana has no specific regulations pertaining to irrigation
return flow, the policy of the state strongly implies that action will be
taken to protect receiving streams from runoff or percolation where unrea-
sonable land, soil and water conservation practices have been applied.
A number of states have retained regulations adopted prior to the deci-
sion of N.R.D.C. v. Train (1975) which were based upon the original regulations
promulgated by EPA (Idaho, Nebraska, Nevada). These regulations exempt irri-
gation return flows except if the return flows are from lands of more than
3,000 acres or 3>000 noncontiguous acres discharging into the same drainage
systems. This exemption was struck down in the N.R.D.C. case and the states
are merely waiting for new federal regulations before amending or trying to
carry out the existing ones.
SUMMARY
Every one of the seventeen western states has enacted water pollution
control laws that can be used to abate identifiable discharges that exceed
water quality standards in receiving streams or effluent discharge standards.
For irrigation return flow quality control, the laws often reflect the strong
agricultural interests that prevail in these western states. However, control
under the general pollution laws and regulations are special and related leg-
islation where the problem is significant. Specific regulations do not exist
for irrigation discharges in the majority of states because of the vacillations
in the federal regulations. Once EPA promulgates its new regulations, the
water quality agencies of most states that have accepted the NPDES program
will undoubtedly adopt regulations of similar or identical pattern.
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SECTION 6: WESTERN WATER ADMINISTRATION
CONTENTS
WESTERN WATER ADMINISTRATION 62
ACTIVITIES OF WATER ADMINISTRATION AFFECTING AGRICULTURE 62
AGENCY DUTIES 62
Water Quantity Control 62
Water Planning and Development 6k
Water Quality Control 65
STATUS OF STATE WATER ADMINISTRATION 65
TRENDS AND POTENTIALS 69
61
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SECTION 6
WESTERN WATER ADMINISTRATION
ACTI'VITIES OF WATER ADMINISTRATION AFFECTING AGRICULTURE
Under the system of government that exists in the United States, laws
enacted by legislative bodies and constitutional declarations are to be imple-
mented by the executive branch. Through time, a strong system of administra-
tive and regulatory agencies within this branch has evolved to actually carry
the mandates. These agencies have become known as the fourth branch of
government due to the vast power and influence gained during the last century.
They have authority under most organic (enabling legislation) acts to promul-
gate rules and regulations that serve to guide the agency personnel in per-
forming their duties and inform the public of procedures and programs to be
followed in dealing with the agency. These regulations often "fill out" the
policy directives and general approaches contained in the law. In addition,
some state legislatures have passed administrative procedures acts which
define the basic conduct to be followed by all state agencies.
In the area of water resources, there are three basic functions delegated
to agency activities in the western states. They are: 1) water quantity
control; 2) planning and development of water resources utilization; and
3) water quality control. The laws for quantity and quality control to be
carried out by agency action are the subject of Section 5 and report in Preface,
respectively. The evolution and specific duties and activities, as well as
the organizational variations that occur in present state water administration,
are the topic of this section.
AGENCY DUTIES
For the purpose of this report, state water agencies concerned only with
water pollution control, water quantity control and planning and development
have been examined. In each state, however, there are often a myriad of
agencies with some jurisdiction affecting water resources. The duties and
activities amongst the states are fairly similar within the basic function.
For that reason, the discussion is divided into a general description along
function lines.
Water Quantity Control
The agency responsible for administering the water quality or water rights
laws in each state has several standard duties to perform. These duties include:
62
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1. water allocation for use under a water right;
2. adjudication of water rights (permits, license, or decree);
3. distribution of water according to priorities of right;
4. general administration and enforcement of the law.
In most states, all four duties are performed by the state agency with joint
action of the agency and courts in adjudicating water rights. There are sev-
eral exceptions. In Colorado, special water courts (one in each of the seven
divisions) allocate unappropriated water and decree the water rights.
Wyoming's Board of Control acts in a quasi-judicial function in adjudicating
water rights.
In addition to these four duties, some of the more specific tasks per-
formed by the water quantity agency include:
• gather data on water availability and use and unappropriated supplies;
• conduct studies and investigations on extent and potential of ground
and surface water development;
• receiving, examining and granting or denying applications for water
rights, changes in place and type of use, point of diversion, or
nature of use;
' maintain a registry of water rights;
• licensing of well drillers;
• review and approve or reject formation of irrigation districts;
• provide technical advice;
• carry out and enforce rules and regulations adopted by the agency, or
the policy board, or commission of the agency;
• inspect dams and measuring equipment;
• prepare state water plans and basin studies;
• organize the state into divisions and/or districts;
• appoint division and/or district officers and water masters;
• regulation of ground water withdrawals;
• allocation and control over development, use and conservation of
geothermal resources.
63
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In many states, the director of the water agency must be a registered
engineer (i.e., Nevada and Wyoming). Normally, he has a central office staff
and field staff, including local water masters or commissioners to assist in
the implementation of the law and agency duties.
One particularly interesting feature in Nevada concerns the power of the
State Engineer to insure that laws under his jurisdiction are carried out.
This feature is the power granted the State Engineer and his assistants to
arrest any person violating the water laws (N.R.S., Sec. 533^75). The
arrested person is turned over to the sheriff or other police officer and a
written complaint is filed by the arresting water official. It is a particu-
larly frustrating experience for water officials to know of violations of the
water law (i.e., wasteful or non-beneficial use practices, stealing water,
etc.) and also know that by the time a complaint is served by the sheriff's
office, the violations will have ceased. Often, procedural rules require
notice to the violator before any enforcement actions can be taken. A recent
change in Colorado law took away the power similar to that granted in Nevada
and for practical purposes has hamstrung local enforcement.
Water Planning and Development
In a number of states (i.e., California, Colorado, Texas, and Utah),
planning and development of water resources is carried out by an agency in-
dependent of the "water rights" office. In others (i.e., Montana, Washington
and Wyoming), this activity is one of the tasks of the central agency.
This function generally carries with it several specific tasks. Among
the most important are:
• preparation of state, basin and local water plans;
• planning, development, construction, and operation or supervision of
water projects;
• acquisition of water rights for water projects and contracting out the
use of water;
• administration of financial programs for improvement of water delivery
and use.
The latter task is important to the irrigation return flow quality con-
trol efforts of the Federal and state Governments. A number of states have
incentive programs which provide low or no-interest loan and grant programs
(i.e., Colorado, New Mexico, Utah, and Wyoming). But the present programs
limit the use of funds only by irrigation districts or other public entities
for improvement of storage and delivery systems as they relate to improved
efficiency in water quantity use. Water quality improvement is normally not
one of the objectives of these state programs.
-------
Water Quality Control
Since the late 1950's, most states have reorganized the water quality
control agency(ies) along the pattern required under federal legislation to
comply with federal law (California has done this since 19^9). Where in the
past water pollution control was one activity of the Public Health Service,
under the current reorganizations, it has become one of the major activities
being carried out by a state agency. In some cases, the function is still
within a Department of Health (i.e., Arizona, Colorado, North Dakota, Utah),
whereas in other states it is within the Department of Environmental Quality
(i.e., Oregon and Wyoming) or Ecology (Washington), Environmental Improvement
Agency (New Mexico), or directly under the Water Quality Board (Texas). In
all cases, a water quality control commission, board or council is the policy
and rule-making body, while the Department, Service or Bureau of Water Qual-
ity is responsible for implementing the laws, rules and standards.
Some of the more important tasks of the water quality control agency
i nclude:
• developing and maintaining comprehensive and effective programs for
prevention, control and abatement of water pollution and protection
of water quality;
• classifying water streams and bodies of water;
• promulgating water quality standards, effluent limitation standards,
and control regulations;
• carrying out a permit program for pollutant discharges;
• reviewing and granting permission and funding for location, design,
construction, and operation of sewage treatment facilities;
• authorizing and monitoring underground injection of pollutants;
• serving as hearing board or officer in resolving matters of enforcement
of the pollution laws;
• ordering the cessation or abatement of discharges;
• receiving and allocating funds for grants and loans made available by
Federal and state Governments;
• Carrying out investigations to determine nature and source of pollutant
di scharges.
STATUS OF STATE WATER ADMINISTRATION
When the original water quantity and quality agencies were created, there
was little need, if even the thought occurred, to focus also upon water^plan-
ning and development as a state agency function. The two initial agencies of
65
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concern to this report were the Public Health Service and State Engineer, or
names comparable to the quality and quantity function they performed.1
Figure 5 illustrates the range of organizational arrangements that
evolved and exist today, beginning with the Type I—Basic agencies described
above. Since 1970, most of the state agencies were reorganized, and many
states have reorganized a number of times. But the basic schemes can be seen
in Figure 5 as variations of Type 2--1ndependent and Type 3" Integrated. The
trend is definitely toward the Type 3 structure with contemporary objectives
often reflected in the title, i.e., emphasis on environment or emphasis upon
the resources. A shift has occurred away from use of the title, Office of
State Engineer, or its comparable, to the more non-personal and comprehensive
titles as Department or Division of Water Resources.
Keeping in mind that the emphasis of this report is on irrigation return
flow quality control, the present organizational schemes found in the western
states can be classed as Independent (Type 2) or Integrated (Type 3) agencies--
that is, classified relative to the performance of the three basic functions
of water quantity and quality control, and planning and development. Because
of the concern with agency capability to implement an effective irrigation re-
turn flow quality control program, primary emphasis in reviewing state organi-
zational schemes is with the degree of interaction, formal or informal, between
the performance of the three basic functions. This concern is premised upon
the belief that any successful program in water quality control from irrigated
agriculture is by necessity required to recognize the inseparable interdepend-
ence of the allocation of water, granting of a water right, the exercise of
the right through diversion and application of water to cropland, along with
the other agricultural inputs such as chemicals and land use practices, the
inevitable occurrence of return flows (discharges), and current ability to
plan and 'develop the water resources cognizant of anticipated future quality
problems that naturally arise from return flows.
Thus, in the Type 2—Independent class, found in the majority of states
(e.g., Figure 6), the dominant features are: 1) separate agencies for water
quantity and quality control; 2) the planning and development carried out,
either under a separate agency or as a task of the quantity control agency;
and 3) the existence of a policy and rule-making body in or over either the
water quantity or quality agency. These three features do exist to some
degree in every western state.
But key to this study is the degree to which either the agencies inter-
act, or the concern of the agencies can be reflected by membership on a
policy board, council, or commission. The Type 2 arrangement can then be
further classified as: a) no coordination and limited cooperation; b) liasion
cooperation; and c) formal coordination. In the Type 2(a) organizational
structure, the three functions are often performed in a vacuum. The agencies
carry out their duties "independent" of possible impacts upon the subject
jurisdiction of their sister agencies.
1 For example, the water quantity office was called State Water Commission,
State Reclamation Engineer, Chief Engineer, or State Hydraulic Engineer in
some states (Clark, 1967, Vol. I, p. 107).
66
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Function:
Basic (Initial)
Type 2
Independent (Current)
a) No coordination S
limited cooperation
Hater Quality
Public Health
Service
Water Quantity
Governor
H
Territorial Sfate Engineer
(4 duties)*
Governor
Planning & Development
Dept. of Health - Bd. of Health
(Pollution Control)
b) Liaison Cooperation
State Engineer
(4 duties)*
Governor
Dept. of Health --Interdepartmental ct t r •
\ Water Conference "State. E"9U"
Pollution Control * [
c) Formal Coordination
Plus other agencies 4 duties*
concerned with
water resources
Governor
(Planning & Development)
(Planning & Development)
Dept. of Health Pollution-
| Control
Pollution Control Board
- • -Dept. of
Natural Resources
Type 3
Integrated
(Trend & Current
in 2 states since 1970)
a) Resources
Oriented
Air
Land
Oiv. of Water Resources
(State Engineer)
4 duties*
Governor
Resources Agency
Other [ Resource Oepts.
I
Water Resources Management Dept.
(Administration i Adjudication)
of P1ann1"9 * Development
'
Planning & Development
Dept. of Water P. & D.
Water Quality Water Rights, Allocation, Distribution (Planning & Development
Control of Water public, private, and
state projects)
b) Environment
Oriented
Air -
Land •
Governor
I
Dept. of Environment
Water Programs
Water Quality
Management
Water Management
4 duties*
Planning & Development
*4 duties - allocation of water, adjudication of water rights, distribution of water, administration
of water laws. (Radosevich and Skogerboe, 1977)
Figure 5. Types and Evolution of Water Administration
Agencies by Three Major Functions
67
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Mater Quality
Planning & Development
Board of Natural
Resources S
Conservation
Board of Health
Department of Health
& Environmental
Sciences
Department of
Natural Resources
Water Resources
Division
Environmental Services
Division
Resources and
water Quality
Advisory
Council
Operation and
Ground
Water
Administration
Water
Resources
Survey
FIgureS. Water Agencies and Their Major Functions in Montana
68
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In the Type 2(b) structure, which is the current Wyoming arrangement,
the agencies act independently of one another, but there exists a mechanism
for all agencies dealing with water matters to get together once a month and
discuss activities and areas of concern. This scheme is called the Interde-
partmental Water Conference.
The Type 2(c) organizational structure reflects the majority of state
arrangements (Figures 7, 8, 9, 10 and 11). Independence of water quantity
and quality agencies exists, and in some cases—such as Utah—the planning
and development is also independent of the "water rights" agency. But there
is established a water quality control or policy board (Kansas, Oklahoma,
Oregon, and Texas), commission (New Mexico), or council (Arizona) whose
membership includes representatives from at least the two agencies with
jurisdiction over water quantity and quality control.
There are only two states that have integrated the administration of
water quantity and quality law within one group. These two states have
actually reorganized to integrate all resource control (California, Figure
12), or the major resources activities as they affect the environment
(Washington, Figure 13) under one supervising agency with subdivisions or
departments for water resources. In the case of Type 3(a), the emphasis is
on resources with quantity and quality integrated, but with a sister depart-
ment responsible for planning and development. Type 3(b) reflects the envi-
ronmental limelight of the early 1970's. All three basic functions are under
an office of the supervisory agency.
As previously stated, there is a definite trend toward the integrated
agency approach. Several states have been contemplating reorganization for a
number of years. Hutchins1 statement about past changes is clearly applicable
today:
They resulted from various causes. Some are changes in name
only. Others stemmed from the frequently evidenced impulse to
reorganize state agencies in order to meet changing and develop-
ing public needs not always confined to water resource problems
(Clark, 1967, Vol. I, p. 108).
TRENDS AND POTENTIALS
As stated earlier (Section A), in most cases the key to minimizing irri-
gation return flow quality problems is to improve water management practices
on the croplands. The primary constraint to implementing improved practices
is water rights. Another possible constraint is funding the necessary tech-
nological irrigation system improvements in order to achieve water quality
goals. At the same time, it should be recognized that improved irrigation
water management practices should result in increased crop production and
reduced diversion requirements. In fact, many water resources planning
studies have shown that the West will have to increase the efficiency of
agricultural water use in order to meet future water demands.
69
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Water Quantity AcNinistration
Water Quality
Water Quantity Administration
Planning and
Development
Water Duality Board
Executive Director
! Field
peratlons
[Enforcement]
Control
Operations
Water Rights Comnission
Water
Development Board
Legal
Division
Executive Director
District
Division
Water
Rights Permits
Division Division
Technical
Administrators Special Services
Division ftnalyst Division
Figure 7- Water Agencies and Their Major Functions in Texas
-------
Water Quality
Water Planning & Development
Water Quality ,-
Control Division
(Dire
1 [Assistant
[Field
[services
ctorl
Di rector]
Technical Monitoring
Services and
ind Grants Enforcement
Section Section
Colorado Water
Pollution Control
Commission
x
-^Lega1, (Engineer
Counsel ' => c
|
1 Water
Quality
Management
Planning
1 Section
j Dept. of Natural Resour
i
j Div. of Water Resources
Deputy State
En<
Inal
ineer
ces
1
Jater Conservation
Board
Comprehensive
Planning Div.
[Ground Water)
[ Field
(Operations
Divisions i-/
Div. Engineer
Assistant Div.
Engineer
Figure 8. Organization of Water Functions in Colorado
Mat
?r Quality
Department of
Social Services
Divisi
Hea
on of IBoard of
1th | Health
Committee on
Jater Pollution
Adjudicatio
Water Ma nag
Water Quantity
Administration
Department of
Natural Resources
1.,, ,
Division of Water Rights
State Engineer
Water Planning
and Development
| Division of 1 Board of
IWater Resources Water Resources
jAs'sil" Attorney Senerall
[Deputy State Engineer!
. 1 . L- 1
^"^ [Distribution) lAoprppriationl
IRecordsl
Figure 9. Utah Water Agencies and Their Functions
71
-------
Water Quality
Department
of
Human Resources
1 Division
Chief
Bureau of —
Environmental Health
Assistant Chief
Bureau of • — •
Environmental Health
|
Consumer ISo
ervlces |_M
^Public
(Engineering
1 i d Waste]
anagcment J
[Radioloqic
1 Health
Water Quantity Administration
State
Environmenta
Commission
Division
1
Surface
Water
Section
1 1
1 Surface
1 Water
Engineer
Office
Services
Section
(State
surface
program,
EIKO
branch
_______off1ce)
f
1
| Water
pollution
Air
Pollutio
a) 1
Departm
Natural R
;nt of
ion and
;sources
Division of Water
Resources
State Engineer
|
Office
Engineering
Section
1
Office
Engineer
(Water
right
appropria-
tions and
licensing
of water
right
surveyors)
i
1
Ground i-?-
Water $
Section ' —
1
Ground Sf
Water Pr
Engineer En
(State
ground
program,
Las Vegas
branch
office)
Water Planning
and Development
I
ecial Planning
o.iects Section
ecial Planning
o.iects Engineer
gineer
(State
water plai
& coord i
nation o
land use
planning
Figure 10. Organization of Water Agencies in Nevada
Water Quality
Planning & Development
Hater Quantity Administration
Figure 11: Organization of Water Agencies in Oregon
72
-------
Stole of Collfornio
THE RESOURCES AGENCY
June 1,1974
THE RESOURCES ASENCY
OFFICE OF THE SECRETARY
WATERWAYS MANAGEMENT
PLANNING
AIR RESOURCES BOARD
STATE LANDS
DIVISION
DEPARTMENT
OF CONSERVATION
SOLID WASTE
MANAGEMENT BOARD
1
SF BAY CONSERVATION AND
DEVELOPMENT COMMISSION
Jl CALIFOI
II Pl-AI
CALIFORNIA TAHOE REGIONAL
PLANNING ASENCY
COLORADO RIVER
BOARD
DEPARTMENT OF
FISH AND SAME
DEPARTMENT OF NAVIGATION
AND OCEAN DEVELOPMENT
NAVIGATION AND OCEAN
DEVELOPMENT COMMISSION
DEPARTMENT OF PARKS
AND RECREATION
CAl-NEV INTERSTATE
T COMMISSIO
CALIFORNIA SECTION
ADVISORY OR LEGAL RELATIONSHIP
ASSIGNED BY GOVERNOR FOR
COMMUNICATION PURPOSES
Figure 12. Water Agencies and Their Major Functions
in California
73
-------
Water Quality
Hater Rights Administration
( GovernoFI
r
Water Planning
and Development
Director
Ecology
IWater Quality
LManaciemcn t Pi vis i on
I Ha tcFQua TTty
I Monitoring Sect i on
IRater Quality "
[.Management Section
-H
Uffice of I
field Operations}"
Water Resources
Management Division
Biologica
and Chemical
Investigations
Sections
Water'Quality~~j
!U
Planning Section
Figure 13: Water Agencies and Their Major Functions in Washington
-------
The above argument shows that improved irrigation water management prac-
tices in any particular area may be a primary concern of both the water qual-
ity function (clean water) and the planning and development function (planning
to meet future water demands and development of improved irrigation systems to
conserve water). At the same time, the major constraint to improvement is
water rights, which involves the water quantity function. Therefore, it be-
comes highly important that these three basic water functions focus upon the
total problem, which requires a coordinated and cooperative approach in
setting goals and priorities, developing appropriate solutions, and implement-
ing acceptable approaches.
Coordination and cooperation implies some form of linkage between the
three water functions, either formal or informal. As a minimum, in those
states having each function in a separate state agency or in two state agen-
cies, there must be a strong communication link between the agencies, the
success of which may largely be dependent upon personalities. Placing all
three functions within one agency, such as Washington's Department of Ecology,
certainly can be expected to facilitate coordination and cooperation, but the
latter is still highly dependent upon the personalities involved.
There is a definite awareness among state water agency personnel of the
need to strengthen coordination and cooperation because of the increasing com-
plexity of water problems. Future water resource development projects will be
much more difficult than those of the past, with an environmental conscious-
ness being a necessary dimension that will result in better planning and
development, while at the same time confounding the problems. Add to these
difficulties the necessity in the future to "improve what we have," along with
inheriting water laws which inhibit improved water management practices, and
the result is a paradox that perhaps can only be modified or changed out of
sheer "necessity."
The present system of water allocation and distribution, administration
of the law and water right adjudication practiced in the majority of western
states does contribute substantially to the irrigation return flow quality
problem. By law, a water right can be reduced or lost through non-use. Con-
sequently, this disincentive compels appropriators to divert and apply the
entire quantity provided for in the right, even though this practice may lead
to drainage problems and adversely affect downstream users. The law further
stifles any initiative to install water saving practices in certain states by
preventing the use of saved water on other lands or for other purposes. Under
these and other legal constraints that exist in the water laws, farmers have
no economic incentive to alter their present practices for improved techniques.
A water "management" orientation requires ideally that all of the water
functions be conducted in an integrated manner in order to develop the waters
of the state, while maintaining the environment, for the common good of the
most people. Some examples involving integration of duties are: 1) incorp-
orate water quality into water rights; 2) define beneficial use considering
standards and criteria that are pertinent to local conditions of climate,
soils and crops; 3) incorporate water quality and environmental issues in
water resources planning and development; k) make state funds available for
water resources development also available for improving existing irrigation
75
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systems In order to conserve water and alleviate water quality degradation;
and 5) incorporate incentives into water laws that will facilitate improved
water management practices.
The appropriation doctrine in its basic form is perhaps still the most
ideal legal structure due to its general characteristics of continuity, flex-
ibility and identity. But we must be compelled to move from the "use
oriented" legal control system to a "management oriented" well designed and
uniform set of laws and policy instruments, taking into account the total
environmental impact, yet flexible enough to sustain change. No longer can
states utilize their waters independent of the impact upon their neighbors.
However, the underlying manifestations of change in philosophy must take into
account the established rights and duties of water users and the social
structure engendered under the existing system.
76
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SECTION 7: EFFORTS TO CONTROL IRRIGATION RETURN FLOW QUALITY
CONTENTS
EFFORTS TO CONTROL IRRIGATION RETURN FLOW QUALITY ............. 78
BACKGROUND OF FEDERAL POLLUTION CONTROL .................. 78
Water Pollution Control Act of 19^8 ................. 78
Federal Water Pollution Control Act Amendments of 1956 ........ 79
Federal Water Pollution Control Act Amendments of 1961 ........ 80
Water Quality Act of 1965 ...................... 80
Clean Water Restoration Act of 1966 ................. 82
Water Quality Improvement Act of 1970 .......... . ...... 82
Summary of Legislative Achievements Up to 1972 ............ 82
PRESENT FEDERAL APPROACHES ........................ 83
Federal Water Pollution Control Act Amendments of 1972 ........ 83
Colorado Salinity Control Act .................. . .104
RESULTS FROM RECENT GOVERNMENTAL INVESTIGATIONS .............. 105
Senate Select Committee on National Water Resources ......... 105
National Water Commission ......... . ............ 106
National Commission on Water Quality ............ , . . . .106
Westwide Study ............................ 111
Summary of Federal Activities .................... 113
PRESENT STATE ACTIVITIES
Extent of Irrigation Return Flow ................... HA
Approaches to Irrigation Return Flow Quality Control ......... 116
Extent of Control .......................... H9
Agency Resources and Interaction ................... 119
Attitudes Toward the Federal Program ................. 121
Summary of State Activities ..................... 122
77
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SECTION 7
EFFORTS TO CONTROL IRRIGATION RETURN FLOW QUALITY
BACKGROUND OF FEDERAL POLLUTION CONTROL
Water Pollution Control Act of 1948
From 1900 to 1948, more than 100 bills dealing with problems of water
pollution were introduced by Congress with little success.1 However, these
efforts culminated in the passage of the first comprehensive thrust toward
water pollution control by the Federal Government (A Water Pol icy, Vol. 1,
1950, p. 185). This legislation was the Water Pollution Control Act of 1948
(Act of June 30, 19*8, Ch. 758, 62 Stat. 1155, P.L. 80-845; 33 U.S.C.A. 1151
et. seq.). The Act declares it to be the policy of Congress to:
recognize, preserve, and protect the primary responsibilities
and rights of the States in controlling water pollution; to sup-
port and aid technical research; to devise and perfect methods
of treatment of industrial wastes which are not susceptible to
known effective methods of treatment; and to provide Federal
technical services to State and interstate agencies and to in-
dustries, and financial aid to State and interstate agencies
and to municipalities (1948, U.S. Code Congressional Service,
p. 2215).
The law empowered the Surgeon General of the United States to assist and
encourage state study plans and supporting research and provided for low
interest loans up to $200,000 for sewage and waste treatment works (Ibid.,
p. 2215-2217). Further, the 1948 Act declared the pollution of interstate
waters to be a public nuisance subject to abatement. The Surgeon General had
to give formal notification to the discharger and to adivse the appropriate
1 The history of water pollution control in the United States is very
fascinating, but beyond the scope of this report. The authors suggest inter-
ested readers refer to the following: Clark (ed.), Waters and Water Rights,
Vol. 3, "Water Pollution and Quality Controls," by Gindler, 1967; Davies. The
Politics of Pollution Control, 1974; Barry, "The Evolution of the Enforcement
Provisions of the Federal Water Pollution Control Act: A Study of the Diffi-
culty in Developing Effective Legislation," 86 Mich. Law Review, 1103, 1970;
Reitze, Environmental Law, Ch. 4, 1972. See Selected Legal References for
the Use of the Upper Colorado River Commission, Vol. 1 (1965). Vol. II (1971)
and Vol.3 (1975) for detailed notes of section by section changes in the
water pollution laws from 1948 to 1972.
78
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state or interstate agency when he found any pollution which had been declared
to be a public nuisance (Ibid., p. 2216).
The Act, however, did not provide the Federal Government with any origi-
nal enforcement powers other than to hold public hearings on pollution viola-
tions. If the pollution continued contrary to recommendations based upon the
public hearings, the Federal Security Administrator could, with the consent of
the appropriate state water pollution control agency, request the U.S. Attorney
General to bring suit to prevent the pollution (A Water Policy, Vol. 1, 1950,
p. 192).
Finally, this Act established the Water Pollution Control Advisory Board
which was in the Public Health Service and was composed of the Surgeon General,
a representative of the Departments of Army, Interior, Agriculture, the Fed-
eral Works Agency and six persons to be appointed by the President (1948 U.S.
Code Congressional Service, p. 2217).
The terms of this legislation were extended through fiscal 1956 by the
Act of July 17, 1952 (Act of July 17, 1952, Ch. 927 66 Stat. 755). Although
this Act was experimental and was initially limited to a trial period of five
years, it served as the basis for the current Federal Water Pollution Control
Act which has been amended seven times to date.
Federal Water Pollution Control Act Amendments of 1956
In 1952, the 19^8 Act was extended to 1956. By its second expiration
date, Congress placed this legislation on a permanent footing by enacting the
Water Pollution Control Act Amendments of 1956 (Act of July 9, 1956, Ch. 518,
70 Stat. 498; P.L. 84-660; 33 U.S.C.A. 1151 et_. seq.). The Act of 1956
brought about a permanent national water pollution control program and per-
mitted the Federal Government to participate and cooperate in the development
of comprehensive pollution abatement programs. This law re-emphasized the
policy of the Congress to recognize, preserve and protect the primary rights
of the states in controlling water pollution and expanded the Water Pollution
Control Advisory Board (1956, U.S. Code Congressional and Administrative News,
p. 3028-3029). The Act was under the administration of the Surgeon General
of the Public Health Service.
The Act provided for studying water pollution problems and for financing
matching grants to municipalities for construction of treatment plants. Also,
the Act provided a weak conference procedure to abate pollution of interstate
waters. If a polluter failed to take action to abate pollution after notice
from the Surgeon General, the Secretary of Health, Education and Welfare could
call for a public hearing. The hearing board would make recommendations to
secure abatement (Ibid., p. 3029). The Secretary would then send a copy of
the hearing board's findings and recommendations to the polluter along with
a notice which would specify a reasonable time to abate the pollution (not
less than six months). If no action was taken, the Secretary would send an
additional notice and specify a time, not less than three months, to abate
the pollution. If this last notice produced no results, the Secretary could
request the Attorney General to bring suit on behalf of the United States to
79
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abate the pollution. This enforcement conference procedure has not been used
effectively very often, however.2
The law provided $3 million a year in grants for fiscal years 1957-1961
to assist in the preparation of state plans for pollution control and $500
million for grants to assist in the construction of sewage treatment plants
for fiscal years 1957-1966 (Sheaffer, 1972, p. 990).
Federal Water Pollution Control Act Amendments of 1961
In 1959, the U.S. Senate created the Senate Select Committee on National
Water Resources and charged the Committee with the task of conducting exhaust-
ive studies into water resources activities in the United States and to deter-
mine future water quantity and quality activities needed for various water
uses. The Committee suggested action in five general areas, including water
quality improvement through more adequate pollution abatement programs. The
Water Pollution Control Act amendments of 1961 were greatly influenced by the
Committee's report (History of the Implementation..., 1969)-
The 1961 Act extended and strengthened the Federal Water Pollution Con-
trol program and assisted the states and local communities in providing for
more effective programs of water pollution control (Act of 1961, 75 Stat. 20k,
P.L. 87-88). It took the administration of the FWPCA3 from the Public Health
Service and vested in the Secretary of Health, Education and Welfare full
responsibility for conducting the federal water pollution control program and
authorized the establishment and maintenance of field laboratory and research
facilities. Grants to state and interstate agencies for the operation of
water pollution control programs were increased. Federal enforcement juris-
diction over interstate waters was reasserted and the federal pollution abate-
ment enforcement authority was expanded to all navigable and coastal waters.
The Secretary of HEW was authorized to issue final orders in enforcement
actions and discharges from federal installations were included in all admin-
istrative findings and recommendations in federal abatement action (1961, U.S.
Code Congressional and Administrative News, p. 2076).
Water Quality Act of 1965
Water pollution control in the United States had not been progressing as
rapidly as Congress had hoped for since the basic FWPCA of 1956 was enacted.
It appears that in 1965, Congress dusted off a 1950 recommendation by the
President's Water Resources Policy Commission that if the:
2 For an examination of the use of enforcement conferences and their
effectiveness in five states selected for their range in pollution problems
and funds spent on control (Mississippi, New York, Texas, Washington, and
Wyoming), see Lieber, Federalism and Clean Water, Ch. 7, 1975.
3 FWPCA is often used to refer to the Federal Water Pollution Control Act
as amended. It should not be confused with the Federal Water Pollution Control
Administration also abbreviated FWPCA, which was created in 19&5 to head up
the implementation of the Act. The latter was renamed Federal Water Quality
Administration, FWQA, in 1970.
80
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Federal-State-Local cooperative pollution control programs fails
to provide the country with clean rivers within a period of 10
years, the 19^8 Act (Federal Water Control Act of 191*8) should
be reconsidered with a view to providing for Federal enforcement,
without the requirements of State consent, where polluted
streams are within the jurisdiction of Congress (A Water Policy
Vol. 1, 1950, p. 195).
Important consideration was given to the administrative capability of
the executive branch to carry out any new legislation, on water pollution con-
trol. In adopting the Water Quality Act of 1965, Congress directed that
within ninety days from the effective date of the Act, an organization called
the Federal Water Pollution Control Administration (FWPCA) would be created in
the Department of Health, Education and Welfare (HEW) to administer the pro-
visions of the Act (Act of Oct. 2, 1965, P.L. 89-234, 79 Stat. 903). On
February 28, 1966, President Johnson submitted Reorganization Plan No. 2 that
took FWPCA out of HEW and transferred it to the Department of Interior (80
Stat. 1608). In his transmittal letter, he stated:
...Today we face a harsh reality. Our waters are burdened
with blight. We know that every river system in America
suffers from some degree of pollution. This menace is
growing more serious with every passing day.
We have just begun to take the steps to clean and restore
our waters.
...The attack against water pollution should be unified
and coordinated.
...One agency should assume leadership in our clean water
effort. That agency should be the Department of Interior
(Letter of Transmittal, House Doc. No. 388, 89th Congress,
2nd Session).
The Water Quality Act of 1965 is an important departure to federal In-
volvement in pollution control. The Federal Government no longer would rely
upon public action to solve pollution problems; it placed them in a direct
role to control pollution if the state failed to act. The Act directed the
states to adopt water quality standards and to implement plans for regulation
of their interstate waters by June 30, 1967 (P.L. 89-234, Sec. 5, recodified
Sec. 10(c)(D; see Sheaffer, 1972, p. 991). State standards became the fed-
eral enforcement standards upon approval of the Administrator of the Federal
Water Pollution Control Administration. If state standards were adjudged
inadequate or no letter of intent was filed to adopt water quality standards,
the Administration was authorized to initiate adequate standards (P.L. 89-234,
and 5, recodified Sec. 10(c)(2)).
The enforcement conference was retained. It could be convened by the
Secretary upon the request of the Governor of any state or state pollution
control agency or by the Secretary if he determined a pollution problem in
navigable or interstate waters would endanger the health and welfare of
81
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persons in states other than the one in which the discharge originated (Ibid.,
Sec. 56, recodified Sex. 10(d)(l)). This Act also provided grants for research
into better methods of controlling pollution from sewer overflows and storm-
waters and increased the available construction grants for fiscal years 1966
and 1967.
Clean Water Restoration Act of 1966
The Clean Water Restoration Act of 1966 accelerated federal participation
in the construction of sewage treatment facilities, authorized various pollu-
tion studies, increased the federal grants program, and encouraged water pol-
lution control in river basin planning. This Act strengthened the enforcement
conference by giving the Federal Water Pollution Control Administration author-
ity to act on international pollution. It required that persons causing or
contributing to pollution must file with the Secretary of the Interior reports
which revealed the kinds of discharges being made and the facilities used to
reduce the waste content of such effluents (P.L. 89~753, Sec. 208(b)). Fail-
ure to file such a report subjected the violator to a fine of $100 per day,
enforced by the Attorney General.
The Act provided for federal expenditures of over $3-5 billion for the
fiscal years 1967-1971> but actual appropriations were a little over 50 per-
cent of the authorized sum for those years (Sheaffer, 1972, p. 991)-
Water Quality Improvement Act of 1970
The Water Quality Improvement Act of 1970 amended the Federal Water Pol-
lution Control Act by adding new sections on control of oil discharges, dis-
charge of hazardous substances and discharge of sewage from vessels (Act of
April 3, 1970, P.L. 91-224, Bk Stat. 91). Demonstration projects were author-
ized for the cleaning up of pollution in the Great Lakes and acid mine drain-
age. Federal agencies were also required to insure compliance with water
quality standards and a program was introduced for manpower training in water
pollution control.
The administration of the Water Pollution Control Act was changed in name
from the FWPCA to the Federal Water Quality Administration (FWQA) (Ibid .,
Sec. 2). Then four months later, on July 9, 1970, President Nixon established
the Environmental Protection Agency (EPA) under Reorganization Plan No. 3 of
1970, and transferred all the functions of the FWQA and those vested under the
Federal Water Pollution Control Act as amended to EPA. This reorganization
was done to provide a more efficient operation by the government in matters
related to control of the environment. Within EPA, the FWQA became the
Water Quality Office, and in 1971 the Office of Water Programs.
Summary of Legislative Achievements Up to 1972
In spite of a legislative history extending back nearly 25 years, no
meaningful enforcement program for water pollution control existed in 1971
synonymous to that found for noise and air pollution abatement. The Federal
Government found it necessary to reactivate key sections of the Rivers and
Harbors Act of 1899 which forbid dumping of refuse into navigable waters or
82
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their tributaries without first obtaining a permit from the Corps of Engineers
(Act of March 3, 1899, Ch. 425, 30 Stat. 115, Sec. kOJ along with Sees. 411
and 413 is commonly called the 1899 Refuse Act).
Also, no real attempts were made during the 1950's and 1960's to develop
a program to control degraded return flows from irrigated agriculture, even
though both the President's Water Resources Policy Commission of 1950 and the
Senate Select Committee on National Water Resources of 1961 made reference to
the problems of salinity and sediment accumulations in waterways.
PRESENT FEDERAL APPROACHES
Federal Water Pollution Control Act Amendments of 1972
A comprehensive approach focusing upon the totality of water quality con-
trol was finally adopted in the Federal Water Pollution Control Act Amendments
of 1972 (Act of Oct. 18, 1972, P.L. 92-500). This law, for the first time,
vested in the Federal Government the power and procedures necessary to pursue
the wide range of problems faced in water pollution control, while at the same
time enabling flexibility in the decision-making process.
Background—
The legislative history of P.L. 92-500, as is the common reference to the
Federal Water Pollution Control Act of 1972, is indeed an interesting example
of strong Congressional desire to enact a viable piece of water pollution con-
trol legislation and the process of negotiation that is required when a meas-
ure has controversial components. However, as interesting as it may be, a
definitive background statement is beyond the scope of this report, but can be
found in the two volumes, totaling over 1700 pages, produced by the Environ-
mental Policy Division, Congressional Research Service, Library of Congress,
for the Committee on Public Works (A Legislative History of..., 1973). This
brief background is provided to give the reader an insight into the Act's
complex beginnings.
Preparing amendments to the Federal Water Pollution Control Act was
referred to the Committee on Public Works in the House and Senate. In pre-
senting the Senate version of the amendments, S.2770, to the Senate on
November 2, 1971, Senator Muskie stated that:
The Committee on Public Works, after 2 years of study of
the Federal water pollution control program, concludes
that the national effort to abate and control water pollu-
tion is inadequate in every vital aspect (Ibid. , p. 1253)-
The Senate approved S.2770 by a 80 to 0 vote. On March 29, 1972, the House
of Representatives approved its version of the amendment, H.R. 11896, by a
vote of 378 to \k.
Although the two versions were similar in many ways, major differences
remained and neither legislative body would agree to amending their bill to
present a unified effort. Consequently, the Senate requested a joint
83
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conference to resolve the differences. After 39 sessions, the committee
reached agreement on September 14, 1972, and both Houses of Congress voted to
adopt the conference report. It passed, unamended, by a House vote of 366-11
and by the Senate vote of 74-0 (Environment Reporter, Current Developments,
October 6, 1972, Vol. 3, No. 23, p. 619).
The bill was sent to the White House on October 4, 1972. On October 17,
1972, President Nixon vetoed the bill saying the authorized expenditure of
$24.6 billion on water pollution control would cause inflation and higher
taxes (118 Cong. Record, S.18534, Oct. 17, 1972). On October 18, 1972,
Congress overrode a Presidential veto by a vote in the Senate of 52 to 12 and
in the House by 247 to 23 (Environment Reporter, Current Developments, Oct. 20,
1972, Vol. 3, No. 25, p. 7lTT
Thus, the Federal Water Pollution Control Act amendments of 1972 became
law. According to the Assistant Administrator for Enforcement and General
Counsel of EPA, this act would establish a rule of law in the enforcement of
federal and state water quality standards (Environment Reporter, Current Devel-
opments. Nov. 3, 1972, Vol. 3, No. 27, pp. 793-795).A noted environmental
author stated:
(this act)...was needed. The existing federal water pollu-
tion laws were abominable. The major act, the Federal Water
Pollution Control Act, was virtually unenforceable. Until
1972 only one law suit was even filed under that Act, against
the city of St. Joseph, Missouri, and years later an unsatis-
factory settlement was negotiated (Reitze, 1972, Supp.
1973, P. 22).
The'major shifts in control from past legislative efforts include the
maintenance of the water quality standards concept but basing control upon
setting effluent standards for point source dischargers, requiring them to
obtain a permit to discharge, and setting target dates for: a) achieving
specific improvements in water quality; and b) use of improved treatment
technology by point source dischargers.
Goals and Objectives—
The stated objective of the Federal Water Pollution Control Act of 1972
is to "restore and maintain the chemical, physical and biological integrity
of the nation's waters" (P.L. 92-500, Sec. 101(a)). In order to achieve the
cleaner water objective, the Act declares that:
(1) it is the national goal that the discharge of pollutants
into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an
interim goal of water quality which provides for the pro-
tection and propagation of fish, shellfish and wildlife and
provides for recreation in and on the water be achieved by
July 1, 1983;
(3) it is the national goal that the discharge of toxic
pollutants in toxic amounts be prohibited;
84
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(k) it is the national policy that Federal financial assist-
ance be provided to construct publicly owned waste treatment
works;
(5) it is the national policy that areawide waste treatment
management planning processes be developed and implemented
to assure adequate control of sources of pollutants in each
State; and
(6) it is the national policy that a major research and
demonstration effort be made to develop technology necessary
to eliminate the discharge of pollutants into the navigable
waters, waters of the contiguous zone, and the oceans (Ibid.,
Sec. 101(b)).
This same section also sets forth the policy of Congress to:
...recognize, preserve, and protect the primary responsibil-
ities and rights of States to prevent, reduce ard eliminate
pollution, to plan the development and use (including restor-
ation, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the
exercise of his authority under this Act. It is further the
policy of Congress to support and aid research relating to
the prevention, reduction, and elimination of pollution, and
to provide Federal technical services and financial aid to
State and interstate agencies and municipalities in connection
with the prevention, reduction, and elimination of pollution
(Ibid).
It is further the policy of Congress that the President,
acting through the Secretary of State and such national and
international organizations as he determines appropriate,
shall take such action as may be necessary to insure that
to the fullest extent possible all foreign countries shall
take meaningful action for the prevention, reduction, and
elimination of pollution in their waters and in international
waters and for the achievement of goals regarding the elimi-
nation of discharge of pollutants and the improvement of
water quality to at least the same extent as the United
States does under its laws (Ibid., Sec. 101 (c)).
Public participation in the development, revision, and enforce-
ment of any regulation, standard, effluent, limitation, plan,
or program established by the Administrator or any State under
this Act shall be provided for, encouraged, and assisted by the
Administrator and the States, The Administrator, in cooperation
with the States, shall develop and publish regulations specify-
ing minimum guidelines for public participation in such pro-
cesses (Ibid., Sec. 10l(e)).
The crux of the Act is the declaration of Section 301(a) forbidding the
discharge of any pollutant by any person into the waters of the United States
including the territorial sea except as provided by the Act. In the past,
85
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there has been considerable discussion and controversy over which waters fed-
eral legislation had jurisdiction. Usual reference has been to "navigable
waters" and "interstate waters," concepts with varying interpretations to dif-
ferentiate between state and federal jurisdiction. EPA interprets Congress1
omission of "navigable" from the "waters of the United States" as extending
federal jurisdiction to cases in which the interstate commerce is connected
to the use of the water and not through the water itself (Dolgin, 197^+,
p. 691). The intent is to avoid the dichotomy of state and federal waters
and bring all significant waters under a single system "with the state and
federal governments playing complementary functions in the operation of a
single system" (Ibid., p. 693). Thus, from a practical point of view, the
federal-state relationship in controlling water pollution extends to nearly
all waters of the United States.
In controlling discharges of pollutants, the Act prohibits any discharge
unless the discharger meets uniform effluent standards. Two levels of efflu-
ent standards are to be met by point source dischargers, unless discharging
into a publicly owned treatment plant. The first requires the adoption of
the best practicable control technology currently available by July 1, 1977-
The second calls for effluent limitations which require application of the
best available technology economically achievable by July 1, 1983 (P.L. 92-
500, Sec. 301 (b)).1*
The efforts of the sponsoring Congressmen and both House and Senate
committees were devoted to producing a powerful, decisive piece of legislation
which would drastically reduce pollution of our nation's waters. But the
scope of section 301(a) as it applied to irrigation return flows was questioned.
During debate in the House of Representatives on its version of the bill, H.R.
11896, Teno Roncalio, Representative from Wyoming, offered an amendment exempt-
ing irrigated agriculture from the requirements of section 301 (A Legi slative
History, 1972, p. 651). He argued that this amendment was important to the
credibility of the legislation, since the technology for identifying and
specifically tracing irrigation pollutants did not exist and therefore the
bill would be unenforceable in the case of agriculture. Comment was expressed
in favor of the amendment until the representative from California called
attention to the San Luis Drain which dumps highly polluted irrigation return
flows into the San Joaquin River in California. That single case seemed to
sway the opinion, in spite of the thousands of agricultural users whose impact
would be much less significant, and the amendment was defeated (Ibid. , pp. 652-
653).
The objective and goals are to be achieved through the integrated effort
of a three-pronged program encompassing: a) areawide waste treatment manage-
ment for both point source and non-point source discharges; b) a continuing
planning process; and c) a permit system for discharges from point sources in
navigable waters under Section k02 called the National Pollutant Discharge
Elimination System (NPDES). The construction grants program was also in-
creased significantly to enable municipalities, states and interstate agencies
to maintain treatment facilities that would meet the objectives of the Act.
k See Goldfarb, William, "Better Than Best: A Crosscurrent in the Federal
Water Pollution Control Act Amendments of 1972." Land and Water Law Review.
Volume XI, No. 1, 1976. ~~
86
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Areawide Waste Treatment Management—
Section 208(a) required the Administrator to publish guidelines no later
than January 16, 1973 for identifying areas that have substantial water qual-
ity problems (P.L. 92-500, Sec. 208(a)). The Governors of the various states
then had sixty days to identify the problem areas in their states. Within 120
days, boundaries and a single agency capable of developing areawide waste
treatment management plans had to be designated. One year after the designa-
tion of an agency it must have in operation an areawide planning process
(j bid., Sec. 208(b)(l)). This initial plan has to be submitted to the Admin-
istrator not later than two years after the planning process is in operation.
These plans have to include a process to identify agriculturally related non-
point sources of pollution (Ibid. , Sec. 208(b)(2)F).
Guidelines for management of areawide waste treatment under Section 208
were prepared by the Environmental Protection Agency in 1975. Administrator
Train stated in a foreword to these guidelines that "complex technical and
institutional problems of water quality protection vary so widely across the
nation that long-term solutions to these problems will necessarily depend on
decentralized management" (Environment Reporter, Current Developments, Sept. 5,
1975, Vol. 6, No. 19, p. 7617^The guide!ines described the overall factors
which should be taken into account and provided a framework for designated 208
planning agencies to use In developing their plans and implementation programs.
They recommend that Section 208 programs focus on an integrated approach to
identify and control the most serious water pollution problems. A successful
Section 208 program should include among other things a non-point source man-
agement program and regulatory programs including discharge permits to carry
out abatement measures. The Environmental Protection Agency has also urged
that areawide wastewater treatment management should focus on non-point
source pollution problems including those occurring from irrigated agriculture
(Environment Reporter, Current Developments, April 23, 1976, Vol. 6, No. 52,
p. 2145).
Continuing Planning Process-
Section 303(3) requires each state to have a continuing planning process
for navigable waters, approved by the Administrator, before a state permit
program can be implemented. The planning process must include:
1. effluent limitations at least as strict as those required
by Sec. 301 (b), 306 and 307 and the requirement for water
quality standards;
2. an areawide waste management and basin plan under Sec. 208
and 209-
3. total maximum daily loads for pollutants;
4. procedures for revision:
5. adequate author!ty for intergovernmental cooperation;
6. adequate implementation to meet water^quality standards;
7. control over wastewater treatment residuals; and
8. an inventory of the needs for waste treatment works in
order of priority (P.L. 92-500, Sec. 303(e)).
The continuing planning process is a "key mechanism for integrating the
various management activities" of the Federal Water Pollution Control Act.
87
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After the basic planning has been accomplished under Section 303(e), other
planning is to be used to develop more sophisticated and explicit management
guidance (Environment Reporter, Current Developments, January 31, 1975, Vol.
5, No. 40, p. 1515).Interim regulations were established by EPA on March 27,
1973 for a state's continuing planning process in water pollution control
(Environment Reporter, Current Developments, March 30, 1973, Vol. 3, No. 48,
p~1441). Final regulations became effective on July 3, 1974 (Envi ronment
Reporter, Current Developments, July 7, 1974, Vol. 5, No. 6, p. T6~5").
National Pollutant Discharge Elimination System Permit Program
and Irrigated Agriculture--
The basic legal mechanism for enforcing the water quality and effluent
limitation standards is the permit program created by Section 402 of P.L. 92-
500. It must be emphasized that although the effluent standards set the max-
imum discharge from a source, the retention of the water quality standards
provides a dual approach to achieving cleaner water under P.L. 92-500. Even
though a discharger is complying with the effluent controls under his permit,
he may be required to reduce further the effluent if it is necessary to meet
the water quality standards set for the receiving waters (see Figure 14 for
a graphic illustration of the relationship of Section 402 with other actions
under P.L. 92-500).
Section 402 provides for a permit system and all permits presently in
force under the 1899 Rivers and Harbors Act continue until modified.5 As
summarized by the Staff Report to the National Commission on Water Quality:
The NPDES permit process contains 10 distinct steps...
beginning with a discharger request for a permit applica-
tion and ending with issuance of the permit. After a
dis-charger files a permit application, it is reviewed by
EPA or an NPDES state agency for completeness. During
this review step, EPA solicits comments from a wide range
of interested parties, including the Corps of Engineers
and state and Federal water resource agencies. While such
comments are generally advisory, in effect the Corps of
Engineers can veto a permit when it concludes that the
permit will damage navigation. Though not legally obligated
to meet the review objections raised by agencies other than
the Corps, negative comments are carefully considered by EPA
which has established procedures for resolving interagency
conf1icts.
After review of the permit application, EPA (or an NPDES
state agency) formulates permitted effluent limitations.
If the discharger is unable to comply fully with per-
mitted limitations within nine months of permit issuance,
the two parties jointly formulate a compliance schedule
for installation of the required pollution control plant
and equipment. Some degree of permit formulation varia-
tion is apparent in every state and EPA regional permit
However, no new permits are to be issued under that Act.
88
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0>
VD
STANDARDS
Point Source
Effluent
Guide!ines
(Sec. 301, 304,
306 and 307)
Water Quality
Standards
(Sec. 303
a, b, c)
ENFORCEMENT
Enforcement
(Sec. 309)
SOURCE: National Water Quality Commission Report, FWPCA of 1972:
Program, NTIS, PB 244805, p. 6, 1975.
Institutional Assessment—The Permit
Figure H. Theoretical Relationship of Section k02 with Other Regulations.
-------
writing process. Decisions regarding when to involve dis-
chargers, how much data should be collected, by whom (the
permittee, EPA, or an NPDES state), and how load allocations
are to be determined when water quality limited river seg-
ments or water basins are involved represent only a few of
the discretionary subjects in the permit writing process.
The fifth step in the permit writing process relates to
Federal-state certification (approval) of the draft (formu-
lated) permit. If the permit is prepared prior to designa-
tion of the NPDES program to the state, the EPA prepared
permit must be certified-approved by the state water pollu-
tion control agency. If the state has been designated, the
NPDES state prepared permit must be certified-approved by
the EPA Regional Administrator.
After certification-approval of the draft permit, public
notice is given of the Intent to issue a permit; at least
a 30-day public comment period must follow such notice and
when requested, a public hearing must be conducted if a
significant public interest issue (as determined by the
EPA Regional Administrator) is involved.
Following public notice, review of any comments and a public
hearing when required, the final permit is drafted. Final
Federal-state certification-approval is obtained, and the
permit is issued unless the discharger-applicant resorts to
administrative or judicial appeal of the permit conditions
(Water Quality, 1976, V-20 to V-23).
States are encouraged to adopt a pollution control program consistent
with the federal provisions. Once accepted by the Environmental Protection
Agency, the states shall administer water quality control within their juris-
diction. The Administrator will turn the NPDES program over to the states
subject to Section 304(h)(2) and Section 402(b), unless the state permit
program fails to meet federal requirements (Sec. ^02(b)). Table 2 reflects
the states of NPDES delegation in the 17 western states.
Through the permit program, point source discharges will be identified
and their discharges monitored to ensure that the effluent discharge limit-
ations are maintained. The permit defines the obligations of the permittee
in complying with effluent limitations tailored to the specific conditions
of the permittee. Also, the permit sets out a compliance schedule to be
followed by the permit holder. Figure 15 and Table 3 identify the scope of
coverage under the NPDES program.6
As was stated previously, all point source discharges not excluded under
Section 301 are subject to the permit program. By not excluding irrigated
6 For a detailed discussion on the coverage of Section 402, see The Federal
Water Pollution Control Act of 1972: Institutional Assessment—The Permit Pro-
gram, A National Water Quality Commission Report. NTIS, PB 2kk 805. 1975.
90
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TABLE 2. STATUS OF NPDES DELEGATION IN THE 17 WESTERN STATES'
EPA Regions
Accepted
Reason for EPA
Non-Acceptance
Region VI
New Mexico
Oklahoma
Texas
Reg i on VI I
Kansas
Nebraska
Reg i on V I I I
Colorado
Montana
North Dakota
South Dakota
Utah
Wyomi ng
Region IX
Arizona
Cali fornia
Nevada
Region X
Idaho
Oregon
Washington
6-28-74
6-12-74
3-27-75
6-10-74
6-13-75
1-30-75
5-14-73
9-19-75
9-26-73
11-14-73
Legal
Legal
Legal
Resources
Legal
Legal
Legal
* Status as of February 1, 1977- Update to Table V-5, p.^V-21 Staff
Report to the National Commission on Water Quality. April 1976.
-------
N>
Rural Precipitation
Urban Precipitation
= uncontrolled by NPDES
controlled by NPDES
Source- National Water Quality Commission Report, FWPCA of 1972: Institutional Assessment—The Permit
Program. NTIS, PB 244805, p. 102, 1975.
Figure 15. Overview of NPDES Coverage
-------
TABLE 3. COVERAGE OF POLLUTION SOURCES
Direct Coverage by P.I. 92-500
Direct Coverage
by NPDES
Controlled by
Other Public Law
92-500 Programs
Indirect Coverage
by NPDES
Exclusions
Dischargers
Excluded from1
NPDES Coverage2
Uncontrolled by1
P.L. 92-500 2
— Industrial
dischargers
--Municipal
treatment
plants
— Irrigation
return flows
--Large
feedlots
— Ocean dumping --Combined sewers
(Sec. 402)
—Marine sanita- —Industrial
tion dischargers treatment
(Sec. 312) (Sec. 307)
—Aquaculture — Sludae disposal
(Sec. 318)
—Oil and
hazardous
materials
(Sec. 311)
— Dredging spoils
(Sec. 404)
— Toxic
substances
(Sec. 307)
— Storm sewer
--Small feedlots
--Small pre-
treating
industries
--Landfill or
other solid
wastes dis-
posal systems
— Septic tanks,
cesspools and
individual
household systems
--Urban runoff
—Rural runoff
--Ground water
pollutants
— Non-Federally
funded land
application
projects
— Acid mine
drainage
1 Section 208 provides for planning to examine and management to control the impacts of
these pollutants in some localized areas facing complex water quality problems.
2 State permit programs control some of these sources.
SOURCE: National Water Quality Commission Report, FWPCA of 1972: Institutional Assessment—The Permit
Program. NTIS, PB 244805, p. 104, 1975. ~
-------
agriculture from the provisions of Section 301, it became subject to the per-
mit program. The ramifications of the failure to pass the Roncalio amendment
were outlined by the Congressman:
I believe that a serious, if not fatal, omission of H.R.
11896 is its failure to specifically exempt irrigated agri-
culture from the federal discharge permit system until ade-
quate technology is developed to meet proper requirements.
My concern is with Sections 208(b)(2)(F), 304(3), 306(b)(1)
(B) and particularly Section 301 which states that unless
otherwise authorized, 'the discharge of any pollutant by
any person shall be unlawful.1
Accordingly, I shall at the proper time encourage an amend-
ment to Section 302 to the effect that:
The provisions of this Act prohibiting the discharge
of pollutants and requiring a permit to discharge shall
not be applicable to discharges resulting from agricul-
tural irrigation. The purpose of this exclusion is to
permit the development of an adequate technology and
feasible methodology which will enable irrigation dis-
chargers to meet the discharge and permit requirements
of this Act.
I think it is common knowledge that the type of salinity
problems created by irrigation wastes—even in the arid
upper Colorado states which may well contribute to the
overall salinity problems 1500 miles to the southwest—are
simply not as alarming as the more common pollutants dis-
charged by industrial and municipal facilities. Substantial
salinity concentrations have little effect on recreational
use of water or its suitability for propagation of fish.
Moreover, the technology to control salinity resulting from
irrigation use is not available. There is no feasible method
of treating irrigation wastes in those cases when irrigation
discharges can be isolated from natural sources of runoff.
Usually it is impossible to locate a particular discharge and
match it to the proper irrigator before it percolates into a
ground water reservoir, or returns to the original stream.
The most insurmountable difficulties encountered, however,
could be the administrative problems. The number of federal
applications for all irrigation discharges would be stagger-
ing. In Wyoming alone, between 35,000 and 40,000 permits
would be required. When applying for a federal discharge
permit the burden of proof would be on the water user to
show that the environment would not be harmed. For those
who were not granted a permit, valuable property rights
would be lost without compensation, and this involves
serious implications for the courts.
94
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Moreover, the massive bureaucracy needed to process the
permit applications would have uncertain jurisdiction. Would
it have to completely supercede functioning state water right
mechanisms in order to operate effectively? If so, the prior
appropriation doctrine would be reduced to an unrecognizable
shambles. This could cause disastrous instability throughout
the West among current water right holders. The effect on
investment incentives and property values is incalculable.
At best, a phenomenal paper work logjam could be created with
negligible improvement in water quality.
Even though effluent control may be chosen as the best method
of controlling pollution contributed by industrial and muni-
cipal wastes, it does not appear at present to be a practical
method of controlling non-point sources of salinity associated
with irrigation. A better method of handling these problems
may well be regional or basinwide management of water resources.
I believe the above amendment therefore would serve the best
interests of improving the overall water quality throughout
the nation, without imposing regulations that are necessary
in one area, but will do irreparable harm in another (A_
Legislative History, 1972, pp. 860-861).
The fact that the San Luis Drain case so closely resembles the point
source kind of pollution with which legislators from most parts of the nation
are familiar, may account for its powerful influence in their vote against
Roncalio's amendment. Their inability to accept the issues raised above
seems to be a case of "straining at a gnat and swallowing a camel."
In Senate debate, Mr. Dole, Senator from Kansas, pointed out the fact
that agricultural pollution is generally a non-point source. An exchange
between Senator Dole and Senator Muskie, one of the primary sponsors of the
bill, is informative:
Mr. Dole: Another question of real concern to many farmers,
stockmen anH others in agriculture involves the terms 'point
source1 and 'non-point source.1
Most sources of agricultural pollution are generally consid-
ered to he non-point sources.
My question is: Simply, to what sources of guidance are we
to look for further clarification of the terms 'point source'
and 'non-point source'—especially as related to agriculture?
Mr. Muskie: Guidance with respect to the identification of
'point sources' and 'non-point sources,1 especially as re-
lated to agriculture, will be provided in regulations and
guidelines of the Administrator (Ibid., pp. 1298-1299).
This indicates that it would be EPA's responsibility to clarify the terms
"point" and "non-point" source and thereby to determine applicability of
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Section 402 permit requirements.7 Thus, the legislature defeated the proposal
to exclude agricultural pollution and passed the problem on to the Administra-
tor of EPA.
Implementing the NPDES Program—
On December 22, 1972, regulations were promulgated and published in the
Federal Register establishing Guidelines for State Program Elements Necessary
for Participation in the National Pollution Discharge Elimination System
(NPDES) program (37 F.R. 28290). Comments received in response to these reg-
ulations and to proposed NPDES application forms indicated a need to consider
the desirability of attempting to extend the permit system to all point
sources conceivably covered by the broad definitional framework established
by the Federal Water Pollution Control Act. EPA's intent to consider:
1) further comments with respect to the NPDES application form for agricul-
tural discharges, Short Form B; and 2) exclusions from the permit system,
particularly for agricultural and siIvicultura1 sources, was indicated in the
Federal Register on December 29, 1972 (37 F.R. 28765).
On May 3, 1973, EPA proposed a revised Short Form B for agricultural
discharges and proposed classes and categories of siIvicultural and agricul-
tural activities which would not be subject to NPDES permit requirements (38
F.R. 10960). On May 22, 1973, regulations establishing policies and proced-
ures for issuance of NPDES permits by the Federal Government were promulgated
and published (38 F.R. 13528). In that publication, Section 125-4, entitled
Exclusions, provided that NPDES permits were not required for discharges from
separate storm sewers composed entirely of storm runoff uncontaminated by in-
dustrial or commercial activity.
Subsequently, on July 5, 1973. after receiving information, statistics
and advice from other federal agencies, state officials and agricultural and
environmental groups in response to the May 3» 1973 proposal, EPA issued
notice of the availability of the final agricultural application Short Form B
and published an amendment to Section 125.4 (38 F.R. 18000). This amendment
provided for an expansion of the exclusions in that section, eliminating cat-
egories of small concentrated animal feeding operations and certain agricul-
tural and siIvicultural activities from the permit requirement. Specifically,
irrigation return flow from sources of less than 3,000 acres was exempted.
The EPA Regional Administrator or the Director of a state water pollution, con-
trol agency could override the exclusions by identifying individual sources
as significant contributors of pollution. Once so identified, significant
contributors of pollution were required to apply for and comply with NPDES
permits (40 C.F.R'. 124.11 (h) (5)).
In promulgating the July 5 regulations, EPA stated its belief that while
some point sources within the excluded categories may be significant contrib-
utors of pollution which should be regulated consistent with the purposes of
the FWPCA, it would be administratively difficult if not impossible, given
7 EPA is currently appealing the Flannery Decision (N.R.D.C. v. Train, 396
F. Supp. 1393, 7 ERC 1881, D.D.C., 1975) to contest the inclusion of "all"
point sources under the NPDES program.
96
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federal and state resource levels, to issue individual permits to all such
point sources. In addition, the Agency stated that regulation through the use
of site-specific NPDES permits was not appropriate for most of the small
sources covered by the exemptions. Essentially, these regulations providing
for exemptions were based upon EPA's view (a view which it continues to main-
tain is correct) that most sources within the exempted categories present
runoff-related problems not susceptible to the conventional NPDES permit pro-
gram, including effluent limitations. EPA's position was and continues to be
that most rainfall is more properly regulated under Section 208, whether or
not the rainfall happens to collect before flowing into navigable waters.
Agricultural runoff frequently flows into ditches or is collected in pipes
before discharging to a stream, and that most of these sources are non-point
in nature and should not be covered by the NPDES permit program. EPA felt
that this was an exercise of limited administrative discretion in excluding
these basically non-point sources from the permit program and the best means
for achieving the Congressional intent consistent with the language of P.L.
92-500.
On July 16, 1975, EPA approved revisions to the NPDES Regulations which
made the discharger responsible for removing only those pollutants he adds to
the waters of the United States, by receiving credit for the specific pollu-
tants which are present in his intake water and are not removed through the
application of the required level of technology (40 F.R., 29848; see Environ-
ment Reporter, Current Developments, July 18, 1975, Vol. 6, No. 12, p. 488).
These regulations became effective on August 15, 1975-
Reaction to the NPDES regulations including irrigation return flows was
swift. Farmers with more than 3,000 acres of land objected to the regulations.
In Idaho, where EPA in cooperation with the state agency attempted to admin-
ister a permit program, farmers joined together to fight the system in court.
They argued that the 3,000 acre limitation was only arbitrarily chosen without
direct relationship to pollution contribution. Officials in the Department of
Ecology in the State of Washington watched Idaho's experience and decided to
implement a much less objectionable program of issuing permits on wastewater
only (excess water which had not been applied to the fields, but was diverted
back into the waterway).
Another attack on the regulations issued by EPA came from the environ-
mental front. The Natural Resources Defense Council (NRDC) challenged the
exercise of the Administrator's discretion in exempting certain sources of
pollution from the NPDES permit program. In a law suit filed in the Federal
District Court for the District of Columbia, NRDC contended that the Adminis-
trator had failed to meet the legislatively implied obligation to delineate,
by regulation or otherwise, between point and non-point sources and had in-
stead simply exempted portions of what remained classified as point sources.
The very inclusion of some sources of irrigation return flow (areas over
3,000 acres) in the NPDES program is taken to be an implied classification
of these sources as point sources.
Defendant Train and EPA contended that the exempted categories of sources
are ones which fall within the definition of point source but^wh.ch are ill-
suited for inclusion in a permit program. Pollutants, EPA maintained, are
97
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best eliminated from agricultural discharges by "process changes" which prevent
pollutants from entering runoff rather than by treating the discharge by the
"end-of-pipe" method. EPA argued that the Act and its legislative history
reflect congressional recognition that such runoff is to be dealt with in a
non-point method. Moreover, it was EPA's contention that the tremendous num-
ber of sources within the exempted categories would make the permit program
unworkable. Faced with this problem, the Administrator harmonized the con-
flicting demands for regulation of point sources by exercising his discretion
under the permit program to establish the challenged exemptions (see 7 E.R.C.
1881, 396 F. Suppl. 1393, D.D.C., 1975).
The District Court rules in favor of N.R.D.C. and on June 10, 1975 issued
a final order requiring EPA to propose and promulgate regulations "extending
the NPDES permit system to include all point sources" In the concentrated ani-
mal feeding operation, separate storm sewer, agricultural and siIvicultural
categories. Under the terms of the order, EPA was to propose regulations
extending the permit system to point source discharges in the agriculture and
silviculture categories by February 10, 1976. EPA has appealed this decision
and its resolution is still pending.
As part of the effort to carry out the requirements of the court order,
EPA solicited and received information, statistics and advice from other Fed-
eral agencies, state and local officials, trade associations, agricultural,
si 1vicultural and environmental groups, and interested members of the public.
Public meetings were held across the country; those in Denver, Portland (Ore-
gon), Indianapolis, and Atlanta specifically considered the agriculture and
silviculture categories. At each of these meetings, persons representing
both potential permittees and permit issuing agencies voiced significant
opposition to the development of an expanded permit system with the NPDES pro-
gram as 'it has been administered to date. Many commenters pointed out that
such a program would require a massive commitment of resources, both by the
dischargers and by the issuing agencies, which would not be commensurate with
the modest pollution reduction gained from the program. They also emphasized
that numerical effluent limitations are inappropriate for pollution abatement
from most of these point sources, and they urged EPA to consider alternative
pollution control processes and methods as a basis for any proposed permit
system. Finally, several commenters strongly recommended that EPA reconsider
the explicit legislative history of P.L. 92-500 concerning agricultural non-
point sources and adapt the proposed regulations to the language from that
history. In general, most participants strongly recommended that EPA develop
factors to distinguish point sources from non-point sources, and suggested
specific criteria to designate most discharges from agricultural activities
as non-point In nature and thus not subject to the permit program.
Taking these comments, as well as the legislative history, the statutory
language, the N.R.D.C. vs. Train decision, and the technical data available on
agricultural activities into consideration, EPA examined the relationship
between the NPDES permit program (which is designed to control and eliminate
discharges of pollutants from discrete point sources) and water pollution
from agricultural activities. On February 23, 1976, EPA proposed a new
program for dealing with agricultural activities.
98
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The proposed new approach provides that water pollution from most agri-
cultural activities is considered non-point in nature and thus not subject to
any permit requirements. However, discharges of pollutants into navigable
waters through discrete conveyances, which result from the controlled appli-
cation of water, are considered agricultural activity point sources, A new
section, 124.84, would be added to the regulations to set forth the distinc-
tion between point and non-point sources.
Agricultural activities, particularly irrigation, which result in surface
discharges:
1. which contain pollutants; and
2. which result from the controlled application of water by any person, and
which are not caused or initiated solely by natural processes of precip-
itation; and
3. which are discharged from a discernible, confined and discrete conveyance;
and
4. which are directly discharged into navigable waters; are subject to
regulation under Section 402, the NPDES permit program (41 F.R. 7964).
It is clear that this definition would apply primarily to irrigation
return flow ditches and drains. Although these ditches are considered point
sources, in most cases there are no conventional permit requirements at this
time. Because of the lack of pollution control technology, discharges of
agricultural wastes from agricultural activity point sources are proposed to
be permitted by general permit(s).
On July 12, 1976, the EPA issued regulations which subjected agricultural
activities to general rather than individual water pollution control permits
(40 C.F.R. 124, 41 F.R. 28493). A point source is defined in the agricultural
category by these regulations as any discernible, confined and discrete con-
veyance from which any irrigation return flow is discharged into navigable
waters (41 F.R. 28496, Sec. 125.53). Irrigation return flow is defined as
"surface water, other than navigable waters, containing pollutants which re-:
suit from the controlled application of water by any person to land used
primarily for crops, forage growth, or nursery operations" (41 F.R. 28496,
Sec. 125.53). These regulations recognized that water pollution from most
agricultural activities is considered non-point in nature and thus not sub-
ject to any permit requirements.
Regulations for general permits covering point sources from agricultural
activities have been proposed by the EPA because "the NPDES permit program as
currently administered was not appropriate to deal with the vast number of
point sources" in that category (Anderson, 1976, p. 2). This general permit
program is being proposed, according to EPA, because of:
1. The number of discharge sources in the separate storm sewer
and agricultural activity categories that have been designated
99
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as point sources subject to permit requirements is vast, and in
many cases unknown or unnumerable.
2. The individual owners and operators of such point sources
are not easily ascertainable, nor is their responsibility for
the effluent discharged from such point sources entirely
clear....
3- [the fact that] even if this information concerning the
number and identification of all owners and operators and their
legal responsibilities was available, it is unappropriate at
this time to attempt to impose effluent limitations on each
point source... (Ibid., 1976, p. 3).
Final regulations for the general permit program were proposed on
February 4, 1977- In describing the program, the EPA regulations state:
NPDES States may choose to administer a similar general permit
program for the point sources in these two categories, or may
apply the conventional individual permit program to separate
storm sewers and agricultural point sources.
This general permit program is intended to provide maximum
flexibility to EPA and the States in administering an appro-
priate permit program for these categories. This program
specifically recognizes that pollution reduction from sources
in these categories is often more effectively achieved by using
best management practices (BMPs) than by applying end-of-pipe
pollution control technology. BMPs are management techniques
that reduce the amount of pollutants at their source rather
than remove them from their point of discharge into navigable
waters. The Federal Water Pollution Control Act (FWPCA),
however, contemplated that NPDES permits would generally regu-
late pollution from point sources by imposing effluent limit-
ations achieved by end-of-pipe pollution control technology.
It appears that under the FWPCA, BMPs to achieve pollution
reduction and water quality standards can be imposed as
requirements in NPDES permits only in limited, specified cir-
cumstances. Clearly, however, BMP requirements may be imposed
in permits so as not to conflict with provisions of an area-
wide waste management plan approved pursuant to section 208.
Moreover, BMPs may be imposed by requirements of State certi-
fication of an EPA-issued permit under section 401. Despite
the flexibility offered by sections 208 and 401, however,
BMPs are generally not available as control mechanisms In
NPDES permits at this time, although they are often the most
effective means of achieving pollution control for discharges
from separate storm sewers and agricultural point sources....
Given the variable nature of pollutant discharges from sep-
arate storm sewers and agricultural point sources, and the
inability to impose nationally applicable substantive
100
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restrictions in second generation general permits or in indi-
vidual permits, which could include conventional effluent
limitations, management practices, or other appropriate
requi rements.
Because of the interrelationship between this general permit
program and the 208 planning program, the importance of com-
prehensive, sound and effective 208 plans cannot be overempha-
sized While it is the express policy of EPA to regard planning
and problem-solving under section 208 as a local government func-
tion, if it appears that this function is not being carried out,
EPA must initiate action to meet the goals of the FWPCA. An
alternative to this general permit program, with its reliance
on planning agencies' BMP recommendations, could be the issu-
ance of individual NPDES permits imposing effluent limitations
on the point sources identified in the agricultural activities
and separate storm sewer categories. This alternative, as it
has often been expressed, is not as environmentally or adminis-
tratively sound as the general permit concept incorporating
BMPs... (42 F.R. 6846, Environment Reporter, Current Development.
Vol. 7, No. 41, p. 1568-1569).
The general permit program will be implemented in two phases. The first
phase requires permit issuing agencies to designate general permit program
areas (GPPAs) in the state within six months from the date of the regulation.
In designating GPPAs for agricultural point sources, the boundaries may con-
form to existing political boundaries such as conservation, irrigation, or
reclamation districts, designated planning areas under section 208 on city,
county or state political boundaries, or they may correspond to river basins
or any other appropriate subdivision.
The second phase will require general permits to be issued in each GPPA
to cover owners and operators of point sources which have been identified pur-
suant to the July 12, 1976 regulations for agricultural activities within one
year after the area has been designated as a GPPA. Figures 16 and 17 show the
proposed timetable for implementation of the general permit.
General permits cover all owners and operators of separate storm sewers
and agricultural point sources in the GPPA unless they are already subject to
the regular NPDES permit or submit in writing a request to be excluded from
the general permit. In the latter case, they must apply for and obtain an
Individual NPDES permit if discharging from a point source. All covered by
the permit are considered permittees.
The permits may be issued for fixed terms not to exceed five years and
may be reissued for like additional terms. General permits can be modified,
suspended, or terminated; and in the case of termination for some or all
owners or operators in the GPPA, those affected may be required to obtain an
individual permit.
The proposed regulations for implementing the general permit program are
scheduled for promulgation in mid-1977, after comments have been made and
101
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GP = General Permit GPPA = General Permit Program Area RA = EPA Regional Administrator
SOURCE: Proposed NPDES General Permit Regulations. Chart B, 42 F.R. 6846; E.R., CO Vol. 7, #41, p. 150.
Figure 16. Proposed Timetable
-------
1977
1978
1979
Complete
designation
of GPPAs
(6 months after
promulgation of
final GP regulations)
If the GP may
First
possible
final
determination
^ on proposed GP
Complete
Notice of
initial proposed
issuance of GP to
public, agencies,
state (90 days
after designation
of GPPAs)
30 days
after determinations
and publication-
effective date of GP
45 Day
affect
another state, that
state is granted up
to 10 additional days
to determine impact &
comment thereon. If
there is an adverse
impact a public hear-
ing may be held.
comment period on
notice of proposed GP
(comment period may
be extended)
may request hearing
on proposed GP
•ing
If hearing to be held
notice must be given,
plus 45 additional days
to prepare are required
before hearing. After
hearing, RA makes final
determinations on GP.
This process is repeated
until all GPs are issued.
This process is repeated
for reissuance of GPs in
coordination with devel-
oped 208 Plans.
(This chart shows the proposed procedure for the issuance of general permits by the U.S. EPA only. State pro-
grams for the issuance of general permits may differ from this timetable.)
GP = General Permit GPPA = General Permit Program Area RA = EPA Regional Administrator
SOURCE: Proposed NPDES Permit Regulations. Chart A, 42 F.R.: E.R., CO, Vol. 7, #41, p. 150.
Figure 17. Proposed Permit Issuance Timetable
-------
Incorporated. Until such time, however, there is no federal program for con-
trol of irrigation return flow other than inclusion under the individual
(regular) NPDES program where an owner or operator is specifically discharging
and causing objectionable degradation to water quality.
In addition to including irrigation return flow under Section 301 for
effluent control, water quality criteria have also been drafted by the EPA for
agriculture under Section 304. Specific pH values were not prescribed due to
the effects of acidity and alkalinity in irrigation waters on soils and plant
growth which are indirect. However, EPA has stated that a range of 4.5 to 9.0
is usable for Irrigation if care is taken to detect development of adverse
indirect effects (Environment Reporter, Current Developments, August 17, 1973,
Vol. 4, No. 16, p. 663).EPA has also recognized that it is impossible to
prescribe a specific limitation for biochemical oxygen demand in irrigation
water due to a lack of data.
Colorado Salinity Control Act
The Federal Government umbrella program for achieving cleaner water has
been described above. In addition, however, is specific legislation to remedy
international as well as national pollution problems stemming from irrigation
return flow and natural pollution. On June 2k, 1974 a bill "to authorize the
construction, operation and maintenance of action in the Colorado River Basin
to control the salinity of water delivered to users in the United States and
Mexico" was signed by President Nixon and became law (Act of June 24, 1974,
P.L. 93-320, 88 Stat. 266, 43 U.S.C.A., Sec. 1571, e_t. seq.). This Act adopts
and sets out a process to implement a salinity control policy for the Colorado
River. The Act carries out the agreements of Minute 242 of the International
Boundary and Water Commission (Aug. 30, 1973) on a permanent and definitive
solution to the international problem of salinity in the Colorado River. The
policy is based upon recommendations of the Reconvened Seventh Session of the
Conference in the Matter of Pollution of the Interstate Waters of the Colorado
River and Its Tributaries in the States of California, Colorado, Utah, Arizona,
Nevada, New Mexico, and Wyoming held in Denver, Colorado, on April 26-27, 1972
(43 U.S.C.A., Sec. 1591(a), and published in the Conference Proceedings--
Proceedings: 7th Session Reconvened, pp. 169~177, April 1972).
Programs to correct the problem downstream from Imperial Dam include a
desalting plant to reduce the saline waters from the Wei 1 ton-Mohawk division
of the Gila Project, Arizona, construction or replacement of by-pass drains
and conveyance flumes, and retiring of lands to reduce the irrigation return
flows. In addition to removing some lands from production, assistance to
remaining lands to increase irrigation efficiency resulting in degraded return
flows is to be offered (43 U.S.C.A., Sec. 1571), and a complex well field will
be installed to provide water supplies for use in the United States or to
satisfy the 1944 Mexican Water Treaty (43 U.S.C.A., Sec. 1573).
In carrying out the policy of the enforcement conference, the Act directs
the Secretary of the Interior to expedite the investigation, planning and im-
plementation of the salinity control program in Chapter VI of the "Colorado
River Quality Improvement Program, February 1972" (43 U.S.C.A., Sec. 1591 (b)).
Further, the Secretary is authorized to construct, operate and maintain
104
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salinity control units as the initial stage of the Colorado River Basin salin-
ity control program upstream from Imperial Dam (43 U.S.C.A., Sec. 1592).
This act also created the Colorado River Basin Salinity Control Advisory
Council to:
(1) act as liaison between both the Secretaries of Interior
and Agriculture and the Administrator of the Environmental
Protection Agency and the States in accomplishing the pur-
poses of this subchapter;
(2) receive reports from the Secretary on the progress of
the salinity control program and review and comment on said
reports; and
(3) recommend to both the Secretary and the Administrator
of the Environmental Protection Agency appropriate studies
of further projects, techniques, or methods for accomplish-
ing the purposes of this subchapter (43 U.S.C.A., Sec. 1594>).
RESULTS FROM RECENT GOVERNMENTAL INVESTIGATIONS
Numerous water resources investigations ordered by Congress have taken
place since the early 1900's, but primarily since 1960, water quality has
gradually developed into a topic unto itself. This brief review covers some
of the issues raised and examined by various recent investigations. It is by
no means complete and is directed to the irrigation return flow quality prob-
lem. Quotations are used extensively not to lose the flavor of the problem
at the time of the report.
Senate Select Committee on National Water Resources
On April 30, 1954, the Senate Select Committee on National Water Resources
was formed following adoption of Senate Resolution 48, to examine various as-
pects of the nation's water supplies and needs. In its committee report on
water quality management, water quality problems affecting agriculture and
arising from it were pointed out:
In some Western States, programs for the control of salt and
alkaline substances are required. Control of chemicals such
as insecticides and herbicides, which may get into water in-
tended for irrigation use, is also important Use of water
for irrigation is largely a consumptive use, which means that
a substantial part of the water so used is evaporated, or
transpired, and is no longer available for other uses further
downstream. What is returned to watercourses is often laden
with salts, insecticides and other chemicals (Committee Print
No. 24, p. 4, Feb. 1960).
The Committee identified many techniques to increase usable water sup-
plies partly by increasing efficiency in present uses. They included seepage
control and more efficient use of water in irrigation (Committee Print No. 23,
Evaporation Reduction and Seepage Control, Dec. 1959). The peculiar
105
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counterproductive effects of the western water rights laws that may even be
promoting inefficient and wasteful uses of water were recognized and studied
to improve the laws recommended (Report of Senate Select Committee, 1961, p.
P. 54).
National Water Commission
The National Water Commission was created by Act of Congress in September
1968 to take another look at our nation's water supplies, problems and needs,
"giving consideration, among other things, to conservation and more efficient
use of existing supplies [and] increased usability by reduction of pollution"
(Act of 26 Sept. 1968, P.L. 90-515, 82 Stat 868, 43 U.S.C.A., 1962(a), Sec.
3(a)).
Although water quality was not an issue extensively treated and salinity
was casually included in the discussion of point or non-point sources of pol-
lution (Water Policies..., June 1973, Chap, k) , many recommendations were made
to increase water use efficiency and sediment control. Notably are the needs
for changes in water rights laws and enactment of sediment control legislation.
National Commission on Water Quality
The National Commission on Water Quality was created by Section 315 of
the Federal Water Pollution Control Act of 1972. The Commission must make a
determination to see if a mid-course correction to the Act is needed and to
report its findings, conclusions and recommendations to the Congress (Water
Quality, 1-3, 1976).
The Commission concluded that a comprehensive study of the goals and
requirements for 1983 could not be properly undertaken without attention to
the progress made toward clean water by industries and municipalities under
the 1977 requirements. Further, the Commission stated that it would "examine
progress toward the elimination of the discharge of pollutants as an indicator
of what will remain to be done after 1983" (Water Quality, 1-4, 1976). Conse-
quently, in its study the Commission focused primarily on the goal and effluent
limitations for 1983, and the effects of applying those limitations (Ibid.).
Irrigation Return Flows--
The Commission found that irrigated agriculture affects water quantity
and quality in that:
(1) it concentrates salts dissolved in water, primarily by
the evapotranspirat ion of water;
(2) it may weather naturally occurring minerals from irri-
gated soils;
(3) it may add sediment to, or remove it from, receiving water;
(4) It may add nitrogen and phosphorus to a receiving water;
(5) it may add pesticides to a receiving water; and
(6) it w?11 alter the quantity and temporal distribution of
downstream flows if it is derived from, or returned to, surface
waters (Water Qualitv. 1976, 11-169).
106
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It is important to note here that irrigation return flow volume is the
difference between the volume diverted from the water supply and the volume
consumed by evapotranspiration. The proportion of the total water infiltrated
into the soil that is in excess of the consumptive requirements of the crop
(for both evaporation and transpiration) is called the "leaching fraction"
(Water Quality, 1976, 11-169). The leaching fraction return to surface or
ground waters is an "irrigation return flow" (Ibid.), as well as surface run-
off from the croplands (tailwater runoff).
The Commission's findings on the salinity of irrigation return flows are
as follows:
The concentrations of total dissolved solids in subsurface
irrigation return flows are higher, typically, than those
in the water delivered to the field. The applied water con-
tains some concentrat ion of salts. Growing plants consume
pure water, leaving the salts behind in a smaller remaining
volume of water in the root zone. Leaching water serves to
carry the salts away, maintaining the productivity of the
soil. Increasing irrigation efficiency--reducing the leach-
ing fraction--reduces the mass of salt diverted with the
water. The volume of return flow in which the diverted salts
are dissolved is reduced by a greater proportion, and the
concentration of salts in the return flow is increased. The
total mass of salt discharged is reduced, but the salts not
diverted remain in the water supply (Water Quali ty, 1976,
11-169-170).
In addition to the salts contained in the applied water,
irrigation return flows may carry salts which are added
to the leaching water as it passes through the subsoil.
It may also leave some of the applied salts in the soil
as precipitates, so that the relative concentrations of
dissolved salts in applied water and return flows are
different. The importance of this increment of salinity
depends on the solubility and composition of the subsoil
material, and on the size of the leaching fraction. In
some regions it is of major importance, while elsewhere
it is ihsign ificant.
In most cases, regardless of the type of irrigation system
used, and regardless of the efficiency of the irrigation
system, most of the salt in irrigation return flow will be
salt that was contained in the water applied to the land.
Efficiency of irrigation has little effect on the quantity
of water consumed by evapotranspiration requirement to pro-
duce a specified yield. Any water supplied in excess^of
this requirement will have an adverse effect on the yield
and may cause a buildup of salts In the soil. Therefore,
if the irrigation water is withdrawn from a stream, and
the return flow is delivered back to the same stream, the
efficiency of irrigation will not affect the total quantity
107
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of either water or salt transported by the stream In the
long run, unless the soil being irrigated still contains
native soluble salts (Ibid.).
The Commission's findings regarding suspended sediment, fertilizer and
pesticides and their impact on irrigation return flows are as follows:
Sediment
Irrigation water which passes through the soil is essentially
free of suspended sediment, but tailwater may contain sediments.
Whether tailwater has a higher or lower concentration of sus-
pended material than the initial supply depends upon local
factors. The amount of sediment discharged with tailwater can
be reduced by passing the return flow through a sedimentation
basin or, under certain circumstances, the tailwater can be
recovered and reapplied without any intervening discharge to
a receiving water body (Water Quality, 1976, 11-170).
In areas where the natural sediment burdens in streams are
very large, the practice of irrigated^agriculture can result
in a net removal of suspended material. Sediments originally
carried by a stream may be deposited in diversion channels or
in irrigated lands (Water Quality. 1976, M-170, 171).
The concentration of suspended material in watercourses Is
determined by stream velocity. At points where the velocity
is low, sediments will be deposited; where the velocity is
high, erosion will occur. Excepting areas where a stream bed
is incised in bedrock, the burden of suspended material car-
ried by a stream cannot be controlled by changing the discharge
of sediment to it (Water Qual? ty. 1976, 11-171).
Perti1izer
Irrigation return flows may carry fertilizers with them de-
pending on local conditions (Water Quali ty, 1976, 11-171).
In general, because phosphorus is readily adsorbed on soil
particles, its concentration in drainage water can be expected
to be very low. Some phosphorus will usually be associated
with sediment contained in tailwater, but only small quanti-
ties are generally lost in this manner (Ibid.).
Nitrogen, particularly in the nitrate form, is a highly sol-
uble and highly mobile ion. It can therefore be expected to
be present in a highly unpredictable concentration in both
tailwater and drainage water. Its concentration in tailwater
is generally very low, and the concentration in drainage
water is highly dependent on factors such as nitrate concen-
tration in the soil, depth of drainage system, soil texture,
concentration of organic matter in the soil, and depth to
which the soil is aerobic (Ibid.).
108
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Pesticides
Pesticides may be added to receiving waters by irrigation
return flows, but the quantity added is normally very low
and is highly dependent on soil type, type of pesticide,
time of application, method of application, and other
factors (Water Quality. 1976, 11-171).
Most of the pesticides in current widespread use are only
slightly soluble in water, and are strongly adsorbed onto
soil particles or onto particles of organic matter in the
soil. Pesticides that exhibit this sorptive behavior will
not usually be found in drainage water, but they may be
present in very low concentrations in tailwater (ibid.).
Pesticides that are degraded rapidly by either sunlight or
soil microbes will seldom be found in either tailwater or
drainage water. In most cases, recovery and reuse of tail-
water or removal of sediments from tailwater will, for
practical purposes, eliminate any threat of pesticide pol-
lution of receiving water by irrigation return flow (Ibid.).
Hydrology
Aside from increasing salinity by evapotranspiration of
water, the greatest impact of irrigation on surface water
is that it reduces total streamflow and alters its temporal
distribution. Irrigation is the largest consumer of water,
with forty to eighty percent of all water diverted for
irrigation being consumed by evapotranspiration (Water
Quality, 1976, 11-172).
The dry weather flow of most uncontrolled streams is
derived from ground water, most commonly from ground
water recharged into alluvial deposits in the river
basin during period of high precipitation or high stream
flow. The amount of water stored in this manner is largely
dependent upon the magnitude and duration of flood flows.
In regions characterized by extended dry seasons, streams
may go completely dry toward the end of the dry season
(Ibid.).
Diversion of water for irrigation can alleviate this problem
by increasing the quantity of water stored in alluvial aqui-
fers. The return flow from irrigation water applied to land
at some distance—a mile or more—from the river may require
many months to flow back to the river, and may increase the
dry weather flow to the extent that a naturally ephemeral
stream becomes perennial. Such an alteration in the natural
regime of the stream may be highly beneficial not only to
aquatic organisms but also to downstream municipal, industrial,
agricultural users. If there is no upstream reservoir to con-
trol releases during dry months, increasing upstream irrigation
efficiency may be detrimental, rather than beneficial to all
downstream users (Ibid.)
109
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Deeper aquifers that are recharged as a result of inefficient
irrigation may also be utilized by municipalities, industries,
and agriculture. In many such cases, increasing irrigation
efficiency would result in impairment of the quality and de-
creasing the quantity of ground water that is available for
reuse (Ibid.).
In basins where supplemental water is imported for agricultural
use, increased irrigation efficiency might have a detrimental
impact on downstream users. If irrigators apply more water
than is required to their fields, this water will be available
later to downstream users. If more efficient water use were
required, the upstream irrigators might well bring less water
into the basin and deprive downstream users of a supply (Ibid.),
In summary, the use of water for irrigation may affect local
and downstream hydrologic conditions in a variety of ways,
some of which are beneficial and some of which are detriment-
al. Similarly, increasing irrigation efficiency may be either
beneficial or detrimental to downstream users. It is there-
fore inappropriate to suggest that changes in irrigation
practice should be made without thorough study of the specific
location involved (Ibid.).
Location and Distribution of Point Source Irrigation Return Flows--
About 39 million acres of farm land were irrigated in the
United States in 1969- About 97 percent of this land is
located in the 17 western states, Arkansas, Louisiana, and
Florida. About 257,000 farms in the United States were
reported to be irrigated in 1969, and about 223,000 of them
were in these twenty states.... About 57 percent of all
irrigated land is in California, Texas, Nebraska, Colorado,
and Idaho, and 36 percent is in California and Texas alone.
No state other than these five has as much as five percent
of the total irrigated acreage (Water Cjual i ty, 1976, 11-173).
All irrigated farms are potential point source dischargers,
at least of tailwater, but only those that are artificially
drained are potential point source dischargers of drainage
water. Artificial drainage systems have been installed on
only about 4.6 million acres (12 percent) of irrigated land.
Artificial drainage systems have also been installed on about
55 million acres of non-irrigated land, but the cost and
effectiveness of controls for this land were not determined
(Ibid.).
...about three-fourths of all irrigated land in the western
states was in farms with more than 200 acres of irrigated
land in 1969- About one-fourth was in the 2.5 percent of
farms that irrigate more than 1,000 acres. It is likely
that a greater percentage of the irrigated land is in the
larger farms at this time (Ibid.) .
110
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About 41 percent of all Irrigation water is self supplied
from ground water, 15 percent is supplied by direct diver-
sion of surface water, and kk percent is supplied by irri-
gation organizations, primarily (97 percent) from surface
storage, including about 20 percent from Bureau of Reclam-
ation projects (Ibid.).
It has already been noted that agricultural land may deliver sediment,
fertilizer, pesticides, and organic material to surface waters. While the
volume of runoff from precipitation "can be predicted with reasonable accur-
acy, the quantities of pollutants dissolved and suspended in such runoff is
less amenable to accurately estimate."
According to the Commission's findings, drainage systems have been in-
stalled on approximately 55 million acres of non-irrigated land and on about
five million acres of irrigated land, and even though concentrations-of pol-
lutants are similar in drainage from irrigated and non-irrigated land, with
the noted exception of dissolved mineral salts, permits are required for
return flows from the former (Water Quali ty, 1976, 11-198). Furthermore,
techniques that control irrigation return flow pollutants are generally
applied due to their beneficial impact on crop production rather than their
capability for reducing pollutants (Ibid.). Techniques which produce the
greatest reduction of pollutant discharges are improved irrigation scheduling,
tailwater recovery, installation of sprinklers, and the lining of canals
(Ibid.).
It is the contention of the Commission that:
...nonpoint contribution of sediments and other pollutants
to surface waters by runoff from nonirrigated cropland could
be reduced by almost one-half by applying recommendations of
the Soil Conservation Service to all cropland needing improved
practices. About 160 million acres--40 percent of all non-
irrigated cropland—would benefit from application of these
recommendations. The estimated investment cost would be about
$2.6 billion, with the total annualized cost estimated at
$0.65 billion per year (Water Quality, 1976, 11-199).
Westwide Study
The United States Department of the Interior conducted a study of^the
critical water problems which face eleven western states. Recommendations
from that study regarding water quality and pollution control, salinity con-
trol, control of erosion and sedimentation, and meeting water demands through
conservation and use are as follows:
Water Quality and Pollution Control--
1. In addition to continuing a major effort to control
point sources of pollution, the State water pollution control
agencies and the Federal resource agencies should increase
their efforts to analyze, prevent and control nonpoint sources
of pollution.
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2. In the development and implementation of prevention and
control programs for nonpoint sources of pollution, the State
water pollution control agencies should make maximum use of
ongoing research and technical assistance programs of other
State and Federal agencies.
3. The State's basin and areawide water-quality management
plans and State water plans should be fully coordinated
throughout all phases of development and implementation.
k. The Federal and State resource agencies should assume
full responsibility for assuring that adequate consideration
is given to the preservation and control of water quality
associated with the future development, management and uti-
lization of water and other natural resources. These agencies
should devote immediate attention to those geographic areas
which have critical existing or emerging water quality prob-
lems (Westwide Study Report..., 1975, p. 116).
Salini ty Control--
1. Control of salinity levels should be an important part of
all water resource planning studies. Ongoing program educa-
tion and technical assistance programs should stress the
importance of conservation measures in salinity control.
2. Specific recommendations in regard to additional studies
are covered in chapters V and VI on regional and State issues.
These are mostly tied to recommendations for total water man-
agement and level B studies under section 209 of the Federal
Water Pollution Control Act. The agencies involved should
coordinate and integrate the salinity control aspects of
these studies.
3. Ongoing research aimed at finding practical and economic
methods of controlling pesticides, fertilizer, and minerals
from irrigation return flows should be pursued vigorously
(Westwide Study Report..., 1975, P. 119).
Erosion and Sedimentation Control —
1. Ongoing erosion control programs of Federal, State agen-
cies and local conservation districts should continue as the
primary public effort to control erosion and sediment damage.
2. The Department of Agriculture in cooperation with appro-
priate land managing agencies, other Federal agencies, and the
States undertake a study of natural diffused land sources of
salts in the Colorado River to determine those erosion and
sediment control practices which would be most effective in
reducing the salinity in the river. This can be a cooperative
effort with the Bureau of Reclamation's Colorado River Water
Quality Improvement Program.
112
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3. The States in cooperation with the Department of Agriculture,
the^Environmental Protection Agency, and others undertake studies
to identify critical erosion and sediment producing areas as a
part of State water pollution control programs.
k. Erosion and sedimentation studies for specific basins should
be carried out as part of level B and special studies recommended
in chapters V and VI (Westwide Study Report 1975, p. 128).
Meeting Water Demand Through Conservation Use—
State and local entities need to initiate studies to evaluate
needed changes in State water right laws and water pricing.
Specific actions which should be taken by Federal agencies are
as follows:
1. Accelerate ongoing research efforts in irrigated agricul-
ture to provide more precise answers in salt leaching functions,
improved application systems, automation, and soil management.
2. Accelerate efforts to bring about water conservation and
improved efficiencies by farmers and ranchers. Important here
is education and technical assistance to bring improvement in
onfarm irrigation systems and better scheduling of water
application.
3. Continue salinity control studies in areas where water
conservation and improved management measures can contribute
substantially to reducing salinity (Westwide Study Report...,
1975, P. 136).
Summary of Federal Activities
Water quality control has gradually become a main activity of the Federal
Government since the first comprehensive pollution control act was passed in
1948. Time has placed many burdens and constraints on those charged with
carrying out the letter of the law enacted by Congress, and occasionally this
pressure and haste have created problems of their own. Perhaps in no area of
pollution control efforts by the Federal Government would this statement be
more applicable than to irrigation return flow quality control. Strong re-
sistance by water users and some states has kept a federal program from moving
forward. Part of this justifiably stems from the legislative mandate. Part
is dealing with a very complex problem that is hard to categorize into legal
solutions that will stand up against rules of evidence in carrying out
enforcement.
It is clear, however, that through the national investigations, Congres-
sional amendments to the Water Pollution Control Act and the relentless efforts
of EPA to carry out its charge, we are rapidly maturing in our capability to
resolve the problems from irrigation return flows. That does not mean the
problem is solved, just that now an appreciation for its complexity prevails.
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PRESENT STATE ACTIVITIES
The status of state water quality legislation was described in Section 5
of this report. The following discusses the particular issue of state empha-
sis and activities in irrigation return flow quality control. The information
contained is based upon conversations with personnel of the seventeen western
states' water quantity and quality agencies most directly Involved with the
topic. These conversations took place between 1 June 1976 and 10 January 1977-
Extent of Irrigation Return Flow
When P.L. 92-500 was enacted and subsequent regulations promulgated to
carry out the permit program, it was presumed that water quality degradation
from irrigation return flows was significant and identified (or readily ident-
ifiable). Unfortunately for the program, the view from the top was not the
same view as from the states' position, nor that of the water users, per se.
As is true with most issues and positions, they are only relatively relevant.
Regardless of how important or extensive the irrigated agricultural problem
is to water quality at the federal level, when it comes time to implement a
program,.the program is largely dependent upon state action. Thus, the per-
ception of the state agencies is important to the success of the program.
-In discussing the extent of the irrigation return flow problem with state
agency personnel in charge of carrying out the water quality and "water rights"
laws in the seventeen western states as they perceived the problem, opinions
varied. However, it was almost unanimous that: a) relative to other water
pollution problems, degradation from irrigation return flow as a statewide
problem is not significant or has not been adequately identified; and conse-
quently, b) this control program element is a low priority on the agency
activities; to the extent that, c) little or no action has been taken.
This synthesized statement as a general conclusion is subject to elabora-
tion on a state-by-state basis. Table 4 provides a summary of the extent of
irrigation return flow quality problems as perceived by the water agencies for
each state. For almost every state, specific geographical problem areas were
cited, along with the type of pollutant identified as causing the problem.
Several states noted significant problem areas that exist (California, Colo-
rado, Idaho, Montana, Utah), with the rest of the states having only limited
or nonsignificant problems. In many cases, the lack of data was given as the
reason that little effort was being made to control the quality of return
flows and that the current efforts are merely to develop background information
regarding the situation.
Kansas and Nebraska stated that ground water contamination from agricul-
ture was the problem and not return flows reaching surface receiving waters.
New Mexico considered ground water contamination an issue that requires spec-
ific state action.
Among the seventeen states, Idaho was the only state that places irriga-
tion return flow quality control on a high priority as an activity of the
water quality agency. It is one of few states that has identified this prob-
lem as one of major importance to a specific area of the state, and also one
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TABLE 4. EXTENT OF IRRIGATION RETURN FLOW QUALITY PROBLEMS
State
Arizona
California
Colorado
Idaho
Kansas
General
N.S.
L.P.
other:
N.H.P.
L.P.
N.S.
Specific Problem Area
Upper Gila & San Pedro Rs. (pest-
icide/herbicides)
Wellton-Mohawk Pjt. (salinity)
San Joaqu in/ Delta Area (nitrates),
Santa Ana Basin, Salton Sea,
Imperial Valley
Colorado, Arkansas & Rio Grande
Rivers (salinity & sediment)
Significant problem on Snake
(sediment/ turbi di ty )
Other Comments
Data lacking.
No program.
Active program.
No complaints from water
users, no program, regu-
lations foreseen.
High on priority. No
complaints from water
users. NPDES permits.
Low priority. Ground
water contamination from
agriculture most signifi-
cant. No program.
Montana
L.P. East of Continental Divide
(sediment)
Data lacking. Low prio-
rity. No program^
Nebraska
N.M.P..
Ground water contamina-
tion from agr. most sig-
nificant problem. Ho
program.
Nevada
N. Mexico
N. Dakota
Oklahoma
Oregon
S. Dakota
Texas
Utah
Washington
Wyoming
N.S.
N.S. Pecos River (salinity)
Rio Grande (nutrients)
N.S. Garrison Division (salinity)
major problem area
N.S. Northwest Oklahoma (natural
salinity)
N.S.
N.S. Belle-Fouche River, Oahe
Project future concern
N.M.P. Lower Rio Grande
L.P. Sevier River major problem,
Colorado River
N.S. Yakima Valley, Walla Walla i
Columbia River (sediments/
nutrients)
H.S. G-een, Shoshone and Big Horn
Basins (salinity)
No complaints from water
users. No program.
Problem from concentrat-
ing effects. Low prio-
rity. Ground water
problem an issue. No
program.
Low priority. No
program.
Low priority. Data
lacking. No program.
Low priority. NPDES
Permits.
No program.
Data lacking. Concen-
trating effects. No
program.
No program. Supports
BOR Water Quality
Improvement Program.
Farm Plan Program.
Data lacking. No
Program.
Abbreviations: L.P. - Localized problem of major significance.
N.H.P. - Not a major problem.
N.S. - Not significant.
115
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of the few states that actively attempted to implement the initial EPA NPDES
regulations for agriculture. Also, Oregon, South Dakota and North Dakota
issued permits, and California developed an alternative program.
Approaches to Irrigation Return Flow Quality Control
Action taken by the state water agencies includes a more extensive inclu-
sion of irrigation return flow in the 208 planning process; attempts at per-
mitting return flows, demonstration and pilot projects; and inclusion of water
quality in water rights. Many reasons exist for the lack of complete involve-
ment in this facet of water quality control. Among the most often cited was
disagreement with the designation of irrigation return flow as a point source,
as well as a lack of manpower. All seventeen states are utilizing the Section
208 planning process to identify irrigation return flow problems and to devel-
op solutions for improved management practices.
Several states also attempted to implement a permit program under the
original EPA NPDES regulations that covered irrigated agriculture. See
Table 2 above for the status of NPDES program acceptance by the states.
Idaho assisted EPA in issuing 28 permits to irrigation districts, of which
seventeen were on appeal at the time of the N.R.D.C. v. Train decision in 197^.
Nevada issued two permits to tile drain operators. Oregon issued permits to
all the irrigation districts (approximately 15) that were over the 3,000 acre
qualification in the regulations, of which approximately half have contested
the permit issuance. Three of the districts undertook monitoring as required
by the permit and have shown that water quality degradation is minimal for
surface return flows.
Perhaps the most unique and effective permit program implemented at the
state level is the California joint-permit. This approach was adopted to meet
the EPA requirements and to identify the nature of the problem prior to con-
trol efforts. Essentially, the "joint-permit" requires all water and related
organizations and individuals not represented by a legally constituted entity
(i.e., irrigation and reclamation district), within an irrigation system to
cosign a permit for monitoring of return flows. Because the intent of the
permit is for monitoring and not enforcement, and because of the approach
followed in issuing permits, the resistance from water users exhibited toward
the federal program in other states was not directed toward the California
program. (For a more complete discussion and permit example, see Appendix A,
Report 2, Section 2.1.6.) Washington has a voluntary program underway and
anticipates that any regulatory program will be implemented through the 208
planning process.
In addition to the two standard approaches to control irrigation return
flow quality discussed above, several states have developed demonstration and
pilot projects. Idaho is pursuing three specific agricultural projects in
conjunction with 208 planning. The first is a demonstration project of im-
proved conservation and management practices in the Twin Falls vicinity which
encompasses a drainage basin of k,OQO irrigated acres. The Snake River SCO
(Soil Conservation District) '\s the lead agency with assistance from the SCS,
the Snake River Conservation Research Center of USDA-ARS and the University
of Idaho. The second is also a demonstration project of improved
116
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conservation practices for reducing sediment runoff from dryland farming
The project is located in Latah County and is a cooperative undertaking -
directed by the Latah SCO and assisted by the SCS, University of Idaho •
Washington State University, USDA-ERS, and Division of Environment. The third
project is the development of a statewide agricultural pollution abatement
program by the State Soil Conservation Commission.
a
Montana's Lewis and Clark Soil Conservation District is conducting a
pilot project for sediment control. The purpose is to prepare rules and regu-
lations for the district and to develop an ordinance for sediment control.
Utah has strongly supported the Water Quality Improvement Program con-
ducted by the U.S. Bureau of Reclamation. Management of water is considered
a primary means to minimize salinity detriments.
Washington, through its 208 planning, is developing a program directed
at improving water and related land management activities as a means to im-
prove water quality. This program primarily addresses problems resulting from
soil erosion, which attempts to develop incentives for improving water use
efficiency. In all probability, a general permit approach will be used in the
state of Washington. In addition, or in conjunction with, the 208 planning
approach, Washington has a financial assistance program with approximately
$3 million available for agricultural pollution control. These funds are
administered under the Washington Futures Program.
Two states reported incorporating water quality criteria specifically
within new, extended and transferred water rights as a condition to receiving
the right or change requested. California has authority under the 1969 Porter-
Cologne Act to include water quality as an element of a water right. A gener-
al provi-sion is now included as a part of all water rights and changes since
1970—that the permit holder (water right holder) will not unreasonably
degrade the receiving waters as a result of using water for a beneficial
purpose. In a few instances, specific water quality controls have been placed
in permits. The state Water Resources Control Board has continuing authority
to prevent waste, unreasonable use, unreasonable method of use, or unreason-
able diversion of water (23 C.A.C., Sec. 761(a)). Over the past fifteen years,
Oregon's Department of Water Resources has incorporated water quality into some
irrigation water rights by requiring sediment settling ponds.
The inclusion of water quality into water rights assists in preventing
the problem from occurring and does give the state a joint-effort approach by
the water quantity and quality agencies when a problem does arise. Several
other states have a preventative measure procedure in their operation. That
procedure is to have the water quality agency systematically or optionally
review water right applications (Idaho, Arizona and Kansas). In this way,
potential quality problems from diversion and use of water can be identified
and use conditions made a part of the right.
New Mexico has taken a firm stand on the irrigation return flow quality
control issue which explains the extent of its activities in this topic. Jhe
New Mexico legislature, in adopting the 1973 Water Quality Act, specifically
stated in Sections 75-39-11 the following limitations:
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A. The Water Quality Act does not grant to commission or to
any other entity the power to take away or modify property
rights in water, nor is it the intention of the Water Quality
Act to take away or modify such rights...if, in the adoption
of regulations and water quality standards, and in any action
for enforcement of the Water Quality Act and regulations
adopted thereunder, reasonable degradation of water quality
resulting from beneficial use shall be allowed.
Thus, there is no direct or explicit approach or effort to control irrigation
return flow quality. However, indirectly the state is working closely with
the U.S. Department of Agriculture's Agricultural Conservation Program (ACP):
...the state's participation is restricted to those community
ditch systems, which through organization and bylaws, quality
as quasi-governmental organizations. These are commonly known
as agencies. Such organizations can receive up to 70% cost-
sharing from the federal government, a 15% grant from the State
Engineer, and a loan at a rate of 1\% interest for up to 10
years from the New Mexico Interstate Stream Commission (letter
of April 9, 1976 to G.E. Radosevich from New Mexico State
Engineer).
There is a direct benefit to irigation return flow quality through the ACP
and the state part of the program in the sense that efforts to improve water
use efficiency through canal lining and systems rehabilitation results in
more efficient water use, and consequently, improvement in water quality. At
present, there are approximately 500 miles of canal that are lined, but it was
pointed out that one of the real problems is,that quite often there ?s an in-
sufficient amount of federal funds to match the state funds, and, therefore,
the state funds go unspent.
Also, the position of the Environmental Improvement Agency (EIA) is that
irrigation return flows are non-point sources. Hence, EIA has not adopted the
NPDES program and consequently has not attempted to issue any permits to agri-
culturalists. Their position is more clearly stated in the Lower Rio Grande
Basin Plan Report (Water Quality Commission, September 1975):
In general, it is the policy of the Water Quality Commission
to consider as acceptable degradation those increased concen-
trations which result from the return of the weight of the
Constituents diverted—. Until regulations are published in
the Federal Register regarding irrigation return flows, the
Environmental Improvement Agency will include drains in the
general agricultural category to be considered during the con-
tinuing planning process as a non-point source of pollution
(pages I-2 and k).
The specific approach of the Water Quality Control Commission of EIA was
explicated in their March 1976 report entitled "The State of New Mexico Con-
tinuing Planning Process of Water Quality Management:"
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^Commission wil1 incorporate relevant local plans and
policies in its water quality management planning, including
those^affecting present and future land use. Throughout the
planning process, in-stream and groundwater quality will be
analyzed and when it is documented that present or probable
land use will significantly impact water quality, alternative
engineering, land use management and regulatory approaches to
preventing water pollution in these specific areas would be
reviewed. Recommendations for program implementation and for
designation of appropriate implementing agencies will be made.
Extent of Control
These eleven states have not issued permits for control of irrigation
return flows: Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico,
Oklahoma, Texas, Utah, Washington, and Wyoming. The remaining six states
have issued permits either under the federal NPDES program in cooperation
with EPA or under their own program. In California, approximately 3 to 4
million acres are under 20 permits in the San Joaquin Valley. There are only
5 or 6 other permits issued in the state. These permits were issued under
the state program by the Regional Water Quality Control Boards to irrigation,
reclamation and water use districts and to individuals. EPA, in cooperation
with Idaho, issued 28 permits to irrigation districts with 17 on appeal (none
of the 28 are currently being enforced). Nevada issued 2 permits for tile
drains. North Dakota and South Dakota have each issued a permit to two irri-
gation projects in their states. Oregon has issued approximately 15 permits
to qualifying irrigation districts with half of the permittees contesting the
issuance.
The important point that must be understood about the actions taken to
date is that they have been for monitoring only. No instances of "control"
were reported. In Ik of the states, it was stated that no water users were
affected by action of the water quality agency activities in the sense of
having to change their practices in order to improve the quality of their
return flow discharges. The remaining three states (California, Oregon and
South Dakota) did experience monitoring by some permit holders. In Califor-
nia, most permittees monitored, in Oregon three irrigation districts monitored,
and in South Dakota the only permittee, an irrigation district, monitored the
return flows.
Agency Resources and Interaction
Having discussed the extent of the problem from degraded irrigation
return flows as perceived by the agencies and to what extent and how they
have handled this facet of the water quality problem, three issues remain
that may partially explain the action taken. These are: 1) the water qual-
ity agency's manpower resources in agricultural engineering; 2) the degree of
interaction between the water quantity and quality agencies at the state
level: and 3) the attitude toward the federal legislation and program regard-
ing irrigation return flows. One and two will be treated in th.s subsection.
The third issue is the topic of the next subsection.
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The agency capability to successfully implement a particular program
largely depends upon the competence of its staff to appreciate the intricacies
of the problem, understand the constituency served, and carry out the program
components. The water quality control agencies of each of the seventeen west-
ern states were queried on this issue to determine how many agricultural engi-
neers or other persons with expertise in this field are on the staff. Ten
states did not have such personnel working with the water pollution control
unit (Arizona, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming), although several stated their existing staff could
handle the problem due to their developed expertise (Arizona, Idaho). In
addition, Idaho has an SCS assignee assisting in development of a non-point
source agricultural pollution abatement program. In lieu of having staff with
these qualifications, a number of the agencies stated they relied upon the
Soil Conservation Service (Montana, Nebraska, New Mexico, Utah), and the state
university (Nevada, Oregon), or consultants (Nevada). The remaining seven
states have one (Colorado, North Dakota, South Dakota, Texas) or more (Kansas,
Oklahoma) agricultural engineers on their staff. On numerous occasions, it
was emphasized that it is essential that these people have acceptabi1ity in
the farming community if the program is to be a success.
California has established an agricultural unit within the State Water
Resources Control Board to work on agricultural water quality control under
the integrated (quantity and quality) approach adopted by the state. In addi-
tion, a regional water quality control board may have one or more agricultural
staff (i.e., the Central Valley Region employs six agricultural staff).
The degree of interaction among state agencies most often depends upon
their organizational structure. With the exception of two states (California
and Washington), the remaining fifteen states have separate water quantity
and quality agencies. In addition, water quality functions are frequently
spread among several sister agencies. The most notable example is Oklahoma
with seven agencies involved. The interaction ranges from integrated to
little interaction, with the majority of states reporting limited interaction
but good cooperation.
Both California and Washington have integrated water quality and quantity
control under one agency (California--State Water Resources Control Board;
Washington—Department of Ecology), and have achieved a high degree of coop-
eration and coordination. Water Right Administration and water quality control
are a combined program and hence facilitate the implementation of both pre-
ventative and curative measures to water quality degradation from irrigation
return flows.
To date, twelve states have established a limited degree of interaction
but with good cooperation on an ad hoc basis (Arizona, Colorado, Idaho, Kansas,
Montana, New Mexico, Nevada, North Dakota, Oklahoma, Oregon, South Dakota, and
Texas). No formal organizational feature exists to insure systematic exchange
at the staff level, and often coordination is lacking. However, six of the
states have provided for coordination and cooperation at the policy-making
level by including directors of the water quality and quantity agencies on
water pollution or policy councils (Arizona), boards (Kansas, Oklahoma,
Oregon, and Texas), or commissions (New Mexico). In Colorado, the State
120
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Engineer is not a member of the Colorado Water Pollution Control Commission
Rather, the Director of the Department of Natural Resources and Director of'
the Colorado Water Conservation Board, the water planning and development
agency, are members of the Commission. The State Engineer's Office (Division
of Water Resources) and Colorado Water Conservation Board are both within the
Department of Natural Resources. The remaining three states have established
little interaction. Wyoming, however, has created the interdepartmental con-
ference which is a monthly meeting of representatives from many state agencies
concerned with natural resources.
As previously mentioned, the uniqueness of the occurrence of irrigation
return flows from the exercise of the right to use water necessitates a high
degree of cooperation and coordination in any effort to manage the quantity
and quality of the discharges. Several states have or are considering an
integrated agency approach (Idaho, Kansas, Oklahoma, and Texas); but, this is
a delicate issue which must be dealt with cautiously and with a well formulated
objective so that the results will be functional and operational.
Attitudes Toward the Federal Program
Since 1972, there have been many changes in the federal program for con-
trol of water quality degradation from irrigation return flows. Most noted is
the N.R.D.C. v. Train decision (in 197^) which directed EPA to reformulate
regulations that would not exclude certain point sources (i.e., irrigation
return flows from 3>000 contiguous acres or less) and the recent innovation
of a general permit program (since mid-1976) to comply with the court's deci-
sion. Until late 1976, most state water quality agencies were not fully
appraised of the general permit program, and in fact, the proposed regulations
were not published in the Federal Register until February 4, 1977-
Consequently, the attitudes and activities of state agencies and agricul-
tural water users are primarily based upon the original regulations promulgated
by EPA which included irrigation return flows as point sources, but contained
the 3,000 acre exclusion. The activities have been discussed above. But the
attitudes are also important to understanding the reasons for the actions
taken, or lack thereof.
Twelve states categorically voiced opposition to the inclusion of irriga-
tion return flows as a point source and thus were against the original EPA
NPDES program on this topic. Of these states, Washington opposed the original
program but is not in opposition to a general permit program. Arizona, Neva-
da and Texas expressed their reason for not being in favor because the program
was meaningless in their states due to the nature of non-perennial stream
flows or most waters for irrigation being pumped from ground water supplies.
Arizona and New Mexico considered the non-inclusion of ground water contami-
nation a major gap in the program.
Idaho was the only state in which the water quality agency was not
opposed to the permit program; however, Idaho state agency personnel have
stated that in the future they would only utilize the permit approach when
alternative measures (such as voluntary programs) have fa.led. California was
not satisfied with EPA's approach and developed a jo.nt-permit program which
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met both its' and EPA's needs. Nebraska and South Dakota did not express
strong opposition, but merely expressed concern that even the proposed gen-
eral permit program will do nothing to improve water quality. Several other
states are of the same opinion. Other states felt that EPA is insensitive to
irrigated agriculture and has overemphasized the irrigation return flow
problem.
One state, in particular, felt it had a good and workable system prior
to 1972: "Then the Federal Government came in and instead of resolving the
problem by getting the planning engineer of the state with the planning engi-
neers for the city or the industry or the manager of the irrigation district
in a situation where they could cooperate in resolving the problem, the
matter became so difficult that the lawyers came into the picture. Then the
staff of spent most of its time justifying to EPA what the state was
doing, and why it wasn't carrying out the Federal program as far as EPA
wanted it to" (paraphrased statement made during an interview; confidential-
ity being maintained). Several states expressed the opinion, had EPA con-
tinued with the original program while the momentum was high, by process of
elimination due to a lack of significant problems excepting specific local
areas or basins, most states would not have had to issue permits. Many
emphasized the concern that, partly due to N.R.D.C. v. Train, and EPA's
shifting programs, the agencies were caught in a credibility bind with the
water users.
Summary of State Activities
Previously, it was stated that little progress has resulted from the
federal efforts to control the quality of irrigation return flows. With only
a few exceptions, this same statement applies, to the progress at the state
level. This is not meant to be a derogatory or critical remark in light of
the complexity of the subject matter and confusion in the legal arena. None-
theless, the only statement that can be made about the federal program and
state efforts, where applicable, is that water users have been so effectively
polarized that any future efforts will be even more difficult to implement.
Considerable effort will be required to reestablish credibility between water
agencies and water users. The polarization of water users is evident from
conversations with state officials and the statements made in newsletters
and press releases of statewide water user organizations. (Appendix C con-
tains a list of the water user associations and their publications.)
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SECTION 8: AN ALTERNATIVE APPROACH TO IRRIGATION
RETURN FLOW QUALITY CONTROL
CONTENTS
AN ALTERNATIVE APPROACH TO IRRIGATION
RETURN FLOW QUALITY CONTROL ...................... 124
PHILOSOPHY AND CRITERIA FOR EFFECTIVE CONTROL .............. Mk
The Need
Philosophy
Criteria
AN INFLUENT CONTROL APPROACH ....................... 126
Irrigation Return Flow Characteristics ............... 126
Theme of Influent Control Approach ................. 127
Assumptions ............................ f 127
Influent Control Approach Components ................ 128
EPILOGUE ................................. '38
123
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SECTION 8
AN ALTERNATIVE APPROACH TO IRRIGATION
RETURN FLOW QUALITY CONTROL
PHILOSOPHY AND CRITERIA FOR EFFECTIVE CONTROL
The Need
Water quality control from irrigation return flows has perhaps caused the
greatest degree of disenchantment among state and federal personnel charged
with carrying out water quality programs under P.L. 92-500 than any other cat-
egory of pollution sources. Since the time that the first regulations for
irrigation return flows were promulgated in 1973, there have been strong and
distinct differences of opinion among the various agencies dealing with water
at both state and federal levels of government, and within their ranks as well.
Many western states have called a stop to their programs until EPA adopts what
the states consider a workable approach. The legal gyrations of the past four
years have caused them to undertake minimum activity so as not to violate
directly any particular law or regulation. Not one western states has com-
pletely and enthusiastically embraced a program of including irrigation return
flows as a "point source" and thus subjecting all irrigation to the NPDES
program.
Part of the problem for the disenchantment stems from the physical diffi-
culties in dealing with the irrigation return flow quality problem where it
does exist. Equally important is the lack of a philosophical foundation and
thrust to resolving a problem of this immense complexity, as well as inherent
resistance to control.
Viewing the problem from both the position of water users and agency per-
sonnel charged with controlling the problem, this study attempts to be both
logical and pragmatic in formulating an implementable and sustaining approach
to irrigation return flow quality control. The philosophy and criteria which
follow are building blocks to the proposed Influent Control Approach (ICA) set
out in this section. It is the authors' opinion that awareness, not concur-
rence, is essential to an understanding and acceptance of a program.
Philosophy
The proposed philosophy upon which to formulate a successful program for
control of irrigation return flow quality consists of four interlocking propo-
sitions. First, the ultimate goal achieved by the federal and state agencies
is improved water quality by way of improved water management, with this par-
ticular study focusing upon the return flow characteristics and problems of
-------
irrigated agriculture. In this context, improved water management means water
quality enhancement through reductions in tailwater runoff, seepage losses and
deep percolation losses (i.e., surface and subsurface return flows, which are
point and non-point sources, respectively).
Second, the program should promote social and economic well-being through
cooperative action. Every effort should be made to prevent polarization be-
tween state and federal agencies and local water user groups. An approach
must be designed to stimulate a tripartite relationship between the water users
and the state and federal agencies, while still maintaining the identity of
each.
Third, only attack the problem after it has been realistically identified.
Fourth, voluntary compliance is more desirable than forced or involuntary
compliance in implementing a management or control approach.
Criteria
Based upon this philosophy, the following criteria must be met for an
implementable and sustaining program in irrigation return flow quality control:
1. The approach should result in improved water quality through better water
management practices specifically and better agricultural practices gen-
erally. In the context of this report, better agricultural practices can
be achieved through joint progress in two areas: a) proper land and
water use; and b) proper application of agricultural chemicals. As
stated previously, water management includes effects upon the quantity
and quality of surface and subsurface return flows.
2. The approach should prevent social disruption and polarization of water
users (e.g., individuals, irrigation companies and water districts) and
state and federal agencies. Maintaining separate identities is necessary,
maintaining opposition is not. In most western states, water users have
gone on record opposing past federal and state efforts to control irri-
gation return flow quality.
3. The approach should be palatable to water users. Some of the most often
expressed concerns of the water users are: What is the problem and how
significant is it; How am I involved; If I agree to a permit, what does
that mean to me now, as well as potential control in the future (i.e.,
what rights and liberties am I giving up by agreeing to a nebulous pro-
gram); What is it going to cost; What benefits will be achieved; and,
Who pays for nature's discharges?
4. The approach must be feasible, flexible and allow for state agency dis-
cretion in working with local entities. State agency concerns which must
be met include: a determination of the significance of the problem;
ability to implement the program because of manpower limitations, ident-
ification of pollution sources, failure of past programs to include sub-
surface flows, credibility with water users; conflicts with other state
agencies (e.g., water quantity administration and agriculture agencies);
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and, the ultimate impact of such a program upon water quality, flow
regime of streams and water users.
5. The approach should improve the credibility of state and federal agen-
cies. Presently, most agricultural water users feel alienated against
the federal and state water quality control agencies.
6. The approach should utilize existing institutions (e.g., laws and organ-
izations) and accepted concepts (e.g., designation of problem areas such
as critical ground water basins, beneficial use, and duty of water) as
much as possible.
In order to implement any approach, both the water users and the agencies
must have knowledge of the resources they are "managing." The irrigation
system is too highly integrated and complex to be subjected to a rigid unilat-
eral control program.
AN 'N'F'UENT CONTROL APPROACH
Irrigation Return Flow Characteristics
Irrigation return flows have few characteristics which allow them to be
viewed as a typical point source pollution discharge problem. Most pollution
contained in irrigation return flow occurs as a natural process of diverting
and using water for a legally appropriated beneficial use. But, the pollution
often occurs beyond the boundaries of the control of the water user. Thus,
the first distinct feature is problem identification. Because the degraded
return flows may be either surface or subsurface, and most often diffused
rather than collected into a discrete conveyance system from the contributing
source, the second feature is contributor identification. From a technologi-
cal standpoint, contributor identification requires an evaluation of the
sources of pollution; whereas, from a legal viewpoint, contributor identifi-
cation requires a determination of who is polluting.
Allocation of water under western states laws requires that it be for a
beneficial use. Water allocated for irrigation is generally alloted to speci-
fic lands with the quantity based upon a fixed statewide duty of water stand-
ard (e.g., 1 cfs/70 acres in Wyoming; 2 acre-feet per acre in Nebraska).1 The
right to use water is a property right to the holder, which is to be exercised
according to priority with other users and availability of flow. Because
there is no prorationing during shortages as under the riparian doctrine, and
because this property right is one of rapidly increasing value in the West,
the inherent incentive to the holder is to protect that right by diverting the
full entitlement without regard to the fine line between beneficial use and
waste. Thus, a third factor emerges, i.e., law and customary diversion pre-
empt equal weight to external diseconomies.
The fourth feature gives rise to the proposed influent control approach
described hereafter. That is the correlation of input to output. In addition
1In a few states, Nevada for example, discretion to determine quantity
is given the State Engineer.
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to the possibility of control!ing degraded return flows at their discharge,
or effluent control, an impact can be exerted upon the quality of water dis-
charged from irrigation uses by changes at the input stages, i.e., delivery
and application of water. Because of the elusive nature of irrigation return
flows, the traditional approach of effluent control is not considered adequate
nor feasible in light of a more economic, simple and functional alternative
within the control of the water user and influence of state water officials.
That alternative is to control the quantity of influent. In the case of irri-
gation return flow, this includes water user discretion on the delivery and
application of water (use of well-known technologies such as canal lining to
curve excessive seepage losses during conveyance, or improved irrigation meth-
ods and practices to reduce deep percolation losses and tailwater runoff),
proper land use to prevent erosion of soil and subsequent sediment pollution
in tailwater, and proper application of fertilizers and pesticides.
These four features—plus a) the system of water quantity and quality
administration at the state level; and b) the peculiarities of our judicial
system, rules of evidence and burden of proof—require an approach which is
both preventative and curative but within the parameters of a known demon-
strated problem. Because end-of-pipe treatment is neither technically
satisfactory, nor economically justifiable, the Influent Control Approach (ICA)
is designated to get at the cause, not the consequence, of the problem and
promote alternative solutions within the control and capability of irrigation
water users generally. Where voluntary action to alleviate the known problem
is not taken, existing laws for water quantity use and control of discharges
by permit can be exercised.
Theme of Influent Control Approach
The underlying theme of the ICA can be summarized as:
1. Proof before control.
2. Proceed cautiously and positively.
3. Stimulate voluntary action based on demonstrated need to change.
k. Maintain a relationship between agencies and water users.
5. Create and/or maintain credibility.
Assumptions
The Influent Control Approach is premised upon ten assumptions:
1. Achieving the goals of P.L. 92-500, the Federal Water Pollution Control
Act of 1972, and policies of federal and state laws to improve the use
of our national resources is highly desirable.
2. The concept of property rights in water and other constitutitonal
guarantees will be maintained.
127
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3. The legal procedures of the judiciary and agencies will be utilized.
k. Improved agricultural practices and improved water management will result
in improved water quality.
5. Irrigation return flow problems and appropriate solutions to these prob-
lems are si te specific.
6. Water users (farmers) will respond when it has been demonstrated that
there is a problem to which they are contributing (in the absence of
substantial economic disincentives).
7. Technical and legal solutions to identified problems must be appropriate
and viable (technically sound, economically feasible, legally implement-
able, and socially acceptable).
8. Many irrigators will respond on a voluntary compliance basis.
9. Those users who do not respond will feel a local social pressure as a
result of being "out-of-tune" with the newly evolved customs of the
communi ty.
10. Regardless of approach, there will be some users who will not respond or
will resist change, thereby requiring some mechanism for enforcement.
Influent Control Approach Components
As was alluded to above, the distinction of this approach to irrigation
return flow quality control is to correct Jndi rectly the unreasonably degraded
discharges caused by irrigated agriculture by di rectly affecting the influent
or input to the system. This approach is based upon the assumption that im-
proved agricultural practices (IAP) and improved water management (IWM) will
contribute to improved water quality (IWQ). In specific context of this re-
port, it is further deduced that best management practices plus best agricul-
tural practices will yield improved irrigation return flow quality control
(IRFQC), which in turn provides improved water quality:
BMP + BAP + IRFQC >• IWQ.
Because the nature of agricultural pollution from irrigation is too complex to
rely upon end-of-pipe treatment, the cause of the problem is examined in its
broader context, i.e., present water management and agricultural practices,
with the emphasis upon only those elements of agricultural practices relating
to or having an affect upon return flows. The concept of best management
practices is currently employed by EPA and the states and refers here to
improvements in local2 water management. Best agricultural practices is used
to include proper land use and proper application of agricultural chemicals.
2 Local is used to distinguish water quality control within the irriga-
tion system or subsystem from state and national control.
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To reiterate, every effort in formulating this approach was made to
decentralize the act of control to the lowest common denomlnator-the rrigator
-because of his abll.ty to impact voluntarily and directly the quality of
return flows and because of a recognition that agriculturalists traditionally
are independent people who prefer to be actors, not pawns. The components of
the ICA thus Provide: 1) the design and direction to irrigation return flow
quality control; 2) the opportunity for voluntary compliance by water users In
problem areas; and 3) the means for responsible government agencies to effect-
ively assert involuntary compliance upon those contributing to the problem
who refuse to adopt better practices.
The Influent Control Approach is designed to improve water quality by
reducing excessive seepage, tailwater runoff and deep percolation, reducing
sediment in return flows through erosion control and reducing chemical con-
centrations in return flows through licensing and/or control resulting from
overapplication of pesticides and fertilizers. Since irrigation return flow
quality problems differ from one irrigation system to another (in many cases,
improved water management results in higher salinity concentrations in sub-
surface irrigation return flows), the approach provides the latitude to intro-
duce change and control according to the nature of the problem, without re-
quiring unnecessary compliance by those irrigators outside problem areas.
Based^upon this background, the Influent Control Approach is designed with
eight specific components. The first six components pertain to improving
local water management, with components 1 and 2 having application in the
problem areas only and components 3 to 6 having statewide jurisdiction.
Component 7 pertains to land use and chemical applications affecting water
quality and has statewide jurisdiction. Component 8 focuses upon the func-
tional ability of agencies to carry out the program (see Figure 18).
The Influent Control Approach consists of the following components to be
carried out by the states:
1. Designate Areas for Irrigation Return Flow Quality Management and the
Responsible Area Entity.
Action: Based upon monitoring and analysis for identifying significant
irrigation return flow problem areas within the state, the state
agency will: a) designate the boundaries of the problem area,
which may be the boundaries of an irrigation system or subsystem
or watershed; b) designate an entity, i.e., legally constituted
body representing water users within the area, to undertake
responsibility for working with the water users, collecting data
and disseminating information. The area entity may be a newly
formed organization, an existing organization, i.e., irrigation
district, that assumes the program, or a federation of numerous
existing organizations in the designated area; and c) insure
that the entity is carrying out the best management practices
developed for this area.
Rationale: Applying the designated area approach to controlling unreasonable
degradation from irrigation return flow enables the state to
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A SOLUTION:
An Influent Control Approach (ICA)
ASSUMPTION:
Improved Agricultural Practices + Improved Water Managements Improved Water Quality
( IAP + IWM = IWQ )
CONCLUSION:
Best Management Practices + Best Agricultural Practices = Irrigation Return Flow Quality Control
( BMP+BAP= IRFQC -IWQ )
DEFINITIONS:
BMP = Improved Local Water Management ( ILWM)
BAP = Proper Land Use (PLU)and Proper Application of Agricultural
Chemicals ( PAAC)
PROGRAM
I
INFLUENT CONTROL APPROACH (ICA)
ACTION
BEST AGRICULTURAL
PRACTICES (BAP).
Proper Land Proper Application of
Use (PLU) Agricultural Chemicals (PAAC)
BEST MANAGEMENT
PRACTICES (BMP)
Improved Local Water
Management (ILWM)
PROBLEM AREA
1. Designate area
and area entity.
2. Develop standards
and criteria for
beneficial use.
COMPONENTS
STATEWIDE
STATEWIDE
3. Introduce incentives 7. Adopt Agricultural Practices
for ILWM. Act
4. Add water quality to
water rights.
5. Add reporting and Sediment Licensing and control
recording for water and erosion over application of
V
rights.
6. Recognize reasonable
degradation from irri-
gation return flows.
agricultural chemicals:
fertilizers and biocides
J
8. Promote close cooperation or integration of state water
agencies and other related functions.
(Rodosevich a Skogerboe , 1977)
Figure 18: Influent Control Approach to Irrigation Return
Flow Quality Management
130
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focus only upon those areas within its boundaries where a prob-
.lem has been identified. Thus, not all irrigators are depicted
as shifting externalities (i.e., costs from use of degraded
water) upon the public and downstream users; all irrigators
regardless of how well they manage their water and land resources
are not subjected to the time-consuming procedures and implica-
tions of a permit system. Consequently, water users are not
collectively polarized against the efforts of state and federal
agencies to reduce and prevent water quality degradation. This
first component is the cornerstone of the influent control pro-
gram because it draws attention only to problem areas without
the guilt insinuations or accusations that farmers are so
sensitive to.
From a practical point of view, the area entity, which may
be represented by an existing irrigation or water-related organ-
ization, would utilize a representative board of commissioners
that would be responsible for carrying out monitoring, discussing
ways to alleviate unreasonable degradation by irrigation return
flows to receiving waters with water users in the designated
area, and encouraging voluntary improvement of agricultural prac-
tices by those users identified as contributing to the area's
problem. For those users (or entities representing those users
within an area) who refuse or fail to respond as recommended,
the area entity would notify the state water quality control
agency of the specific noncompliance (the process of self-
policing is generally distasteful to the farming community),
and the state would then proceed under existing federal and
state law to initiate control aad enforcement--that is, under
the general provisions of the water pollution laws, prohibiting
discharges of pollutants and violation of stream standards. In
these cases, the identified and noncomplying irrigator's dis-
charge can be required to obtain a permit under the regular
NPDES program. The area entity is thus responsible for assist-
ing in managing the agricultural practices within the designated
area, but control and necessary enforcement are appropriately
left to the state.
Precedent: The concept of designated areas for resources control and manage-
ment is well-recognized and applied in many western states for
ground water and municipal water supply. In most instances,
water users participate on commissions or boards having juris-
diction over the management area.
2. Develop Standards and Criteria for Beneficial Use in Designated Areas.
Action- For each designated area within a state, the water quantity and
quality agencies will collaborate to arrive at standards and_
. f . c» _?_i ,.,-— **f i.i-»-*-^*- Qiirh c i-an rla rrl Q aniH «~ r t—
cr r
criteria for beneficial use of water. Such standards and
teria will not constitute an impairment or taking of water
rights but rather be the technical limits of water delivery
and application under the climatic, soil and other agronomic
131
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conditions of the area. These conditions for water use would be
tantamount to a calculated "duty of water"3 for the area in light
of the return flow quality problems.
Rationale: Under the water laws of each western state, water is allocated
under the concept of beneficial use. This term is generally
not defined, it is normally nebulous, but does in general meet
the needs for both allocating and distributing water within the
state. However, in certain areas due to soil characteristics
and water use practices, irrigation return flow quality problems
do develop which are directly related to the delivery and appli-
cation of water. Within designated areas, it is necessary to
develop specific standards and criteria for beneficial use that
still comply with the concept of a water right under state law.
Precedent: Under Nevada water law, the State Engineer has discretion to
determine the duty of water based upon the site specific char-
acteristics of the irrigated area, the type of use to which the
water will be put, and the impact upon surrounding water users.
Utah is another state that has applied the variable duty of
water concept in determining the appropriate amount of water to
allocate under a water right. However, the state agency in Utah
has had to proceed through a judicial determination. These two
states are in contrast to the standard concept of duty of water
found in many states—for example, Wyoming and Nebraska--!n
which a fixed duty of water has been adopted that is applicable
statewide.
3- Introduce Incentives to Use Water More Efficiently.
Historically, the Agricultural Conservation Program administered
under the U.S. Department of Agriculture, with technical assistance pro-
vided by the Soil Conservation Service, has provided cost-sharing funds
to farmers and irrigation districts for irrigation system improvements,
most of which had water quality benefits. This program has been rela-
tively inactive in recent years because of lack of funds. However, this
program should play a very important role in the Influent Control Approach,
as part of the federal-state-local water users tripartite.
Action: Most western states have revolving funds or low interest loan
programs for water resources planning and development. Gener-
ally, these programs require the applicant to be an irrigation
district or other corporate body. Where such state programs
exist, change in the legislation and/or regulations for partic-
ipation qualification should be made to allow: 1) individual
irrigators to qualify; 2) broaden the use of funds to include
on-farm improvement practices as well as improvement of delivery
3 Duty of water means the quantity of water necessary for effective use
for the purpose to which it is put under the particular circumstances of soil
conditions, method of conveyance, topography, climate, and crop grown (Water
and Water Rights, Vol. 5, Sec. 408.2, 1972).
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systems; and 3) include in the objectives of the program the
improvement of water quality. When states have no such programs,
a low or no interest loan program containing the above three com-
ponents should be adopted, in order to assist cooperatively the
Federal Government and local water users in achieving improved
water management and agricultural practices.
In addition, dissemination of information about other state
and federal agency incentive programs should be carried out by
the state water agencies, particularly to the designated manage-
ment areas and cooperation extended to insure utilization of
such programs.
Other incentive programs, which may require legislative
enactments or agency regulations, could include encouragement
of trading, leasing or selling of "saved" water from more
efficient practices as an inducement to improve the delivery
systems and methods of application. State or local water mar-
kets, under the direction of the State Engineer (or equivalent
state office), could monitor or control the uses of these
waters.
To counter the traditional attack against such an incentive
program, it is highly conceivable downstream juniors would be
the most likely to benefit, particularly if they were given
priority to pay for this water. At the same time, it is recog-
nized that in many cases the present irrigation return flows
make up the water supply for downstream water right holders;
therefore, the only way to "save" water is to reduce present
consumptive use, which can be accomplished by employing trickle
irrigation, reducing irrigated acreage, or phreatophyte
eradication.
Rationale: By providing incentives for water users in designated areas, the
farmers will have an opportunity to improve voluntarily their
water use practices, which in turn will result in improved irri-
gation return flow quality. This is consistent with the philo-
sophy of encouraging voluntary compliance versus forced or
involuntary compliance. Further, if states are to create stand-
ards and criteria for beneficial use, it is the opinion that
some mechanism should be made available to the farmers that will
facilitate compliance with the new criteria. Without^it, irri-
gators are on solid legal grounds to continue exercising this
water right as they have in the past. The legal cost to the
state and water users to change this traditional practice may
far outweigh devising a process and procedure by which water
users can be encouraged to improve their efficiency in water
use for both quantity and quality benefits, while still pro-
tecting the downstream users.
Precedent: Funds have been made available to irrigation districts and
water users through the federal Department of Agr.culture-
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Agricultural Conservation Program, with the Soil Conservation
Service providing technical assistance. In addition, several
states have statewide programs in which low or no interest
monies are made available to water entities or water users for
improving their delivery systems. In Wyoming, the funds may be
used for improving laterals and application practices.
Include the Element of Water Quality in New Or Transferred and
Changed Water Rights.
Action: The water quality element should be a general provision added to
all new water rights and requests for extensions, changes in use
and transfers, in order to provide the necessary authority to
state water agencies for later setting and enforcing of numeri-
cal standards (either with respect to water application or return
flows, or both). Where water quality standards on streams for
beneficial use have been realistically set, such standards can
be incorporated by reference to water rights from that source of
supply.
This action may require legislative endorsement, but under
the vast majority of state law, it is conceivable that agency
regulations can initiate this component.
Rationale: The element of water quality is only implicit in western state
water laws, with the exception of California which Jias made it
an explicit element in all water rights since 1969- As a con-
sequence, water users must normally rely upon common law doc-
trines and private litigation to protect their water right where
the quality has been degraded to levels that hinder usage. Be-
cause the quality element is not explicit, as are the other
elements of a water right—quantity, source, point of diversion,
type of use, and place of use—the state agency charged with
administration of the water laws and rights is not in a favor-
able position to initiate action to prevent harm from water
quality deterioration, and thus the management capability extends
only to quantity control.
Precedent: In California, there is a general provision (which is added to
all new water rights, extensions on water rights, and changes in
ownership or type of use) that the water will be used in such a
manner as not to degrade unreasonably the usage of water for
downstream users. In some instances, the State Water Resources
Control Board has also applied numerical water quality standards
to particular water rights.
Adopt and Enforce a Reporting and Recording System for Water Rights.
Action: Notice would be given to all water users and water right claim-
ants to submit a report to the water right administrative agency
indicating their name, address, basis for claiming right to use
water, use of water, source and beginning date for water use.
-------
Water users may be given notice by publication in local news-
papers. ^ Many states have already initiated a "tabulation of
water rights" program to acquire this data. It is necessary,
however, to adopt a system of annual reporting, indicating par-
ticularly changes in ownership since other material changes
(e.g., transfer in type and place of use) require state approval
Rationale: Although this component is more directly related to improving
water management within the states rather than irrigation return
flows only, it is related to the ability of the state to manage
water quality because of the relationship between the diversion
and application of water and the resultant return flow water
quality. Most western states have inadequate knowledge of pre-
sent ownership of water rights, and thus: a) have procedural
difficulties in notifying water users of matters directly affect-
ing their rights; b) are unable to effectively remove "paper
water rights" from the records that are maintained and thus
making forfeiture provisions in the law nearly useless; and
c) would be hampered in incorporating the element of water qual-
ity to new, extended or changed water rights.
One of the major difficulties faced in attempts to control
irrigation return flow quality is "contributor identification."
A data base of who the water right holders are will greatly
facilitate efforts to encourage implementation of best manage-
ment practices and best agricultural practices.
Precedent: Both Idaho and Oklahoma have a system by which the current own-
ers of water rights are required, to submit to the state water
right administration agency an annual report (in the case of
Oklahoma, this is done on a computer card) which specifies who
the users are, where the water is used, and approximate quantity.
Failure to submit these annual reports serves as prima facie
evidence of non-use and could lead to forfeiture of the water
right.
6. Recognize Reasonable Degradation from Agricultural Water Use.
Action: Legislative recognition of this natural consequence of water use
for irrigation purposes is needed at the state and federal
levels.
Rationale: It is commonly accepted that any use of water for irrigated
agriculture is going to result in some degradation of the qual-
ity of return flows. To pretend otherwise is to either continue
a process of "playing the game" or ultimately it will eliminate
irrigated agriculture with its obvious adverse effects. Common
knowledge knows the latter will not occur, but a tremendous_
and unnecessary cost to prove it could be extended upon irn-
gators and the public through the failure of legislatures to
recognize natural processes of water use.
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Precedent: New Mexico has adopted a specific provision in their statutes
which states that "...reasonable degradation of water quality
resulting from beneficial use shall be allowed" (NM Rev. Stat.
Sec. 75-39-11).
Montana has arrived at the same conclusion by defining
"naturally occurring conditions" in their water quality stand-
ards as those "present from runoff or percolation over which
man has no control or developed land where all reasonable land,
soil and water conservation practices have been applied" (MAC
16-2.13(10)-S1^80, Water Quality Standards, Sec. (3) Defini-
tions). Several state supreme court decisions also recognize
certain degradation from water use, e.g., Ravndale v. North Fork
Placers (91 P.2d 368, Idaho, 1939) where some contamination from
a mine will necessarily occur to a stream.
7. Adopt an Agricultural Practices Act.
Action: Many of the 17 western states have laws and programs requiring
the licensing of agricultural chemical distributors and appli-
cators with the state Department of Agriculture. The laws and/
or programs should be revised or new legislation adopted to
include the following:
a) Sediment and erosion control.
b) Licensing and control over application of agricultural chem-
icals to include pesticides and artificial fertilizers.
c) Creation of an agricultural practices control board consist-
ing of representatives from the agriculture, water quantity
and quality, soil conservation (if separate), and fish and
wildlife agencies, and appointed members of the public. The
board's functions would primarily be establishing rules,
regulations and procedures for carrying out a) and b) above
and insuring functional implementation through coordination
and designation of duties to appropriate state agencies.
Rationale: Due to the impact upon water quality resulting from the applica-
tion of herbicides, pesticides and fertilizers in the agricul-
tural sector, and the inability of the state to control these
practices, it is highly recommended that an agricultural prac-
tices act be adopted which requires licensing and monitoring of
distributions and applications of such chemicals and control
over harmful land management practices contributing to erosion
and subsequent sediment problems in receiving waters. There may
be many other agricultural practices which could be included
under such an act.
It is essential to recognize the interconnection between
these activities and resulting water quality problems (which
may in turn contribute to downstream and ground water supply
136
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problems) and the usual division of jurisdiction and duties
between various state agencies. Short of complete reorganiza-
tion of state agencies to insure interrelated activities all
under one agency (which may not only be impossible but highly
undesirable), an Agricultural Practices Control Board (APCB)
consisting of action representatives from the various involved
state agencies and members of the public could insure coordina-
tion and implementation of their rules and regulations. The
current 208 planning bodies could be designated to assume local
implementation if they have, or receive, the necessary
authority.
Precedent: Again, California has led the way in licensing and monitoring
of commercial applicators of herbicides and insecticides.
Oregon has been considering the appropriateness of such an act
to alleviate their major irrigation return flow quality prob-
lems. However, a comprehensive agricultural practices act has
not been prepared in any of the western states. Iowa had adopted
erosion control legislation that even authorizes imposition of a
fine on those who fail to adopt approved practices.
8. Promote the Close Cooperation or Integration of State Water Agencies.
Action:
Rationale:
Precedent:
To facilitate the implementation of the Influent Control Approach
to irrigation return flow quality control, it is important that
close cooperation and coordination exist between state water
agencies through operation of a liaison board or committee, or
integration of the state water agencies under one department.
It is difficult to provide the necessary agency support to carry
out any new program, but even more difficult to introduce a pro-
gram of management and control over an area of activity highly
sensitive to government intervention. In addition to adding
duties to agencies often already burdened with heavy programs,
efforts to control irrigation return flow quality meets with
strong resistance from an inflexible and institutionalized sys-
tem of property rights to the use of water in which the state
water quantity agency often maintains a close relationship with
the water users. The result is potential polarization between
the state agency carrying out water quality control and the
state water quantity agency. However, because of the interde-
pendence of water quantity and quality, particularly as a
natural process in water applied to irrigation, it is inconsis-
tent to promote the goals of P.L. 92-500 and not promote the
coordination or integration of agencies charged with carrying
out water quantity and quality control.
In 1969, California combined the water quality and quantity
agencies under the Porter-Cologne Act in order to attempt speci-
fically to manage the resource in a rational manner. In 1972,
Washington created the Department of Ecology which encompasses
all three of the primary water functions; namely, water
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administration, water quality control and water resources devel-
opment. Texas, Oregon and Kansas are contemplating an integrated
approach, while Oklahoma has chosen to utilize an advisory
coordinating board to interface the various water activities of
numerous state agencies.
EPILOGUE
Based upon discussions with state water quantity and quality personnel
from all 17 western states, it is apparent that most states feel a real credi-
bility gap exists between the Environmental Protection Agency and the state
agencies; that in those states where the state agencies attempted to implement
the federal program, a credibility gap developed between the water users and
the state agency; and, in several states the personnel expressed the opinion
that EPA let them down by backing off after they attempted to carry out a
control approach they did not agree with in the first place. In nearly every
state, the water user organizations and individuals have polarized to combat
the imposition of uncertain regulation over their possible water use. A per-
mit concept is nothing new to them and they know that eventual control can
emanate from an initially harmless permit.
For this reason, the current relationships between the three principals
can be graphically described as:
Polarization
EPA
I STATE \ / WATER
\AGENCIES ' \ USERS
'
Missing are the prime ingredients of credibility and understanding. It is
considered necessary:
1. that public officials responsible for carrying out laws appreciate the
position of the water users and the nature of irrigated agriculture; and
2. that water users appreciate the water quality problems caused and the
often awesome responsibilities and duties of the federal and state
water officials in carrying out the legislative mandates.
If water users and state and federal agencies will embark upon a cooperative
undertaking, a tripartite relationship can evolve that will instill
138
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credibility and^achieve improved water quality. This would once again get
those directly involved with water use and with administration of laws working
together and not through advocates. The tripartite relationship can develop
if personal objectives and discipline orientations are not allowed to con-
strain a casual^and flexible approach. A cooperative approach will facilitate
the implementation of an action program:
Tripartite Relationship
cooperation
credibility
Figure 19 illustrates the complex situation faced by public officials and
water users. To achieve the highly desirable goals of cleaner water called
for by the Federal Water Pollution Control Act of 1972 (P.L. 92-500), it is
necessary to assess realistically the specific nature and problems caused by
surface and subsurface return flows from irrigated agriculture. Present water
management and agricultural practices create irrigation return flows from the
conveyance system and cropland that may have a degrading effect upon water
quality in the receiving waters.
Irrigation return flows can be influenced to eliminate successfully con-
trollable degraded discharges from irrigated agriculture and improve the qual-
ity of our nation's waters affected by such discharge. But end-of-pipe
treatment is not the feasible solution. An Influent Control Approach is
recommended based upon the conclusion that:
BMP + BAP = IRFWC " IWQ »• Cleaner Water.
139
-------
IRRIGATION RETURN FLOWS
FROM:
PRESENT WATER
PRACTICES
Water Use
PRESENT AGRICULTURAL
PRACTICES
Land Use
Use of Agr. Chemicals
\
r
CONVEYANCE
Diversion and
Delivery System
APPLICATION
Irrigation
Methods and
Practices
\
\
CROPLAND
Agronomic
Practices
/\
APPLICATION
SOURCES OF
RETURN FLOW
Seepage Losses
(Subsurface
Return Flows)
Deep Percolation
(Subsurface Return
Flows )
DEGRADING
CONSTITUENTS:
Salinity
T
Tailwater Runoff
(Surface Return
Flows)
Salinity
Nitrates
Sediment
Phosphates
Crop Residue
Bacteria
Biocides
DISCHARGED INTO RECEIVING WATERS THROUGH
DIFFUSED AND DRAIN COLLECTED RETURN FLOWS
THE PROBLEM
Deterioration of Water Quality
( Rodo»»vieh a SkogcrDo* 1977)
Figure 19: The Irrigation Return Flow Quality Problem
140
-------
Figure 20 provides a summary rendition of the water quality goal, prob-
lems and an approach to irrigation return flow quality control. But regardless
of how the goals are articulated, problems identified and assessed, and resolv-
ing approaches formulated, the mark of success in the efforts expended will
depend upon the usefulness and implementabi1ity of the results. The challenge
is here and becoming more pronounced as time goes on. But it is important
that steps taken to meet the challenge be positive and productive.
-------
THE PROBLEM
Deterioration of Water Quality
|
Degraded Discharges
Municipal and
Industrial
Discharges
WATER MANAGEMENT PRACTICES
THE GOAL
"Cleaner Water"*
by
Elimination of
Controllable Degraded
Discharges
This term i* symbolic of the
objectives of P. L. 92-5OO and
is not to be interpreted as advocating
"Zero Discharge"
IRRIGATED AGRICULTURE
Use of Agr. Chemtca s
\
— ' CONVEYANCE APPLICATION CROPLAN
-C-
K> biverslo
pellverj
n and I . Irriai
Svtternl Mttni
Pro-
3d* and Prociict
tlcei
/\
SOURCES OF /
RETURN
Seepage Losses
(Subsurface
Return Flows)
FLOW /
Deep Percolation
(Subsurface Return
Flaws )
J DEGRADING I
CONSTITUENTS: J
Salinity
Salinity
Nitrates
0 APPLICATION
el »_ klethode and)
al [Practices 1
\
\
Tai water Runoff
(Surface Return
Flows)
,
Sediment
Phosphates
Crop Residue
Bacteria
Biocides
J Degraded Irrigation Return Flows
A SOLUTION
An Influent Control Approach (ICA)
ASSUMPTION.
Improved Agnc>jltura! Praukes + Improved Water Managements Improved Water Quality
( 1AP+ iWM- IWU )
CONCLUSION
Best Management Practices + Best Agricultural Practices = Irrigation Return Flow Quality Control
( BMP* BAP = IRFQC — IWQ )
BMP = Improved Local Water Management ( ILWM)
BAP = Proper Land Use ( PLUland Proper Application of Agricultural
Chemicals (PAAC)
INFLUENT CONTROL APPROACH i ICA)
BEST MANAGEMENT
PRACTICES (BMP)
Improved Local Water
Management (ILWM)
BEST AGRICULTURAL
PRACTICES (BAP) .
Proper Land Proper Application of
Use (PLU) Agricultural Chemicals ( PAAC)
COMPONENTS
[ PROBLEM AREA |
I Designate area
ond area entity.
2 Develop standards
and criteria for
beneficial use.
I
3. introduce incentives
for ILWM.
4. Add water quality to
water rights.
5. Add reporting and
recording tor wottr
rights.
6. Recognize reasonable
degradation from irri-
gation return flows.
| STATEWIDE |
7. Adopt Agricuhurol Practices
Act. |
Sediment Licensing and control
and erosion over application of
agricultural chemicals:
fertilizers ond biocides
8. Promote close Cooperation or integration of state water
agencies and other related functions.
( Bofloll.itd & Sloq*rbo« t»?T I
Figure 20: Achieving Irrigation Return Flow Quality Control Through Improved Legal Systems
-------
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146
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147
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APPENDIX A
1. ARIZONA
1.1 SUMMARY OF WATER QUALITY LAWS
1.1.1 Background
In 1962, the State Department of Health enacted rules
and regulations for sewerage systems and waste treat-
ment works (see Environment Reporter, State Water
Laws, Vol. 2, §711.0501 et. seq.).Arizona's water
pollution control laws were enacted In 1967 and re-
ceived a great deal of modification in 1975. This
legislation designated the Department of Health Ser-
vices as the state water pollution control agency for
all purposes of the Federal Water Pollution Control
Act (A.R.S. §36.1852).l
In 1968, the Water Quality Control Council adopted
implementation and surveillance standards (Environment
Reporter, State Water Laws, Vol. 1, §711.0541 et. seq.
adopted July 18, 1968, effective Aug. 8, 1968). On
Dec. 10, 1973 the Council adopted water quality stand-
ards for surface waters in Arizona (Environment Re-
porter, State Water Laws, Vol. 1, §711.0541 et. seq.
adopted Dec. 10, 1973, effective Dec. 21, 1973). As
of this date, Arizona has not been accepted by the
Environmental Protection Agency into the National
Pollutant Discharge Elimination System.2
1.1.2 Policy
It is the policy of the Department of Health Services
to require:
by July 1, 1977 the application of the best
practicable control technology currently
available and by July 1, 1983 the applica-
tion of the best available technology eco-
nomically achievable in treatment and con-
trol of all waste sources (Arizona Water
Quality Standards §R9-21-101, see Environ-
ment Reporter, State Water Laws, Vol. 1,
1711.0541, et. seq.).
Arizona also has a statement of policy regarding anti-
degradation, which states:
Waters whose existing quality is better than
the established standards shall not be Lowered
in quality unless and until it has been af-
firmatively demonstrated to the State Water
Quality Control Council that such change is
justifiable as a result of necessary economic
and social development and will not interfere
with or become injurious to any assigned
uses made of, or presently possible in, such
waters. Any industrial, public or private
project or development which could constitute
a new source of pollution or an increased
source of pollution to high quality waters
will be required, as part of the initial
project design, to provide the best avail-
able technology economically achievable
(Arizona Water Quality Standards, IR9-21-102).
i See 33 U.S.C.A., 1251 et. seq.
2 See letter from EPA Region IX, R.L. O'Connell, Di-
rector of the Enforcement Division to James D. Goff,
Arizona Department of Health Services, November 5,
1975.
On May 5, 1976, Arizona adopted a policy statement
regarding salinity which reads as follows:
A. The flow weighted average annual salin-
ity in the lower main stem of the Colorado
River System shall be maintained at or
below the average value found during 1972,
while allowing the Colorado River Basin
States to continue to develop their com-
pact apportioned waters.
B. The plan of implementation for salin-
ity control of the Colorado River System
is the plan prepared by the Colorado River
Salinity Control Forum, 'Water Quality
Standards for Salinity including Numeric
Criteria and Plan of Implementation for
Salinity Control-Colorado River System-
June 1975 and supplement, August 26, 1975,'
adopted by all seven Basin States.
C. Salinity levels in the lower main stem
may temporarily increase above the 1972
levels if control measures to offset the
increases are included in the plan of
implementation. However, compliance with
the 1972 levels shall be a primary consid-
eration.
D. The flow weighted annual salinity for
the 1972 year are:
below Hoover Dam 723 mg/1
below Parker Dam 747 mg/1
Imperial Dam 879 mg/1
E. The plan of implementation shall be
reviewed and modified as appropriate from
time to time, but at least once in three
years. At the same time, the numeric
salinity standards consistent with the
plan so that the Colorado Basin .States
may continue to develop their compact
apportioned water while providing the
best practicable water quality in the
Colorado River Basin. This may neces-
sitate revision of this regulation.
F. The mechanism for interstate coopera-
tion for salinity control is the Colorado
River Basin Salinity Control Forum
(Arizona Water Quality Standards, IR9-
21-103).
Amendments to Arizona's water pollution control laws
in 1975 resulted in the following definitions. Pol-
lution is defined by these amendments as "the man-
made or man-induced alteration of the chemical, phy-
sical, biological and radiological integrity of
water" (A.R.S. §36-1851(12), 1976 Supp.).
In defining pollutant, Arizona statutes include "agri-
cultural waste, including irrigation and drainage
waters, discharged into water" (A.R.S. §36.1851(11),
1976 Supp.). However, the definition of wastes
specifically excludes "agricultural irrigation and
drainage waters for which water quality standards
shall have been established pursuant to this article"
(A.R.S. §36.1851(15), 1976 Supp.)
Waters of the state are defined to mean:
all waters within the jurisdiction of
this state including all streams, per-
ennial or intermittent', lakes, ponds,
impounding reservoirs, marshes,
118
-------
watercourses, waterways, wells, springs
irrigation systems, drainage systems, and
all other bodies or accumulations of water,
surface and underground, natural or arti-
ficial, public or private, situated wholly
or partly within or bordering upon the
state (A.R.S. §1851(16), 1976 Supp.).
In statutes dealing with Natural Resource Conservation
Districts, the legislature has set forth its policy
to:
provide for the restoration, and conserva-
tion of lands and soil resources of the
state and the control and prevention of
soil erosion, and thereby to conserve nat-
ural resources, conserve wildlife, protect
the tax base, protect public lands and in
such manner to protect and promote the
public health, safety and general welfare
of the people (A.R.S. §45.2001, 1976 Supp.).
1.1.3 Classification
Waters in Arizona are classified as either "domestic
water supply," "full body contact recreation," "par-
tial body contact recreation," "fish, wildlife and
other aquatic and semiaquatic life," "agricultural and
industrial" and "aesthetic use" according to their
designated beneficial uses (Arizona Hater Quality
Standards, §R9-21-204).
1. 'Domestic water supply1 is a surface
water which is intended for use as a potable
water supply. Treatment by coagulation, sed-
imentation, filtration, disinfection and
other treatments may be required to yield a
finished water suitable for human consump-
tion. After such treatment, this water may
be used for domestic drinking water supply,
food processing, liquid ingredient in bev-
erages, and other similar uses.
2. 'Full body contact recreation' is a
surface water which is intended for uses
where the human body may come in direct
contact with the raw water to the point of
complete submergence. The water may be in-
gested accidentally and certain sensitive
body organs, such as the eyes, nose, etc.,
may be exposed to the water. Although the
water may be ingested accidentally, it is
not intended to be used as a potable sup-
ply unless acceptable treatment is applied.
This water may be used for swimming, water
skiing, skin diving, and other similar
activities.
3. 'Partial body contact recreation' is
a surface water where the human body may
come in direct contact with the water, but
normally not to the point of complete sub-
mergence. It is very unlikely that this
water will be ingested, nor will critical
organs such as eyes, ears and nose norm-
ally be exposed to the water. This water
may be used for fishing, hunting, trapping,
boating, and other similar activity.
4. 'Fish, wildlife, and other aquatic
and semiaquatic life' is a surface water
suitable for the growth and propagation of
fish, waterfowl, fur-bearers, other aquatic
life, semtaquatic life, and wildlife. This
water may be used for a cold water fishery,
warm water fishery, wildlife habitat and other
similar uses.
5. 'Agricultural and industrial1 is surface
water which is suitable for general agricul-
tural and industrial usage.
6. 'Aesthetic use' is surface water that
is appealing to the senses (Arizona Mater
Quality Standards. §R9-21-204y
Beneficial use is divided into primary and incidental
uses (Arizona Water Quality Standards. 5R9-21-205).
A primary beneficial use is a recognized use of water
for purposes of designating applicable specific use
standards. The exercise of a primary beneficial use
which interferes with the attainment of standards
associated with an incidental use does not violate
water quality control regulations (Arizona Water
Quality Standards. §R9-21-205(c)).
1.1.4 Standards
The Water Quality Control Council is given the statu-
tory authority to promulgate water quality standards
which are designed to protect surface waters for
designated uses (A.R.S., §36.1857, Arizona Water
Quality Standards. §R9-21-201). In so doing, the
Council must consider the following:
1. The criteria established by the Federal
Water Pollution Control Act, as amended, in-
cluding the Water Quality Act of 1965.
2. The protection of the public health.
3. The size, depth, surface area covered,
volume, direction, and rate of flow, stream
gradient, and temperature of water.
4. The character and uses of the land area
bordering such waters.
T.The uses which have been made, are
being made, or may be made of such waters
for every public or private purpose.
6. The disposal of sewage and all wastes.
7. The extent of pollution resulting from
natural causes, including mineral and chem-
ical characteristics.
8. The extent to which suspended solids,
colloids, or a combination of solids with
other suspended substances may be permitted.
9. The extent to which bacteria and other
biological organisms may be permitted.
10. The amount of dissolved oxygen that
is to be present and the extent of the
oxygen demanding substances which may be
permitted.
11. The extent to which toxic substances,
chemicals, or deleterious conditions may
be permitted.
12. The need for standards for effluents
from disposal systems.
13. Whether a standard that is to be ap-
plicable to discharges into flowing water or
underground water basins would be written in
such a way that the degree of pollution
tolerated or treatment required will be
dependent upon the volume of flow of the
receiving water and the extent to which
the discharge is diluted therein, or the
volume of water in such underground water
basin.
14. The degree of treatment that will be
required for each of the various types of
discharges. In formulating any applicable
standard pertaining to waste discharge, the
Council shall be guided by the degree of
treatment or control that is required for
the water quality enhancement that is neces-
sary for the present and future beneficial
uses of such water.
15. The degree to which any particular
waste is amenable to treatment and the cost
of such treatment, and shall take into con-
sideration the benefit to the state or the
-------
advantage to its people by the prevention.
abatement and control of water pollution as
compared to the resultant financial burden
on the water user or the unreasonable tak-
ing of his property.
16. In formulating any applicable standard
pertaining to agricultural irrigation and
drainage waters, the Council shall be guided
by the principle that such waters are put to
beneficial use within the state for the
irrigation of lands or become return flows
to the waters of the state and subsequently
reused, and that such standards shall not
diminish the water available for such uses
nor deprive the state of such water (A.R.S.
536.1857 A, emphasis added).
The above statute further commands the Council to:
1. Not require any present or future
appropriator or user of water to divert,
cease diverting, exchange, cease exchang-
ing, store, cease storing, or release any
water for the purpose of controlling pol-
lution 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 other waters of the state (A.R.S. 536.
1857 B).
The Arizona Legislature has recognized that no single
standard of quality or the amount of pollutants that
is discharged into the waters of the state is appli-
cable to all streams, or to different segments of the
same stream, or to different discharges into waters
(A.R.S. 136.1857 A).
Water quality standards in Arizona are applicable to
all surface waters of the State except those wholly
private waters which are closed to all public uses
and not discharged into or polluting any other waters
of the State (Arizona Water Quality Standards. SR9-21-
201). These standards are divided into general and
specific categories and are applicable to all surface
waters.
General standards provide that:
All surface waters shall be:
1. Free from substances attributable to
domestic or industrial waste or other con-
trollable sources that will settle to form
sludge or bottom deposits in amounts suffi-
cient to be unsightly, putrescent or odorous,
or in amounts sufficient to interfere with
any beneficial use of the water.
2. Free from floating debris, oil, grease,
scum, and other floating materials attrib-
utable to domestic or industrial waste or
other controllable sources in amounts suf-
ficient to be unsightly or in amounts
sufficient to interfere with any beneficial
use of the water.
3. Free from materials attributable to
domestic or industrial waste or other con-
trollable sources in amounts sufficient to
produce taste or odor in the water or
detectable off-flavor in the flesh of fish,
or in amounts sufficient to change the exist-
ing color, turbidity or other conditions in
the receiving stream to such degree as to
create a public nuisance, or in amounts
sufficient to interfere with any beneficial
use of the water.
4. Free from toxic, corrosive, or other
deleterious substances attributable to
domestic or industrial waste or other
controllable sources at levels or com-
binations sufficient to be toxic to human,
animal, plant or aquatic life or in amounts
sufficient to interfere with any beneficial
use of the water (Arizona Water Quality
Standards, §R9-21-206]~
Specific standards are divided into toxic substances
and radioactivity. These specific standards state
that:
Toxic substances shall be kept below levels
which are deleterious to human, animal,
plant or aquatic life, or in amounts suf-
ficient to interfere with the beneficial
use of the water. As a minimum evaluation
for the presence of toxic substances, a
water shall be evaluated by use of a 96-
hour bioassay, guided by the document
'Standard Methods for the Examination of
Water and Wastewater.' The survival of
the test organisms shall not be less than
that in controls which utilize appropriate
experimental water.
The concentration of radioactivity in sur-
face waters of the State shall not:
a. Exceed those limits established by the
regulations for the control of ionizing
radiation adopted by the State of Arizona
Atomic Energy Commission.
b. Result in the accumulation of radio-
activity in edible plants, animals, and
aquatic life that present a hazard to
consumers.
c. Be harmful to aquatic life.
Since any human exposure to ionizing radia-
tion is undesirable, the concentration of
radioactivity in surface waters will be
maintained at the lowest practicable level
(Arizona Water Quality Standards, §R9-21-
2071:
Arizona's water quality standards provide that if
the entire flow of a watercourse, that would other-
wise be dry at that time and place, is effluent from
agricultural irrigation return flow, the Water Quality
Control Council has the authority to hold water qual-
ity standards inapplicable if the Council has found
that the flow does not present a substantial danger
to the health of the public (Arizona Water Quality
Standards, SR9-Z1-210A).
Water quality standards do not apply:
to the collection, return or drainage of
agricultural irrigation return flow, excess
or tailwaters to canals, laterals or other
man-made irrigation water delivery facili-
ties within an irrigation system, or chem-
ical maintenance of irrigation system where
agriculture is the only designated primary
beneficial use (Arizona Water Quality
Standards, SR9-21-210B).
The State Board of Health is given the authority to
prescribe waste discharge requirements under A.R.S.
Section 36.1855, Arizona Water Quality Standards,
Section 6-2-7.3. These discharge requirements must
be in keeping with the above stream standards. These
regulations may include effluent standards wnich will
meet stream standards and protect the public health
(Arizona Water Quality Standards, i6-2-7.3).
1.1.5 Permit System
A permit, issued by the Director, is required for the
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discharge of any pollutant or combination of pollutants
into waters of the state (A.R.S. §36.1859(A)). From
the definition of pollutant it appears that a permit
may be required before discharging agricultural waste
including irrigation and drainage waters (see A.R.S.
§36.1851(11)). The permit may specify a monitoring
schedule which requires the discharger to periodically
report various technical data (Ibid.). Further, a
disposal system, or an increase in the volume or
strength of any waste, cannot occur unless the permit
is modified (Ibid.).
A permit is defined as "a certificate or letter issued
by the Director (of the Department of Health Services)
stating the conditions and restrictions governing the
discharge of a pollutant under this chapter" (A.R.S.
§36.1851(8), 1976 Supp.}.
In issuing a permit, the Director is guided by the
principle that the waters of the state are to be put
to beneficial uses and they become return flows which
are subsequently reused and that such permits must
not diminish the water available for beneficial uses
nor deprive the state of such water (A.R.S. §36.1859
(C)).
A permit may be issued only after thirty days notice
and an opportunity for a public hearing (A.R.S. 536.
1859). This notice must specify the waters to be
affected. Notice of the hearing must be published at
least three times before the hearing in a newspaper
or newspapers of general circulation in the area for
which such standards, provisions, rules or regulations
are to be adopted. The first of these notices must be
published at least thirty days before the hearing. A
copy of the notice of hearing is mailed at least thirty
days prior to such hearing to such municipalities,
irrigation districts, agricultural improvement dis-
tricts, water users associations, state franchised
water companies and other persons whom the Council
and Director deem may be affected, or who have re-
quested notification of Council action (A.R.S. §1860
(A)).
A public hearing will be held if there is sufficient
public interest, or if a hearing is required by the
applicant or permittee (A.R.S. §1860(B)). Any inter-
ested persons may submit written comments or present
oral testimony at the hearing (A.R.S. §1860(0) and
1.1.6 Sanctions and Enforcement Measures
Enforcement activities are mainly directed towards
compliance with waste discharge requirements and are
generally initiated at staff level (Arizona Hater
Quality Standards, §6-2-7.4). Correction of the prob-
lem is sought first of all by an informal discussion.
If this fails to bring about adequate correction, the
Department of Health Services will issue a written
complaint which specifies the violation and orders
the corrective action to be taken by the violator
(Arizona Water Quality Standards, §6-2-7.4). The
Department is given the statutory authority to issue
orders to prohibit or abate discharges of wastes into
the waters of the state (A.R.S. §1856(8)).
Whenever the Department finds, after proper notice
and hearing, that any person is engaging in any act
or practice which constitutes a violation of any order
of the Council or Director, the Department will make
an application, through the Attorney General, to the
superior court for an order enjoining such act or
practice. The superior court, after notice to the
parties in interest, will then proceed to hear
the matter and may issue an injunction or a restrain-
ing order in accordance with the Arizona rules of civ-
il procedure and laws relating thereto. 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.
Furthermore, whenever the Department finds that any
person is discharging or causing to be discharged
into the waters of the state directly or indirectly
any pollutant which in the opinion of the Department
constitutes a clear, present, and immediate danger to
the health of the public, the Department will issue
written order to such person that he must immediately
discontinue such discharge of such pollutant into the
waters of the state, and whereupon such person shall
immediately discontinue such discharge. If such per-
son, notwithstanding such order, continues the dis-
charge of such pollutant into the waters of the state,
the Department will make application, through the
Attorney General, to the superior court of this state
for the county in which the discharge is occurring
for a temporary restraining order, preliminary in-
junction or permanent injunction as provided in the
Arizona rules of civil procedure. Such action in
such superior court shall be given precedence over
all other matters 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 (A.R.S. §36.1864).
Arizona statute Section 36.1858 makes it unlawful for
any person:
1. To discharge any wastes into the waters
of the state and thereby reduce the quality
of such waters below the water quality stan-
dards established therefor by the Council in
violation of an order issued pursuant to
§36.1854.
2. To discharge any agricultural, irriga-
tion or drainage waters into waters of the
state and thereby reduce the quality of
such waters below the water quality stan-
dards established therefor by the Council
in violation of an order issued pursuant
to §36.1854.
3. To discharge pollutants into the waters
of the United States within this state
except in compliance with a permit therefor
as may be required by the Director under
the provisions of this article and any rules
and regulations promulgated hereunder (A.R.S.
§36.1854, 1976 Supp.).
Civil penalties are provided for in Section 36.1864.01
of the Arizona statutes. This statute provides that:
A. Notwithstanding the provisions of
§13.101, any person who violates any pro-
vision of this article or of any permit,
rule, regulation or order issued or pro-
mulgated pursuant to this article shall
be punished by a fine in an amount not to
exceed ten thousand dollars, or in the
event of continuous discharge from a point
source, not to exceed ten thousand dollars
per day of such violation.
B. Notwithstanding the provisions of
§13.101, actions to recover penalties
under this section shall be brought by
the Attorney General in the name of the
state in the superior court of the county
in which the violation occurred or in the
county in which the Department maintains
an office.
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Any person who willfully or negligently discharges any
pollutant into the waters of the United States within
this state in violation of any statute, permit, rule
or regulation is guilty of a misdemeanor and punishable
by a fine not to exceed $25,000 (A.R.S. §36.1864.02A).
If the discharge is continuous and from a point source,
the fine is not to exceed $25,000 per day of the vio-
lation. Upon a second conviction, the maximum fine is
raised to $50,000.
Knowingly making a false statement, representation or
certification in any record, report, plan or other
document which is required by any permit, rule, regu-
lation or order subjects the violator to a fine not
to exceed $10,000 or imprisonment for up to six months
or both (A.R.S. §36.1864.028). This same penalty
applies if a person falsifies, tampers with, or know-
ingly renders inaccurate any monitoring device (Ibid.).
1.2 ADMINISTRATION OF THE LAWS
Pollution control is the responsibility of several
state bodies in Arizona. Agencies who have responsi-
bility in this area are the Arizona Water Commission,
the State Land Department and the Department of Health
Services. The activities of these agencies are loosely
coordinated by the Water Quality Control Council (see
Figure 1 for Council and Health Dept. organization).
The State Water Quality Control Council is made up of
thirteen members. The Council consists of the Direc-
tor of the Department of Health Services, a member of
the State Game and Fish Commission, a member of the
Oil and Gas Conservation Commission, the State Land
Commissioner, a member of the Arizona Water Commis-
sion, the Dean of the Agricultural College of the
University of Arizona, and seven citizens of the state
who are appointed by the Governor (A.R.S. §36.1853).
The Council exercises supervision and control over the
establishment, review, revision or deletion of water
quality standards (A.R.S. §36.1854 and 1857. (See
Environment Reporter, State Water Laws, Vol. 1, for
Arizona's Water Quality Standards).Further, the
Council has the power to establish rules and regula-
tions pertaining to effluent limitations, water qual-
ity related limitations, new source performance
standards, toxic and pretreatment effluent standards,
and the power to inspect and monitor the discharge of
pollutants (A.R.S. §36.1854(5)).
Preservation and enhancement of water quality in Ari-
zona is the primary function of the State Water Qual-
ity Control Council. The Council's implementation
plan is a comprehensive program of surveillance, con-
trol of discharges to the rivers, enforcement and
special activities relating to investigations, re-
search coordination with other agencies concerned with
water quality control, and support of a water augment-
ation program for the State.
The Council maintains an up-to-date list of pollution
sources which require treatment and treatment facili-
ties in need of expansion, which includes a list of
the degrees of treatment needed to comply with water
quality standards and time schedules of compliance.
The Council has recognized that some degradation in
quality of water results from each beneficial use.
Some forms of degradation, such as salt degradation,
are irreversible in a practical and economical manner
under present technology. The Council has also rec-
ognized the absolute need for return flows to the
rivers to create a proper balance of water resource
development in agricultural, municipal and other uses,
and to fulfill requirements to downstream uses
Therefore, the Council authorizes return flows to the
river even though the return flows might decrease the
quality of the river water so long as such degrada-
tion is the necessary result of a reasonable use of
the water. Because of this reasonable use, the
quality of the waters of the State will continue to
be degraded with respect to certain parameters at a
given point on the river as more upstream users in
other states and Arizona are added, and no single
standard for any one parameter can be applied to all
points in the river. Factors such as the quality of
the water available to the beneficial user of river
water, the type and efficiency of use, and the type
of practical treatment methods available will deter-
mine how much the return flow will be degraded by
each use. All future numerical standards set on the
river reflect these facts. The Council also deter-
mines the allowable degradation resulting from each
beneficial use, and after appropriate public hearings,
sets specific stream standards downstream of such use.
Emphasis on equitable apportionment of allowable
degradation will be paramount in the determination of
these numerical standards. Finally, the Attorney
General has determined that jurisdiction to establish
rules and regulations for the use of reclaimed waste
water rests with the Council (Opinion Attorney Gener-
al No. 75-5-L).
Figure 1. Arizona Water Quality Control Organizations
State Water Quality
Control Council
Director
Department of
Health
Asst. Director
Environmental Health
Chief
Water Quality and Control
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The Director of the Department of Health Services is
given the authority to establish a system of user
charges as required by the Federal Water Pollution Con-
trol Act and to .hold hearings in order to effectuate
the enforcement of rules and regulations or when
appealed by any person who was adversely affected by
a-ny order or denial of the Department (A.R.S. 136.1855).
The Department must advise, consult and cooperate with
other state agencies and the federal government and
develop comprehensive programs for the minimization,
prevention, control and abatement of new or existing
water pollution (A.R.S. §36.1856(2) and (4,)). Further,
the Department may issue, modify or revoke orders:
(a) Prohibiting or abating discharges of
wastes into the waters .of the state.
(b) Requiring the construction of new dis-
posal systems or any parts thereof or the
modification, extension or alteration of
existing disposal systems or any parts
thereof, or the adoption of other remedial
measures to minimize, prevent, control or
abate pollution (A.R.S, §36.1856(8).
The Arizona water Commission has broad planning author-
ity over the state's water resources and is respon-
sible for formulating plans for the practical and eco-
nomic development, management, conservation and use
of the watersheds and waters of the state (A.R.S.
§45.506). The Commission also administers the State
Water Plan (A.R.S. §45.2504A) and prosecutes and de-
fends Arizona's rights and claims to interstate
streams (A.R.S. §45.502).
The State Land Department has planning authority over
both water and land and has the responsibility for
the general control and supervision of the waters of
the state (A.R.S. 545.102A). The Department may make
surveys and investigations of these resources and its
authority extends to the regulation of ground water
by its power to delineate critical ground water basins.
In 1973, the Legislature directed the State Land De-
partment to recommend to it guidelines for a land use
policy for the lower Colorado River area (Ch. 154,
5.3, 1973 Arizona Laws 1234).
1.2.1 Additional Agency Involvement
The State Land Department also has general administra-
tive supervision and control of the appropriation and
distribution of the waters of the state (A.R.S. §45.
1-02). This Department may also conduct investigations
of water resources of the state to determine their ex-
tent and .potential for development (A.R.S. §45.103).
Finally, the State Water Engineer is charged with the
supervision of the construction of dams and reservoirs
(A..R.S. §45.103). The State Water Engineer must give
written approval of the plans and specifications be-
fore the construction of a dam or reservoir may be
commenced (A.R.S. §45.103) (see Figure 2).
1.3 SPECIAL LEGISLATION
The Geothermal Resources Act provides that the Oil and
Gas Conservation Commission must supervise the dril-
ling, operation, maintenance, and abandonment of geo-
thermal resource wells in order to prevent damage to
or contamination of any waters of the state (A.R S
§27.652A).
This act provides that the disposal of water or brines
obtained from a geothermal well must not damage or
contaminate the underlying ground water aquifer or
pollute any stream, river, or body of surface water
(A.R.S. §27-652C). Whenever the Commission finds that
it is in the interest of preventing subsidence of the
land surface, or maintaining the quality of surface
and ground waters, it may require the reinjection of
the geothermal effluent or the injection of other
water supplies into the producing zones (A.R.S. §27-
652D).
1.4 RELATED LEGISLATION
The Natural Resource Conservation Districts Act gives
such a district the power to:
Conduct surveys, investigations and research
relating to the character of the soil, ero-
sion prevention within a farm or ranch,
methods of cultivation, farm and range
practices, seeding, eradication of noxious
growths and such other measures as will
aid farm and range operations, disseminate
information pertaining thereto, and carry
on research programs with or without the
cooperation of the state., the United
States or agencies thereof (A.R.S. 545.
2054(1)).
Cooperate and enter into agreements with a
landowner, operator or any agency or sub-
division of the state or federal government
to carry on programs of soil erosion
Water Quality
Figure 2. Arizona Water Agencies and Their Functions
Water Rights Administration
Water Planning
and
Development
153
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prevention, methods of cultivation, cropping
practices, land leveling and improvement on
agricultural lands, and programs limited to
methods of proper range use, reseeding and
the eradication of noxious growth on grazing
lands, all within the limits of an individual
farm or ranch and subject to such conditions
as the supervisors deem necessary (A.R.S.
§45.2054(3)),
This act created the Division of Natural Resource Con-
servation as a division of the State Land Department
(A.R.S. §45.2011). The Commissioner of the newly
created division must consider:
1. The topography of the area.
2. The character of soils.
3. The distribution of erosion.
4. Prevailing land use practices.
5. The desirability and necessity of
including within the boundaries of the
district the particular lands under con-
sideration and the benefits to be received
by such inclusion.
6. The relation of the proposed area to
existing watersheds and agricultural re-
gions, and to other districts already
organized or proposed for organization.
7. Such other physical, geographical
and economic factors as are relevant.
in defining the boundaries of such a district (A.R.S.
§45.2033).
1.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
Arizona's regulations dealing with water quality
standards have set forth designated beneficial uses
(Arizona Water Quality Standards, R9-21-204). These
designated uses include an agricultural and industrial
classification which is defined as "surface water
which is suitable for general and industrial usage"
(Arizona Water Quality Standards, R9-21-204E).
The Water Quality Control Council may make a determi-
nation that water quality standards do not apply when
the entire flow in a watercourse that would otherwise
be dry is effluent from agricultural irrigation return
flow (Arizona Water Quality Standards, R9-21-210A).
Furthermore, water quality standards do not apply to
the collection, return, or drainage of agricultural
irrigation return flows, excess or tailwaters to can-
als, laterals or other man-made irrigation water de-
livery facilities within an irrigation system, or
chemical maintenance of irrigation facilities within
an irrigation system where agriculture is the only
designated primary beneficial use, or physical or
mechanical maintenance of irrigation facilities with-
in an irrigation system.
While Arizona has regulations dealing with sewerage
systems and waste treatment works, it does not have
regulations dealing with confined livestock feeding
areas.
1.6 CASE LAW APPLICABLE TO AGRICULTURE
In Sullivan v. Jones (13 Ariz. 229, 108 P. 476, 1910),
the Supreme Court of Arizona stated that an appropri-
ator who is making no use of water below another
appropriator's dam is not entitled to an injunction
restraining the other from polluting the water by
allowing his sheep to go into it.
In the landmark decision of Arizona Copper Co. v.
Gillespie (12 Ariz. 190, 100 P. 465, 1907), the
Supreme Court of Arizona held that in order to author-
ize a private person to maintain an action to abate a
public nuisance, he must show a special injury which
is different in kind and not merely in degree, from
that suffered by the public generally. The Court went
on to state that the owner of arid agricultural lands
who has a right to use water for irrigation purposes
has an interest in the water which is different from
that of the general public. He is therefore entitled
to maintain an action to restrain deposits of mineral
debris in streams which are tributary to the river
from which he withdraws his irrigation water, when
that water is rendered unfit for use. Furthermore,
a subsequent appropriator cannot deprive a prior
appropriator to his rights of appropriation by dimin-
ishing the quantity or deteriorating the quality.
1.7 INFORMATION SOURCES
Schoenbaum, Thomas J. "Water Pollution in Interstate
Streams, Efficacy of Federal and State Control," 12
Arizona Law Review, 1, 1972.
Schroeder, Milton R. "Regulation of Private Land
Use," Arizona State Law Journal, 1974, p. 163.
Harshbarger, J. W., e£ al_. Arizona Uater. Geologi-
cal Survey Water-Supply Paper 1648, U.S. Gov't.
Printing Office, Wash., D.C.: 1966.
Mann, Dean E. The Politics of Water in Arizona.
University of Arizona Press, 1963.
The
Kelso, M. Maurice, e_t al_. Water Supplies and Economic
Growth in an Arid Environment: An Arizona Case Study.
The University of Arizona Press, 1973.
DeCook, Kenneth James. Economic Feasibility of
Selective Adjustments in Use of Salvageable Waters
in the Tuscon Region, Arizona. A dissertation sub-
mitted to the faculty of the Committee on Hydrology
and Water Resources, 1970.
Klock, John W. "Water Quality and Use," Water
Resource Systems. Arizona State University, 1970.
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APPENDIX A
2. CALIFORNIA
2.1 SUMMARY OF WATER QUALITY LAWS
2.1.1 Background
In 1928, the adoption of Article X, Section 2 of the
California Constitution made all water rights subject
to the limitation of reasonable beneficial use and
no right extended to waste or the unreasonable use,
unreasonable method of use, or unreasonable method of
diversion.
Before the adoption of the Water Pollution Control Act
in 1949 (commonly referred to as the Dickey Act), the
State Department of Public Health was the agency in
California given the responsibility for the correction
and control of water pollution (Cal. Stat. ch. 60, 5 1
at 611-15, 1939). This Department focused on dis-
charges by industries, municipalities and quality
problems which affected domestic water supply. The
Department did not become involved in natural sources
of water quality degradation or with agricultural
pollution (Couzens, p. 7, 1969).
The Department issued permits through its Division of
Environmental Sanitation and Bureau of Sanitary Engi-
neering for all sewage and waste disposal devices in
the state (Cal. Health and Safety Code, § 5412-62,
Deering, 1945 ). It had the power to revoke these
permits whenever a disposal process became a nuisance
or a menace to public health.
Water pollution control during this period could also
be found in the Fish and Game Code, which prohibited
the deposit of any substance or material which would
be deleterious to fish, plant, or bird life into any
state waters (Cal. Fish and Game Code 481, Deering,
1944 ). Furthermore, the Department of Agriculture
had the authority "to take direct action with respect
to plant or animal disease carried in industrial
wastes" ("California's Water Pollution Problem," p.
65, 1961; see also 3 Cal. Adm. Code s 771-75, 1012).
In 1949, the Assembly Interim Committee on Water Pol-
lution adopted a proposal which would attack Califor-
nia's water pollution problems in a radically differ-
ent manner (Couzens, p. 9, 1969). The Committee
recommended that the problems of pollution constitu-
ting a menace to health be separated from those cre-
ating economic damage. The Committee also recommended
a system of regional boards whose jurisdiction would
correspond to the major watershed regions of the
state and whose responsibility would be that of pollu-
tion control within its region. The Committee also
decided that a state board would be necessary to
coordinate the activities of the various state-wide
agencies and the regional boards.
The 1949 Legislature followed these recommendations
and enacted a radically different water pollution
control law referred to as the Dickey Act. The Dickey
Act initiated a state-wide attack on water pollution..1
Principal control powers were vested in nine regional
water quality control boards which covered the entire
state. The Dickey Act also created the State Water
aNote the title of this Act was changed to the Water
Quality Control Act in 1965. Ch. 1657, (1965) Cal.
Stats. 3760, See Cal. Water Code, hereafter C.W.C.,
i 13000-13064. Dept. of Health retained jurisdiction
over public health hazards.
Quality Control Board, which coordinated and super-
vised the regional boards (Cal. Water Code, § 13010-
11). This Act repealed the State Health Department's
permit system, but did not take away the Department's
control over contamination (Cal. Stats. 1949, c. 1550,
p. 2789).
In 1967, the California legislature formally recog-
nized that the quality of water is directly related
to its quantity (Couzens, p. 25, 1969). As a result,
the State Water Rights Board was combined with the
State Water Quality Control Board to form the State
Water Resources Control Board (Cal. Stat. 1967, ch.
284, § 1 at 1441). To ease this transition, the
legislature created the Water Quality Advisory Com-
mittee (C.W.C. s 13019, West. Supp. 1968; See s
13120 to 13124, Repealed by Stats. 1972, c. 813, p.
1458, § 1).
The Porter-Cologne Water Quality Control Act was en-
acted in 1969 which completely revised Division 7 of
the Water Code, the former Dickey Act (Cal .'Stat.
1969, c. 482). This law was the first complete re-
vision of the state's water quality control laws in
two decades and had been labeled as the "toughest
water quality act in the nation" (Robie, p. 2, 1970).
This law provided new procedures to enable the State
Water Resources Control Board to carry out water
quality objectives more effectively through its water
rights function. This Act made important changes in
the state-wide policy for water quality control and
armed the regional water quality boards and the State
Water Resources Control Board with a new arsenal of
administrative powers (Robie, p. 4, 1970). While the
Porter-Cologne Act retained the organizational con-
cept of the Dickey Act, it made important changes in
the definitions of pollution, nuisance, contamination
and beneficial uses to be protected from quality
degradation. One of the most far-reaching changes
made by the Act was the elimination of the requirement
in the Dickey Act that a board must prove that a pol-
lution or nuisance was taking place (Robie, p. 13,
1970).
Under the Porter-Cologne Act, a board need only show
that a waste discharge requirement has been violated,
or that such violation was threatened. As a result,
the water quality control provisions of California
law are enforceable through the establishment of
waste discharge requirements (See Couzens, p. 1, 41,
1969).
In response to the National Environmental Policy Act
(42 U.S.C. 5 4321-47, 1970), the California Legisla-
ture enacted the California Environmental Quality
Act (Cal. Pub. Res. Code s 21000 et. seq., enacted,
Cal. Stats. 1970, c. 1433, § 1, at 2780). The poli-
cies behind both the National Act and the California
Act are similar in that they seek to provide every
person with a habitable and comfortable environment
in which to live and with opportunities to participate
in the decision-making processes of the agencies re-
sponsible for preserving environmental integrity
(Cal. Pub. Res. Code. 5 21100).
In 1971, the legislature granted authority to the
Attorney General to protect the natural resources of
the state from pollution, impairment, or destruction
(Cal. Gov't Code § 12600-12 West Supp. 1973). The
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term "natural resources" includes land, water, min-
erals and vegetables (Cal. Gov't Code 5 12605). Thus,
the Attorney General can file an independent action or
intervene in an existing action in order to protect
any aspect of the environment.
In 1972, the Legislature made a finding and declared
that:
since the Federal Water Pollution Control
Act (33 U.S.C. 1151, et. seq.), as amended,
provides for a permit system to regulate
the discharge of pollutants to the navi-
gable waters of the United States and
provides that permits may be issued by
states which are authorized to implement
the provisions of such act, it is in the
interest of the people of the state, in
order to avoid direct regulation by the
federal government of persons already
subject to regulation under state law pur-
suant to this division, to enact the pro-
visions of this chapter in order to
authorize the state to implement the pro-
visions of this Water Pollution Control
Act and acts amendatory thereof or supple-
mentary thereto, and federal regulations
and guidelines issued pursuant thereto
(Added by Stats. 1972, c. 1256, p. 2485,
§ 1, urgency, eff. Dec. 12, 1972, C.W.C.
S 13370).
The Legislature further finds and declares
that it is necessary for the state board
to amend its administrative regulations in
order to comply with the Federal Water
Pollution Control Act and regulations and
guidelines adopted thereunder (C.W.C. §
13371).
On May 15, 1973 the Environmental Protection Agency
granted California the authority to issue waste dis-
charge permits under the National Pollutant Discharge
Elimination System (Environment Reporter, Current
Developments, May, 1973, p. 131).
Judicial decisions related to water quality control
in California are covered in section 2.6 infra; how-
ever, one recent case deserves mention at this point
for its potential impact on irrigated agriculture.
On November 7, 1975, the California Court of Appeals,
1st Appellate District, Division One, handed down
their decision in E.D.F. v. East Bay Municipal Util-
ity District (8 ERC 1535).The Court held the
California constitution, which requires that water
resources be put to their fullest beneficial use, and
that waste or unreasonable use of water be prevented,
applied the rule of reasonable use to all water rights
in the state, public, environmental, and private, and
not merely to competing claims to property rights in
water This case is also commonly referred to as the
"Federal-facilities case," for its decision that fed-
eral law, not state law, applied when the Bureau of
Reclamation receives a permit from the state for a
water project and subsequently, contracts the use of
the waters. The case is now on appeal; however, the
public rights in how the water resources will be used
and returned to waterways or aquifers has been sig-
nificantly raised.
2.1.2 Policy
California's water quality policy is set forth in the
Porter-Cologne Water Quality Control Act. Section
13000 of this Act states that:
The Legislature finds and declares that
the people of the state have a primary
interest in the conservation, control,
and utilization of the water resources
of the state, and that the quality of
all the waters of the state shall be
protected for use and enjoyment by the
people 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 rea-
sonable 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, safety and wel-
fare 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 degradation
originating inside or outside the bound-
aries of the state; that the waters of
the state are increasingly influenced
by interbasin water development projects
and other statewide considerations; that
factors of precipitation, topography,
population, recreation, agriculture, in-
dustry 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 frame-
work of statewide coordination and policy.
"Quality of the water" or "quality of the waters" is
defined as the:
chemical, physical, biological, bacteriological,
radiological and other properties and characteristics
of water which affect its use (C.W.C. § 13050 (g)).
The California Legislature has further expressed it
to be the policy of the state to:
. . . conserve, protect and enhance its
environment ... to prevent destruction,
pollution, or irreparable impairment of
the environment and the natural resources
of this state.
It is in the public interest to pro-
vide the people of the State of California
through the Attorney General with adequate
remedy to protect the natural resources of
the State of California from pollution,
impairment, or destruction. Conservation
of natural resources and protection of
the environment are pursuits often beyond
the scope of inquiry, legislation, or
enforcement by local government; several
local public entities existing in the
same ecological community have acted in
differing and, sometimes, conflicting
manners; uniform, coordinated, and
thorough response to the questions of
protection of environment and preserva-
tion of natural resources must be assured;
and those matters are of state-wide
concern (Cal. Govt. Code 5 12600).
Pollution is defined in the Porter-Cologne Act as the:
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alteration of the quality of the waters
of the state by waste to a degree which
unreasonably affects: (1) such waters
for beneficial uses, or (2) facilities
which serve such beneficial uses . . .
(C.W.C. § 13050).
California statute also states that it is the primary
interest of the people of the state in the conserva-
tion of all available water resources to require the
maximum reuse of waste water to satisfy the require-
ments of beneficial use (C.W.C. § 3461).
The Legislature has further declared it to be the
policy of the state to:
(a) Develop and maintain a high-quality
environment now and in the future, and
take all action necessary to protect, re-
habilitate, and enhance the environmental
quality of the state.
(b) Take all action necessary to provide
the people of this state with clean air
and water, enjoyment of aesthetic, natural,
scenic, and historic environmental qual-
ities, and freedom from excessive noise.
(c) Prevent the elimination of fish and
wildlife species due to man's activities,
insure that fish and wildlife populations
do not drop below self-perpetuating levels,
and preserve for the future generations
representations of all plant and animal
communities and examples of the major
periods of California history.
(d) Insure that the long-term protection
of the environment shall be the guiding
criterion in-public decisions.
(e) Create and maintain conditions under
which man and nature can exist in produc-
tive harmony to fulfill the social and
economic requirements of present and fu-
ture generations.
(f) Require governmental agencies at all
levels to develop standards and procedures
necessary to protect environmental quality.
(g) Require governmental agencies at all
levels to consider qualitative factors
as well as economic and technical factors
and long-term benefits and costs, in addi-
tion to short-term benefits and to consider
alternatives to proposed actions affecting
the environment (Cal. Public Res. Code i 21001).
In relation to ground water it has been declared that:
the State (has) a primary interest in the
correction and prevention of irreparable
damage to, or impaired use of, the ground
water basins of this State caused by criti-
cal conditions of overdraft, depletion, sea
water intrusion or degraded water quality
(C.W.C. i 12922).
Furthermore, the Legislature has found and declared
that:
the greater portion of the water used in
this State is stored, regulated, distri-
buted and furnished by its ground water
basins, and that such basins are subject
to critical water quality causing great
detriment to peace, health, safety, and
welfare of the people of the State
(C.W.C. i 12922.1).
California's Water Reclamation Law (C.W.C. i 13500
et. seq.) Article 2 states:
It is hereby declared that the people of
the state have a primary interest in the
development of facilities to reclaim water
containing waste to supplement existing
surface and underground water supplies
and to assist in meeting the future water
requirements of the state (C.W.C. 8 13510).
The Legislature finds and declares
that a substantial portion of the future
water requirements of this state may be
economically met by beneficial use of re-
claimed water.
The Legislature further finds and
declares that the utilization of reclaimed
water by local communities for domestic,
agricultural, industrial, recreational,
and fish and wildlife purposes will con-
tribute to the peace, health, safety, and
welfare of the people of the state. Use
of reclaimed water constitutes the develop-
ment of "new basic water supplies" as that
term is used in Chapter 5 (commencing with
Section 12880) of Part 6 of Division 6
(C.W.C. 5 13511).
California's Water Reclamation Law further states
that:
it is the intention of the Legislature
that the state undertake all possible
steps to encourage development of water
reclamation facilities so that reclaimed
water may be made available to help meet
the growing water requirements of the
state (C.W.C. § 13512).
The State Water Resources Control Board is responsible
for formulating California's policy for water quality
control (C.W.C. § 13140), which must be periodically
reviewed (C.W.C. i 13143). To insure compliance with
state policy, all regional water quality control
plans must be approved by the State Board (C.W.C. 5
13245).
State policy for water quality control shall consist
of all or any of the following:
(a) Water quality principles and guidelines
for long-range resource planning, including
ground water and surface water management
programs and control and use of reclaimed
water.
(b) Water quality objectives at key loca-
tions for planning and operation of water
resource development projects and for water
quality control activities.
(c) Water quality control plans adopted by
the state board for interstate or coastal
waters or other waters of interregional
or statewide interest.
(d) Other principles and guidelines deemed
essential by the State Board for Water
Quality Control (C.W.C. § 13142).
The State Board cannot adopt a state policy for water
quality control unless a public hearing is held
(C.W.C. § 13147). Sixty days in advance of the hear-
ing the State Board must notify the appropriate
regional board and give notice of the hearing by
publication.
2.1.3 Classification
The nine Regional Water Quality Boards are required
by State Constitution and State statute to protect
the beneficial uses of all waters (Cal. Const., art.
XIV i 3; C.W.C. § 13005, West. Supp. 1967, Repealed
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by Stats. 1969, c. 482, p. 105, 8 17.
13050).
See C.W.C.
Beneficial uses of the waters of the state that may be
protected against quality degradation include, but are
not limited to:
domestic, municipal, agricultural and
industrial supply; power generation,
recreation; esthetic enjoyment; naviga-
tion; and preservation and enhancement
of fish, wildlife, and other aquatic
resources or preserves (C.W.C. 5
13050 (f)).
Each Regional Board must adopt water quality plans
for all areas within its region (C.W.C. § 13240).
These plans must contain a designation for the waters
within a speicified area of the beneficial uses to be
protected (C.W.C. s 13050). However, there is no
statewide system of classification. The Regional
Boards are permitted to establish standards suitable
to the needs of each region (C.W.C. § 13000-03, West
Supp. 1967, § 13003 was repealed by Stats. 1969,
c. 482, p. 1051 §17. See now C.W.C. § 13001).
California has a classification system for waste dis-
charges to land which is divided into three groups.
Group one wastes include among others, water from
agricultural origin such as chemicals from pesticides
or fertilizers and discarded containers of chemicals
unless adequately cleansed (23 C.A.C. i 2520, See
Environment Reporter, State Water Laws, vol. 1, §
721:0535).
Group two wastes under the agricultural origin
include:
(1) Plant residues from the production of
crops including, but not limited to, stalks,
vines, green drops, culls, stubble, hulls,
lint, seed, roots, stumps, prunings, and
trimmings.
(2) Manure.
(3) Dead animals or portions thereof.
(4) Adequately cleansed pesticide
containers (Ibid.).
Group three wastes consist of nonwater soluble, non-
decomposable inert solids and are unrelated to
agriculture (Ibid.).
2.1.4 Standards
The Porter-Cologne Act directs each Regional Board to
formulate and adopt water quality control plans for
all areas within its region (C.W.C. § 13240). These
plans consist of "A" designation or establishment 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 (C.W.C. § 13050;
Emphasis added).
Water quality objectives are defined as:
the limits or levels of water quality con-
stituents or characteristics which are
established for the reasonable protection
of beneficial uses of water or the pre-
vention of nuisance within a specified
area (C.W.C. 5 13050 (h). Emphasis added).
Water quality objectives must be those which, in the
Board's judgment, will nsure the reasonable protec-
tion of beneficial uses and the prevention of nuisance
(C.W.C. i 13241).
Nuisance is defined by the Porter-Cologne Act as any-
thing which:
(1) is injurious to health, or is indecent
or offensive to the senses, or an obstruc-
tion to the free use of property, so as to
interfere with the comfortable enjoyment
of life or property, and (2) affects at
the same time an entire community or •
neighborhood, or any considerable number
of persons, although the extent of the
annoyance or damage inflicted upon indi-
viduals may be unequal, and (3) occurs
during or as a result of the treatment or
disposal of wastes (C.W.C. § 13050 (m)).
The Regional Boards must establish these water quality
objectives and in doing so they must consider:
(a) Past, present and probable future
beneficial uses of water.
(b) Environmental characteristics of the
hydrographic unit under consideration,
including the quality of water available
thereto.
(c) Water quality conditions that could
reasonably be achieved through the coordi-
nated control of all factors which affect
water quality in the area.
(d) Economic considerations (C.W.C. 5
13241).
The State Board may also adopt water quality plans
for waters for which water quality standards are re-
quired by the Federal Water Pollution Control Act.
These plans supersede any regional water quality con-
trol plans for the same waters.
Waste discharge requirements must be adopted to meet
the following:
(a) Not later than July 1, 1977, effluent
limitations for point sources, other than
publicly owned treatment works, which (1)
shall require the application of the best
practicable control technology currently
available as defined under the Federal
Water Pollution Control Act, as amended,
or (2) in the case of a discharge into
publicly owned treatment works as defined
in subdivision (b), shall require compli-
ance with any applicable pretreatment or
toxicity requirements.
(b) For publicly owned treatment works in
existence on July 1, 1977, or approved
pursuant to the Federal Water Pollution
Control Act, as amended, prior to June 30,
1974, for which construction shall be com-
pleted within four years of approval,
effluent limitations based upon secondary
treatment, as defined under the Federal
Water Pollution Control Act.
(c) Not later than July 1, 1977, any more
stringent limitation, including those
necessary to meet water quality standards,
treatment standards, or schedules of com-
pliance under this division or as required
under the Federal Water Pollution Control
Act, as amended.
(d) Not later than July, 1983, effluent
limitations for categories and classes of
point sources, other than publicly owned
treatment works, which (1) shall require
application of the best available tech-
nology economically achievable for such
category or class, which will result in
reasonable further progress toward the
goal of eliminating the discharge of all
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pollutants as determined under the Federal
Water Pollution Control Act, as amended,
or (2) in the case of the introduction of
a pollutant into a publicly owned treatment
works which meets the requirements referred
to in subdivision (c), shall require com-
pliance with any applicable pretreatment or
toxicity requirements.
(e) Not later than July 1, 1983, compliance
by all publicly owned treatment works, with
requirements promulgated under the Federal
Water Pollution Control Act, as amended.
(f) Any more stringent effluent standards
or limitations necessary to implement water
quality control plans, or for the protection
of beneficial uses or to prevent nuisances.
(g) National standards of performance promul-
gated by the administrator.
(i) Ocean discharge criteria promulgated by
the administrator (C.W.C. § 13379).
2.1.5 Permit System
The Regional Boards must issue waste discharge "per-
mits" (requirements) as authorized by the Federal Wa-
ter Pollution Control Act (C.W.C. § 13377, See 33
U.S.C. 1151 et. seq.).2 These "permits" must insure
compliance with any applicable effluent limitation,
water quality related effluent limitations, national
standards of performance, and toxic and pretreatment
effluent standards (C.W.C. § 13377).
Any person who discharges or proposes to discharge
waste into any region must file a report of that dis-
charge to the appropriate Regional Board if that
discharge could affect the quality of the water
(C.W.C. § 13260). The report must be accompanied by
a filing fee not to exceed $1000 (C.W.C. § 13260 (d))
and be filed no less than 180 days in advance of the
date on which it is desired to commence the discharge
or in sufficient time prior to commencement of the
discharge to insure compliance with Section 306 of
P.L. 92-500 and any other applicable water quality
standards, or effluent standard (23 C.A.C. §2235.1,
Environment Reporter, State Water Laws, vol. 1, §
721:0520 to :0526).
This report requirement is satisfied if the discharger
files:
1. A complete Refuse Act application.
2. A complete NPDES application form which is
appropriate for the type, category, or size of dis-
charge ( 23 C.A.C. § 2235.1 (c)).
A new report will be required 120 days prior to any of
the following:
(1) Addition of a major industrial waste
discharge of essentially domestic sewage,
or the addition of a new process or product
by an industrial facility resulting in a
change in the character of the waste.
(2) Significant change in disposal method
- (e.g., change from a land disposal to a
direct discharge to water, or change in
the method of treatment which would sig-
nificantly alter the characteristics of
the waste).
(3) Significant change in the disposal area
(e.g., moving the discharge to another
drainage area, to a different water body,
or to a disposal area significantly removed
from the original area potentially causing
different water quality or nuisance prob-
1 ems).
(4) Increase in flow beyond that specified
in the waste discharge requirements.
(5) Other circumstances which result in a
material change in character, amount or
location of waste discharge (23 C.A.C.
§ 2235.1 (d)).
The Regional Board reviews the report of waste dis-
charge to determine if waste discharge requirements
should be issued or the discharge prohibited (Calif.
Regs. 5 2235.4). If the waste discharge requirements
are issued, the Regional Board executive officer must
formulate tentative waste discharge requirements
including:
(A Proposed effluent limitations
(B Proposed time schedule for compliance
including any necessary interim dates.
(C) Proposed special conditions.
(D) Proposed monitoring program (23
C.A.C 5 2235.4 (a) 3).
Any discharge which exceeds 500,000 gallons on any
day of the year requires the discharger to prepare a
fact sheet concerning the discharge (Calif. Regs. §
2235.4 (c)). This fact sheet must contain:
(A) A sketch or detailed description of
the location of the discharge.
(B) The rate and frequency of the proposed
discharge.
(C) For thermal discharges, the average
summer and winter temperature in degrees
Fahrenheit.
(D) The average daily discharge in pounds
• per day of pollutants which are subject to
limitations.
(E) A statement of the intent to issue waste
discharge requirements.
(F) A list of beneficial uses of the receiving
waters.
(G) Summary of the applicable water quality
standards and proposed effluent limitation.
(H) A notice of the time period for comment,
the person to whom comments should be
addressed, and the date of public hearing
(23 C.A.C. § 2235.4 (c)).
All waste discharge requirements must:
comply with effluent limits adopted under
Sections 301, 302, 306 and 307 of the
Federal Water Pollution Control Act and
whenever necessary to meet water quality
standards or prohibitions or comply with
water quality control plans established
under Division 7 of the California Water
Code, any other federal law or regulation,
any plan approved pursuant to Section
208(b) of the Federal Water Pollution Con-
trol Act. Prior to promulgation by the
administrator of applicable effluent
standards and limitations pursuant to Sec-
tions 301, 302, 306 and 307, waste discharge
requirements shall contain effluent limits
and other conditions necessary to carry
out the provisions of the Federal Water
Pollution Control Act (23 C.A.C. §2235.5).
Waste discharge requirements are adopted for a fixed
term not to exceed five years (Calif. Regs, i 2235.7).
Waste discharge requirements for discharges to surface
waters also serve as NPDES permits (Rights - Quality.
1975, p. 5).
2Terminology in California uses "requirements" in-
stead of "permits."
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Waste discharge "permits" may be terminated or modi-
fied for cause which includes the following:
(a) Violation of any condition contained
in the requirements.
(b) Obtaining the requirements by misrep-
resentation, or failure to disclose fully
all relevant facts.
(c) A change in any condition that requires
either a temporary or permanent reduction
or elimination of the permitted discharge.
These procedures for discharge requirements can be
applied with relative ease to discharges emanating
from a single point; however, when the discharge re-
sults from seepage, as is the case generally with
agricultural operations, it is difficult to determine
the amount of the discharge. Recognizing this, the
Report of the Assembly Committee on Water on the
Porter-Cologne Act stated that:
Although farmers as well as other persons
theoretically required by Sections 13054
and 13054.1 of the present Water Code to
file reports of waste discharges with the
regional boards, it has not been the gen-
eral practice of the regional boards to
request such reports or to issue waste
discharge requirements covering agricultural
operations and other land use, except in
cases such as feeder lots or dairies, in-
volving substantial discharges of waste
(The Porter-Cologne Act) . . . adds Section
13269, which will expressly authorize re-
gional boards to waive the filing of re-
ports or the prescription of waste dis-
charge requirements where such waiver is
not against the public interest (Robie,
1970, p. 18).
Once discharge requirements are established, the
discharger is notified in writing of the requirements
to be met (C.W.C. § 13263 (f)). The discharger then
has the burden of complying with the requirements in
any lawful manner.
To dispel any notion that a discharge requirement is
in the nature of a permit to discharge, the Porter-
Cologne Act specifically provides that discharges do
not receive the status of vested rights, but are in
the nature of a privilege (C.W.C. i 13267 (c). See
Appendix B for NPDES permits from the Central Valley
Region).
California applies a unique approach to handling the
irrigation return flow problem. First of all in
California, irrigation return flow is not treated as
a point or non-point source. It is simply looked at
as a water quality degradation problem. The state is
divided into various regions (see figure 2). Each
region has the authority to control the water quantity
and water quality within its region.
California does apply a permit-type program, primar-
ily to satisfy the federal requirements and secondly,
there has not been a significant amount of resistance
to the California "permit" system since it is only
for monitoring and not for enforcement. The permit
system was initiated due to the conclusion by the
Water Conservation Conference convened by the Depart-
ment of Water Resources, in which the conference
panel decided that California law empowered the
Districts in California to carry out many functions,.
one of which is water quality control. As a conse-
quence of the panel activity, an Agricultural Water
Advisory Committee was formed in 1974 consisting of
the water users and government representatives. This
Agricultural Water Quality Advisory Committee sug-
gested that the water purveyor cosign with the dis-
tricts on a permit issued by the regional authority.
This is the general nature of the permit in Califor-
nia. It is a permit in which all entities and indi-
viduals in a geographical area cosign on the permit.
Under this practice, the burden is: not placed on
the individual discharger. The California program is
a voluntary program and the monitoring costs are paid
from an assessment collected by the various entities.
The intent of the permit is first to establish a data
base with three parameters: flow, E.G., and suspend-
ed solids for supply and discharges of water.
Permits are different in different areas of the
state. They are, that is, site-specific and range
from the simple to the complex., with the Delta per-
mits being the most complex (See Appendix A). There
are three phases to implementing the cosigner permit
system: (1) the regional personnel will sit with a
committee made up of representatives from the various
entities to identify what the cropping patterns are,
where the water discharge and diversion facilities.
are, what the irrigation practices are, and identify
those places where monitoring practices have taken
place; (2) monitoring sites are selected by the De-
partment of Water Resources and the regional, office;.
and (3) monitoring begins.
2.1.6 Sanctions and Enforcement Measures
The Porter-Cologne Act declares that no provision; of
the Act or ruling of the State Board is a limitation:
(a) On the power of a city or county or
city and county to adopt and enforce addi-
tional regulations, not in conflict there-
with, imposing further conditions,
restrictions, or limitations, with respect
to the disposal of waste or any other
activity.which, might degrade the quality
of the waters of the state.
(b) On the power of any city or county
or city and county to declare, prohibit,
and abate nuisances.
(c) On the power of the Attorney General,
at the request of a regional board,, the
State Board, or upon his own motion, to
bring an action in the name of the people
of the State of California to enjoin any
pollution or nuisance.
(d) On the power of a state agency in the
enforcement or administration of any pro-
vision of law which it is specifically
permitted or required to enforce or
administer.
(e) On the right of any person to maintain
at any time any appropriate action for
relief against any private nuisance as
defined in the Civil Code or for relief
against any contamination or pollution.
(C.W.C. § 13002).
If a Regional Board finds that a waste discharge
violates any requirements, the Board may require the
discharger to submit for approval a de-tailed time
schedule of specific actions to be taken in order to
correct or prevent the violation (C.W.C. i 13300).
Violation of requirements or discharge prohibitions
allows the Regional Board to issue a cease and desist
order which directs compliance forthwith * compliance
in accordance with a time schedule set by the Board,
or in the event of a threatened, violation, to take
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appropriate remedial or preventive action (C.W.C. §
13301).
California regulations state that:
(A) A cease and desist order should be
issued whenever significant violations of
waste discharge requirements or prohibitions
are threatened or such violations are
occurring or have occurred and there is
a likelihood that the violation will con-
tinue in the future (Cal. Regs. 6 2240,
See Environment Reoorter, State Hater
Laws, vol. 1, § 721:0526").
Cease and desist orders may be issued directly by a
Regional Board, after notice and hearing (C.W.C. 5
13301). These hearings may be conducted by hearing
panels which have been designated by the Regional
Board (C.W.C. § 13302). Due notice of the hearing
must be given to all persons who would be affected
(C.W.C. § 13302 (b)). Upon completion of the hearing,
the panel reports its decision and order to the Re-
gional Board who will then adopt, with or without
revision, the proposed decision and order (C.W.C. §
13302 (b)). The cease and desist order becomes
effective and final when it is issued (C.W.C. § 13303).
Copies of the order are served by personal services or
by registered mail (C.W.C. i 13303).
The Porter-Cologne Act also provides that:
(a) Any person who discharges waste into
the waters of this state in violation of
any waste discharge requirement or other
order issued by a regional board or the
state board, or who intentionally or .
negligently causes or permits any waste
to be discharged and deposited where it
is, or probably will be, discharged into
the waters of the state and creates, or
threatens to create, a condition of pollu-
tion or nuisance, shaliupon order of the
regional board clean up such 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 abatement order, the
Attorney General, at the request of the
Board, shall petition the superior court
for that county for the issuance of an
injunction requiring such person to
comply therewith, in any suit, the court
shall have jurisdiction to grant a pro-
hibitory or mandatory injunction, either
preliminary or permanent as the facts
may warrant (C.W.C. 5113304 (a), 13262, &
13264 (b)).
This statute allows the Regional Board to expend
available moneys to perform any cleanup, abatement,
or remedial work in the default of or in addition to
the remedial work by the waste discharger (C.W.C. §
13304 (b)). If the Board orders the waste to be
cleaned up, the person who discharged the waste is
liable to the extent of the reasonable costs actually
incurred in cleaning up such waste (C.W.C. 5 13304(c)).
Within thirty days of any action or failure to act by
a Regional Board, an aggrieved person may petition
the State Board to review such action (C.W.C. §
13320). If the State Board finds that the Regional
Board acted improperly it may:
(1) direct that the appropriate action
be taken by the regional board, (2) refer
the matter to any other state agency having
jurisdiction, (3) take the appropriate
action itself, or (4) any combination
of the foregoing (C.W.C. 5 13320 (c)).
With thirty days after service of a copy of a decision
of the State Board, an aggrieved party may file a
petition for a writ of mandate with the superior
court.
If a person fails to comply with a cease and desist
order, the Attorney General, upon request of the
appropriate Board, will file a petition in superior
court for the issuance of a preliminary or permanent
injunction (C.W.C. 5 13331 (a)).
If a discharge will cause a condition of pollution or
nuisance, constituting an emergency requiring immedi-
ate action to protect the public health, welfare or
safety, the Attorney General may petition the super-
ior court to enjoin the discharge, upon request of
the Board (C.W.C. 5 13340).
Civil monetary remedies are set forth in 5 13350 of
the California Water Code. This statute provides
that any person who intentionally or negligently
violates any cease and desist order, or who violates
any waste discharge requirement, may be liable
civilly in a sum not to exceed $6,000 for each day
of the violation (C.W.C. 5 13350). The Attorney
General must petition the superior court to impose,
assess and recover such sums (C.W.C. § 13350 (b)).
Further, in any civil action in which a temporary
restraining order, preliminary injunction, or
permanent injunction is sought, it is not necessary
to allege or prove that irreparable damage would
occur (C.W.C. § 13361 (c)).
The Attorney General, upon request of the State or
Regional Board, must petition the appropriate court
for the issuance of a preliminary or permanent in-
junction upon a violation of the terms of any cease
and desist order, prohibition, waste discharge re-
quirement, effluent limitation, national standard *
of performance, pretreatment or toxicity standards
(C.W.C. 5 13386 (b)). Any person, who willfully or
negligently violates any of the above is subject to
a fine of not more than $25,000 or less than $2,500
for each day the violation occurs, or by imprisonment
for not more than one year in the county jail, or
both (C.W.C. § 13387). After a first conviction, the
punishment is not more than $50,000 for each day of
the violation or by imprisonment for not more than
two years in the county jail or both (C.W.C. § 13387).
In absence of the willfulness or negligence element,
the violator is subject to a civil penalty not to
exceed $10,000 for each day the violation occurs
(C.W.C. i 13385).
It is a misdemeanor to use any chemical or other sub-
stance in violation of any State Board regulation,
for failure to furnish a report under Section 13260
when requested by a Regional Board for discharging
waste in violation of Section 13264 after the viola-
tion had been called to the attention of the execu-
tive director in writing by the Regional Board, and
for failing or refusing to furnish technical or mon-
itoring program reports as required by Section
13267 (b), or by falsifying any information therein
(C.W.C. §513169, 13261, 13265, 13268).
Any Regional Board, in establishing or reviewing any
water quality control plan or waste discharge re-
quirement, may investigate the quality of any waters
161
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(C.W.C. 5 13267 (a)). In such an investigation, the
Regional Board may require the discharger to furnish,
under penalty of perjury, such technical or monitor-
ing program reports as the Board may specify (C.W.C.
§ 13267 (b)).
Under California's Water Reclamation Law, it is a
misdemeanor for failure to furnish a report under
§ 13522.5 when a Regional Board has so requested, for
any person reclaiming water or using reclaimed water
in violation of Section 13524, and for using re-
claimed water for any purpose for which reclamation
criteria have been established prior to their
establishment (C.W.C. §§13522.6, 13525.5, 13526).
2.2 ADMINISTRATION OF THC LAWS
Water quality control in California is largely the
responsibility of the State Water Resources Control
Board, the nine Regional Water Quality Control
Boards, and the State Department of Public Health.
2.2.1 State Water Resources Control Board
The State Water Resources Control Board was created
in 1967 and succeeded to the functions of the former
State Water Rights Board and the State Water Quality
Control Board, which were abolished (Stats. 1967,
Chap. 284),
The State Water Resources Control Board shall
have at least two statutory divisions: the Water
Rights Division and the Water Quality Division, each
with a division chief (Environment Reporter, State
Water Laws, vol. 1,§72170091).
The members of the State Water Rights Board continued
as members of the State Board (C.W.C. § 177). There-
after, all members are appointed by the Governor for
four year terms (Ibid). The Board consists
of five members, one of whom must be an attorney, one
a registered civil engineer, one a registered pro-
fessional engineer, who is experienced in sanitary
engineering and one who is qualified in the field of
water quality and one member who is not required to
have any specialized experience (C.W.C. § 175). The
formation of the State Board resulted in the coordi-
nation of water quality functions and water rights.
Water quality and pollution is taken into account
along with the availability of unappropriated water
whenever applications for appropriation of water are
considered.
In 1967, the Legislature formally recognized that the
quality of water is directly related to its quantity,
e.g., that the degree of pollution in any given area
is dependent upon the amount of diluting water
available (Couzens, 1969, p. 25). In acting upon
applications to appropriate water, the State Board
must consider water quality objectives and subject
appropriations to such conditions in carrying out
these objectives (C.W.C. §§ 12435 & 1258).
Specifically, this statute states that:
The quantity of water diverted under this
permit and under any license issued pursu-
ant thereto is subject to modification by
the State Water Resources Control Board if,
after notice to the permittee and an oppor-
tunity for hearing, the board finds that
such modification is necessary to meet
water quality objectives in water quality
control plans which have been or hereafter
may be established or modified pursuant to
Division 7 of the Water Code. Mo action
will be taken pursuant to this paragraph
unless the board finds that (1) adequate
waste discharge requirements have been
prescribed and are in effect with respect
to all waste discharges which have any
substantial effect upon water quality
in the area involved, and (2) the water
quality objectives cannot be achieved
solely through the control of waste
discharges (23 C.A.C. § 1761(b)).
The new water quality control act has made additional
changes relative to the appropriation of water.
These changes clarify actions which the State Board
must take to implement water quality objectives
through its water rights function. The act author-
izes the Board to do the following:
(1) In determining the amount of water
available for appropriation, to take into
account, whenever in the public interest,
the amounts of water needed to remain in
the source for protection in a relevant
water quality control plan (C.W.C. §
1243.5); (2) In action upon applications
to appropriate water, to consider the
relative benefits to be derived from uses
specified to be protected in any relevant
water quality control plan (C.W.C. §
1257); (3) Whenever it is in the public
interest, to approve appropriation by
storage of water to be released for
the purpose of protecting or enhancing
the quality of other waters which are
put to beneficial uses (C.W.C. § 1242.5);
and (4) To commence a ground water adjudi-
cation when requested (C.W.C. § 2100-
2103).
In addition to the Act, the Board has continuing au-
thority in every water permit it issues or added to
any permit as a condition for granting an extension
to impose specific requirements to minimize waste of
water, unreasonable use, unreasonable method of use
and unreasonable diversion (23 C.A.C. Subch. 2, §17.2
11761). The Board can require among others, restric-
tions on diversions to eliminate tailwater runoff or
reduce return flow from irrigated agriculture.
As stated earlier, the Porter-Cologne Act provides
that a statewide water quality program can be most ef-
fectively administered regionally within a framework
of statewide coordination and policy (C.W.C. 13000).
Therefore, the Act gave the State Board numerous pow-
ers and duties concerning water quality control which
"... increased . . . leadership and direction to
the state's programs and much greater . . . influence
over the actions and activities of the nine Regional
Boards" (Robie, 1970, p. 24).
The Act directs the State Board to adopt state policy
for water quality control (C.W.C. § 13140). The
State Board must also guide the Regional Boards in
their operations by adopting general procedures for
the formulation, adoption and implementation by
Regional Boards of water quality control plans
(C.W.C. § 13164). See Figure 1.
Waste discharge requirements and actions taken by
Regional Boards to insure enforcement is subject to
review by the State Board at any time either on its
own motion, or when petitioned by an aggrieved
party (C.W.C. § 13320). The State Board is also
responsible for the allocation of funds to the
Regional Boards (C.W.C. § 13168). The State Board
is also designated as the state water pollution con-
trol agency for all purposes stated in the Federal
Water Pollution Control Act (C.W.C. 5 13160).
Further, the State Board must determine the state's
162
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Figure 1. Project Management Comprehensive Water Quality Control Plans
STATE WATER RESOURCES
CONTROL BOARD
OFFICE OF TECHNICAL
COORDINATION (OTC)
:DM/BANKS CONSULTANTS
BASIN CONTRACTOR
ADVISORY COMMITTEE
Chairman: OTC Director
Representatives of Each of the
Basin Contractors and
Division of Planning & Research
I—
LEGEND:
Communications
— Communications
Responsibility
Authority
REGIONAL WATER
QUALITY CONTROL BOARDS
PROJECT DIRECTOR
Division of Planning and Research
RWQCBSTAFF
BASIN CONTRACTORS
CONTRACTOR(S)
Department of Water Resources
Brown & Caldwell; Water Resources
Enfrs., Inc.; Yoder-Trotter-Orloh
and Associates
Daniel, Mann, Johnson & Mendenhall/
Koebig & Koebig, Inc.
Bay Valley Consultants
Kaiser Engineers
Santa Ana Watershed Planning Agency
James M. Montgomery, Consulting
Engineers, Inc.
BASIN(S)
1A.6B, 7A.7B
IB, 2, 3
4A, 48, 5D
5A, SB, 5C
6A
3
9
I
STATEWIDE PLANNING
Dept of Water Resources
Dept of Fish and Game
Dept of Conservation
Dept of Public Health
Depl ol Parks 4 Rec.
— _ _
AREAWIDE PLANNING ORGANIZATIONS
Association of Bay Area Governments
Sacramento Regional Area Planning Commission
Southern California Association of Governments
Comprehensive Planning Organization
I
REGIONWIDE PLANNING ORGANIZATIONS
Association of Monterey Bay Area Governments
San Luis Rey-Santa Margarita Joint Committee
Ventura Regional County Sanitation District
Lompoc Valley Region
H
ri J
163
-------
needs for water quality research, and to recommend
what research projects should be conducted (C.W.C. §
13161); and any program of statewide research in the
technical phases of water quality control is admin-
istered by the State Board (C.W.C. i 13162).
The State Board may also require any state or local
agency to investigate and report on any technical
factors concerning water quality control (C.W.C. §
13165), and may approve appropriation by storage of
waters to be released in order to protect the quality
of other waters which are put to beneficial uses
(C.W.C. § 31242.5).
2.2.2 Regional Boards
The Porter-Cologne Act directs the nine Regional
Boards to formulate and adopt water quality control
plans for all areas within its region (C.W.C. §
13240). A water quality plan does not become effec-
tive unless it is approved by the State Board (C.W.C.
§ 13245). If the State Board disapproves of the
plan, it must be returned to the Regional Boards.
All regional plans must be consistent with state pol-
icy for water quality control and legislative policy
(C.W.C. § 13240). Water quality Plans are implement-
ed when Regional Boards adopt waste discharge re-
quirements for individual dischargers (C.W.C. 5
13263 (a)). See Figures 2 and 3.
If a regional plan is not in effect for the waters un-
der consideration, the Regional Board will establish
water quality objectives reasonably required to pro-
tect beneficial uses. Upon violation of requirements
by a discharger, the Regional Board has the power to
issue a cease and desist order (C.W.C. § 13301). The
Board need not prove that a pollution or nuisance is
taking place, but need only show that a waste dis-
charge requirement has been violated, or that such
violation is threatened.
Figure 2. California Regional Water Quality Control Boards
LAI IONIAN KI-XHON
P.O. Bo\ I4'f.7
S. Lake 'laluic. California 93702
COLORADO KIVLK HA.SIN REGION
51-75 Highway III
liulio. California 92202
SANTA ANA KLGION
6S.V1 Indiana Avenue, Suile
Kiver.sidi;, California 92506
SAN DIIKiO KLGION
r>!54 Mission fioriic Koail. Suile 205
San Diego, California 92101
S;ml.i KOMI. California 95406
SAN I-KANCISCO HAY KI.CilON
III! Jackson Slrixl. Room 6040
Oakland. California 94612
CLNTKAL (OAST KLCilON
II22-A Laurel Lane
San I.ins Oliispo. California 9.1401
LOS ANCiLLLS KI-CilON
Room 4027, 107 Soulll Hroailuay
Los Anixles, California 90012
CLNTKAI. YALI.LV KLGION
.'201 S .Sired
Sauamcrilt). California (A\SI6
STATE OF CALirOfiNIA
\ WATKIt QUALITY CO.NTUOI,
A* defined by Soclion 13200 of tl,o
Caiifornio Water Code.
T Ti -f
91 <> i *
% loi-^^
164
-------
Regional Boards may specify certain conditions or
areas where the discharge of waste, or certain types
of waste, will not be permitted in any water quality
control plan, or in waste discharge requirements
(C.W.C. i 13243).
In addition to adopting water quality control plans
and waste discharge requirements, each Regional Board
can engage in planning and coordinating other state
and local agencies to control water quality. Specif-
ically, each Regional Board is commanded to obtain
coordinated action in water quality control, encour-
age and assist in self-policing waste disposal pro-
grams, require investigations and reports from other
state agencies, request enforcement of water quality
control laws, recommend to the State Board projects
for financial assistance, encourage regional plan-
ning, and report cases of contamination (C.W.C. §
13225).
2.2.3 State Department of Public Health
The California water quality control system is di-
vided into two broad jurisdictions, pollution and
nuisance on the one side, and contamination on the
other. The Department of Public Health is responsible
for all public health hazards. This division
of authority is delineated in the definitions of con-
tamination, pollution, and nuisance (C.W.C. § 13050
(k). (1) and (m)J. Thus, a condition of contamination
Figure 3. Basin Location Map
SAN
BASIN PLANNING AREAS
I A- KLAMATH RIVER
I B - NORTH COASTAL
2 - SAN FRANCISCO BAY
3 - CENTRAL COASTAL
4 A- SANTA CLARA RIVER
4B-LOS ANSELES RIVER
5 A-SACRAMENTO RIVER
SB- SACRAMENTO-SAN JOAOUIN DELTA
5 C-SAN JOAOUIN
50- KING and KERN RIVERS and TULARE LAKE
6 A- LAHONTAN (NORTH)
6 B- LAHONTAN (SOUTH)
T A-COLORADO RIVER (WEST)
7 B- COLORADO RIVER (EAST)
8 - SANTA ANA RIVER
9 - SAN DIEGO
INTERIM WATER QUALITY
CONTROL PLAN CALIFORNIA REGIONAL
WATER QUALITY CONTROL BOARD
1971
165
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and pollution could exist simultaneously, giving both
agencies jurisdiction.
Contamination is defined in the Porter-Cologne Act
as:
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 (C.W.C. §
13050 (k)).
If the Department finds a condition of pollution or
nuisance, it must refer the problem to the appropri-
ate Regional Board (C.H.S.C. § 5413). Further, du-
ties of the Department concerning contamination have
no implications for this study.
2.2.4 State Department of Fish and Game
The Department of Fish and Game is responsible for
the protection, maintenance, enhancement and manage-
ment of the fish and wildlife resources of the State.
The Department is concerned with pollutants affecting
fish and wildlife, the disposal of garbage and rub-
bish in or adjacent to the state waters, and the pro-
tection of-fish spawning areas (C.F.G.C. § 5653,
5650, 5652, 1505). The Department makes statewide
studies to determine the general sources and effects
of various pollutants and give this information to
the water quality control boards and other government
agencies involved in the allocation and protection of
water. The Department also contracts to perform wa-
ter quality services for other state agencies, which
are generally studies of the special ecological
characteristics of specific water bodies (Couzens,
1969, p. 31). To avoid duplication of pollution con-
trol activities, the Department coordinates its
activities with the Regional Boards, which is accom-
plished through mutual assistance in solving particu-
lar problems (Couzens, 1969, p. 33). The Department
also works closely with the Boards to establish re-
gional water quality policies by reporting on the
extent of aquatic and wildlife resources of the area,
the use of the resources by the public, and the water
quality necessary to maintain these resources
(Couzens, 1969, p. 33). Further, the Department
coordinates its activities with the Department of
Water Resources, the Department of Forestry, the
Department of Agriculture, the Department of Public
Health, and the Division of Highways (Couzens, 1969,
p. 33).
2.2.5 State Department of Hater Resources
The Department of Water Resources must submit to the
State Board recommendations for the protection of the
quality of ground water (C.W.C. §§12617.1, 12923.1,
2100). Further, the Department conducts surveys and
investigations relating to the reclamation of water
from wastes for beneficial purposes, including a de-
termination of the quantities of such water presently
wasted, and possibilities of use of such water for
recharge of underground storage, or for agricultural
or industrial uses (C.W.C. § 230). The Department
also investigates conditions of damage to the quality
of underground waters caused by improperly con-
st-uctefl, abandoned or defective wells through the
interconnection of strata, or the introduction of
surface waters into underground waters (C.W.C. § 231).
It must then report to the appropriate Regional Board
its recommendations for minimum standards of well
construction and report to the Legislature its
recommendations for the proper sealing of abandoned
wells (C.W.C. § 231).
The Department must also conduct studies and investi-
gations on the availability and quality of waste wa-
ter, and the uses of reclaimed waste water, for
beneficial purposes including ground water recharge,
municipal and industrial use, irrigation use, and
cooling for thermal electric power plants (C.W.C. §
462). The Department and the State Board must take
all appropriate proceedings before executive, legis-
lative, or judicial agencies to prevent waste, un-
reasonable use, unreasonable method of use, or
unreasonable method of diversion of water in this
state (C.W.C. § 275).
2.2.6 Environmental Quality Study Council
The Environmental Quality Study Council must:
(a) Make a thorough study of relevant
policies, practices, and programs in the
state that relate significantly to en-
vironmental quality, including noise
emission control.
(b) Identify major environmental quality
problems, giving consideration to all of
the possible interrelationships between
the degradation or improvement of air,
land, and water resources.
(c) Develop long-range goals and make
recommendations, after holding public
hearings, as to policies, criteria, and
programs as guides in the protection,
management, and improvement of California's
environmental quality.
(d) Identify problems in existing environ-
mental quality control efforts in the
state, including unmet or inadequately
met needs, undesirable overlaps or con-
flicts in jurisdiction, between or among
federal, state, regional, and local agen-
cies, and any efforts that may be unneces-
sary or undesirable.
(e) Recommend, after holding public hearings,
such legislative and administrative actions
as may be necessary to establish goals,
policies, and criteria and to implement
programs that will effectively protect,
manage, and improve environmental quality
on a long-range basis.
(f) Review and make recommendations, after
holding public hearings, on proper state,
regional, or local governmental mechanisms,
which would formulate broad policies, ob-
jectives and criteria for the coordinated
protection, management, and improvement
of California's natural environment
(Stats. 1968, c. 1395, p. 2753, § 1.
Amended by Stats. 1969, c. 1042, p. 2027,
§ 2).
2.2.7 Agricultural Water Quality Advisory Committee
Due to the concern of California's agricultural in-
dustry over the effect of strong pollution controls,
the Agricultural Water Quality Advisory Committee
was formed in 1971. This Committee was established
to provide advice and guidance to the State and Re-
gional Boards on agricultural water quality and re-
lated problems (Report on Agricultural Activities,
No. 2, 1976) and represented both private and pub-
lic interests. It was this Committee which provided
valuable input for the "Minimum Guidelines for Pro-
tection of Water Quality from Animal Wastes," which
are now utilized statewide.
166
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A reconstituted Committee met in 1974 and assisted in
the development of a program regarding water quality
control of irrigation return flows. This irrigation
program was adopted by the State Board and transmit-
ted to the Regional Boards in September, 1974 ("Commit-
tee Recommendations ... for NPDES Permits," 1974).
The Regional Water Quality Control Boards implemented
this irrigation program, which was based on the fol-
lowing recommendations of the Committee:
1. Establish a data base by monitoring
the volume, salt content, and sediment
load in return flow; the volume and salt
content of the irrigation supply water;
and defer effluent limitations for a two-
year permit period.
2. Allow water supplying and/or discharging
entities to jointly file for single permits
in logical hydrographic units; and also
encourage water purveying as well as dis-
charging entities to file, even though
there may be no legal obligation to do
so (Merrill and Johnson, 1975, p. 7).
This Committee has undergone restructuring twice
since the first Committee completed its work in 1972.
The present Committee's membership represents broad
agricultural and environmental interests and is pri-
marily concerned with policy and programs which tend
to serve the full spectrum of water quality and quan-
tity concerns. In addition to the State and Regional
Boards, the Committee provides advice and guidance to
the State Departments of Water Resources and Agricul-
ture and the U.S. Bureau of Reclamation.
2.2.8 Office of Attorney General
The Attorney General, as the chief law officer, re-
ceives broad environmental protection powers from
Article V Section 13 of the California Constitution
and from the California Government Code § 11042.
Article V Section 13 of the California Constitution
provides:
Subject to the powers and duties of the
Governor, the Attorney General shall be
the chief law officer of the state. It
shall be his duty to see that the laws
of the state are uniformly and adequate-
ly enforced. He shall have direct super-
vision over every District Attorney and
Sheriff and over such other law enforce-
ment officer as may be designated by law,
in all matters pertaining to the duties
of their respective offices, and may re-
quire any of said officers to make to him
such reports concerning investigation,
detection, prosecution and punishment
of crime in their respective jurisdictions
as to him may seem advisable. Whenever
in the opinion of the Attorney General
any law of this state is not being ade-
quately enforced in any county, it shall
be the duty of the Attorney General to
prosecute any violation of the law of
which the superior court shall have juris-
diction, and in such cases he shall have
all the powers of a district attorney.
When required by the public interest or
directed by the Governor, he shall assist
any district attorney in the discharge of
his duties.
The Attorney General also possesses statutorily en-
acted enfironmental protection powers as the legal
representative of state agencies, as having the
power of attorney in the legal matters of the state,
and as he directs and assists in legal actions brought
by the counties (Cal. Govt. Code § 11043). The Attor-
ney General is also authorized to protect the natural
resources of the state from pollution, impairment or
destruction (Cal Govt. Code, hereafter C.G.C. i
12600-12).
2.2.9 Additional Agency Involvement
California has three principal agencies with duties in
the water rights area. These agencies are the Depart-
ment of Water Resources, the State Water Resources
Control Board and the California Water Commission The
Department of Water Resources is in charge of opera-
ting the State's water projects and programs. The
State Board serves in addition to its water quality
functions as a regulatory and adjudicatory agency in
the water rights area. Its major responsibilities in
this area include the maintenance of water rights rec-
ords and the administration of the water appropriation
statutes (C.W.C. 5 4999-5008). The California Water
Commission is basically an advisory board which serves
as a watchdog over Department activities. The Commis-
sion also confers with and counsels the Director of
the Department (C.W.C. § 150-166). See Figure 4.
2.3 SPECIAL LEGISLATION
The California Safe Drinking Water Bond Law of 1976
(C.W.C. § 13850 et. seq.) sets forth a Legislative
finding which states that:
it is necessary for the preservation of
the health, safety, and welfare of the
people of California that water supplied
for domestic purposes be pure, wholesome,
and potable and does not endanger the
health or lives of human beings and that
water is available in adequate quantity
at sufficient pressure for health, clean-
liness, and other domestic purposes
(C.W.C. § 1385).
Further, legislative findings are set forth in the
Clean Water Bond Law of 1974 (C.W.C. § 13985 et. seq.)
in Section 13986 which provides that:
clean water, which fosters the health of
the people, the beauty of their environ-
ment, the expansion of industry and agri-
culture, the enhancement of fish and wild-
life, the improvement of recreational
facilities and the provision of pure
drinking water at a reasonable cost, is
an essential public need. Although the
State of California is endowed with abun-
dant lakes and ponds, streams and rivers,
and hundreds of miles of shoreline, as
well as large quantities of underground
water, these vast water resources are
threatened by pollution, which, if not
checked, will impede the state's economic,
community, and social growth. The chief
cause of pollution is the discharge of
inadequately treated waste into the waters
of the state. Many public agencies have
not met the demands for adequate waste
treatment or the control of water pollu-
tion because of inadequate financial re-
sources and other responsibilities,
increasing population accompanied by
accelerating urbanization, growing demands
for water of high quality, rising costs
of construction and technological changes
mean that unless the state acts now the
needs may soar beyond the means available
for public finance. Meeting these needs
is a proper purpose of the federal, state
and local governments. Local agencies,
167
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Hater Quality andWater Rights Administration
Figure 4
California Water Agencies and Their Functions
Water Planning and Development
The Resources Agency
State Water Resources
Control Board
Regional Water Quality
Control Board
North Coast (No. 1)
San Francisco Bay (No, 2)
Central Coast (No. 3)
Los Angeles (No. 4)
Central Valley (No. 5)
Lahontan (No. 6)
Colo. River Basin (No. 7)
Santa Ana (No. 8)
San Diego (No. 9)
Water Quality
Advisory Committee
Division of Water
Quality Control
Division of Water
Rights
Division of Planning
and Research
California Water
Department of Water Resources
Administrative and
Technical Services
Director's Staff
Division of Design
and Construction
Division of Right-
of-Way Acquisition
Division of Safety
of Dams
Division of Operations
and Maintenance
Division of Resources
Development
Goose Lake Compact
Commission
Klamath River Compact
Commission
California-Nevada Interstate
Compact Commission, California
Section
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by reason of their closeness to the prob-
lem, should continue to have primary re-
sponsibility for construction, operation
and maintenance of the facilities neces-
sary to cleanse our waters. Since water
pollution knows no political boundaries,
and since the cost of eliminating the
existing backlog: of needed facilities
for future needs will be beyond the abil-
ity of local agencies to pay, the state,
to meet its responsibility to protect
and promote the health, safety and wel-
fare of the inhabitants of the state,
should assist in the financing. The fed-
eral government is contributing to the
cost of control of water pollution, and
just provision should be made to cooperate
with the United States of America, it is
the intent of this chapter to provide
necessary funds to insure the full
participation by the state under the
provisions of Title 11 of the Federal
Hater Pollution Control Act (33 U.S.C. §
^251 et. seq.) and acts amendatory there-
of, or supplementary thereto.
The Geothermal Resources Act of 1965 (Cal. Stat., 1965,
c. 1483, p. 3451, 5 1) created a GeotNeraal Resources
Board within the Department of Conservation (Public
Resources Code, 53742). This Act commands owners of
wells producing geothermal resources to use every
reasonable effort to prevent:
damage to life, health, property, and
natural resources, to shut out detri-
mental substances from strata containing
water suitable for irrigation or domestic
purposes and from surface water suitable
for such purposes, and to prevent the
infiltration of detrimental substances
into such strata and into surface
water (P.R.C. § 3740).
Before abandoning any geothenoal well, the owner must
use every reasonable effort to protect any under-
ground or surface water suitable for irrigation or
domestic purposes from the infiltration or addition
of any detrimental substances (P.R.C. 5 3746).
2.4 RELATED LEGISLATION
The Waste Water Reuse Law of 1974 (C.W.C. 5 460 e_t.
seq.) allows the Department of Water Resources to
conduct studies and investigations on the availabil-
ity and quality of waste water and the uses of re-
claimed waste water for beneficial purposes, inclu-
ding ground water recharge, municipal and industrial
use, irrigation use, and cooling for thermal electric
power plants (C.W.C. § 462, Emphasis added).
Section 461 of this act states:
that the primary interest of the people
of the state in the conservation of all
available water resources requires the
maximum reuse of waste water in the
satisfaction of requirements for bene-
ficial uses of water.
The California Land Conservation Act of 1965 (C.fi.C.
§51200, et. seq.) sets forth a legislative finding:
(a) That the preservation of a maximum
amount of the limited supply of agricul-
tural land is necessary to the conserva-
tion of the state's economic resources,
and is necessary not only to th« main-
tenance of the agricultural economy
of the state, but also for the assurance
of adequate, healthful and nutritious
food for future residents of this state
and nation.
(b) That the discouragement of premature
and unnecessary conversion of agricultural
land to urban dwellers themselves in that
it will discourage discontiguous urban
development patterns which unnecessarily
increase the costs of community services
to community residents.
(c) That in a rapidly urbanizing society
agricultural lands have a definite public
value as open space, and the preservation
in agricultural production of such lands,
the use of which may be limited under the
provisions of this chapter, constitutes
an important physical, social, esthetic
and economic asset to existing or pending
urban or metropolitan developments . . .
(e) For these reasons, this chapter is
necessary for the promotion of the general
welfare and the protection of the public
interest in agricultural land (C.G.C. §
51220).
While this act does not deal with irrigation return
flows, it does express the state's concern in pre-
serving its agricultural lands.
2.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
Every report of a waste discharge, or of a material
change in a waste discharge, must be accompanied by
a filing fee, calculated on the basis of the total
flow, volume, number of animals, or area involved
(23 C.A.C. § 2200, See Environment Reporter, State
WaterJ.aws_, Vol. 1, 5 721:Q519). A" filing fee of
J?25.00 is required for irrigation return water
(23 C.A.C. § 2200).
A material change may be any of the following:
(a) Addition of a major industrial waste
discharge to a discharge of essentially
domestic sewage, or the addition of a
new process or product by an industrial
facility resulting in a change in the
character of the waste.
(b) Significant change in disposal method,
e.g., change from a land disposal to a
direct discharge to water, or change in
the method of treatment which would sig-
nificantly alter the characteristics of
the waste.
(c) Significant change in the disposal
area, e.g., moving the discharge to
another drainage area, to a different
water body, or to a disposal area signifi-
cantly removed from the original area
potentially causing different water
quality or nuisance problems.
(d) Increase in flow beyond that specified
in the waste discharge requirements.
(e) Increase in area or depth to be used
for solid waste disposal beyond that
specified in the waste discharge require-
ments .
(f) Otjier circumstances which result in
a material change in character, amount
or location of waste discharge (23
C.A.C. 12210).
169
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A "report of waste discharge" which is the equivalent
of an application for an NPDES permit to discharge
pollutants into navigable waters, must be filed with-
in 180 days of the date on which it is desired to
commence the discharge or in sufficient time to in-
sure compliance with Section 306 of the FWPCA (P.L.
5 92-500) and any other applicable water quality
standards, effluent standards and limitations
(23 C.A.C. § 2235.1).
The requirement for a "report of waste discharge" is
satisfied if the discharger files a complete Refuse
Act application, or a complete NPDES application
(23 C.A.C. § 2235.1 (c)).
California classifies wastes which are discharged to
land into three groups. Group one wastes consist of
toxic substances and substances which could signifi-
cantly impair the quality of usable water. Wastes
of agricultural origin under this classification in-
clude chemicals such as pesticides or chemical
fertilizers and discarded containers of chemicals
unless adequately cleansed (23 C.A.C. 5 2520).
Group two wastes of agricultural origin include:
(1) Plant residues from the production of
crops including, but not limited to stalks,
vines, green drops, culls, stubble, hulls,
lint, seed, roots, stumps, prunings, and
trimmings.
(2) Manures.
(3) Dead animals or portions thereof.
(4) Adequately cleansed pesticide
containers (23 C.A.C. § 2521).
Group three wastes do not have a classification deal-
ing with wastes of agricultural origin (23 C.A.C.
§ 2522). Disposal of these wastes can only be
accomplished at sites which have been approved by
the appropriate Regional Board.
The State Boardshall adopt guidelines which set forth
minimum standards for the disposal of animal wastes
(23 C.A.C. § 2555), and shall distribute such
guidelines to the regional boards.
Programs in the Central Valley Region dealing with
agricultural water quality problems are indicative
of programs in other regions and will be dis-
cussed in detail. A monitoring and planning program
constitute a water quality control program for
agricultural activities.
Monitoring programs will determine the quality and
quantity of supply waters entering agricultural areas
and return flows from agricultural areas entering
streams and/or receiving waters. A monitoring pro-
gram is being carried out under permits which have
been issued to agricultural areas for either two or
five-year periods.
Through the planning process, agricultural discharges
which can be controlled by a permit are to be identi-
fied and permits issued. These programs will develop
the best management practices for agriculture which
will reduce pollutant loads to surface waters, and
develop policies or guidelines for individual farm
operations and basinwide management control plans
which will consider water supply and basinwide
management problems. As has been stated before, the
California approach to meeting EPA's requirements
of issuing permits for irrigation return flows as a
point-source is to identify all entities within an
irrigation system or subsystem from which discharges
can be identified and monitored, and have these
entities cosign the permit. This satisfies EPA and
enables the state to decentralize monitoring and
management to the local entities while retaining
control and enforcement if necessary.
On August 12, 1974, the Agricultural Water Quality
Advisory Committee made recommendations on the
monitoring of irrigation return flows (See Appendix
B). Guidelines for the protection of water quality
from animal wastes were recommended by the Committee
and adopted by the State Board. These guidelines
were designed to protect both surface and ground
water from livestock operations and provide that:3
Surface water protection is to be accom-
plished through no discharge except for
excess runoff above a 10-year 24-hour
rainstorm.
Croplands
receiving liquid or dry animal waste are
to be managed to minimize runoff which
essentially prohibits any discharge of
manured water from the cropland.
Ground water protection is to be
accomplished by controlling the applica-
tion rates of discharged waste to cropland.
The primary limiting factor controlling
discharge is the nitrogen requirement of
the crop-soil relationship.
Confined Animals: Once it was concluded
that the initial agricultural water quality
control effort was to be directed towards
confined livestock operations such as
dairies and beef feedlots; a further de-
cision was made to make initial contact
through farm organizations and agencies,
public and private, rather than directly
with dairymen and feelot operators.
Some steps taken by the Central Valley
Board to control water pollution of
confined animal operations in the
Central Valley of California were:
1. An agreement was made between the
Central Valley Board and the State Depart-
ment of Food and Agriculture for that
Department to assist in surveying each
dairy and feedlot with respect to com-
pliance with the SWCRB Guidelines.
2. The Regional Board staff assisted
the California Farm Bureau Federation
and the dairy industry to establish
county dairy committees for communication
and to receive industry input.
3. Numerous meetings and dairy tours
were arranged and conducted by Dairy and
Livestock Farm Advisors of the University
of California Cooperative Extension
Service.
It took two years to complete the
dairy-beef feedlot survey as all commer-
cial enterprises were reviewed regardless
of the number of confined animals. The
survey determined that approximately
285 out of 2200 dairies in the Central
Valley had significant water quality
problems associated with discharge from
the farm enterprise and many of these
discharges were to surface waters. Also,
over one-half of the 57 beef feedlots
3The following material is from Herri 11 and
Johnston, 1975.
170
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in the Central Valley likewise failed
to meet the Guidelines. Subsequent to
the surveys, schedules were developed
which allowed approximately one full
calendar year for each operation to come
into full compliance. During the
compliance period, all of the feedlots,
and all except 24 of the dairies, con-
structed facilities to come into compli-
ance without enforcement action.
Consequently, the Central Valley Board
now needs to take enforcement action
against only 24 dairies to obtain com-
plete compliance. Stated another way,
no enforcement action was necessary to
obtain full compliance by all beef
feedlots and over 90 percent of the
285 problem dairies complied without
formal action. This means that out of
2200 dairies in the Central Valley, only
one percent will receive a waste dis-
charge requirement at this time.
Due to the vast extent of the irrigated lands and to
the large number of farm enterprises involved, the
Central Valley Board has found it necessary to pro-
vide a rationale for programs which would permit a
small staff to effectively administer the agricul-
tural pollution workload. Under such rationale,
concepts of control technology and lead-times for
solutions are still being developed.
Appendix C summarizes six Central Valley pollution
problems and the control technologies viewed most
feasible at this time. The technologies are
separated into "hardware-types" involving basin or
area facilities, farm or local facilities, and on-
farm management, and are rated as to the feasibility
of each.
In order to understand agricultural pollution prob-
lems in the Central Valley and the appropriate
technologies, they are discussed as follows:1*
1. Sediment
The problem is limited to areas having sub-
stantial irrigation return flows to sur-
face streams. Pre-reconnaissance estimates
by Central Valley Board staff are that
25 percent of the irrigated lands in the
Valley may contribute significant soil
sediment discharges in tailwater runoff
to rivers and streams. Also contributing
sediment loads are urban lands, forest
lands, rainfed croplands and other land
use types. Absolute control (no dis-
charge) will probably not be possible to
achieve. Control technology will likely
utilize improved irrigation management,
on-farm sumps to desilt tailwater runoff,
and possibly larger sumps use by several
farmers.
2. Nutrients
The concern is mainly with nitrate levels
in surface waters which may cause excessive
algae blooms and associated problems.
Phosphates are generally not a limiting
factor in algae growth in surface waters
of the Central Valley. State and federal
agency studies indicate that substantial
amounts of high nitrate effluent could
be discharged into surface waters of the
Valley in .the future. Subsurface drainage
"The following material was extracted from Merill
and Johnston, 1975.
or tile effluent in the Central Valley is
characteristically high in salinity, var-
iable in nitrates, low in phosphates, and
free of sediment. This effluent will be
from subsurface drainages of irrigated
lands containing high levels of native,
mineralized nitrates in contrast with high
nitrate effluent resulting from applied
nitrogenous fertilizers. Studies by the
University of California indicate that it
may be practical to control this type of
nitrate emission from most areas through
on-farm management of the application
rates of nitrogenous materials.
Research studies also indicate that
it will be extremely costly to remove
large nitrogen loads expected from sub-
surface tile line effluent in the San
Joaquin Valley using "end-of-pipe" tech-
nology. On the other hand, other methods
of treatment technology to remove nitrates
from collected subsurface tile drainage
effluent show promise, but are still in
the early research and developmental stages.
3. Salinity
Salinity buildup in surface waters is gen-
erally accepted, to be the principal irri-
gation water quality control problem in
the Central Valley. Even though salinity
buildup is due mainly to a natural phe-
nomenon (evapotranspiration by irrigated
crops) there are other contributing sources
such as the leaching of salt from soils
that were highly salinized through the
evapotranspiration process prior to being
irrigated and upwelling connate brines
under artesian pressure. It is generally
understood by soil scientists and irriga-
tion engineers that some leaching of salt
from soils must take place to maintain a
continuing irrigated agriculture. The
best technology for treating salinity
problems consists of transport from saline
return flows to acceptable salt sinks,
such as the ocean or evaporation ponds.
The drainage effluent will have to be
collected and transported through on-farm
tile drain systems, area collection sys-
tems, and larger sub-basin drains. Among
the facilities to be used in the Central
Valley of California are the San Luis
Drain and Tulare Lake Water Storage Dis-
trict evaporation ponds. The still ex-
perimental technique of "minimized leaching"
and conservative use of irrigation water
within reasonable farm management con-
straints may become elements of a general
solution. Likewise, it is probable that
improved water management will be required
at three levels: on-farm, sub-area or
district, and river basin in order to
achieve substantial improved salt manage-
ment and control.
4. Pesticides
Rapid change in types of pesticides and
increasing controls on usage and applica-
tion are improving the outlook on pesticide-
caused water quality problems. Pesticide
materials and application restrictions
are steadily being upgraded in order to
minimize or essentially eliminate pesti-
cide hazards to the environment, to farm
workers, and to consumers of farm products.
There has been no evidence of serious prob-
lems in the Central Valley arising from
171
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agricultural application of pesticides.
However, there is still need for further
investigation and evaluation of pesticide
and pesticide breakdown products in rela-
tion to their tie-up and movement through
the plant-water-soil system.
Under normal circumstances and in the
foreseeable future, on-farm management
probably will remain the principal con-
trol technology for any given pesticide
material. The Central Valley Board will
work with county Agricultural Commissioners
and the Department of Food and Agriculture
to help control any problems that may
develop in regard to misuse of pesticides.
The Regional Boards or the State Board
may call upon the California Department
of Fish and Game, the California Depart-
ment of Food and Agriculture, or the
University of California, Division of
Agricultural Sciences for assistance to
investigate or evaluate chronic or sub-
acute problems in aquatic organisms.
5. Animal Waste
Prior to implementation of the Central
Valley Board's program, the most obvious
of the agricultural pollutants in the
Central Valley were animal wastes.
Through experience it was found that a
no-discharge policy can be applied to
control pollution from animal wastes
with minor exceptions of certain rainfall
events. In other areas "no discharge"
may not be a valid control due to high
costs to cope with such factors as steep
topography, unavailability of irrigated
cropland, or high rainfall. The elements
used in animal waste control facilities
for dairies and feedlots in the Central
Valley are (a) collection of manured
wastewater and manured rainfall runoff,
(b) storage during the non-irrigation
period, and (c) blended application of
stored, liquid wastes with irrigation
water to cropland. Considerable on-
farm management is needed in addition to
necessary facilities.
6. Processing Haste
This category of waste includes all farm-
level facilities used to process vege-
tables, fruit, nuts, and other farm
commodities. This problem is similar
to animal waste except'in the Central
Valley of California fewer potential
pollution problems exist in this category.
Control technologies are similar to those
used with animal waste.
2.6 CASE LAW APPLICABLE TO AGRICULTURE
In 1857, the Bear River and Auburn Mater and Mining
Co. v. the New York Mining Co. (8 Cal. 327. 68 Am.
Dec. 325, 1857) decision was handed down by the
Supreme Court of California. The Supreme Court held
that a prior appropriator is entitled to the water
so undiminished in quantity as to leave a sufficient
amount to fill his canal or ditch, as it existed
at the time of subsequent appropriations. However,
as to the deterioration of the quality of the water,
it is deemed damnum obsque injuria, before it
reaches the ditch of the prior appropriator, since it
is being used for mining purposes (See also Esmond
v. Chew, 15 Cal. 137, 1860).
In Potter v. Fremont (47 Cal. 165, 1873), the Cali-
fornia Supreme Court held that in an action for
damages which were caused by the pollution of the
water of a stream which ran over the plaintiff's
land, special damages could not be proved unless they
were alleged in the complaint. Furthermore, in such
a case, proof of the diminution of the rental value
of the farm was inadmissible if the complaint failed
to allege that the plaintiff rented the farm.
Twelve years after the Potter decision, the Supreme
Court of California held that a corporation could be
enjoined upon an ex parte application, without notice
to it, from depositing in or discharging mining debris
into certain streams (Eureka Land and Yuba Canal Co.
v. Superior Court of the County of Yuba, 66 Cal. 311,
5490, 1885).
The Supreme Court of California also held in 1895
that a complaint for nuisance, which charged the de-
fendant with polluting the waters of a river with
offensive matter from a sawmill, outhouses, stables
and other fixtures embraced a finding that the cause
of pollution was a hog pen and a manure pile from the
stable (People v. Elk River Mill and Lumber Co., 107
Cal. 214, 40 P. 486, 1895). The court further held
that where there are lower riparian owners, one has
no right to pollute the waters of a stream by main-
taining a cow stable and hog pen on its banks. A
riparian owner is entitled to a substantially unpol-
luted stream (Crum v. Ht. Shasta Power Corp.. 117 Cal.
App. 586, 4 P.2d 564, 1931; 220 Cal. 295, 30 P.2d 30,
1934; MacArthur v. Ht. Shasta Power Corp.. 3 Cal.
2d, 704, 45 P.2d 807, 1935).
In a subsequent suit, involving the above defendant,
the Supreme Court held that an upper riparian owner
could not be enjoined from operating its sawmill by
a city water company which subsequently appropriated
lower waters to supply the public on the ground that
it violates the Penal Code § 374 which prohibited the
pollution of streams from which the inhabitants of
towns are supplied (People v. Elk River Mill and
Lumber Co., 107 Cal. 221, 40 P. 531, 1895).Further,
a nonriparian appropriator has no right of action for
the pollution of the water by a prior riparian owner
who discharges sewage into the stream (Conrad v.
Arrowhead Hot Springs Hotel Co., 103 Cal. 399, 37 P.
386, 1894).
A riparian owner cannot be enjoined from cutting
down trees on the ground that the water is thereby
rendered unfit for domestic use by an owner down-
stream where it does not appear that the quality of
the water has been materially impaired (Fisher v.
Feige. 137 Ca. 39, 69 P. 618, 1902). It is a nui-
sance to throw refuse mineral matter into waters,
thereby rendering the water offensive and unwholesome
(McCarthy v. Gaston Ridge Mill and Mining Co.. 144
Cal. 542, 78 P. 7, 1904, Joerger v. Pacific Gas and
Electric Co., 207 Cal. 8, 276 P. 1017, 1929, Thompson
v. Kraft Cheese Co. of California, 210 Cal. 171, 291
P. 204, 1931).
In Dripps v. Allison's Mines Co. (45 Cal. App. 95,
187 P. 448, 1919), the California Supreme Court held
that a first locator on mining ground has no right to
allow tailing to run free into a stream and render
the mining claims of subsequent locators downstream
valueless.
In Holmes v. Nay (186 Cal. 231, 199 P. 325, 1921),
the Supreme Court held that a lower riparian could
complain of muddying and pollution of water by an
upper riparian owner except insofar as it is a
172
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reasonably necessary incident of the upper ripar-
ian's use of the water. Thus, the court applied the
"sic utere two, ut abenum non laedas" maxim.
In Meridian L.T.D. v. City and County of San
Francisco (13 Cal. 2d 424. 90 P.2d 537. 1939). the
Supreme Court of California held that the threatened
pollution of water because of the city's increased
storage would not justify injunction against the
city's use of its enlarged facilities, in absence of
actual pollution. However, in Thome v. Honcut
Dredging Co. (43 C.A.2d 737, 111 P.2d 368, 1941), the
Supreme Court of California held that a riparian's
action to enjoin pollution of a stream was given a
broad and complete remedy as the law allowed by the
enjoining of the defendant from materially polluting
the stream (See also, wright v. Best. 19 C. 2d 368,
121 P.2d 702, 1942).
In Ingram v. City of Gridley (TOO C.A. 2d 815, 224
P.2d 798, 1951), the District Court of Appeals for
the Third District held that damages for permanent
injury to land caused by discharged sewage is
measured by depreciation in market value of the
property injured.
In late 1975, the California Court of Appeals of the
1st Appellate District No. 1 had before it a case
•of first impression. E.D.F. v. East Bay Municipal
Utility District (8 ERC 1535) surrounded the consti-
tutional rights of direct and indirect water users
of the water resources of California. Prior to
1975, the law was settled that traditional water
users maintaining claims to water under the evolved
property right concept in water would have their
rights protected under the water law of California.
However, in this year the East Bay Municipal Dis-
trict contracted with the Bureau of Reclamation to
divert water from the upper Mexican River when the
Auburn-Folsom unit of the Central Valley Project was
completed to serve as supplemental water supply for
its customers in 1985 according to its anticipated
future requirements. The plaintiffs in this case
are several non-profit corporations dedicated to
protecting and preserving the natural environment,
who assert that the constitutional declaration
stated in the 1928 amendment is designed to encom-
pass the preservation of environmental amenities, as
well as direct water use (for the language of the
constitutional amendment, see section 100 of the
California Water Code).
In order to resolve the issue of whether or not the
constitutional mandate could be so broadly construed
so as to encompass all rights to the beneficial use
of rivers and streams of the state, including those
sportsmen and others who are still able to find op-
portunities to enjoy outdoor recreation, the court
began with an historical analysis. In looking at
the resource, the court noted the importance of water
to the state in quoting from Gin S. Chow v, the City
of Santa Barbara, (217 Cal. 673, at 702, Cal., 1933)
that "the conservation of other natural resources is
of importance, but the conservation of waters of the
state is of transcendant importance. Its waters are
the very life-blood of its existence." Both the
quantity and quality aspects have been explicitly
summarized in Joslin v. Marin Municipal Water Dis-
trict, so the court notes that even prior to the
constitutional amendment there was a successful
effort of the decisions to keep pace with the
changing conditions of the growth of the state. In
fact, the reason for the 1928 constitutional amend-
ment was the decision in the Herminq Haus v. Southern
California Edison Company, (200 Cal. 81, Cal. 1926),
which struck down an earlier legislative attempt
to curtail riparian rights. The Herminq Haus case
confirmed the 1909 decision of Miller Lux v.
Madera Canal Co. (155 Cal.,59 at 64), which stated
that, as against an appropriator who seeks to divert
water to non-riparian lands, the riparian owner is
entitled to restrain any diversion which will deprive
him of the customary flow of water which is or may be
beneficial to his land. He is not limited to any
measure of "reasonableness." Thus the 1928 constitu-
tional amendment was introduced to "prevent the waste
of waters of the state resulting from an interpreta-
tion of our law which permits them to flow unused,
unrestrained, and undiminished to the sea, and is an
effort on the part of the state in the interest of
the people of the state to conserve our waters with-
out interference with the beneficial uses to which
such waters may be put by the owners of water rights
including riparian owners" (Gin. S. Chow v. the City
of Santa Barbara, 217 Cal. 673 at /OU, Cal. 1933).
In Peabody v. the City of Vallejo, 1935, 2 California
2nd 351, the court said that the constitutional amend-
ment applies to the use of all waters under whatever
right the use may be enjoyed . . . "when the supply
is limited, public interest requires that there be
the greatest number of beneficial uses which the
water supply can yield" (pp. 367-368).
The judge in EOF v. EBMUD ( 8 ERC 1542) noted, "that
the real lesson to be gleaned from our water law
history, therefore, is the courts have been acutely
aware of the necessity for flexibility in construc-
ting the law to keep pace with the needs and trans-
formations constantly taking place in our rapidly
changing society." An interesting observation was
made by the court judge in the EDF case. He noted
that the trial judge was very alert in saying that he
had no great difficulty construeing reasonable under
the 1928 constitutional amendment to be not fixed at
the time when the amendment was enacted, but rather
applied to concepts of reasonableness today to im-
prove environmental factors such as recreation, fish
and wildlife, and uses of the river. But he did note
that since there were no cases that had reached the
appellate level to decide the application of this
consitutional amendment to involve other than com-
peting claims to property rights and water, that it
would be presumptuous for the trial court to broadly
construe it to apply to other water disputes of a
kind not heretofore sanctioned by case law.
With respect to this issue, the first issue of the
case, the court held that they would have no diffi-
culty holding that article 14, section 3 (Section 100
of California Water Code) can only reasonably be
interpreted as an unqualified expression of fundamen-
tal policy by the people of California that the gen-
eral welfare requires that all of "the water resources
of the state be put to beneficial use to the fullest
extent to which they are possible" (8 ERC 1544).
The second issue of the case which may have a very
relevant bearing upon irrigation return flow is
whether the constitutional amendment requires the
recycling or reusing of water in order to prevent
waste or an unreasonable use of the water. The court
noted that it had been previously decided in Meridian
Ltd, v. San Francisco (13 Cal. 2nd 424, Cal.
1939) that the constitutional restriction against com-
mitting waste is one that is imposed on all water
users including those who have additional property
rights. In that decision, waste was acceptably de-
fined with respect to use of water as "to use need-
lessly or without valuable results, to employ
173
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prodigally or without any considerable return or ef-
fect and to use without serving any purpose the term
is necessarily relevant" (Ibid, at p. 447).
Realizing that the term was relative, the court how-
ever noted in Tulare District v. Lindsay-Strathmore
District (Ibid, at p.567} that:"what is a bene-
ficial use at one time may, because of changed con-
ditions, become a waste of water at a later time."
Although the appellate court did not decide whether
recycling and reusing is necessary in order to pre-
vent waste, it did remand the fact to the trial court
in accordance with previous states' judicial deci-
sions to let the trier of fact determine this issue.
The next issue that was decided by the court was a
very interesting one as far as the possible roles
states may have in causing water users in reclamation
project areas to be more efficient in their water
use. Although the nature of the action was an issue
raised by plaintiffs in this case to question the
authority of the irrigation district to purchase
federal projects water as determined under federal
law, the discussion of the court and its review of
previous decisions is very important to the water
use efficiency issue in irrigation return flow. The
court noted that the state of California adopted a
law which allows irrigation districts to contract
with the federal government in project areas. This
is very similar to legislation found in most of the
c.aventeen western states. It noted that in these
project areas that "the federal government with
federal funds has lawfully developed water - project
water that without the project would not have been
developed" (Quoted from Ivanhoe II). The signifi-
cant case law that they discussed was an issue
raised in Ivanhoe I (Ivanhoe Irrigation District v.
All Parties, 47 Cal. 2nd 597, California 1957) on
whether or not federal law was superior to the state
law in reclamation areas. The state court in
Ivanhoe I applied the trust theory under state law to
hold that the federal government could acquire no
title to appropriative rights free of the trusts in
the state for the benefit of its people.
Ivanhoe I was reversed, however, by the Supreme Court
of the United States in Ivanhoe Irrigation District
v. McCrecken (357 U.S. 275, 1958).The Supreme Court
of the United States held there that "we read nothing
in Section 8 that compels the United States to de-
liver water on conditions imposed by a state" (Ibid.
at page 292). The court was referring to Section 8
of the Reclamation Act of 1902 that says that
nothing in the act can be construed as affecting, or
intending to affect, or to in any way interfere with
the laws of any state or territory relating to the
control, appropriation, use or distribution of water
used in irrigation. This decision was followed by
Ivanhoe II in which the Supreme Court of California
repudiated the trust theory referring to it as "sheer
dicta" (Ivanhoe Irrigation District v. All Parties,
53 Cal. 2nd 692 at page 716, Cal. 1960).The
court went further on to state that "as we read Sec-
tion 8, it merely requires the United States to
comply with state law when in the construction and
operation of a reclamation project it becomes neces-
sary for it to acquire water rights or the interest
therein" (Ibid, at page 708).
The result of Ivanhoe II was to declare the doctrine
of federal supremacy in cases in which the federal
government has, by previous ownership or appropriate
action, secured the water in the name of the federal
government.
Thus, we have a situation in which many of the
largest irrigated areas in the western part of the
United States are federal project areas in which
the irrigation districts receive their water by con-
tract from the Bureau of Reclamation. If the hold-
ing in California court's decision of Ivanhoe II
is to apply to the rest of the western states, then
the concept of the public trust may still exist, but
with a different orientation. The trust would now
exist in fact where irrigation districts do not
utilize their water efficiently as appropriate under
the circumstances, and that the Bureau of Reclamation
does not impose standards of efficiency, that the
federal agency is violating its trust to the American
Public. The result of EOF v. East Bay Municipal
Utility District reiterates this rule of law at
least in California. Whether this is the conclusive
rule for the seventeen western states will depend
upon an interpretation of state statutory provisions
permitting irrigation district to contract with the
federal government, and the conditions under which
the federal government acquired water rights in the
state to operate reclamation projects.
2.7 INFORMATION SOURCES
, The California Hater Plan Outlook in
1974, Summary Report, Dept. of Water Resources Bui.
No. 160-74, The Resources Agency, Nov. 1974.
, Colorado River Board of California,
Annual Reports, 1964 to present.
, Committee Recommendations Regarding
Applications for NPDES Permits, Agricultural Water
Quality Advisory Committee Minutes, Aug. 12, 1974,
California State Water Resources Control Board,
Sacramento, Cal.
, Determination of Rights to the Use of
Water in California, California State Water Resources
Control Board, Sept. 1975, 32 pages.
, The Porter-Cologne Water Quality Control
Act, California State Water Resources Control Board,
July, 1974, 72 pages.
, Regulations Concerning Waste Discharge
Requirements, Nati-onal Pollutant Discharge Elimina-
tion System. California State Water Resources Control
Board, Sept. 1974, 57 pages.
, Report on Agricultural Activities No. 2,
Central Valley Region Publication, 1976.
, Research Needs for Water Resource Control
in California, State Water Resources Control Board,
Publication No. 48, April, 1973.
, Rights - Quality, California State Water
Resources Control Board, Aug. 1975, 21 pages.
, Statutory Water Rights Law, California
State Water Resources Control Board, May 1975, 62 pp.
, Waste Discharge Requirements for Waste
Disposal to Land; Disposal Site Design and Operation
Information,/State Water Resources Control Board,
Oct. 1974.
Ayers, R., and R. Coppock, Salt Management: Califor-
nia's Most Complex Water Quality Problem, Univ. of
Cal. Agricultural Extension, Division of Agricultural
Science, June, 1974.
Barnhizer, David R., "Environmental Policy-Making:
Reflections on the Process of Technology Assessments,"
13 Santa Clara Lawyer 675. 1972-1973.
Burton, Richard C. , "Pollution of Ground Water," 1
U.C.D. Law Review 141, 1969.
-------
Chernove, Sheldon, "California Environmental Quality
Act and Eminent Domain: Failure to Comply with
C.E.Q.A. as a Defense to Condemnation," 8 Loyola of
L.A. Law Review 734, 1975.
Coppock, Raymond H., Hater Development and the
Environment: Issues of Water Policy in California,
Cooperative Extension, 4 of Calif. Rept. No. 27, 1974.
Couzens, J. Richard, "State Control of Water Pollu-
tion: The California Model," 1 U.C.D. Law Review 1,
1969.
Cunningham, Richard B., "San Joaquin Delta: Is Nego-
tiation a Solution?" 1 U.C.D. Law Review 209. 1969.
Dunnigan, Dixie, "Torts—Liability of Independent
Tort-Feasors-Pollution of Streams," 1 Southern Cali-
fornia Law Review 382, 1928.
Gnoss, George H., Jr., "Special Problems of Water
Pollution: The Private Sector," 1 U.C.D. Law Review
105, 1969.
Haydel, Doug, "Regional Control of Air and Water Pol-
lution in the San Francisco Bay Area," 55 California
Law Review 702, 1967.
Holburt, Myron B. et al., California's Stake in the
Colorado River, Colorado River Board of California,
June 1969.
Johanson, Stephen H., "California's Environmental
quality Act--A Significant Effective or Paper
Pollution?" 5 Pacific Law Review 26, 1974.
Lynch, Thomas C. and Stevens, Jan S., "Environmental
Law, the Uncertain Trumpet," 5 University of San
Francisco Law Review 10, 1970.
MacDiarmid, John MacLeod, "The State water Plan and
Salinity Control in the Sacramento-San Joaquin Delta
of California," Association of Pacific Coast Geo-
graphers, Yearbook, vol. 37, 1975.
McKee, Jack E. and wolf, Harold W., Mater Quality
Criteria. State Water Resources Control Board, publi-
cation No. 3-A, 1974.
Merrill, R. E. and Johnston, W. R., Agricultural Water
Quality Control Problems, presented at the 1975 Annual
Meeting of the American Society of Agricultural Engi-
neers, University of California at Davis, 1975.
Moskovitz, Adolphus, "Quality Control and Re-use of
Water in California," 45 Calif. Law Review 586, 1957.
Robie, Ronald B., "Water Pollution: An Affirmative Re-
sponse by the California Legislature," 1 Pacific Law
Review 2, 1970.
Schwartz, Richard N., "Water Quality Control in
California: A Regional Approach," 7 California
Western Law Review 138, 1970.
Skidmore, Leslie R., Ill, "Nitrate Pollution and the
C.E.Q.A.: The Appropriate Solution to a Neglected
Problem," 12 California Western Law Review 122, 1975.
Stewart, T. I., Irrigation in California, A Report to
the State Water Resources Control Board, Univ. of Cal.
at Davis, June, 1975.
Wagoner, James P., "Environmental Protection in Cali-
-fornia: Court Action Powers of State and Local Govern-
ment Attorneys," 14 Santa Clara Lawyer 296, 1973-74.
Waldo, C. T., "Evaluation of California Water Right
Law," 18 Southern California Law( Review 267, 1945.
Weisbecker, Leo W. et al., An Environmental Monitoring
Program: For the Sacramento-San Joaquin Delta and Sul-
sun Bay, State Water Resources Control Board, pub, no.
40, May 1970.
Younger, Evelle J., "Environmental Protection in Cali-
fornia: Perspective of the Attorney General," 5 Paci-
fic Law Journal 19. 1974.
APPENDIX 2-A
California Regional Water Quality Control Board,
Central Valley Region (Order No. 75-184; NPDES No.
CA0080268):Waste Discharge Requirements for Sacra-
mento Valley Water Quality Committee
The California Regional Water Quality Control Board,
Central Valley Region (hereafter Board), finds that:
1. The Sacramento Valley Water Quality Committee
(herafter discharger), by NPDES No. CA 0080268
dated 13 December 1974, has applied on behalf
of its members for waste discharge requirements
to discharge wastes under the National Pollutant
Discharge Elimination System.
2. The discharger represents lands and entities as
shown on the map, Attachment A, and list.
Attachment B.
3. The discharger's members presently discharge
irrigation return waters from agricultural
drainage systems on the west and east side
of the Sacramento Valley into the Sacramento
and Feather Rivers, waters of the United States,
at points indicated on Attachment A.
4. The application describes 13 major existing dis-
charges as follows:
Discharge D-l Butte Slough
Discharge D-2 Wadsworth Canal
Discharge D-3 Sacramento Slough
Discharge D-4 Reclamation District 784
Discharge D-5 Jack and Simmerly Slough
Discharge D-6 Colusa Drain
Discharge D-7 Reclamation District 787
Discharge D-8 Reclamation District 70
Discharge D-9 Reclamation District 108
Discharge D-10 Reclamation District 787
Discharge D-ll Reclamation District 1001
Discharge D-12 Reclamation District 1000
Discharge D-l3 Yolo Bypass
5. An Interim Water Quality Control Plan for the 5A
Basin was adopted by the Board on 15 June 1971.
The Interim Basin Plan contains water quality
objectives for the Sacramento and Feather Rivers.
6. The beneficial uses of the Sacramento River and
Feather River are: domestic, municipal, agri-
cultural and industrial supply; recreation;
esthetic enjoyment; navigation; and preservation
and enhancement of fish, wildlife and other
aquatic resources or preserves.
7. The discharger and interested agencies and
persons have been notified of the Board's
intent to prescribe requirements for the
discharge and have been provided with the
opportunity for a public hearing and the
opportunity to submit their written views and
recommendations.
8. The Board, in a public meeting, heard and
considered all comments pertaining to the
discharge.
A. Provisions:
1. The discharger shall comply with the attached
Monitoring and Reporting Program as ordered
by the Executive Officer.
2. The discharger shall comply with all items
of the attached "Standard Provisions" and
"Reporting Requirements."
3. This Order expires 25 July 1977. The discharger
must file a report of waste discharge in accord-
ance with Title 23, Chapter 3, Subchapter 9 of
the California Administrative Code, not later
than 180 days in advance of such expiration date
as application for issuance of new waste dis-
charge requirements.
175
-------
I, JAMES A. ROVERTSON, Executive Officer, do hereby
certify the foregoing is a full, true and correct
copy of an Order adopted by the California Regional
Water Quality Control Board, Central Valley Region,
on 25 July 1975.
This Order shall serve as a National Pollutant Dis-
charge Elimination System permit pursuant to Section
402 of the Federal Water Pollution Control Act or
amendments, thereto, and shall take effect at the
end of 10 days from date of adoption provided the
Regional Administrator, Environmental Protection
Agency, has no objections.
Monitoring and Reporting Program for Sacramento
Valley Water Quality Committee
Discharge Monitoring
A sampling station shall be located at the following
locations (refer to locations on map, Attachment A):
Discharge Points,
Sutter Bypass
Feather River
Colusa Basin
Drain
Serial No. Location
D-l Butte Slough near con-
cluence with Sutter
Bypass
D-2 Wadsworth Canal near
confluence with Sutter
Bypass
D-3 Sacramento Slough near
confluence with Sutter
Bypass
D-4 Reclamation District
784's drain near con-
fluence with Feather
River
D-5 Jack and Simmerly Slough
near confluence with
Feather River
D-14 Colusa Drain at crossing
with Highway 20
D-6 Colusa Drain at Knights
Landing
D-7 Reclamation District
787's drain near conflu-
ence with Colusa Drain
Reclamation District
70's drain near conflu-
ence with Sacramento
River
Reclamation District
108's drain near conflu-
ence with Sacramento
River.
Reclamation District
787's drain near conflu-
ence with Sacramento
River
Reclamation District
1001's drain near conflu-
ence with Sacramento
River
Reclamation District
1000's drain near conflu-
ence with Sacramento
River
Yolo Bypass
Sacramento River (West
Bank) above Colusa Drain
D-16 Sacramento River (West
Bank) below Colusa Drain
Supply Points: S-l Sacramento River at
Hamilton City
Sacramento River D-£
D-9
D-10
D-ll
D-12
D-13
D-15
Supply Points
The following
Serial No.
S-2
Location
Feather River at
Termalito
Wells-ground water
shall constitute the discharge moni-
toring program:
Constitutent
a. Flow
b. Specific
Conductance
(EC)
c. Suspended
Solids
Discharge
Serial No.
D-l, D-2,
D-3, D-4,
D-5, D-6,
D-7, D-8,
D-9, D-10,
D-ll, 0-12,
D-l 3, 0-14,
D-15, D-16
D-l, D-2,
D-3, D-4,
D-5, D-6,
D-7, D-8,
D-9, D-10,
D-ll, D-12,
D-13, D-14,
D-15, D-16
D-l, D-2,
D-3, D-4,
D-5, D-6,
D-7, D-8,
D-9, D-10,
D-ll, D-12,
D-13, D-14,
D-15, D-16
Units Type of Minimum
Sample Frequency
of
Analysis
AF/
month Monthly
micro mohs/
cm
@ 25°C Grab Monthly
mg/1 Grab Monthly
The following shall constitute the monitoring pro-
gram for supply sources:
a. Flow
b. Specific
Conductance
«EC)
S-l, S-2,
AF/month
Monthly
S-l, S-2 micromohs/
cm
925°C Grab Monthly
c. Suspended
Solids S-l, S-2
mg/1
Grab Monthly
General information on ground water within the basin
can be supplied by utilizing existing data or sum-
maries available from DWR or other entities.
If the discharge is intermittent rather than contin-
uous then a representative sample shall be taken of
each such intermittent discharge. The discharger
shall monitor and record data for all of the para-
meters listed in the discharge monitoring schedule,
after which the frequencies of analysis listed in
the schedule shall apply for the duration of each
such intermittent discharge. In no event shall the
discharger be required to monitor and record inter-
mittent data more often than twice the frequencies
listed 1n the schedule.
The discharger shall implement the above monitoring
program within 37 days of the effective date of this
order.
176
-------
Montioring reports shall be submitted by the dates
in the following schedule;
Monitoring Period
1st Six Months.
2nd Six Months
3rd Six Months
4th Six Months
Report Due
Within 60 days after end of
monitoring period
Within 60 days after end of
monitoring period
Within 60 days after end of
monitoring period
Within 60 days after end of
monitoring period
Irrigation and Water Districts
Brown Valley Irrigation Dist.
Cordua Irrigation Dist.
Glenn-Co-lusa Irrigation Dist.
Joint Water District Board
Biggs-West Gridley Water Dist.
Butte Water District
Richvale Irrigation Dist.
Sutter Extension Water Dist.
Hallwood Irrigation District
Kanawha Water District
Maxwell Irrigation District
Priaceton-Codora-GTenn Irrigation District
Provident Irrigation Dist.
South Sutter Water District
Reclamation Districts.
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation!
Reclamation
Reclamation
Reclamati on
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
Reclamation
District
District
District
District
District
District
District
District
District
District
District
District
District
Di strict
District
District
District
District
District
District
No.
No.
No.
NO.
No.
No.
No.
No.
No.
No.
No..
No.
No.
No.
No.
No.
No.
No.
Na-
No.
10
70
1Q8
479
730
777
784
787
827
833
1QQQ.
100.1
1004
1500
1600
1660
2035
2047
20:54
2056
Drainage Districts
Butte Creek Drainage District
Drainage District No. 1 (Butte County;)
Drainage District No. 2 (Butte County)
Drainage District No. TOO (Butte County)
Drainage District No. 200. (B-utte County)
Individual Landowners
Davis Ranches
M & T, Inc.
Orland Unit teter Users' Association
Garden Highway Mutual Hater Company
Parrott Investment Company
Wallace B.ros.
Newhal-1 Land & Farming Company
Willow Creek Mutual Water Company
Total of all co-signers * 47.
APPENDIX 2-B: AGRICULTURAL WATER QUALITY ADVISORY
COMMITTEE RECOMMENDATIONS ON MONITORING IRRIGATION
RETURN FLOW
1. The irrigation return flow monitoring program
should initially include:
a. Specific conductance as a measure of
salinity. Additionally, a correlation may
be developed with total dissolved solids at
the request of the Regional Board (Executive
Officer).
b. Suspended solids. More refined analysis
may be required by the Regional Water Quality
Control Board on an infrequent basis.
c. Flow of the discharge.
2. Other parameters may be studied or monitored at
certain locations where such constitutents are sus-
pected to caused a problem.
These parameters should jointly and cooperatively be
investigated by the discharger and state and federal
agencies. The principal state agencies involved in
cooperative investigations should be the Regional
Water Quality Control Boards and' the Department of
Water Resources. They should fully utilize the
expertise of other agencies, in particular the
University of California and the University of
California Water Resources Center. If investigation
shows that these or other parameters are water qual-
ity problems caused by irrigation, then the AgWQAC
and the State should develop a monitoring program
to be carried out cooperatively by the dischargers
and1 the State, depending on the complexity of the
monitoring program required. In view of the fact
that a considerable amount of sampling, both current
and historic, has been accomplished on many of these
parameters, evaluation of these data should be made
before deciding what needs further investigation.
3. In many cases adequate data regarding the quality
of water supplies may be available from local, state
or federal agencies. In such cases discharger
monitoring of water supplies should not be required
as part of the permit. If adequate water quality
data on water supplies is not available, the dis-
charger should be required to furnish data regarding
the quality of incoming waters. Such water supply
monitoring should include approximately 80 percent
of the total supplies by flow. Water supply moni-
toring need not be required on as frequent a basis
as discharge monitoring. Generally semi-annual
monitoring of supplies will be sufficient.
4. Quality Control: The State (Regional Water
Quality Control Boards and Department of Water Re-
sources) should provide assistance in quality control
of the monitoring program. Sampling analysis and
techniques, and frequency of sampling will be agreed
upon between the discharger and the Regional Water
Quality Control Boards.
5. Monitoring Period: Monitoring will be made
during the period of discharge of irrigation return
flows. This is normally, though not always, the
irrigation season.
6. Monitoring of Flow (item I.e.): The method, lo-
cation, and frequency of measurements will be subject
to approval of the Regional Water Quality Control
Boards. Reasonable estimates of flow by knowledge-
able persons may be acceptable.
177
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APPENDIX 2-C
CONTROL TECHNOLOGY AND LEAD-TIME FOR CENTRAL VALLEY AGRICULTURAL
WATER QUALITY PROBLEMS
Basin
Problem facilities
1.
2.
3.
4.
5.
6.
Sediment X
Nutrients X
Salinity XXX
Pesticides
Animal Waste
Processing Waste
Control Technology-^
Farm or 2;
local On-farm Lead-time^
facilities management in years
XXX XXX 3-7
XXX 2-3^
XX X 10-30
XXX 2-3
XXX XX 2-3
XXX XX 2-3
— Rating of the applicability of control technology anticipated as most useful in controlling water quality problems is as
follows: principle - XXX, significant - XX, possible - X.
— Predicted time based on pollution control and water resource development experience in the Central Valley of California.
— Based on on-farm management as the control technology. Basin facilities would need a lead-time similar to salinity
control.
-------
APPENDIX A
3. COLORADO
3.1 SUMMARY OF WATER QUALITY LAWS
3.1.1 Background
Early legislation in Colorado provided a basis for
water quality lawsuits (Section 4214 Rev. St. 1908;
Rev. St. 1868, p. 466, c. 62, §8). This 1908 legisla-
tive act prohibited any person from flooding the prop-
erty of another by water, or washing down the tailings
of his sluice upon the property of other persons and
made it the duty of every miner to control his own
tailings upon his own property or be liable for any
damages which resulted.1
The Colorado State Department of Public Health was
created in 1953. This Department is still in existence
today and is primarily responsible for water pollution
control (C.R.S. §66-1-2, 1953).2 It is made up of the
State Board of Health and the Division of Administra-
tion (C.R.S. §25-1-102).
The Colorado legislature also enacted a statute in 1953
which made it unlawful to pollute any public waters
which contained fish (C.R.S. §62-5-13, 1953). This
statute gave the Colorado Game, Fish and Parks Commis-
sion, or any citizen of the state, the right to seek
redress for such pollution, including the acquisition
of a temporary injunction (C.R.S. §66-5-15, 1953). This
year also brought about the creation of the Colorado
water Conservation Board. This Board was given the
duty of securing the greatest utilization of the waters
in Colorado and of adding policy statements to the
water policies of the state (C.R.S. §148-1-11, 1953).
This same Board adopted a policy statement in 1963
which stated that using good quality water for dilution
of pollution was not a beneficial use (Minutes of the
January 9, 1963 meeting of the Colorado Water Conserv-
ation Board, see Backus, 1964).
In 1953, the Colorado legislature also enacted two
statutes which made it a criminal offense to pollute
streams in the state. One of these statutes made it a
crime to discharge "any obnoxious substance" into a
stream of running water or any ditch or flume, and
provided for a fine from $100 to not more than $500
(C.R.S. §40-12-22, 1953). The other statute prohib-
ited the depositing of "oil, petroleum, or other
oleaginous substance" into any of the waters of the
state and made such an act punishable by a fine of
not more than $1,000 or imprisonment for not more than
six months or both (C.R.S. §40-12-23, 1953).
The Soil Conservation Act has an indirect role in pre-
venting water pollution which is caused by the reduc-
tion of sediment in the waters of the state (C.R.S.
§128-1-1 to 21, 1953 amended in I960, §128-1-1 to 19,
Perm. Supp. 1960). This Act established Soil Conserv-
ation Districts in order to achieve better erosion,
flood control and water conservation practices (C.R.S.
§128-1-8, 1953).
1 Affirmed in Humphreys Tunnel and Mining Co. v. Frank,
105 P. 1093, Colo. 1909, and Wilmore v. Chain O'Hines.
96 Colo. 319, 44 P.2d 1024, 1934. See also Colo. Stat.
Ann. ch. 110, §186, 1935, C.R.S. §92-24-3, 1953).
2 Colorado statutory citations refer to the 1973 recodi-
fication unless otherwise indicated.
In 1966 the Water Pollution Control Act was adopted.
This Act created the Water Pollution Control Commis-
sion and authorized it to develop rules and regula-
tions for specific water pollution problems and
programs. The Commission met for the first time in
1967 and during that year the Act was amended to
permit adoption of effluent standards by the
Commission.
During the 1973 general assembly, the Colorado Water
Quality Control Act was enacted and this Act renamed
the Water Pollution Control Commission the Water
Quality Control Commission. This Act gave the Commis-
sion power to develop and maintain a comprehensive
program for the prevention of water pollution (C.R.S.
§25-8-202). It was Colorado's attempt to fully coor-
dinate state water pollution with the federal activi-
ties under P.L. 92-500. On August 20, 1974, the Water
Quality Control Commission approved regulations to en-
able Colorado to participate in the National Pollutant
Discharge Elimination System.
3.1.2 Policy
The Colorado Water Quality Control Act sets forth the
policy of the state:
to conserve state waters and to protect,
maintain and improve the quality thereof for
public water supplies, for the protection
and propagation of wildlife and aquatic life,
and for domestic, agricultural, industrial,
recreational and other beneficial uses; to
provide that no pollutant be released into
any state waters without first receiving
treatment or other corrective action neces-
sary to protect the legitimate and benefi-
cial uses of such waters; to provide for
the prevention, abatement and control of
new or existing water pollution; and to
cooperate with other states and the fed-
eral government in carrying out these
objectives (C.R.S. §25-8-102(2)).
The Colorado State Legislature declared that:
pollution of state waters constitutes a
menace to public health and welfare,
creates public nuisances, is harmful
to wildlife and aquatic life, and im-
pairs domestic, agricultural, indus-
trial, recreational, and other bene-
ficial uses of state waters and the
problem of water pollution in this
state is closely related to the prob-
lem of water pollution in adjoining
states (C.R.S. §25-8-102(1)).
Pollution is defined by the Act as "the man-made, man-
induced, or natural alteration of the physical, chemi-
cal, biological, and radiological integrity of water"
(C.R.S. §25-8-103(12)). Pollutant is also defined by
the Act as:
dredged soil, dirt, slurry, solid waste,
incinerator residue, sewage, sewage sludge,
garbage, trash, chemical waste, biological
nutrient, biological material, radioactive
material, heat, wrecked or discharded equip-
ment, rock, sand, or any industrial, munici-
pal or agricultural waste (C.R.S. §25-8-103
(ID).
179
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3.1.3 Classification
In carrying out its duties, the Water Quality Control
Commission must classify state waters and develop and
maintain a comprehensive and effective program for the
prevention, control and abatement of water pollution
and to protect the water quality throughout the en-
tire state (C.R.S. §25-8-202).
The classifications are based upon the following char-
acteristics:
1) the existing extent of pollution or the
maximum extent of pollution to be tolerated
as a goal;
2) whether or not pollution arises from
natural sources;
3) present uses of the water, the uses for
which the water is suitable in its present
condition, or the uses for which it is to
become suitable as a goal;
4) the character and uses of the land area
bordering the water;
5) the need to protect the quality of the
water for human purposes and also for the
protection and propagation of wildlife and
aquatic life; or
6} the type and character of the water,
such as surface and sub-surface, lake,
stream or ditch, volume, flow, depth,
stream gradient, temperature, surface
area involved, and daily or seasonal
variability of any such characteristics
{C.R.S. §25-8-203(2)).
There are two major classifications of water as A and
B types; further subdivided by degree into A! and A?
and B] and B2. "A" water is that water which is suit-
able for purposes for which raw water is customarily
used, including primary contact recreation, such as
swimming and water skiing. Waters classified as "B"
waters are those waters which are suitable for all
purposes for which raw water is customarily used, ex-
cept primary contact recreation, such as swimming and
water skiing (Colorado Water Quality Standards, adopted
January 15, 1974, effective June 19, 1974).3
3.1.4 Standards
Water quality standards are required by C.R.S. Section
25-8-204 and are promulgated by the Commission by regu-
lations. Water quality standards are based upon the
following characteristics:
1) toxic substances;
2) suspended solids, colloids and combina-
tions of solids with other suspended sub-
stances;
3) bacteria, fecal coliform, fungi, viruses,
and other biological constituents and char-
acteristics;
4) dissolved oxygen and the extent of oxygen
demanding substances;
5) phosphates, nitrates and other dissolved
nutrients;
6) pH and hydrogen compounds;
7) chlorine, heavy metals and other chemical
constituents;
8) salinity, acidity and alkalinity;
9) trash, refuse, oil and grease, and other
foreign material;
10) taste, odor, color, and turbidity;
11) temperature.
1,
3See Environment Reporter, State Water Laws, Vol.
726:1001 to 1003. ~~
''Colorado and the other six states in the Colorado
River Basin have adopted salinity standards drafted by
the Salinity Forum.
The standards are established to maintain and enhance
the quality of the state's waters for public water
supplies, for the protection and propagation of wild-
life and aquatic life, and for domestic, agricultural,
industrial, recreational and other beneficial uses and
to be consistent with the Federal Water Pollution Con-
trol Act of 1972. Further, "waters of the state, whose
quality exceeds the limits set by these standards,
shall be maintained at existing quality unless..it can
be demonstrated...that a change in quality is justified
..." (Water Quality Standards for Colorado Environment
Reporter, supra §726.1001).
The Commission must review stream standards at least
once every three years and report its findings to the
Commission. Water quality standards are applicable at
all times with the exception of periods when a lake or
reservoir water level, or stream flow, is less than the
minimum seven day low flow or level which is expected
to occur once in ten years. During such times, the
basic water quality standards are applicable.
The Commission has also established standards for the
discharge of wastes, but these standards do not in-
clude agricultural return flow discharges, except for
the following statements on salinity:
The Commission presently has not adopted a
standard regarding salinity, but has re-
served this section for such criteria. Since
Colorado has been collecting and analyzing
stream samples for a relatively short period
of time, it is felt that insufficient data
is available to set numerical standards at
this time. In addition, technological know-
how has not advanced to the point where all
sources of salinity (irrigation return flows,
for example) can be resolved. Therefore,
Colorado proposes, where possible, to main-
tain salinity concentrations at or below
present levels while gathering additional
data so that meaningful numerical salinity
standards can be established at some future
date. In the meantime, Colorado will con-
tinue to take action against known discharges
contributing to the salinity problem where
present technology allows for such control;
continue with demonstration projects, such
as the Grand Valley Project; and, through
whatever means available, strive to educate
the irrigator in proper water management
and irrigation practices.
With regard to the Colorado River system
and its tributaries, the State of Colorado
will cooperate with other Colorado River
Basin states and the Federal Government to
support and implement the conclusions and
recommendations adopted April 27, 1972, by
the reconvened 7th Session of the Conference
in the Matter of Pollution of the Interstate
Waters of the Colorado River and its tribu-
taries.1*
3.1.5 Permit System
A permit system was established in 1973 with the pas-
sage of the Water Quality Control Act (C.R.S.5§25-8-
501 to 25-8-506). Basically, the permit system re-
quires the acquisition of a permit before a pollutant
can be discharged.
No person may discharge a pollutant from a point
source without first having obtained a permit (C.R.S.
525-8-501). A point source is defined as, "any dis-
cernible, confined and discrete conveyance including
180
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but not limited to any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or ves-
sel or other floating craft, from which pollutants
are or may be discharged" (C.R.S. §25-8-103),
A discharge will not be permitted if it would violate
state, regional, or local land use plans, unless all
requirements of federal and state statutes and regula-
tions have been met (Colorado Regulations For the
State Discharge Permit System, adopted Nov. 19, 1974,
effective January 31, 1975). "* Further, no discharge
will be permitted if it would violate a control reg-
ulation, unless the permit contains effluent limita-
tions and a schedule of compliance which specifies
treatment requirements (Environment Reporter, State
Mater Laws. Vol. 1, §726:0503(22).
These regulations further provide that:
No discharge shall be permitted that by it-
self or in combination with other pollution
will result in pollution (sic) the receiv-
ing waters in excess of the pollution per-
mitted by an applicable water quality stand-
ard unless the permit contains effluent
limitations and a schedule of compliance
specifying treatment requirements which
will bring the discharge into compliance
with the water quality standards by a
specified date (Environment Reporter,
State Mater Laws, Vol. 1. 8726:0503(3)).
No discharge shall be permitted from a
point source which is in conflict with
an established water quality management
plan, promulgated under Sections 201,
208, and 303 of the federal act
(Environment Reporter, State Hater Laws,
Vol. 1, §726:0503(6)).
Specifically, a permit is not required for any flow
or return flow of irrigation water unless a federal
act or regulation so requires (C.R.S. §25-8-506).
The Colorado General Assembly took particular issue
with this topic by defining irrigation return flow
and separating water delivery from return flow as
follows:
'Irrigation return flow' means tailwater,
tile drainage, or surfaced groundwater flow
from irrigated land, in a system operated
by public or private organizations or indi-
viduals, if:
(A) There is a point source of discharge
(e.g., a pipe, a ditch, or any other de-
fined or discrete conveyance), whether an
artificial or a natural feature of the
land, purposely maintained as a drainage
structure;
(B) The return flow is from land areas
of more than three thousand contiguous
irrigated acres or three thousand noncon-
tiguous irrigated acres which use the
same artificial drainage system or natural
feature of the land purposely maintained
as a common drainage structure;
(C) The discharge from the lands (as
opposed to the water supply to the lands)
is controlled by one public or private
organization or one individual. Irriga-
tion return flow is concerned with the
drainage from irrigated lands. It does
not include the delivery of irrigation
" See Environment Reporter, State Mater Laws, Vol. 1,
§1726:0501 to 0508; see also C.R.S. §25-8-503.
water (C.R.S. §25-8-502, emphasis added;
see Environment Reporter, State Mater Laws,
Vol. 1, §726:0108).~
The Water Quality Control Division and the Water Qual-
ity Control Commission administer the permit system.
The Commission promulgates such regulations as may be
necessary for the orderly administration of permits
for the discharge of pollutants (C.R.S. §25-8-501(3)).
The Division must examine applications and is given
the power to issue, suspend, revoke, modify, or deny
permits (C.R.S. §25-8-501(2)).
The Division regulates the issuance and suspension of
permits and also has the power to modify, suspend,
revoke or otherwise administer permits for the dis-
charge of pollutants (C.R.S. §25-8-501(2)). The
duration of a permit cannot exceed five years, and
if a permittee desires to continue his discharge
beyond the period of his permit, he must apply for
reissuance at least 180 days before his expiration
date (Environment Reporter, State Water Laws, Vol. 1,
§726:05T?5T
The permit must include the address and identification
of the permittee; the location, quantity and quality
characteristics of the permitted discharge; effluent
limitations and requirements for treatment prior to
discharge; guidelines for equipment and procedures
required for mandatory monitoring, as well as record
keeping and reporting requirements; a schedule of
compliance with applicable effluent limitations; and
a requirement that the permittee allow authorized
representatives to enter upon his premises at reason-
able times in order to inspect any monitoring equip-
ment (Environment Rppnrt.gr, Stat.p Water Laws. Vol. 1,
§§726:0503-0504, C.R.S. §25-8-501).
Temporary permits may be issued by the Division upon
the authorization of the Commission (C.R.S. §25-8-
501(4)). No temporary permit will be issued for more
than two years and a temporary permit cannot be re-
newed .
When the Division receives an application, it pre-
pares a tentative determination to issue or deny
the permit, and if issued, the terms and conditions
of such a permit (C.R.S. § 25-8-502). An annual
fee must also be paid for all permits issued.
Public notice is given of every complete applica-
tion for a discharge permit in order to inform
interested persons of the pnoposed discharge
(C.R.S. § 25-8-502). Notice must be circulated
within the geographical areas of the proposed
discharge.
Colorado was approved by the Environmental Protec-
tion Agency to administer the NPDES program effective
March 27. 1975.
3.1.6 Sanctions and Enforcement Measures
The Water Quality Control Division is charged with
the enforcement of the water quality control programs
adopted by the Commission (C.R.S. §25-8-103(3) and
§25-8-301). Specific duties of the Division include
the carrying out of enforcement provisions and the
seeking of criminal prosecutions for violations
181
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(C.R.S. §25-8-302(l)(a)). Furthermore, the Division
must seek other appropriate judicial relief.
The purpose of these sanctions is to provide addition-
al and cumulative remedies to prevent, control and
abate water pollution and protect water quality
(C.R.S. 525-8-612).
Any person or agency may initiate an investigation by
the Division of any suspected violation of an order,
permit, or regulation (C.R.S. §25-8-601(1)). In the
event of a spill or discharge of oil, or other sub-
stance, which may cause the pollution of the waters
of the state, the person engaged in that operation or
activity must notify the Division of that discharge
(C.R.S. §25-8-601(2)). Failure to do so could result
in the assessment of a fine of not more than $10,000,
imprisonment for not more than one year, or both. The
Division may serve written notice which sets forth the
provision violated and the nature of any proposed cor-
rective action, if it has reason to believe that a
violation has occurred (C.R.S. §25-8-602(1)). The
Division may also require the attendance of the alleg-
ed violator before a public hearing to answer the
alleged violation (C.R.S. §25-8-603(1)). If a deter-
mination is made at the hearing that a violation of a
permit provision has occurred, then the Division can
suspend, modify or revoke the permit (C.R.S. §25-8-
604). The Division may issue a cease and desist order
with or without a hearing (C.R.S. §25-8-605). Clean-
up orders may be issued by the Division to order the
clean-up of any material which was accidentally or
purposely dumped, spilled or deposited in state
waters (C.R.S. §25-8-606). Failure to comply with
a cease and desist order, or a clean-up order, could
result in the issuance from the proper court of a
temporary restraining order, or a preliminary or
permanent injunction, to prevent the continuation
of the violation (C.R.S. §25-8-607(1) and (2)).
Any person who violates any provision of a permit, a
cease and desist order, or a clean-up order is sub-
ject to a fine of not more than $10,000 per day for
each day that the violation occurs (C.R.S. §25-8-608
(1)). Furthermore, any person who discharges a pol-
lutant into state waters commits a criminal pollution
if the discharge was made:
1) in violation of any issued permit;
2) in violation of any cease and desist order or
order issued by the division which is final and not
stayed by court order;
3) without a permit, if a permit is required un-
less there is a pending application for a permit; or
4) in violation of any control regulation; unless
a permit has been issued or there is a pending appli-
cation for such a permit (C.R.S. §25-8-609).
Any person who commits criminal pollution may be fined
up to $12,500 per day "if the violation was committed
with criminal negligence," or in a reckless manner
(C.R.S. §25-8-609(3)(a)). If the violation was com-
mitted knowingly, or intentionally, the maximum fine
is $25,000 (C.R.S. §25-8-609(3)(b)). If a second
offense occurs, the fine is double the amounts speci-
fied above (C.R.S. §25-8-609(3)(c)).
3.2 ADMINISTRATION OF WATER QUALITY LAWS
Administration of Colorado's water quality laws is
assigned to the Division of Administration of the
State Department of Health. The Division of Adminis-
tration also administers and enforces any water quality
control programs adopted by the Water Quality Control
Commission (C.R.S. §25-8-301).
3.2.1 Water Quality Control Division
The Executive Director of the Department of Health is
directed to maintain a separate water quality control
agency within the Division of Administration (C.R.S.
§25-8-301(l)(b)). This agency is the Water Quality
Control Division. The Director of the Water Quality
Control Division must be a registered professional
engineer or have a graduate degree in engineering or
other specialty dealing with the problems of pollution
and must also have the appropriate practical and ad-
ministrative experience relating to pollution problems
(C.R.S. §25-8-301(l)(cj). See Figure 1 for a descrip-
tion of the Division of Water Quality Control.
The Water Quality Control Division must carry out
any enforcement provision which includes the seeking
of criminal prosecution for violation (C.R.S. §25-8-
302(a))- The Division also administers the waste dis-
charge system, monitors waste discharges, submits an
annual report to the Commission, and performs any other
assigned duties (C.R.S. §25-8-302).
In monitoring waste discharges, the Division takes
water samples in order to determine the quality of
every reasonably accessible segment of state waters
(C.R.S. §25-8-303). If there is suspected pollution,
the sampling cannot be limited, or restricted, even
though no water quality standard exists for the sus-
pected type of pollution. After sampling, the Division
is to determine the nature and amount of each pollu-
tant, whether a new or different water quality standard
is needed, the source of the pollutant, and the iden-
tity of persons responsible for the pollution (C.R.S.
§25-8-303(2)).
If a separate pollution source is identified, the
Division determines what control regulation applies,
whether the discharge is covered by a permit and
whether or not any condition of the permit is being
violated, and makes a determination of what further
control measures are needed (C.R.S. §25-8-303(3)(a)
(b)(c)). The Division can also require a permit
holder to:
1) establish and maintain records;
2) make reports;
3) install, calibrate, use, and maintain
monitoring methods and equipment, includ-
ing biological monitoring methods;
4) sample discharges; and
5) provide additional reasonably available
information relating to discharges into
public sewage treatment works (C.R.S. §25-8-
304).
The Division has power to enter and inspect premises
and records in order to adequately investigate any
alleged pollution (C.R.S. §25-8-306(1)).
If pollution presents an immediate danger to the health
or livelihood of members of the public, the Division
may issue a written order to the violator to cease or
prevent the pollution, or the Division may seek a re-
straining order or an injunction (C.R.S. §25-8-307).
Section 25-8-305 provides that the Division must report
to the Commission by October 1 of each year on the
effectiveness of water quality legislation and make
any recommendations it deems advisable.
The Division also has the power to:
1) conduct studies, research and demonstra-
tions with respect to water pollution and
the control, abatement, or prevention there-
of, as requested by the Commission.
182
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2) furnish technical advice and services
relating to water pollution problems and
control techniques;
3) designate one or more persons or agen-
cies in any area of the state as a water
quality control authority, as agent of the
Division to exercise and perform such pow-
ers and duties of the Division as may be
specified in such designation;
4) to administer loans and grants from
the federal government and from other
sources;
5) to advise, consult, cooperate, and
enter into agreements with other agencies
of the state, the federal government,
other states, and inter-state agencies,
and with groups, political subdivisions
and industries affected by the provi-
sions of this article and the policies
of the Commission; but any such agree-
ment involving, authorizing, or requir-
ing compliance in this state with any
standard or regulation shall not be effec-
tive unless or until the Commission has
held a hearing with respect to such
standard or regulation and has adopted
the same in compliance with this article;
6) to certify, when requested, the exis-
tenceof any facility, land, building,
machinery, equipment, treatment works,
sewage or disposal systems, as have been
acquired, constructed, or installed in
conformity with the purposes of this
article; and
7) to take such action in accordance with
rules and orders promulgated by the
Commission as may be necessary to pre-
vent, abate, and control pollution
(C.R.S. §25-8-308).
The Division's field services are conducted by district
engineers and technicians assigned to the districts.
The District Engineer must have a thorough knowledge
of water quality in his district, including all pos-
sible sources of pollution. He must be acquainted
with the various wastewater treatment systems and
coordinate his efforts with those of the local health
department.
3.2.2 Hater Quality Control Commission
The Water Quality Control Commission is a branch of
the Department of Health and consists of eleven mem-
bers (C.R.S. §25-8-201(1)). The Commission must con-
tain: 1) a member of the State Board of Health or a
member of its administrative staff; 2) a member of the
Wildlife Commission or a member of its administrative
staff; 3) a member of the Water Conservation Board or
a member of its administrative staff; 4) the Executive
Director of the Department of Natural Resources or his
designee; and 5) seven citizens of the state who are
appointed by the Governor, one member from each con-
gressional district and the remainder from the state
at large. The terms of these appointed members are
for three years, initially three serving for one year,
two for two years, and two serving for three years.
The Governor has the power to remove appointed members
for malfeasance in office, failure to regularly attend
meetings, or for any cause that renders a member in-
capable or unfit to discharge the duties of his office
(C.R.S. §25-8-201(2)).
The Commission must develop and maintain a comprehen-
sive and effective program for the prevention, control
and abatement of water pollution and for the protec-
tion of water quality throughout the state (C.R.S.
§25-8-202). The Commission is also charged with clas-
sifying the waters of the state (see Section 3.1.3);
promulgating water quality standards (see Section 3.1.
4), control regulations (supra), and waste discharge
permit regulations (see Section 3.1.5); perform du-
ties with respect to the location, design, construc-
tion, financing, and operation of sewage treatment
plants and individual sewage disposal systems; review-
ing applications for underground detonations and
Figure 1. Organization of Colorado Water Quality Agencies.
Colorado Water Quality
Control Commission
Colorado Department
of Health
Central Laboratory
(Funded by Water
Quality Control
Division
Water Quality Control
Division
I Director
Assistant
li rector
Field Services
-\ Clerical Slaff
legal Counsel
Information Specialist
Technical Services
and Grants Section
Monitoring and Enforcement
Section
Water Quality Management
Planning Section
183
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discharges; and the classification of waters, water
quality standards and control regulations (C.R.S.
S25-8-202).
The Commission and the State Board of Health hold an
annual public hearing in order to hear public comment
on water pollution problems, alleged sources of water
pollution, and the availability of practical remedies
(C.R.S. §25-8-202(4)). The Commission also submits
an annual report to the Governor on the effectiveness
of water quality legislation and any recommendations
(C.R.S. §25-8-202(5)).
3.2.3 Additional Agency Involvement
Office of State Engineer--
In addition to the above two governmental bodies,
responsibility for water administration and control
is divided between: (1) the State Engineer, who is
the executive director of the Division of Water Re-
sources which is composed of seven Division Engineers
and Water Commissioners, a Ground Water Commission,
an Irrigation District Commission, and a Board of
Examiners of Water Well and Pump Installation Con-
tractors; (2) the Colorado Water Conservation Board;
and 3) the judiciary composed of one district court
judge who is designated as a water judge for each of
the seven water divisions (see Figure 2).
The Division of Water Resources, headed by the State
Engineer, is made up of: Water Operations, Engineer-
ing and Hearing or Legal. The Water Operations Sec-
tion administers the use and distribution of the
state's surface and ground water. The Engineering
Section gives technical support for administration
in the fields of records and files, hydrography,
hydrology and dams and reservoirs. The Hearing and
Legal Section is responsible for advising and coord-
inating legal matters in water law conflicts (see
Figure 3).
The principal responsibility of the State Engineer in
Colorado "is to administer the laws...pertaining to
water rights and, at the request of the Governor, to
render service and give counsel to other agencies of
the state" (C.R.S. §37-80-103).
The State Engineer reports to the Executive Director
of the Department of Natural Resources and the duties
of the office are spelled out in the statutes as fol-
lows:
(1) The State Engineer shall be the executive
officer in charge of supervising the work of
all division engineers He has executive
responsibility and authority with respect to:
(a) Discharge of the obligations of ths>
state of Colorado imposed by compact or
judicial order on the office of the State
Engineer;
(b) Securing and implementing legal opin-
ions and assistance regarding the work
within his jurisdiction;
(c) Coordinating the work of the division
of water resources with other departments
of the state government...;
(d) The supervision of employees in the
office of the Division of Water Resources
(e) Construction contracts, professional
and technical consultants and other
Figure 2. Colorado Water Agencies and Their Functions
Water Quality Water Rights Administration
Planning
and Development
of Water Resources
Ex. Director
State Engineer
-------
contracts related to the operation of
the Division of Water Resources;
(f) The keeping and preparation of
records and investigations as related
to carrying out the functions of the
Division of Water Resources, including
water well licensing;
(g) Rule making for the Division of
Water Resources;
(h) General supervisory control over
measurement, record keeping, and dis-
tribution of the public waters of the
state;
(i) Collection and distribution of data
on snowfall and prediction of probable
run-off therefrom;
(2) The State Engineer shall have authority
to delegate any other person the obligation
to discharge one or more portions of the
.duties imposed upon him....
(6){a) The State Engineer and those under
his supervision shall be subject to the
direction of the executive director of
the Department of Natural Resources with
respect to those matters concerning the
Division of Water Resources which require
coordination with other branches of the
Department of Natural Resources.
(7) Under the control and direction of the
State Engineer, and in cooperation with the
Colorado Water Conservation Board, there
shall be a water supply section, which shall
have the duty to collect and study data and
distribute such information on the water sup-
plies, both surface and ground water, of the
state of Colorado in order to make a more
efficient administration of the uses there-
of (C.R.S. 137-80-102(1-8)).
To assist the Office of the State Engineer in admin-
istering the state's waters, seven water divisions
were created for the 9 drainage basins in the state
in 1969, thereby eliminating the previous 70 dis-
tricts. Water distribution and administration of
laws at division and local levels are carried out by
a division engineer and his staff. The former is
appointed by the State Engineer (C.R.S. §37-92-201
and 202) (See Figure 4).
Enforcement of Beneficial Use of Waste Concept--
The Water Right Determination and Administration Act
of 1969 states that it is the policy of the state of
Colorado to integrate the appropriation, use the ad-
ministration of underground water tributary to a
stream with the use of surface water, in such a way
to maximize the beneficial use of all of the waters
of this state (C.R.S. §37-52-102). Further, an
appropriator is limited to a quantity of water which
he has used for a beneficial purpose and an appropri-
ative right cannot be enlarged beyond that needed and
used for the original undertaking from which the pri-
ority was awarded (Ft. Lyons Canal Co. v. Chew, 33
Colo. 392, 81 P.37, 1905).
But in exercising his water right, a senior appropri-
ator is not unconditionally entitled to command the
river flow to receive his allocation if his call on
the river would be "futile." The 1969 Colorado Water
Act states this rule:
No reduction of any lawful diversion because
of the operation of the priority system shall
be permitted unless such reduction would in-
crease the amount of water available to and
required by water rights having senior prio-
rities (C.R.S. §37-92-102).
Figure 3. Organizational Chart—Colorado Division of Water Resources
Member
Western State;
Water Council
Secretary, Board of Examiners E
Water Well and Pump
Installation Contractors Sro
DIVISION OF bATtR RESOURCES
EXECUTIVE DIRECTOR
(STATE ENGINEER)
xecutive Director
nd Water Conmisslon
Member Member Compact Comm
;onservat
on Boarc Commission Republican, (
and South Platt
Section!
SOURCE: State Engineer'* Office Pamphlet (Denver: State Engineer's Office).
•There are three Deputy State Engineers, one for Engineering, Field Operations, and Groundwater.
185
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The statutes go on to provide authority, direction
and criteria for curtailment of diversions by the
State Engineer, his division engineers and their
staff.
Colorado Water Conservation Board—
The Colorado Water Conservation Board was established
to aid in the protection and development of the wat-
ers of the state for the benefit of the present and
future inhabitants of the state (C.R.S. §37-60-102).
The Board consists of 13 members. The Natural Re-
sources Coordinator, Attorney General, State Engineer
and Director of said Board are ex-Officio members
(C.R.S. §37-60-104). The remaining members are
appointed by the Governor for terms of three years
(See Figure 5).
According to the statutes:
It shall be the duty of the Board to pro-
mote the conservation of the waters of the
state of Colorado in order to secure the
greatest utilization of such waters and
the utmost prevention of floods (C.R.S.
§37-60-106(1-16)).
The Colorado Conservation Board has been directed to
make, or cause to be made, a continuous study of the
water resources of the state of Colorado. It shall
also carry on a continuous study of the present and
potential uses thereof to the full extent necessary
to a unified and harmonious development of all wat-
ers for beneficial use in Colorado to the fullest
extent possible under the law, including the law
created by compacts affecting the use of said water
(C.R.S. §37-60-115).
The state of Colorado has assented to the provisions
of the "Water Resources Planning Act," approved by
the U.S. Congress on July 22, 1965 (C.R.S. §37-60-
118(1)). In this regard, the Colorado Water Board
was directed to conduct and establish a comprehensive
water planning program, as defined in Title III of
the above act, in conformity with such rules and
regulations as may be promulgated by the Water Re-
sources Council pursuant to said act.5
The Colorado Water Board is authorized to make avail-
able for use to, or enter into contracts with, private
organizations or state agencies any water or power
conserved on state owned or controlled water projects
(C.R.S. §37-60-119). The Board is further empowered
to enter into contracts which are "necessary for the
maintenance and continued operation of such projects"
(C.R.S. §37-60-120).
Water Courts—
As noted above, the Water Right Determination and
Administration Act of 1969 (C.R.S. §37-92-101, et.
seg.) established seven water divisions in Colorado
ICTR.S. §37-92-201). The State Engineer appoints one
Division Engineer for each district (C.R.S. §37-92-
101). The Supreme Court of Colorado was required to
designate a Water Judge for each division to hear all
water matters in the division (C.R.S. §37-92-203(2)).
The 1969 Water Right Determination and Administration
Act gave jurisdiction of all water matters to the
water judges. No judge except a water judge can act
on matters relating to water. Water matters include
Colorado Water Conservation Board and the Bureau of
Reclamation, Colo. State Water Plan, Phase I —
Appraisals of Present Conditions; Phase II--Legal and
Institutional Considerations, and Phase Ill—Plans for
Development, Denver, 1974.
Figure 4. Colorado Basin Outflows and Water Divisions
#•468
STATE OUTFLOWS AND
TRAN5MOUNTAIN DIVERSIONS
and
Water Division Boundaries
Tronsbcisiii Diversions
1966 - 1970 AVER«E
Water Div. Boundaries
Flows ond diversions shown
in thousands of acre-foal.
Colorado River Basin 4I9.000A.F.
Total state outflow 10.315,000 A.F.
SOURCE: Colorado Water* League of Women Voters of Colorado, 1975. Water. Division Boundaries have been added,
186
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orders and the validity of State Engineers' rules and
regulations (Baumgartner v. Stremel, 496 F. 2d 705
Colo., 1972; Kuiper v. Owners Conservation Ass'n.. 490
P,2d 268, Colo., 1971).~
Other matters such as the way in which irrigation wat-
er is allowed to run off the land or a suit to enjoin
the use of water in a designated ground water basin
are administered by the Colorado Ground Water Commis-
sion and suit may be brought in the district court
which has jurisdiction (Larrick v. District Court.
493 P.2d 647, Colo., 19721!
3.3 SPECIAL LEGISLATION
The Individual Sewage Disposal Systems Act was enacted
to preserve the environment, protect public health,
eliminate and control causes of diseases, infection
and aerosol contamination, and to reduce and control
the pollution of the air, land and water (C.R.S. §25-
10-102). The Act also establishes minimum standards,
rules and regulations for individual sewage disposal
systems, and provides for the administration and en-
forcement of these standards, rules and regulations.
An application for a permit for an individual sewaqe
disposal system mustbe accompanied by a fee up to $75.00
(C.R.S. §25-10-106(a)}. The local health department
reviews the application and inspects the proposed
site (C.R.S. 525-10-106(b)). Final inspection of the
system is made by the local health department after
the construction, installation, alteration or repair
work under the permit has reached completion, but
before the system is placed in use (C.R.S. §25-10-106
(h)). Periodic inspections of the system under oper-
ation are also required (C.R.S. §25-10-106(i)).
The local health department may issue a repair permit
and emergency use permits if the system is improperly
functioning (C.R.S. §25-10-106(j)). Furthermore, the
department may issue a cease and desist order if the
system is found to be functioning improperly, or con-
stitutes a nuisance or hazard to the public health
(C.R.S. §25-10-106(k)).
The Recreation Land Preservation Act of 1971 was en-
acted to establish minimum controls to prohibit the
pollution of the air, water and land; to prevent the
degradation of the natural environment of recreational
and mountain areas in order to preserve the ecology
and environment in its natural condition; to facilitate
the enjoyment of the state and its ecology, nature and
scenery by the inhabitants and visitors of the state-
and to protect their health, safety and welfare (C R'S
§25-13-102).
The Department of Health administers this Act, while
the state Board of Health has promulgated rules and
regulations to carry out the purposes of the Act (C.R.
S. §25-13-104).
The Act makes it unlawful to discharge untreated sew-
age upon the surface of the ground within a recreation
area of the state, or in any waters of the state (C R S
§25-13-105(l)(a)). Furthermore, the Act makes it un-
lawful to deposit or bury refuse on public lands or
waters, willfully cut down, uproot, break, or otherwise
destroy any living trees, shrubs, wild flowers, or
natural flora in recreation areas of the state, and to
use any cleansing agents in waters of the state for any
purpose in an organized campground or recreational area,
unless the water is deposited in the proper facilities
(C.R.S. §25-13-105).
3.4 RELATED LEGISLATION
Due to the rapid growth and development of the state
of Colorado and the resulting demands upon its land
resources, new measures were necessary to promote the
orderly use of land development; provide for the
needs of agriculture, forestry, industry, business,
residential communities, and recreation; encourage
uses of land which were in accordance with the con-
servation of the soil, water and forest resources;
and promote a more efficient and economical use of
public resources (C.R.S. §24-65-102(1)). The result
was the Colorado Land Use Act (C.R.S. §24-65-101, et.
seq.).
The Act established the Colorado Land Use Commission,
which consists of nine members (C.R.S. §24-65-103).
The Commission must develop a total land use planning
program which includes an environmental and manage-
ment matrix, a growth monitoring system and an impact
model (C.R.S. §24-65-104).
If the Commission determines that there is a land de-
velopment activity which constitutes a danger of
irreparable injury, loss, or damage of serious propor-
tions to the public health, welfare, or safety, it
must notify the Board of County Commissioners (C.R.S.
§24-65-104(2)). If the Board of County Commissioners
Figure 5. Colorado Water Conservation Board Organization Chart
Director
I Deputy Director |
Division of Flood Control, Soil
Conservation, Small Projects,
Drafting and Cartography
Comprehensive
Planning Division
Division of River Basin Planning,
Ground Water, Hydrology and
Records
Administration, Accounting
and Office Management
SOURCE: Colorado Water Conservation Board, Proposed Budget, FY 1971-1972, p. A-2.
187
-------
fails to act, the Commission may request the Governor
to review such facts and dangers and may direct the
Commission to issue a cease and desist order.
The Colorado Land Use Act does not modify or amend
existing laws or court decrees with respect to the
determination and administration of water rights
(C.R.S. §24-65.1-106).
The Colorado Soil Conservation Board must send recom-
mendations to local governments and the Colorado Land
Use Commission relating to "resources data inventor-
ies, soils, soil suitability, erosion and sedimenta-
tion, floodwater problems and watershed protection"
(C.R.S. §24-65.1-302).
An advisory committee was established by this Act and
consisted of among others a representative of conserv-
ation, agriculture and water interests (C.R.S. §24-65-
104(cj). This committee was defunct as of January 10,
1974.
3.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
Colorado has adopted regulations for the state dis-
charge permit system (Environment Reporter, State
Water Laws, Vol. 1, 726:0501-0508, adopted November
19, 1974, effective January 31, 1975). Generally,
these regulations are not applicable to the discharge
of pollutants from agriculture, including irrigation
return flows, except as may be necessitated by federal
act or regulation (C.R.S. §25-8-506).
A discharge permit may be required for irrigation
return flows if:
(a) there is a point source of discharge
(e.g., a pipe, a ditch, or other defined
or discrete conveyance) whether artificial
or a natural feature of the land purposely
maintained as a drainage structure, and;
(b) the return flow is from land areas of
more than 3,000 contiguous irrigated acres,
of 3,000 non-contiguous irrigated acres
which use the same artificial drainage system
or natural feature of the land purposely
maintained as a common drainage structure,
and;
(c) the discharge from the lands (as opposed
to the water supply to the lands) is controlled
by one public or private organization or one
individual. Irrigation return flow is con-
cerned with the drainage from irrigated land.
It does hot include the delivery of irrigation
water (Environment Reporter, State Hater Laws,
Vol. 1, §726:0501.200(10)).
"Point source" as defined earlier is any discernible,
confined and discrete conveyance. This definition
includes any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, con-
centrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be
discharged (C.R.S. §25-8-103(10)).
3.6 CASE LAW APPLICABLE TO AGRICULTURE
The Pilot Rock Creek Canal Co. v. Chapman (Sup. Ct.,
October, 1858, p. 161-163) involved an action for dam-
ages to a ditch. The damages arose from the Defend-
ant's mining operation which had caused sediment and
earth to settle into Plaintiff's ditch. The court
held that the Defendants were liable for the damages
to the Plaintiff's ditch. In 1897, the Colorado Court
of Appeals held that an appropriator takes title to
the water subject to the limitation that his use will
not injure or pollute the waters of a stream to the
detriment of other users, subsequent in right. Thus,
the concept of reasonable use was adopted to deny the
right of a senior to pollute the waters to the detri-
ment of downstream juniors (Suffolk Gold Mining Co.
v. San Miguel Consolidated Mining and Milling Co., 9
Colo. A. 407, 48 P.828, 1897).
Twelve years later, the Supreme Court of Colorado held
in Humphreys Tunnel and Mining Co. v. Frank (105 P.
1093, Colo., 1909) that an appropriator is entitled
to his appropriation undiminished in quantity as well
as quality (see also Wilmore y. Chain O'Mines, 96
Colo. 319, 44 P.2d 1024, 1934).
In Slide Mines, Inc. v. Left Hand Ditch Co. (77 P.2d
125, 102 Colo. 69, 1938), the Supreme Court of Colora-
do upheld an injunction which enjoined the Defendant
from depositing of mine tailings which had injured the
Plaintiff's crops and ditches. The Supreme Court held
that an injunction against water pollution will not be
denied on the basis of the unclean hands doctrine.
Finally, in The Game and Fish Commission v. The Farm-
ers Irrigation Co. (126'P.2d 562, 1967), the Supreme
Court of Colorado upheld the granting of an injunc-
tion and the award of out-of-pocket expenses where
the Defendant polluted stream waters. This case
establishes the right to quality as well as quantity
to be delivered to an appropriator, but does not es-
tablish the element of quality as part of the right.
3.7 INFORMATION SOURCES
Backus, Robert A., "Water Pollution Control in Colo-
rado," 36 Colorado Law Review 413, 1964.
Radosevich, Nobe, Allardice and Kirkwood, Evolution
and Administration of Colorado Water Law, 1897-1976,
Water Resources Publications, Ft. Collins, Colo.,
U.S.A., 1976.
Radosevich, George E., Allen, Peggy, Colorado
Water Quality Control and Administration Laws and
Regulations, Center for Economic Education, Department
of Economics, Colorado State University, Ft. Collins,
Colorado. 1975.
, The Grand Valley: Control of Salinity in
Irrigation Return Flows, Dept. of Interior, Bureau
of Reclamation; Dept. of Agriculture, Agricultural
Research Service; and Colo. State U. Experiment
Station.
Radosevich, G. E. , D. Hamburg, E. L. Swick, Colorado
Water Laws: A Compilation of Statutes, Regulations,
Compacts, and Selected Cases, Info. Series No. 17,
Center for Economic Education, Department of
Economics, Colorado State University, 1975.
188
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APPENDIX A
4. IDAHO
4.1 SUMMARY OF WATER QUALITY LAWS
4.1.1 Background
Idaho's first effort at the public control of water
quality came in 1909 when the legislature created the
State Board of Health which was to have "general su-
pervision of all matters relating to the preservation
of the life and health of the people of the state"
(Idaho Session Laws 184, § 6, 1907). Actual enforce-
ment of the legislation was delegated to county boards
of health (Ibid., 5 21, at 188). Unfortunately, the
local boards did not exercise this power and water
pollution was not reduced (Wood, 1971). In 1941 the
duties of the Board of Health were transferred to the
Department of Public Health only to be reshuffled
back to the Board of Health in 1955 (Ibid., at 102).
During this period of transition there is not a single
reported case of the Board taking judicial action to
enforce water quality regulations (Ibid., at 103).
In 1967 the Idaho Legislature repealed the 1955 act
and created new provisions designating the State
Board of Health as Idaho's water quality control
agency (I.C. § 39-112 6). This legislation subse-
quently gave way to the more comprehensive provisions
of the Environmental Protection and Health Act of
1972 (I.C. §5 39-101 to 39-136, 1972). Later amend-
ments to the act transferred the former duties of the
Department of Health, Department of Public Health, and
the Air Pollution Control Commission to the director
of the Department of Health and Welfare (I.C. § 39-
105). The duties of the Board of Environmental and
Community Services have likewise been transferred to
the Board of Health and Welfare, which is the policy
making body for the department (I.C. § 39-107).
4.1.2 Policy
The policy which is announced in the Environmental
Protection and Health Act is as follows:
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 wel-
fare of the people of this state (I.C. §
39-102).
The specific policy of the'Board of Health and Wel-
fare towards water quality is "to provide for an
orderly and economically feasible comprehensive water
pollution control program, which program shall be
administered to conserve the waters of the State for
all legitimate beneficial uses, including uses for
domestic purposes, agriculture, industry, recreation
and fish and wildlife propagation"(Water Quality
Standards and Wastewater Treatment Requirements,
Idaho Dept. of Health and Welfare, June, 1973).
Although the Environmental Protection and Health Act
does not expressly declare water pollution to be a
puWic nuisance, the act does make violators liable
for any penalties, beyond those of the act, which can
be incurred due to state enforcement in termination
of a nuisance (I.C. § 39-109 (7)). Idaho Code defines
a nuisance as:
anything which is injurious to health . . . ,
or offensive to the senses, or an obstruc-
tion to the free use of property so as to
interfere with the comfortable enjoy-
ment of life or property, or unlawfully
obstructs the free passage or use, in
the customary manner, of any navigable
lake, or river, stream, canal, or basin
(I.C. § 52-101, 1957).
If the nuisance is of a public rather than private
nature, an action may be maintained only by a "public
body or officer authorized thereto by law" (I.C. §
52-205, 1957).
4.1.3 Classification
The Board of Health and Welfare has adopted water use
classifications for the following types of use:
(1) Domestic and industrial water supply,
(2) Irrigation and stock watering,
(3) Recreation and/or esthetic qualities
(Water Quality Standards and Waste-
water Treatment Requirements, Idaho
Dept. of Health and Welfare § VI,
June 1973).
The classification for Recreation contains subclasses
A through E depending on the type of body contact
which is permitted (Ibid.). Other protected uses
have been established for specific watercourses and
are indexed in an appendix to the Water Quality
Standards and Wastewater Treatment Requirements of the
Department of Health and Welfare.
4.1.4 Standards
The director of the Department of Health and Welfare
is given the authority to formulate and recommend for
adoption by the board "rules, regulations, codes and
standards" for the control of environmental pollution
(I.C. § 39-105). Pursuant to this authority specific
standards have been adopted which concern the follow-
ing parameters of water quality:
A. Coliform Concentration
B. Dissolved Oxygen
C. Hydrogen Ion Concentration
D. Temperature
E. Turbidity
F. Total Dissolved Solids
(Water Quality Standards and Wastewater Treatment Re-
quirements, Idaho Dept. of Health and Welfare S VIII,
June, 1973).
The department also has general water quality stan-
dards which cover state waters according to the fol-
lowing factors:
A. Toxic chemicals which adversely affect
the use for which the waters have been
classified;
B. Deleterious substances adversely affect-
ing edible species of fish and drinking
water supplies;
C. Radioactive materials;
D. Floating or submerged matter not at-
tributable to natural causes;
E. Excess nutrients which cause nuisance
aquatic growths;
F. Visible concentrations of oil and foam
which adversely affect the classified
use; and
G. Objectionable turbidity traceable to
man-made sources (Ibid., § VII).
189
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The key to the operation of the above standards is the
interrelationship between those standards and the wa-
ter use classification for the particular watercourse
in question.
4.1.5 Permit System
The Director of the Department of Health and Welfare
is given the authority to issue permits and licenses
in accordance with the rules and regulations of the
Board (I.e. i 39-105). Pollution source permits are
provided for and their issuance is by the Director
according to the above procedure (I.e. § 39-115).
The issuance of pollution point-source permits has
been authorized since 1969 (Ibid.). The Director can
bring legal action to enjoin threatened or continued
violation of pollution permits without first taking
action to revoke the permit (Ibid.). The application
of the permit system to agriculture is covered in
section 4.5 below.
Idaho Water Quality Standards provide that the Depart-
ment of Public Health will "develop and implement an
enforcement program through the continuing planning
process required under the Federal Water Pollution
Control Act of 1972" (Water Quality Standards and
Wastewater Treatment Requirements, 5 XII, June, 1973).
This particular section goes on to state that "The
Department's planned program for water pollution con-
tnl will be defined and revised annually in accord-
ance w^'h applicable U.S. EPA regulations" (Ibid.).
4.1.6 Sanctions and Enforcement Measures
The director of the Department of Health and Welfare
is given the responsibility for "... the enforce-
ment of standards relating to the discharge of efflu-
ent into the waters of this state . . . " (I.e. §
39-105). The director is also given authority for the
general enforcement of "all laws, rules, regulations,
codes and standards relating to environmental protec-
tion and health" (Ibid.). He has the same power in
the specific area of public water supplies (Ibid.).
In addition to the enforcement powers of the director,
the county prosecuting attorney or the state attorney
general can bring a civil action to enjoin those
activities which are violations of the provisions of
the act, or regulations adopted under the act (I.e. §
39-108).
Civil penalties for violations of the act or depart-
mental rules can be up to one thousand dollars for
each day the violation continues (Ibid.). However,
the penalty only begins to run with the tenth day af-
ter the expiration of the time fixed by the board's
order for taking corrective or preventive action
(Ibid.). Willful or negligent violations are treated
as misdemeanors and convicted violators can face a
fine of not more than three hundred dollars for each
day the violation continues (I.C. i 39-117). Criminal
actions can be brought by the attorney general or by
the county prosecuting attorney (I.C. i 39-109).
The director can employ counsel within the department
or retain private counsel to assist in the enforcement
of the legislation and regulations (Ibid.)'.
4.2. ADMINISTRATION OF THE LAWS
The following agencies are involved in the administra-
tion and implementation of Idaho's water quality laws:
4.2.1 Department of Health and Welfare
The policy making body for water quality control in
Idaho is the Board of Health and Welfare which con-
sists of seven members chosen by the Governor "with
due regard to their knowledge and interest in envi-
ronmental protection and health" (I.C. § 39-107). The
Board also functions as a hearing board for adminis-
trative actions concerning compliance with its rules
and regulations (Ibid.). Judicial review of these
administrative decisions can be secured by filing
a petition for review in the district court for the
county where the adversely affected party resides
(Ibid.).
Actual administration and enforcement of the act and
the Board's rules is delegated to the Director of the
Department of Health and Welfare (I.C. i 39-105). Wa-
ter quality control is primarily the responsibility of
the department's Division of Environment and specifi-
cally the Bureau of Water Quality (See Figure 1).
The Governor is given the authority to organize the
department into sub-state administrative regions to
provide more effective and economical delivery of
services.
4.2.2 Department of Water Resources and Water
Resources Board
In the mid-1960's, Idaho adopted a constitutional
amendment calling for the creation of a water re-
sources agency as prescribed by the legislature to
formulate and implement a state water plan for opti-
mum development of water resources in the public
interest, construct and operate water projects, and
generally to administer the state's water rights
systems, projects and related funding (Idaho Consti-
tution, Art. XV, Sec. 7). Subsequently, in 1965,
the legislature established the Water Resources Board
to achieve the objectives of a coordinated, integrated,
multiple use water resource policy in Idaho (I.C. §
42-1731). Also created was an administrative agency
to carry out the Board's policies. The Department of
Water Administration existed until 1974 when the 42nd
Idaho Legislature reorganized the water agency into
the current Department of Water Resources (see Figure
2). All the functions of the Water Resources Board
and former Department were transferred to the new
Department in an effort to bring all water matters,
except water pollution control, under one agency
(Annual Report, 1975, p. 9). Now the eight-member
board functions within the Department of Water Re-
sources. The board has been delegated broad powers
by the legislature (I.C. § 42-1734). Among those
powers and duties are the following which directly
concern water quality:
(4) Subject to the primary use of water
for the beneficial uses now or hereinafter
prescribed by law, minimum stream flow for
aquatic life and the minimization of pollu-
tion shall be fostered and encouraged and
consideration shall be given to the develop-
ment and protection of water recreation
facilities;
(5) Watershed conservation practices consis-
tent with sound engineering and economic
principles shall be encouraged . . .
(q) To study and examine pollution of
rivers, streams, lakes and ground water,
and to advise, cooperate and counsel
with the state board of health and wel-
fare in a manner designed to avoid in-
hibition of economic development and
190
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Figure 1. Organization of Idaho Water Quality Control
Idaho Dept. of Health & Welfare
Supervisor, Source
ontrol and
Bureau of
Regional Environmental
Services
ion I
d'Alene
Region II
Boise
1 —
Region II
Pocatell
-------
at the same time insure the right of
the people to comfortably enjoy our
water resources and accomplish the
establishment of water quality
criteria; . . (Ibid.).
On all projects involving the impoundment of more
than 10,000 acre-feet of water, the proposal must be
submitted to the board for approval (I.C. § 42-1737).
The standard duties and responsibilities of the De-
partment of Water Resources include establishment of
a state water policy, provisions of supervisory and
technical assistance, administration of permit and
license systems for water rights and assistance to
the courts in adjudicating the rights, development
and implementation of a state water plan, measurement
of the flow and quality of the state's streams, and
conducting investigations, surveys, designing projects
and formulating plans to better utilize the state's
water. In addition to these "quantity"-oriented du-
ties, the Department is also required to cooperate and
coordinate matters concerning water quality with the
Division of Environment (I.C. 5 42-1805(5)). As such,
the agencies have collaborated on water quality
studies, stream channel alterations, waste water dis-
posal and injection wells dredge permits in navigable
waters and state water planning (Statewide Water
Quality . . . Report, 1976, p. 154]^See Figure 2
for organization chart of the water rights
administration.
Although one noted publication has stated that "There
are no environmental protections built into the Idaho
statutes governing the appropriation of water"(A Sum-
mary-Digest of State Hater Laws, National Water Com-
mission, Washington, D.C., 1973), some provisions
concerning waste of appropriated waters are of inter-
est. First, local watermasters are given the author-
ity to refuse or allow water to be supplied to an
appropriator who does not maintain suitable headgates
or controlling works at his point of diversion (I.C.
§ 42-701). The standards are established by the de-
partment, but watermasters are elected and salaried
by the water users. Furthermore, there is no express
statutory authority for the department to remove a
watermaster for the nonperformance of his duty.1
Secondly, water users who: (1) use more water than
good agronomic husbandry requires or (2) use an ex-
cess of water from another's ditch or canal are liable
for the damages sustained by others due to their
wasteful practices (I.C. § 42-916).
4.3 SPECIAL LEGISLATION
4.3.1 Water Pollution Control Fund and Water
Pollution Control Bonds
A separate fund has been created in the Idaho State
Treasury (I.C. § 39-3605); namely, the Water Pollution
Control Fund. These funds are to be used for the fol-
lowing purposes:
(1) To provide the state's matching share
of grants to local governments; and
(2) To provide revenue for the repayment of
general obligation bonds which are authorized
by Article VIII 5 5 of the Idaho Constitution
(I.C. i 39-3606).
Article VIII § 3A gives counties the authority to is-
sue revenue bonds for the purpose of "acquiring,
JThe practical problems of this situation are dis-
cussed in"The Idaho System for the Distribution of
Water Among its Appropriators: an Examination and
Assessment," 9 Idaho L. Rev. 187, 194 (1973).
constructing, installing and equipping facilities de-
signed for environmental pollution control ..."
(Idaho Const. Art VIII §3A). It should be noted that
there is no 5 of Article 8 of the Idaho Constitution.
A proposal for such an amendment was introduced in the
1970 session, but was not adopted. Provision for Water
Pollution Control Bonds is contained in the appendix
to the Idaho Code.
4.3.2. Waste Disposal and Injection Hell Act
The Waste Disposal and Injection Well Act (I.C. §42-39)
is administered by the Department of Water Resources
and applies to irrigation disposal wells. There are
numerous irrigation disposal wells, particularly over
the Snake Plain Aquifer.
4.3.3 Waters in Public Trust
In 1971, the Idaho Legislature authorized the State
Park Department to appropriate, in trust, certain
natural springs because of their scenic beauty and
recreational value (I.C. §§67-4307 to 67-4312). Also,
the Governor is given the authority to appropriate, in
trust, specific scenic lakes to preserve them in their
present condition (I.C. §§67-4301 to 67-4306).
4.4 RELATED LEGISLATION
4.4.1
County Irrigation, Drainage,and Reclamation Projects
Boards of County Commissioners are authorized to con-
struct and maintain "public drainage or irrigation
systems, reservoirs, drains and ditches and other ir-
rigation or drainage works for the irrigation or
drainage of land within the county (I.C. §42-2801).
Before such action can be undertaken, the required
landowner petition must be submitted to the board
(I.C. §42-2804). The petition is sent to the Director
of the Department of Water Resources, who reports to
the board on the practicability or feasibility of the
plan as outlined in the petition (I.C. §42-2805).
Financing is accomplished by the issuance of bonds
which are repaid by assessments against benefited
property (I.C. §§42-2811 to 42-2818).
4.4.2 Drainage Districts
Those areas of a county which require drainage or
diking can be organized into a drainage district(I.C.
§42-2905). Financing is handled by assessments levied
against benefited lands (I.C. §42-2936). Drainage
districts are governed by three drainage commissioners
who are initially appointed and are subsequently
elected to office (I.C. §42-2910).
4.4.3 Flood Control Districts
The purpose for the creation of flood control dis-
tricts is to assist the United States and to obtain
the assistance of the United States, in maintaining
navigability and flood prevention and control of the
waters of any navigable stream, or any stream, lake,
or watershed tributary thereto (I.C. §43-3101). Or-
ganization is by petition submitted to the director
of the Department of Water Resources (I.C. §24-3103).
The Director schedules a hearing in the area of the
proposed district and can decide whether or not to
enter an order approving the petition (I.C. §42-3106).
District affairs are controlled by an elected board of
commissioners who are initially appointed to office by
the county district court (I.C. §42-3107). Financing
is provided by assessment, federal funding, and the
sale of developed and stored waters (I.C. §§42-3115 to
42-3118).
192
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Water Quality Control
Figure 2. Idaho Water Agencies and Functions
Water Quantity Administration
Planning and Development
Bureau of
Environmental Health
Bureau of Regional
Environmental Services
Municipal
Coordinator
Const.
Grants
Supv.
Source
Control i
Monitor-
ing Sect,
Reg. I
Couer
d'Alene
Supv.
Reg. II
Boise
Supv.
Reg.
Poca
Suf
•Technical
Section
Geothermal Section
Coordinator
Cert. & Training
Environmental
Studies Section
Supv. Water
Quality Planning
& Standards
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4.4.4 Water and Sewer Districts
The districts are created for the purpose of providing
domestic water supplies and sewage disposal within or
beyond municipal boundaries (I.C. § 42-3202). Organ-
ization involves the process of submitting the re-
quired petition to the county district court, which
then holds a hearing on its merits and issues a court
decree on the formation of the district (I.C. i§ 42-
3203 to 42-3207). Later, an election is held on the
formation of the district anct its board of directors
(I.C. s 42-3208). Financing is accomplished through
the issuance of bonds and the collection of tax levies
(I.C. §§ 42-3214 to 42-3227).
4.4.5 Irrigation Districts
Idaho statutes contain extensive provisions regarding
the formation and operation of Irrigation Districts
(I.C. §§ 43-101 through 43-2112). Briefly, districts
are formed by submission of a petition to the board of
county commissioners (I.C. § 43-102). Following a
public hearing on the petition, an election is held to
select the district's board of directors (I.C. § 43-
109). Copies of all plans and papers filed with the
board are to be examined by the Department of Water
Resources and a report submitted to the board (I.C.
§ 43-107).
Financing is accomplished through issuance of bonds
which are repaid by assessments (I.C. §8 43-401 to
43-413).
4.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
4.5.1 Agriculture Generally
Idaho has given considerable attention to the impact
of water use by agriculture both in terms of maximum
utilization of the state's water resources and pos-
sible pollution problems that occur through diversions
and application of waters for irrigation. It was
noted in the Interim State Water Plan that "high rates
of diversion and application of irrigation water have
created drainage problems" through "excess canal seep-
age lanes, excess irrigation application, poorly
planned land development, and lack of natural or
mechanical drains" (1972, p. 88). This interim plan
report, completed prior to passage of P.L. 92-500 and
the efforts by EPA to implement a permit program for
agricultural return flows, was in response to guide-
lines issued by EPA in January 1971, calling for in-
terim basin and/or regional metropolitan plans by July
1973 and "fully developed plans" in subsequent years.
Since the fully developed plans were to focus on non-
point sources of pollution and means for improving
future water quality, the State directed study pro-
grams be carried out on a statewide basis to gather
necessary data. Among the study programs is the
identification of water quality problems generated by
irrigation return flows and the development of solu-
tions (Interim Report. 1972, p. 94).2 It was recog-
nized that improved irrigation efficiency would tend
to minimize irrigation as a source of pollution (Ibid.,
p. 102).
Subsequently, in 1973 in response to P.L. 92-500 re-
quirements, the Idaho Department of Environmental and
Community Services adopted Rules and Regulations for
the Establishment of Standards of Water Quality and
for Wastewater Treatment Requirements which defines
ZA study of importance that was recently released is
Incentives for Improved Water-Use Efficiency. 1976).
the term "pollutant" to include "agricultural waste or
other materials which, when discharged to water,
cause or contribute to water pollution" (p. 3).
"Wastewater" is defined as, "sewage, industrial waste
and associated solids or combination of these, wheth-
er treated or untreated, plus any admixed runoff from
the land" (Ibid). Beyond this acknowledgment of agri-
cultural sources of pollution, no other sections have
application to agriculture in general. Section X.F.
(Ibid. p. 84) addresses "accumulations of manure" with
respect to runoff.
4.5.2 Irrigation Return Flows
Accepting the designation of irrigation return flows
as a point source within the three categories of
agricultural pollution sources (the other two cate-
gories are fish hatcheries and feedlots), the Divi-
sion of Environment (DOE) cooperated with EPA in an
effort to implement the initial attempt at permitting
irrigation return flows. Since EPA was administering
the permit program, DOE did not develop any forms of
its own (letter to Principal Investigator from DOE
dated Jan. 23, 1975). As of May, 1975, 28 NPDES
permits were issued, of which 17 were on appeal (Idaho
Mater Quality Status Report, 1975, p. 42).
These permits were issued only to irrigation dis-
tricts and large supply companies. The permits do
not include compliance with numerical standards, but
rather required the permit holder to study the prob-
lem. And although there is no compliance schedule
for the irrigation return flow permits, five steps
must take place. They are:
1. The permittee must propose monitoring loca-
tions for supply and return waters.
2. After a reasonable time, the permittee must
monitor the quantity and quality of both supply and
return waters.
3. The permittee must then identify means for
controlling the wastewater sources.
4. Subsequently, the permittee must provide an
inventory of non-irrigation pollution sources.
5. Last, a program for minimizing the pollution,
where a problem has been identified, must be sub-
mitted to EPA.
(Statewide Water Quality . . . Report, 1976, p. 37.)
This schedule will be changed under the new "general
permit" program for irrigation return flows.
The water users appealing their permits contend among
nineteen general and special reasons that irrigation
return flow is a non-point source of pollution and
that the irrigation companies and districts have no
authority to control discharges by individuals into
drainage systems (see Request for Adjudicatory Hear-
ing, NPDES Permit AB. ID-002143-1, submitted by Twin
Falls Canal Co. to the Administrator of Region X in
Oct. 1974).
Thus, regarding irrigation return flow control in
Idaho as a point source, very little is being accom-
plished under the original EPA permit program. The
DOE has stated, however, that the State and several
irrigation entities have taken a different approach
than EPA to abate pollution from irrigation return
flows. Their approach is:
... The State, first of all, considers
the problem to be in most cases a point
source. Secondly,abatement of the prob-
lem should be on a voluntary basis for
a period of time, and then mandatory
requirements should be established at a
later date. This would allow for the
development of "on-farm" abatement tech-
niques and better irrigation management
practices to solve the problem instead
194
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of costly treatment facilities (Statewide
Water Quality . . . Report. 1976, p. 31).
In mid-1976 no specific controls had been developed
for irrigation return flows, although it was felt con-
trols would be essential to meet the water quality
standards (letter to Principal Investigator from
D.O.E., dated June 4, 1976).
Even though the State has taken the position that ir-
rigation return flow is for the most part a point
source, the non-point source aspects have not been ig-
nored. In discussing their control program for non-
point sources, twelve conditions which distinguish
this source of pollution from the point source dis-
charge through a discrete pipe or ditch are given
which are most useful in delineating the complexity of
the problem. These twelve conditions are that non-
point pollution:
(1) .involves the cumulative degradation of
water quality from diffuse sources, in-
cluding runoff, drainage, leachates,
seepage, spills and percolation;
(2) involves degradation of ground water
as well as surface waters;
(3) is caused by activities of man;
(4) is intermittent in most cases;
(5) relates at least in part to certain
uncontrollable climatic events;
(6) arises over an extensive area of land
and is in transit over land or through
the soil before the pollutants enter
surface or ground waters;
(7) generally cannot be monitored at its
point of origin and is not always trace-
able to its exact source;
(8) must occasionally be monitored on the
land rather than in the water;
(9) must be controlled by conservation
practice or site-specific management;
(10) cannot always be measured in terms of
effluent limitations;
(11) usually is derived from consecutive
operations over an extensive land area,
as opposed to repetitive operations on
intensive units of land; and
(12) varies significantly in both quantity
and quality due to the above factors
(Statewide Hater Quality . . . Report,
1976, pp. 61-62).
Not too much has been accomplished in controlling non-
point pollution because of its recent recognition and
the number of agencies directly or indirectly involved
in some aspects of influencing non-point pollutions.
A study completed in late 1975 identified a host of
programs being carried out by twelve federal agencies,
six state agencies and numerous local and regional
entities (Survey of Nonpoint Source Pollution Pro-
grams . 1975")^These programs are also evaluated in
the report.
DOE has developed a long-range strategy that will be
updated annually consisting of six components: (1)
statewide nonpoint source management plan, (2) devel-
opment of best management practices, (3) cooperation
with other agencies, (4) formation of a technical ad-
visory committee (TAG) from representatives of the
various agencies involved, (5) development of an in-
formation program to inform the public, and (6) stim-
ulation of public participation in keeping the pro-
gram dynamic (Statewide Water_Qua1ity . . . Report,
1976, pp. 110-114). Major agricultural and non-point
source pollution problems are being addressed in the
statewife 208 planning program. Two demonstration pro-
jects for irrigated and dryland pollution problems have
been implemented and the State Soil Conservation Com-
mission is developing a statewide agricultural pollu-
tion abatement plan.
4.6 CASE LAW APPLICABLE TO AGRICULTURE
To date there has been no reported litigation involv-
ing the substantive portions and specifically water
pollution control measures of the Environmental Pro-
tection and Health Act. Eight actions against water
polluters under common law doctrine have been reported
(Wood, 1971). All of these decisions involved suits
by private parties to enjoin a public nuisance, re-
quiring that special injury beyond that suffered by
the common public be demonstrated by the plaintiff
(Ibid.).
The only significant case in the area of agricultural
use of water is Ravndal v. Nprthfork Placers, 60
Idaho 305, 91 P.2d 368 (1939). In that case, plain-
tiff's ditches and crops were injured by the hydraulic
mining process employed by the defendant mining com-
pany. The Idaho Supreme Court affirmed the damage
judgment awarded by the district court and held that:
Numerous authorities announce the doctrine
that while a prior use of the water of a
stream for mining purposes necessarily con-
taminates it to some extent, such contami-
nation or deterioration of the quality of
the water cannot he carried to such a degree
as to inflict substantial injury upon an-
other user of the waters of said stream
(Ibid., at 371).
In spite of this result, one law review article has
stated that private nuisance actions have "provided
virtually no incentive to the offenders to reduce
their harmful discharges into the waterways" (Wood,
1971).
4.7 INFORMATION SOURCES
Annual Report, Idaho Department of Water Resources,
Fiscal Year 1975, Dec. 1975.
Hutchins, "The Idaho Law of Water Rights," 5 Idaho L.
Rev. 42, 1968.
, Idaho Environmental Overview, James M.
Montgomery, Consulting Engineers, Inc., Boise, for
State of Idaho, Nov. 1975.
, Idaho Hater Quality Status, Idaho Depart-
ment of Health and Welfare, Division of Environment,
Boise, May 1975.
Note, "The Idaho System for the Distribution of Water
Among its Appropriators: an Examination and Assess-
ment," 9 Idaho L. Rev. 187, 1973.
Note, "Water Pollution Law in Idaho," 1 Idaho L. Rev.
Ill, 1964.
, Statewide Water Quality Management Plan-
ning Report, Idaho Department of Health and Welfare,
Division of Environment, Bureau of Water Quality,
Boise, May 1976.
, Survey of Nonpoint Source Pollution
Programs, by James M. Montgomery, Consulting Engineers,
Inc., Boise, Idaho, for Idaho Department of Health and
Welfare, Division of Environment, Jan. 1976.
_, Water Quality Standards and Wastewater
Treatment Requirements, Idaho Department of Environ-
mental and Community Services, Boise, June 1973.
Wood, T. V., "Water Pollution Control in Idaho: State
and Federal Laws," 8 Idaho L. Rev. 94, 1971.
195
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APPENDIX A
5. KANSAS
5.1 SUMMARY OF WATER QUALITY LAWS
In 1907, the Kansas legislature enacted a stringent
water pollution law, which remains in basically the
same form today. This law required all entities which
discharged sewage into state waters to obtain a permit
(K.S.A. i 65-164, 1972). This requirement applied to
all industrial as well as municipal polluters because
sewage was defined under this law as "chemical or
other waste from domestic, manufacturing or other
forms of industry" (Ibid.).
According to one author, this law's stringency has
been just a potential for pollution control since its
enactment in 1907 because "other sections of the law
create ambiguities that have been used by the Kansas
State Board of Health, to justify its failure to take
effective action" (Coggins, 1972). This author goes
on to state that,
. . . the 1907 statute set up a restricted
complaint-administrative hearing-lawsuit
procedure to handle violations, but this
procedure was aimed only at pollution prej-
udicial to the health of any of the inhabi-
tants, and abatement was the only remedy.
Moreover, the section providing the permit
procedure did not refer specifically to
industrial polluters, and the reporting
requirements did not seem to apply to
industries (K.S.A. §§ 65-164 to 166).
In 1937, a conservation district law was enacted (L.
1937, ch. 5, s 1). This act declared that:
the farms and grazing lands of the state
of Kansas are among the basic assets of the
state and that the preservation of these
lands is necessary to protect and promote
the health, safety, and general welfare of
its people; that improper land-use practices
have caused and have contributed, and are
now causing and contributing to, a progres-
sively more serious erosion of the farm and
grazing lands of this state by wind and
water . . . the consequences of such soil
erosion in the form of soil blowing and soil
washing are the silting and sedimentation
of stream channels, reservoirs, dams,
ditches . . . (K.S.A. § 2-1902).
This act also set forth the appropriate corrective
methods in order to:
. . . conserve soil resources and control
and prevent soil erosion and reduce flood
damages and to provide for the conservation,
development, utilization and disposal of
water, it is necessary that land-use prac-
tices and structural works of improvement
be adopted and carried out: that among the
procedures necessary for widespread adop-
tion, are the carrying on of engineering
operations such as the construction of
terraces, terrace outlets, check dams, dikes,
ponds, ditches, detention dams, grade sta-
bilization structures, channel improvements,
floodways, water resource developments and
the like; the utilization of strip cropping;
lister furrowing; land irrigation; seeding
and planting of waste, sloping, abandoned,
or eroded lands to water-conserving and
erosion-preventing plants, trees, and grasses;
forestation and reforestation; rotation of
crops; soil stabilization with trees,
grasses, legumes, and other thick-growing
soil-holding crops, retardation of run-
off by increasing absorption of rainfall;
and retirement from cultivation of steep,
highly erosive areas and areas now badly
gullied or otherwise eroded (K.S.A. §
2-1902(c)).
In 1948, Kansas undertook a study of pollution through-
out the large river basin of the Kansas River
(Metsler, 1957). The State Health Department of
Nebraska, the Bureau of Reclamation, the Corps of En-
gineers and the United States Public Health Service,
undertook this cooperative study of the Kansas River
and its tributaries. Public hearings were held to
explain the study's findings and in April, 1950, the
Kansas State Board of Health (which was created in
1949) adopted a policy from this study providing a
means and a time limit for large and small cities, to
provide for sewage treatment (Kan. G.S. 1949, 65-165,
to 171 (f)).
The State Board of Water Resources was created in 1955.
It numbered among its duties that of making a study of
the laws relating to the conservation and development
of water resources, appropriation of water for bene-
ficial use, flood control, construction of levees,
drainage, irrigation, soil conservation, watershed
development, stream control, gauging of stream and
stream pollution. These duties were delegated to the
Board in order to make a determination of the necessity
of enacting new or amendatory legislation in these
areas (K.S.A. 5 74-2608 (4). L. 1955, ch. 356, § 4;
L. 1967, ch. 420, s 1; July 1).
In 1962, the Kansas State Board of Health conducted a
study which estimated that a feedlot with 10,000 head
of cattle produces as much waste as half a million
people and that agricultural runoff from feedlots was
the greatest hazard to the quality of Kansas waters
(Coggins, 1972).
The Kansas State Board of Health, in 1965, promulgated
regulations dealing with the construction and use of
underground storage reservoirs and the construction
and use of disposal wells and surface ponds for the
confinement, storage and disposal of industrial
fluids including . . . brines ( L. 1965, ch. 506, Sec.
1 (4) p. See K.S.A. §528-13-1 to 28-13-11, Environment
Reporter, State Water Laws, vol. 1, § 781:0541).
During this same year, this Board drafted regulations
dealing with sewage discharge permits and river basin
policies (State Board of Health Regulations, 28-16-1
to 28-16-7, Effective Jan. 1, 1966).
The Kansas State Board of Health promulgated Kansas
Agricultural Waste Regulations in 1967 (K.S.A. ii
28-18-1 to 28-18-4). These regulations required
operators of proposed confined feeding operations to
register with the Kansas State Department of Health
(State Board of Health Regulations, 28-18-2 (a)). If
the Department finds that a particular confined feed-
ing operation constitutes a water pollution potential,
the operator must provide water pollution control fa-
cilities constructed in compliance with plans and
specifications which have received the approval of the
Department (State Board of Health Regulations, I
28-18-2). These facilities cannot begin operation un-
til a permit has been issued by the executive secretary
of the Kansas State Board of Health (K.S.A. S 28-18-
2 (e)).
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In 1967, extensive amendments were made to the 1907
water pollution laws (Kan. L. 1967, ch. 333 § 1-6,
April 28, 1967). These amendments expanded the powers
of the Kansas State Board of Health and provided that
a permit to a polluter be granted only if it would
serve the interests of the general public, or if the
discharge would not detract from the quality necessary
for beneficial use (K.S.A. 5 65-165).
One year later, the State Board of Health enacted a
regulation which stated that:
The owner or person responsible for the
discharge of sewage or other materials detri-
mental to the quality of waters of the
state . . . shall report such discharge to
the state department of health, environment-
al health services (State Board of Health
Regulations 28-16-27).
Kansas' statutory framework was unchanged by the Water
Pollution Control Act of 1970 (K.S.A. §§65-3301 to
3307). This Act was created in response to the 1970
federal water pollution amendments and its sole pur-
pose was to obtain federal sewage grant money (Coggins,
1972).
Kansas adopted water quality criteria for interstate
and intrastate waters in 1973 (Authorized by K.S.A. §
65-165-171 d, Criteria adopted April 13, 1973, Amended
October 12, 1973 Effective November 26, 1973, See
Environment Reporter, State Water Laws, vol. 1, §i
781:0501 to :0505). This topic will be discussed in
greater detail in the appropriate section.
The Kansas Legislature also enacted the Kansas Water
Pollution Information Act in 1973 (Senate Bill No.
510, Session of 1973, Approved April 11, 1973. See
Environment Reporter, State Water Laws, col. 1, §
781:0109).This Act requires that records, reports,
data, or other information that is obtained which is
relative to sources of discharge of water pollutants
be made available to the public.
On July 1, 1973, the Governor of Kansas signed legis-
lation which permitted the State Health Department to
administer a program which would allow Kansas to
participate in the national pollution discharge pro-
gram (Environment Reporter, Current Developments, May
1, 1973 to April 30, 1974, p. 280). However, on Sep-
tember 28, 1973, the Environmental Protection Agency
denied Kansas' request for approval of its permit pro-
gram (Environment Reporter, Current Developments, May
1, 1973 to April 30, 1974, p. 913; see also 365).
Statutes relating to water supply and sewage were en-
acted in 1974 (K.S.A. §§ 65-161 to 171; L. 1974, ch.
352, § 21, July 1). Basically, these statutes re-
quire a permit for the discharge of sewage and will be
examined in greater detail in the applicable section.
The Kansas Legislature also enacted a statute in 1974
which gave the Secretary of Health and Environment and
the local boards of health the power to examine all
nuisances (L. 1974, ch. 352, § 20; July 1, K.S.A. §
65-169).
Effective April 29, 1974, the Kansas State Board of
Health promulgated regulations in order to comply with
all requirements of the Federal Water Pollution Control
Act Amendments of 1972 (P.L. 92-500) concerning the
National Pollutant Discharge Elimination System
(Authorized by K.S.A. 1974 Supp. 65-165, 174 S.B. 698,
Sec. 1, L. 1974 Supp. 65-171d, 1974 S.B. 698, Sec. 2,
L. 1974, Sec. 2). On June 28, 1974, the Environmental
Protection Agency granted Kansas the authority to
issue NPDES permits (Environment Reporter, Current
Developments, May 1, 1974 to April 30, 1975, p. 326).
5.1.2 Poli cy
The Kansas Legislature has set forth its policy in
K.S.A. § 2-1902 (D) to:
provide for the conservation, use and de-
velopment of the soil and water resources
of this state, and for the control and pre-
vention of soil erosion and flood damages,
and thereby to preserve natural resources,
control floods, prevent impairment of dams
and reservoirs, assist in maintaining the
navigability of rivers and harbors, pre-
serve wild life . . . protect public lands,
and protect the health, safety, and general
welfare of the people of this state (L.
1937, ch. 5, § 2; L. 1955, ch. 7, i 1;
April, 13).
In regard to solid waste disposal, the Kansas Legis-
lature has declared:
that protection of the health and welfare
of the citizens of Kansas required the
safe and sanitary disposal of solid wastes.
The legislature finds that the lack of
adequate state regulations and control
of solid waste and solid waste management
systems has resulted in undesirable and
inadequate solid waste management prac-
tices that are detrimental to the health
of the citizens of the state, degrade the
quality of the environment; and cause
economic loss. For these reasons it is
the policy of the state to:
(a) Establish and maintain a cooperative
state and local program of planning and
technical and financial assistance for
comprehensive solid waste management.
(b) Utilize the capabilities of private
enterprise as well as the services of
public agencies to accomplish the desired
objectives of an effective solid waste
management program.
(c) Require a permit for the operation
of solid waste processing and disposal
systems (L. 1970, ch. 264, § 1; July 1,
K.S.A. § 65-3401).
5.1.3 Classification
Water uses in Kansas are grouped into either Class A
or Class B waters (Kansas Water Quality Criteria,
authorized by K.S.A. 51 65-165 to 65-171 d; Adopted
April 13, 1973; Amended October 12, 1973, Effective
November 26, 1973, Environment Reporter, State Water
Laws, Vol. 1, §§781:0501 to :0505).
Class A waters are protected for the following uses:
1. Body contact recreation. These waters
are intended for uses where the human body
may come in direct contact with the raw
water to the point of complete submergence
with the possibility of ingestion, such as
swimming, water skiing and skin diving.
2. The preservation and propagation of
desirable species of fresh warm water
aquatic biota, semi-aquatic life, water-
fowl , and wildlife.
3. Public water supply.
4. Industrial water supply.
5. Agricultural purposes (Environment Reporter,
State Water Laws, vol. 1, § 781:0501, Emphasis added).
197
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Class B waters are protected for the following uses:
1. Secondary contact recreation. These
waters are intended for uses such as fishing,
wading, boating or other activities where
ingestion of the water is not probable.
2. The preservation and propagation of
desirable species of fresh warm water
aquatic biota, semi-aquatic life, water-
fowl , and wildlife.
3. Public water supply.
4. Industrial water supply.
5. Agricultural purposes (Ibid.. Emphasis
addedT
All waters which annually reach zero natural flow are
exempted from water use classification and water qual-
ity criteria (Environment Reporter, State Water Laws,
vol. 1, i 781:0502) with the exception of those waters
that can be reasonably expected to support aquatic
wildlife because of pooling during periods of no flow
(Environment Reporter, State Water Laws, vol. 1, S
781:0503).
5.1.4 Standards
In order to prevent water pollution, the Kansas State
Board of Health is authorized to make rules "including
registration of potential sources of pollution" and to
"establish water quality standards for the waters of
the state to protect their beneficial uses" (K.S.A. §
65-164, 171 d).
Pollution is defined:
(a) as such contamination, or other altera-
tion of the physical, chemical or biological
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 aqua-
tic life of the state, or to the designated
beneficial uses, or (b) as such discharge
as will or is likely to exceed state efflu-
ent standards predicated upon technological-
ly based effluent limitations (K.S.A. §
65-171 d).
Kansas water quality standards are divided into gen-
eral and specific criteria.
General Criteria
The cumulative effect of waste discharges
to waters of the state will be guided by
the 1962 U.S. Public Health Service drink-
ing water standards. Pollutional sub-
stances contributed by man-made point
source waste discharges shall be maintained
below maximum permissible concentrations
which would be detrimental for public water
supplies, the preservation and propagation
of desirable diversified aquatic life,
recreational requirements, agricultural
needs, industrial needs, and other estab-
lished beneficial use. All waters shall
be controlled so that public health
hazards or nuisance conditions will not
develop due to man-made point source
discharge (Environment Reporter, State
Water Laws, Vol. 1, § 781:0502).
Specific Criteria
A. Bacteria
1. In Class A waters, the fecal coliform
content based on not less than five
samples taken during separate 24-hour
periods over not more than a 30-day
period, shall not exceed a geometric
mean of 200 per 100 ml sample, nor shall
more than 10 percent exceed 400 per 100
ml sample.
2. In Class B waters, the fecal coil-
form content shall not exceed 2,000 per
100 ml sample. It is recognized that
the bacterial criteria for Class A and
B waters will be violated as a result
of contributions from natural non-point
sources during periods when those waters
are being influenced by surface runoff.
B. Dissolved Oxygen
1. In Class A waters, the dissolved
oxygen content shall be maintained at
or above 5 mg/1. Dissolved oxygen con-
centrations less than 5 mg/1 shall not
be due to man-made point source waste
discharges.
2. In Class B waters, the dissolved
oxygen shall be maintained at or above
5 mg/1 (except for 4 mg/1 for short
periods of time within a 24-hour period).
Dissolved oxygen concentrations less
than the above levels shall not be due
to man-made point source waste discharges . .
D. pH
Man-made point source waste discharge
shall not cause the pH of waters of
the state to vary below 6.5 nor above
8.5.
E. Ammon i a
Man-made point source waste discharge
shall not cause the undissociated ammonium
hydroxide concentration of waters of the
state to exceed 0.15 mg/1 as N. . . .
G. Solids
There shall be no man-made deposits of
solids in waters of the state, either
organic or inorganic, which will be
detrimental to established beneficial
use. All waters shall be free of float-
ing debris, scum, and other floating
materials attributable to municipal,
industrial, or other waste disposal
practices in amounts sufficient to be
unsightly or detrimental to established
beneficial use.
H. Turbidity
There shall be no turbidity increase
in waters of the state, of other than
natural origin, that will cause sub-
stantial visible contrast with the
natural appearance of the water or
be detrimental to established bene-
ficial use.
I. Taste and Odor Producing Substances
Taste and odor producing substances from
man-made point sources shall be limited
to concentrations in the receiving water
that will not interfere with the pro-
duction of potable water by reasonable
water treatment processes, or impart
unpalatable flavor to fish, or result
in noticeable offensive odors in the
vicinity of the water, or otherwise
interfere with established beneficial use
of the water.
J. Color
Man-made point source discharges of color
producing substances shall be limited to
concentrations which will not be detrimental
198
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to established beneficial use of the
receiving water.
K. Toxic Substances
Toxic substances or synergistic effects
of toxic substances from man-made point
sources shall be limited to concentrations
in the receiving water that will not be
harmful to human, animal, plant or aquatic
life, or otherwise interfere with estab-
lished beneficial use of the water (Environ-
ment Reporter, State Water Laws, vol. 1,
Repori
:0502,
§ 781:0502).
5.1.5 Permit System
Before discharging sewage into any stream, the dis-
charger must obtain a permit from the Secretary of
Health and Environment (K.S.A. § 65-165).
Sewage is 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 (K.S.A. i 65-164).
The Secretary will issue a permit if in his opinion,
the general interests of the public health
would be subserved thereby, or that the
discharge of such sewage would not detract
from the quality of the waters of the state
for their beneficial uses for domestic or
public water supply, agricultural needs,
industrial needs, recreational needs, or
other beneficial use and that such discharge
meets or will meet all applicable state
water quality standards and applicable
federal water quality and effluent stan-
dards under the provisions of the Federal
Water Pollution Control Act and the 1972
amendments thereto (K.S.A. § 65-165).
The permit must stipulate the conditions on which the
discharge will be permitted and must set forth the
required treatment to protect beneficial use of the
waters of the state.
A water pollution control facility permit is required
of the operator of confined feeding operations (Kansas
Agricultural Wastes Regulations, Environment Reporter,
State Water Laws, Vol. 1, 5 781:0701). Applicants for
such a permit must submit their application to the
Kansas State Department of Health together with sup-
plemental information regarding general features of
topography, drainage course and identification of the
ultimate primary receiving streams (K.S.A. § 28-18-2).
Provision for a water pollution control facility is
not required if the Department determines that a pro-
posed or existing confined feeding operation does not
constitute a potential water pollution problem (K.S.A.
§ 28-18-2(c)). However, if the Department is of the
opinion that the confined feeding operation does con-
stitute a water pollution potential, the operator
must provide water pollution control facilities
(K.S.A. i 28-18-2(d)).
Water pollution control facilities cannot be placed in
use until a permit has been issued and is revocable
for cause on a thirty-day written notice (K.S.A. §
28-18-2 (e)).
Any person discharging or who had a potential to
discharge pollutants into the waters of the state was
required to fileone copy of the appropriate applica-
tion with the Division of Environmental Health by
December 31, 1974 (Kansas State Board of Health Regu-
lations 28-16-59). Any person proposing commencement
of a discharge of pollutants was required to file a
complete application no less than 180 days in advance
of the date on which the commencement of the dis-
charge of pollutants occurred (Ibid., i 28-16-59, II).
The requirement for an application is satisfied by
either the payment of the appropriate fee and the
filing of a Refuse Act application, or by filing a
completed application form which describes the type,
category, or size of the discharge, the facilities, or
activity and plans, specifications and engineering re-
port in accordance with Kansas State Board of Health
Regulations 28-16-1 through 28-16-7 (Id, § III).
If the permit is issued, the Director of the Division
of Environmental Health may attach certain conditions
including but not limited to:
1. Effluent limitations;
2. Schedule of compliance including any neces-
sary interim dates;
3. Special conditions; and
4. A monitoring program if appropriate (Author-
ized by K.S.A. § 65-165, 166, 171 d, effective April
29, 1974, § 28-16-60).
If the issuance of a permit is deemed advisable, pub-
lic notice must be prepared by the Director (Kansas
State Board of Health Regulations, § 26-16-61). This
notice must contain the following:
1. Name, address, telephone number of the
Division and any other places at which
interested persons may obtain further
information, request a copy of the draft
permit, and inspect and copy related forms
and documents.
2. Name and address of the applicant,
3. Brief description of the applicant's
activities or operations which result in
the discharge or potential discharge
described in the application (e.g., muni-
cipal waste treatment plant, confined ani-
mal feeding operation, petroleum refinery).
4. Name of watercourse to which the dis-
charge is made and ,a description of the
location of the discharge indicating
whether such discharge is a new or an
existing discharge.
5. A statement of the tentative determina-
tion to issue or deny a permit; and
6. A brief description of the procedures
for the formulation of final determina-
tions, including the 30-day comment period
and any other means by which interested
persons may influence or comment upon those
determinations (Ibid.).
All owners and operators of sewage systems or agri-
cultural activities discharging or having a potential
to discharge sewage into waters of the State must
have approved water pollution control facilities
(Kansas State Board of Health Regulations, § 28-16-62).
Permits are issued for a five-year term and may be
modified, suspended, or terminated if any permit con-
dition has been violated, the permit was obtained by
misrepresentation, there is a change in any condition
that requires a temporary or permanent reduction or
elimination of the discharge, or where a standard is
more stringent than the current permit effluent
limitations (Id, § IV).
199
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5.1.6 Sanctions and Enforcement Measures
The Secretary of Health and Environment and the local
boards of health have the authority to examine "all
nuisances, sources of filth and causes of sickness
that may, in their opinion, be injurious to the
health of the inhabitants within any county or muni-
cipality in this state" (K.S.A. 5 65-159). If such
a nuisance is found to exist, the Secretary or local
health board can order the owner or occupant to re-
move the nuisance within 24 hours at his own
expense. If the owner refuses to comply, he can be
subject to a fine of not less than $10 nor more than
$100, with each day's continuance constituting a
separate offense.
Whenever a complaint of pollution, or of the polluted
condition of any waters, is made to the Secretary of
Health and Environment, it is his duty to investigate
(K.S.A. § 65-164). The Secretary then has the author-
ity to order that the pollution cease within a rea-
sonable time, or that certain treatment of the
pollutant be performed.
Every sewage discharge permit is revocable, or subject
to modification and change by the Secretary of Health
and Environment (K.S.A. § 65-165). The penalty for
the willful or negligent discharge of sewage without
a duly issued permit, or the violation of any term
or condition of a permit subjects the discharger upon
conviction to a penalty of "not less than $2,500 and
not more than $25,000 and a further penalty of not
more than $25,000 per day for each day the offense is
maintained" (K.S.A. § 65-167). Further, the penalty
for discharging sewage without filling required re-
ports subjects the discharger to a fine of $1,000 per
day for each day the offense is maintained.
Any person who fails to furnish information which is
required by the Secretary is deemed guilty of a mis-
demeanor and upon conviction is subject to a fine of
not less than $50 nor more than $500 (K.S.A. § 65-169).
Knowingly making a false statement, representation or
certification in any application, record, report,
plan or other document or falsifying, tampering with
or knowingly rendering a monitoring device inaccurate
is punishable upon conviction by a fine of not less
than $25 nor more than $10,000 with each day's of-
fense constituting a separate offense (K.S.A. §
65-170 (c)).
Violation of: 1) any term or condition of any sewage
discharge permit, 2) any effluent standard or limita-
tion or anv water quality standard or other rule or
regulation, 3) any filing requirement, 4) any report-
ing, inspection or monitoring requirement, 5) any
lawful order or requirement, subjects the violator to
a civil penalty up to $10,000 for each violation
(K.S.A. 5 65-170 d).
5.2 ADMINISTRATION OF THE LAWS
5.2.1 Water Quality Laws
Water pollution control in Kansas is largely the
responsibility of the Department of Health and
Environment (K.S.A. § 75-5601 et. seq. created by
1974 Executive Reorganization order No. 3 issued
February 6, 1974, L. 1974, ch. 351). All of the
powers, duties, functions, records, property and per-
sonnel of the State Board of Health (Kan. Laws 1967,
ch. 434, § 25, K.S.A. § 74-901 et. seq. 1964, re-
pealed in 1974) and the State Department of Health
are transferred to the Department of Health and
Environment (K.S.A. § 75-5602).
The head of the Department is the Secretary of
Health and Environment who has the powers, duties
and functions which had been given to the Division of
Environmental Health, the existing director of En-
vironmental Health and the engineer of the State
Board of Health (K.S.A. § 75-5606). This Department
consists of the Division of Health and the Division
of Environment (K.S.A. i 75-5601).
The Secretary has the power to examine all nuisances
(K.S.A. § 65-159), issue sewage discharge permits
(K.S.A. § 65-165, 166), order the cessation of pol-
lution (K.S.A. § 65-164), and require treatment or
disposition of sewage. The Secretary also has the
power to make rules and regulations to prevent sur-
face and subsurface water pollution and soil pollu-
tion which is 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
(K.S.A. § 65-1716, 75 § 5602). Further, the Secre-
tary may adopt by reference any regulation relating
to water quality and effluent standards promulgated
by the federal government (K.S.A. 5 65-171 d).
The Director of the Division of Environment must in-
vestigate and report all matters that relate to water
supply and sewage and the pollution of the waters of
the state that come before the Secretary for investi-
gation or action (K.S.A. 5 65-170). The Director may
make special investigations and any recommendations
he deems wise. The Director also has the power to
impose a penalty of up to $10,000 for a violation of
K.S.A. S 65-170 (d).
The Advisory Commission on Environment advises and
consults with the Secretary relating to the manage-
ment and functions of the Division of Environment and
the operation of programs under the Division's juris-
diction (K.S.A. § 75-5615). This Commission consists
of seven members who are appointed by the Governor.
5.2.2 Additional Agency Involvement
The Water Resources Board consists of seven members
who are appointed by the Governor (K.S.A. § 74-2605).
It is the duty of the Board to:
1. collect and compile information per-
taining to climate, water, and soil;
2. prepare a plan for the water resource
development of each watershed in the state;
3. review plans for water resource develop-
ment, management and use by any state or
local agency;
4. study water resource laws for the pur-
pose of determining the need for amendatory
legislation; and
5. make recommendations to other state
agencies and political subdivisions for
the coordination of water management and
conservation practices and studies (K.S.A.
5 74-2608).
Further duties of the Water Resources Board include
the making of:
a study of the laws of this state and of the
other states and of the federal government
relating to conservation and development
of water resources, appropriation of water
for beneficial use, flood control, construc-
tion of levees, drainage, irrigation, soil
conservation, watershed development, stream
control, gauging of stream and stream pol-
lution for the purpose of determining the
necessity or advisability of the enactment
200
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of new or amendatory legislation in this
state on such subjects.
. . . recommendations to other state
agencies and political subdivisions of the
state for the control, construction of
levees, drainage, irrigation, soil con-
servation, watershed development, stream
control, gauging of stream, stream pollu-
tion, and ground water studies (K.S.A. §
74-2608).
General administrative control of water resources in
Kansas is the task of the Division of Water Resources,
which is a division of the Board of Agriculture (K.S.A.
§ 75-506a). This division is administered by the
Chief Engineer, who is responsible for administering
the statutes governing the appropriation and distri-
bution of water (K.S.A. §74-506d, 82a-706). Further,
the Chief Engineer may adopt rules and regulations to
carry out his duties pertaining to the control, con-
servation, regulation, allotment and distribution of
the water resources of the state (K.S.A. § 82a-706a).
5.3 SPECIAL LEGISLATION
The Water Pollution Control Act was enacted in 1970
because:
the pollution of waters constitutes a men-
ace to public health, creates public nuisances,
is harmful to wildlife, fish and aquatic
life, and impairs domestic, agricultural,
industrial, recreational and other legiti-
mate beneficial uses of water; and since
federal legislation provides incentives
for state financial participation in the
construction of public water pollution
control facilities by increasing the por-
tion of federal aid contributed when the
state also participates; the legislature
hereby determines that it is essential for
the public health, safety and welfare of
the state and the residents thereof and
advantageous to state and local government
taxpayers to undertake a program to finan1
cially assist the construction of public
facilities to abate and prevent the pol-
lution of water, such program to be under-
taken as a cooperative partnership with
municipalities and with the United States
government and agencies thereof (L. 1970,
Ch. 263, 1; March 21, K.S.A. § 65-3301).
This Act established the state water pollution control
account to provide financial assistance to municipal-
ities in the construction of water pollution control
projects which qualify for federal aid and assistance
(K.S.A. § 65-3302).
Kansas' Solid Waste Act was also enacted in 1970 (L.
1970, ch. 264 5 3; July 1, amended by L. 1974, ch.
348, § 30; L. 1974 ch. 352 § 157; July 1). This Act
makes it unlawful to:
(a) Dump or deposit, or permit the dumping
or depositing of any solid wastes onto the
surface of the ground or into the waters
of the state without having obtained a
permit as required by K.S.A. 65-3407, as
amended; Provided, That solid wastes in
normal farming operations or in the pro-
cessing or manufacturing of other products
in a manner that will not create a public
nuisance or adversely affect the public
health: Provided further, That this provi-
sion shall not prohibit individuals from
dumping or depositing solid wastes resulting
from their own residential or agricultural
activities onto the surface of land owned
or leased by them when such wastes do not
create a public nuisance or adversely
affect the public health (K.S.A. § 65-3409).
5.4 RELATED LEGISLATION
The Kansas Water Pollution Act dealt with the dis-
closure of information relating to water pollution
(Senate Bill No. 510, Session of 1973, Approved April
11, 1973). It was enacted by the Legislature of the
State of Kansas that:
Records, reports, data or other information
obtained relative to or from sources or poten-
tial sources of discharges of water pollutants
Water Quality
Figure 1. Kansas Water Agencies and Major Functions
Water Rights Administration Wjjter planning and Development
Secretary of Health -
1
•Department of Health
and Environment
Advisory
Committee
on the
Environment
i
Division of Health
Division of Environment
Division of Water Resources
II
Administration of Laws
Pertaining to Dams, Levees
and Channel Changes
201
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(Senate Bill No. 510, Session of 1973, Approved April
11, 1973). It was enacted by the Legislature of the
State of Kansas that:
Records, reports, data or other information
obtained relative to or from sources or
potential sources of discharges of water
pollutants shall be available to the public
except that upon a showing satisfactory to
the Department of Health by any person that
such records, reports, data or other in-
formation would divulge methods or processes
entitled to protection as trade secrets,
then the Department of Health shall con-
sider such records, reports, data, or
other information as confidential: Pro-
vided, that nothing in this act shall be
construed to make confidential any efflu-
ent data, including records, reports, or
information and permits, draft permits and
permit applications. Any such records,
data, or other information considered con-
fidential may be made available to other
officers, employees, or authorized repre-
sentatives of the federal, state, and
local government with responsibilities in
water pollution control and additionally
may be utilized in any proceeding whether
civil or criminal (K.S.A. i 65-1709).
5.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
The Kansas State Board of Health promulgated regula-
tions in 1974 with the intent "to comply with State
statutes relative to water pollution control dis-
charge permits and to comply with all requirements of
the Federal Water Pollution Control Act Amendments of
1972 (P.L. 92-500) concerning the NPDES and federal
regulations adopted pursuant thereto" (Kansas State
Board of Health Regulations 28-16-57 to 63). These
regulations required that any person who was dis-
charging pollutants into the waters of the state to
file one copy of the appropriate application by
December 31, 1974 (K.S.B.H. Regs. 28-16-59). Any
person who proposes the commencement of a discharge
after these regulations were enacted must file a
complete application "1) no less than 180 days in
advance of the date on which it is desired to com-
mence the discharge of pollutants or 2) in sufficient
time prior to commencement of the discharge of pollu-
tants to insure compliance with the requirements of
State or Federal law" (K.S.B.H. Regs. 28-16-59 II).
If the Director deems it advisable to issue a permit,
he can attach conditions which include effluent limi-
tations, schedules of .compliances, special conditions,
and a monitoring program (if appropriate) (K.S.B.H.
Regs. 28-16-60 (II)). No permit can be issued if the
Regional Administrator of the EPA for Region VII has
objected to its issuance (K.S.B.H. Regs. 28-16-62 I,
A (3)).
The Kansas State Board of Health has also promulgated
regulations dealing with Kansas Permits, Spills, and
Grants Regulations and with Kansas Underground Stor-
age Regulations, neither of which deals with agricul-
ture or irrigation return flows.
The only regulations which do pertain to agriculture
are the Kansas Agricultural Waste Regulations
(K.S.B.H. Regs. 28-18-1 to 4). These regulations re-
quire the operator of a confined feeding operation to
register with the Kansas State Department of Health
(now with the Department of Health and Environment)
(K.S.B.H. Regs. 28-18-2).
The applicants must submit the application along with
supplemental information regarding the general
features of topography, drainage course, and identify
the ultimate primary receiving streams (K.S.B.H. Regs.
28-18-2 (b)).
If the Department of Health and Environment finds that
a proposed or existing confined feeding operation does
not constitute a potential water pollution problem,
then water pollution control facilities are not re-
quired (K.S.B.H. Regs. 28-18-2 (c)). However, if the
operation does constitute a water pollution potential,
the operator must provide water pollution control
facilities, constructed in accordance with approved
plans and specifications (K.S.B.H. Regs. 28-18-2 (d)).
Water pollution control facilities include waste re-
tention lagoons, retention ponds, or waste treatment
facilities (K.S.B.H. Regs. 28-18-1 (i)).
Waste retention lagoons or retention ponds mean:
excavated or diked structures, or natural
depressions provided for or used for the
purpose of containing or detaining animal
wastes consisting of body excrements, feed
losses, litter, cooling waters, wash waters,
whether separately or collectively, or any
other associated materials detrimental to
water quality or to public health, or to
beneficial uses of the waters of the state.
A waste retention structure shall not be
construed to be a treatment facility and
discharges of waste water therefrom shall
not be allowed except as authorized by
regulations 28-18-3 to 28-18-4 (K.S.B.H.
Regs. 28-18-1 (h)).
Waste treatment facilities means:
structures and/or devices which stabilize,
or otherwise control pollutants so that
after discharge of treated wastes, water
pollution does not occur and the public
health and the beneficial uses of the wa-
ters of the state are adequately protected
(Ibid.).
Water pollution control facilities cannot be placed
in use until a permit has been issued (K.S.B.H. Regs.
28-18-2 (e)). These permits are revocable for cause
on thirty days' written notice.
The requirements for various facilities include:
(a) CATTLE: The minimum water pollution
control facilities for the confined feed-
ing of cattle shall be retention ponds
capable of containing three inches of
surface runoff from the feedlot area,
waste storage areas, and all other waste
contributing areas. Diversion of surface
drainage prior to contact with the confined
feeding area or manure or sludge storage
areas shall be permitted. Waste retained
in detention ponds shall be disposed of
as soon as practicable to insure adequate
retention capacity of future needs.
(b) SWINE: Waste retention lagoons for
swine feeding operations may be allowed in
lieu of waste treatment facilities. Waste
retention lagoons must be capable of retain-
ing all animal excreta, litter, feed losses,
cooling waters, wash waters, and any other
associated materials and shall additionally
be capable of retaining three inches of
rainfall runoff from all contributing
drainage areas. Diversion of surface
202
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drainage prior to contact with the confined
feeding area or manure or sludge storage
areas shall be permitted. Provision must
be made for periodic removal of waste
material from retention lagoons.
(c) SHEEP: The minimum water pollution
control facilities for the confined feed-
ing of sheep shall be retention ponds
capable of containing three inches of
surface runoff from the confined feeding
area, waste storage areas, and all other
waste contributing areas. Diversion of
surface drainage prior to contact with the
confined feeding area or manure or sludge
storage areas shall be disposed of as soon
as practicable to insure adequate reten-
tion capacity for future reuse (K.S.B.H.
Regs. 28-18-3).
Water pollution control facilities must be operated
and maintained "so as to prevent water pollution and
to protect the public health and the beneficial uses
of the waters of the state" (K.S.B.H. Regs. 28-18-4).
Wastes removed from retention ponds, waste treatment
facilities, or confined feeding areas may be used
for irrigation or spread on land surface and mixed
with the soil in a manner which will prevent runoff
of wastes (Ibid).
5.6 CASE LAW APPLICABLE TO AGRICULTURE
In McDaniel y. City of Cherryvale (91 Kan. 40, 136
P. 899, 1913), the Supreme Court of Kansas held that
a cause of action for permanent damage which was
caused by the defendant's pollution of a stream ac-
crued when the sewage and impurities were first
deposited into the stream. The court also stated
that when two or more persons, by their concurrent
action, pollute a stream, to the injury of another,
they are jointly and severally liable for the
wrongdoing.
The Kansas Supreme Court has upheld an award of
damages for the loss of livestock caused from the
pollution of streams (Phillips v. Empire Oil and Re-
fining Co., 131 Kan. 516, 292 P. 782, 1930; Holden v.
Great Lakes Pipe Line Co., 139 Kan. 71, 29 P.2d
1076, 1934; Rusch v. Phillips Petroleum, 163 Kan. 11,
180 P.2d 270, 1947; Gano v. Hall, 188 Kan. 491, 363
P.2d 551, 1961).
In Gardenshire v. Sinclair-Prairie Oil Co. (141 Kan.
865, 44 P.2d 280, 1935), the Supreme Court of Kansas
held that a riparian landowner's cause of action for
damage to a stream by the discharge of salt water and
other deleterious matter from oil wells did not ac-
crue until the landowners were injured by that
discharge.
In 1946, the Kansas Supreme Court held that a judg-
ment for permanent damage to realty because of the
pollution to a stream by the city did not trigger res
judicata as to a subsequent action against a creamery
association for damages sustained in the following
two years because of injury to livestock and under-
ground water supply (Klassen v. Central Kansas
Cooperative Creamery Association, 160 Kan. 697, 165
P.2d 601, 1946).~
Atkinson v. Henngton Cattle Co. (£00 Kan. 298, 436
P.2d 816, 1968) involved an action for damages for
the pollution of the plaintiff's dairy farm water
supply from the defendant's cattle feeding operation.
The Supreme Court of Kansas held that the evidence
was sufficient to support the lower court's judgment
for actual damages, but was insufficient to support
an award for punitive damages. The court indicated
that in order to recover punitive damages in a case
such as this, the claimant must show malice, vin-
dictiveness, indifference, or gross and wanton
conduct.
5.7 INFORMATION SOURCES
Coggins, George Cameron, "Regulation of Air and Water
Quality in Kansas: A Critical Look at Legislative
Ambiguity and Administrative Discretion," 21 Kansas
Law Review, 1, 1972.
Metzler, Dwight F., "Pollution Problems in Kansas,"
5 Kansas Law Review. 611, 1957.
203
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APPENDIX A
6. MONTANA
6.1 SUMMARY OF WATER QUALITY LAWS
6.1.1 Background
As far back as 1895, Montana was concerned with water
pollution. In that year, the Montana State Legisla-
ture enacted a statute which made it a criminal
offense to willfully poison any well, spring, or
reservoir (R.C.M. § 94-35-255, En. Sec. 631, Pen. C.
1895). This statute still remains in effect and pro-
vides that a conviction under this statute is punish-
able by imprisonment in the state prison for a term
of not less than one nor more than ten years.
Six years later, a statute was enacted which prohib-
ited the depositing of coal slack into streams of
that water which was used for domestic purposes or
for irrigation (R.C.M. § 94-3551, En. Sec. 1, p. 165,
L. 1901). A companion statute provided that viola-
tion of the above statute resulted in a fine of not
less than $200, nor more than $500, for each offense
(R.C.M. i 94-3552).
In 1907, legislation was enacted which gave the State
Board of Health the power to prohibit pollution from
sewage discharges (Acts 1907, p. 477, c. 177 § 8,
Rev. Codes 5 1566). The Water Pollution Control Act
was enacted in 1947 to conserve the waters of the
state by maintaining and improving the quality of
water. In 1955, a more comprehensive law was enacted
to control and protect water for recreation, industry
and agriculture. A water pollution control council
was established and directed to classify streams and
set water quality criteria. Montana became one of
the first states to develop enforceable stream
classifications (Water Quality Inventory, 1976, p.
18).
In 1971, the Montana State Legislature enacted the
Montana Environmental Policy Act (R.C.M. § 69-6501 to
6517, ch. 238, L. 1971). The purpose of the Act was
to:
declare a state policy which will encourage
productive and enjoyable harmony between
man and his environment", to promote efforts
which will prevent or eliminate damage to
the environment and biosphere and stimulate
the health and welfare of man; to enrich
the understanding of the ecological systems
and natural resources important to the
state; and to establish an Environmental
Quality Council (R.C.M. § 69-6502).
Two years later, water quality criteria were enacted
and adopted by the Montana Department of Health and
Environmental Sciences (Adopted July 13, 1973,
Effective November 5, 1973; Amended July 19, 1974,
Effective Septentier 5, 1974. See Environment Report-
er, State Hater Laws, Vol. II, 831:0501 to :0510).
This criteria consisted of water quality standards,
water-use classifications, water use descriptions and
specific water quality criteria and general water
quality criteria.
In 1974, the Montana Pollutant Discharge Elimination
System (MPDES) was adopted by the Montana State De-
partment of Health and Environmental Sciences and was
approved by the Environmental Protection Agency (EPA)
on June 10, 1974 (See State Department of Health and
Environmental Sciences Regulation 16-2.14 (10)-
S14460; See Environment Reporter, State Water Laws,
Vol. II, 831:0581 to :0587).
The basic laws regarding water pollution as amended
in 1971 and 1973 provide for a broad, comprehensive,
but flexible water quality planning and management
program administered by the Water Quality Bureau,
Environmental Sciences Division, Department of Health
and Environmental Sciences (Mont. S.L. 1971, Ch. 21;
Mont. S.L. 1973, Ch. 505; R.C.M. § 69-4801 to 4827,
1975 Supp.). The law sets out a unique public policy
as it pertains to irrigation return flows, and em-
ploys six important elements to insure the policy
will be carried out. They are:
1. water quality standards
2. state-wide monitoring and surveillance
3. waste discharge permit program
4. construction grants and programs to
insure treatment facilities are proper-
ly operated
5. public participation, and
6. enforcement (Water Quality Inventory,
1976, p. 75).
These features will be discussed in the following
sections.
6.1.2 Pol icy
The law states that it is the public policy of the
state of Montana to:
(a) conserve water by protecting, main-
taining and improving the quality and
potability of water for public water
supplies, wildlife, fish and aquatic
life, agriculture, industry, recreation
and other beneficial uses;
(b) provide a comprehensive program for
the prevention, abatement and control
of water pollution (R.C.M. § 69-4801(1)).
The section further states that, "It is not necessary
that wastes be treated to a purer condition than the
natural condition of the receiving stream as long as
the minimum treatment requirements are met." "Natu-
ral" refers to conditions or material present from
runoff or percolation over which man has no control
or from developed land where all reasonable land,
soil and water conservation practices have been
applied^Conditions resulting from the reasonable
operation of dams at the effective date of this Act
are "natural" (Ibid., § 2, emphasis added).
Montana's water quality standards were:
adopted to establish maximum allowable
changes in water quality and establish
limits for pollutants which affect pre-
scribed beneficial uses of state waters.
The department adopts as a rule the pol-
icy that best practicable treatment and
control of waste, activity and flow is to
be provided to maintain dissolved oxygen
and overall water quality at the highest
possible levels, and . . . dissolved
chemical substances, toxic substances
. . . turbidities, color, odor and other
deleterious substances at the lowest
possible levels (Environment Reporter,
State Water Laws, Vol. II. 831.05011.
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The Montana Environmental Policy Act sets forth the
state's policy for the environmental, and even though
it does not expressly deal with water quality it does
show Montana's concern for its environment:
The legislative assembly, recognizing the
profound impact of man's activity on the
interrelations of all components of the
natural environment, particularly the pro-
found influences of population growth,
high-density urbanization, industrial
expansion, resource exploitation and new
and expanding technological advances and
recognizing further the critical impor-
tance of restoring and maintaining environ-
mental quality to the overall welfare and
development of man, declares that it is
the continuing policy of the state of
Montana, in cooperation with the federal
government and local governments, and other
concerned public and private organizations,
to use all practicable means and measures,
including financial and technical assist-
ance, in a manner calculated to foster
and promote the general welfare, to create
and maintain conditions under which man
and nature can coexist in productive har-
mony, and fulfill the social, economic,
and other requirements of present and
future generations of Montana.
(a) In order to carry out the policy set
forth in this act, it is the continuing
responsibility of the state of Montana
to use all practicable means, consistent
with other essential considerations of
state policy, to improve and coordinate
state plans, functions, programs, and
resources to the end that the state may -
(1) fulfill the responsibilities of each
generation as trustee of the environment
for succeeding generations;
(2) assure for all Montanans safe, health-
ful, productive, and esthetically and
culturally pleasing surroundings;
(3) attain the widest range of beneficial
uses of the environment without degrada-
tion, risk to health or safety, or other
undesirable and unintended consequences;
(4) preserve important historic, cultural,
and natural aspects of our unique heritage,
and maintain, wherever possible, an envi-
ronment which supports diversity and variety
of individual choice;
(5) achieve a balance between population
and resource use which will permit high
standards of living and a wide sharing
of life's amenities; and
(6) enhance the quality of renewable re-
sources and approach the maximum attain--
able recycling of depletable resources.
(b) The legislative assembly recognizes
that each person shall be entitled to a
healthful'environment and that each person
has a responsibility to contribute to the
preservation and enhancement of the
environment (Ch. 238, L. 1971, R.C.M. 5
69-6503).
Finally, the Montana water Use Act declares it to be
the policy of the state to "provide for the wise
utilization, development, and conservation of the
waters of the state for the maximum benefit of the
people with the least possible degradation of the
natural aquatic ecosystems. ..." (Sec. 89-869,
R.C.M. 1947, New M.A.C. Not. No. 36-3-16; order M.C.A.
No. 36-3-11; Adopted February 6, 1976, Effective
March 7, 1976).
6.1.3 Classification
The Board of Health and Environmental Sciences has
established a classification of waters in accordance
with present and future beneficial uses (R.C.M. §
69-4808). The Board has classified waters in
Montana as either A - closed, A open - D-,, B-Di,
B-D2, B-D3, C-Dls C-D2 or E-f.
A-closed waters are those waters used for
drinking, culinary and food processing
purposes which are suitable for use after
simple disinfection. Public access and
activities such as livestock grazing and
timber harvest are controlled by the
utility owner under conditions prescribed
and orders issued by the department.
Only those waters on which access is
presently controlled by the utility owner
have been classified as A-closed. If
other uses are permitted the water must
be classified as A-open-D-|.
A-open-D-| waters are defined as those waters used
for:
drinking, culinary and food processing
purposes suitable for use after simple
disinfection and removal of naturally
present impurities. Water quality is
to be maintained suitable for bathing,
swimming and recreation; growth and
propagation of salmoned fishes and
associated aquatic life, waterfowl and
furbearers; and agricultural and industri-
al water supply. Where the waters are
used for swimming or other water-contact
sports, analyses are to be made by the
utility owner and the Department to
determine if a higher degree of treat-
ment is required for public water use.
State waters within the confines of national parks
and nationally designated wild, wilderness or
primitive areas receive this classification with the
exception of those waters which are adjacent to
developed areas.
B-D] waters are to be maintained in such a quality
as is
suitable for drinking, culinary and food
processing purposes after adequate treat-
ment to coagulation, sedimentation, fil-
tration, disinfection and any additional
treatment necessary to remove naturally
present impurities; bathing, swimming
and recreation; growth and propagation
of salmoned fishes and associated aquatic
life, waterfowl and furbearers; and agri-
cultural and industrial water supply.
B-D-2 waters must be maintained in a sufficient
quality
for drinking, culinary and food processing
purposes after adequate treatment equal
to coagulation, sedimentation, filtra-
tion, disinfection and any additional
treatment necessary to remove naturally
present impurities; bathing, swimming,
and recreation; growth and marginal
propagation of salmoned fishes and asso-
ciated aquatic life, waterfowl and fur-
bearers; and agricultural and industrial
water supply.
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B-D3 waters must be maintained in a suitable quality
for drinking, culinary and food processing
purposes after adequate treatment equal
to coagulation, sedimentation, filtration,
disinfection and any additional treatment
necessary to remove naturally present im-
purities; bathing, swimming and recreation;
growth and propagation of non-salmoned
fishes and associated aquatic life, water-
fowl and fur-bearers; and agricultural and
industrial water supply.
C-D-] waters must be maintained in a suitable quality
"for bathing, swimming and recreation; growth and
propagation of salmoned fishes and associated aquatic
life, waterfowl and furbe^rers, and agricultural and
industrial water supply."
C-Dj waters must be maintained in a quality which is
suitable "for bathing, swimming and recreation;
growth and marginal propagation of salmoned fishes
and associated aquatic life, waterfowl, and fur-
bearers; and agricultural and industrial water
supply."
E-F waters must be maintained in a quality suitable
"for agricultural and industrial water uses other
than food processing (M.A.C. 16-2.14(10) S14480
Hater Quality Standards, Montana State Department of
Health and Environmental Sciences. See also Environ-
ment Reporter. State Hater Laws, Vol. II, § 831.0501
to .tisToT.
6.1.4 Standards
Montana's water quality standards were:
adopted to establish maximum allowable
changes in water quality and establish
limits for pollutants which affect pre-
scribed beneficial uses of state waters.
The department adopts as a rule the policy
that best practicable treatment and control
of waste, activity and flow is to be pro-
vided to maintain dissolved oxygen and
overall water quality at the highest
possible levels, and . . . dissolved
chemical substances, toxic substances,
. . . turbidities, color, odor and other
deleterious substances at the lowest
possible levels (Environment Reporter,
State Mater Laws, Vol. II, § 831-0501).
Water quality standards in Montana are based upon the
preceding water classifications, water use descrip-
tions, specific water quality criteria, and general
water quality criteria. The water quality standards
have been revised several times since 1967, the
latest being on July 13, 1973.
General water quality criteria applies to all state
waters except where specific water quality criteria
are more applicable to a specific water-use classifi-
cation.
"State waters" are defined as: "any body of water,
irrigation system or drainage system either surface
or underground" (R.C.M. § 69-4802). This definition
specifically excludes irrigation waters where such
waters are consumed within the irrigation system and
are not returned to any other state waters.
General water quality criteria are based upon:
1. The state's policy of nondegradation
of existing high water quality.
2. Present and anticipated beneficial
uses of the receiving water.
3. The quality and nature of flow of
the receiving water.
4. The quantity and quality of the
sewage, industrial waste or other
waste to be treated.
5. The presence or absence of other
sources of pollution on the same
watershed (See Environment Reporter,
State Mater Laws, Vol. II, i 831:0508).
For the design of disposal systems, stream flow dilu-
tion requirements are to be based upon a minimum of
seven-day consecutive flow which may be:
expected to occur on the average of once
in ten years. When dilution flows are
less than the above flow at a point dis-
charge, the discharge is to be governed
by the permit conditions developed for
the discharge through the waste discharge
permit program (M.A.C. 16-2, 14(10) -
S14480 Water Quality Standards (6) d.
See also Environment Reporter, State
Hater Laws. Vol. II, § 831:0508(d)).
State surface waters are to be free from
substances attributable to municipal,
industrial, agricultural practices or
other discharges that will:
(i) Settle to form objectionable sludge
deposits or emulsions beneath the sur-
face of the water or upon adjoining
shorelines.
(ii) Create floating debris, scum, a
visible oil film (or be present in
concentrations at or in excess of 10
milligrams per liter) or globules of
grease or other floating materials.
(iii) Produce odors, colors or other
conditions as to create a nuisance or
render undesirable tastes to fish flesh
or make fish inedible.
(iv) Create concentrations or combina-
tions of materials which are toxic or
harmful to human, animal, plant, or
aquatic life (Id, (e)).
No wastes are to be discharged and no
activities conducted such that the wastes
or activities, either alone or in com-
bination with other wastes or activities,
will violate, or can reasonably be
expected to violate, any of the
standards . . . (Id, (f)).
No wastes are to be discharged and no
activities conducted which, either alone
or in combination with other wastes or
activities, will cause turbidities to
exceed those allowed by specific water
quality criteria; provided, short-term
activities necessary to accommodate
essential dredging, channel or bank al-
terations, stream diversions or other
construction where turb.idities in excess
of the criteria are unavoidable, may be
authorized by the Department under con-
ditions as it may prescribe (Id. (g)).
Existing discharges to state waters will
be entitled a mixing zone as determined
by the Department (Id, (1)).
Until such time as minimum stream flows
are established for dewatered streams,
the minimum treatment requirements for
206
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discharges to dewatered receiving streams
are to be no less than the minimum treat-
ment requirements prescribed (Id, (m)).
Pollution resulting from storm drainage,
storm sewer discharges, and non-point
sources, including irrigation practices,
road building, construction, logging
practices, overgrazing and other practices,
are to be eliminated or minimized as
ordered by the Department (^d, (o),
emphasis added).
Application of pesticides in or adjacent
to state waters is to be in compliance
with the labeled direction, and in
accordance with provisions of the Montana
Pesticides Act (Title 27, Chapter 2,
R.C.M. 1947) and the Federal Environmental
Pesticides Control Act (Public Law 92-516).
Excess pesticides and pesticide containers
are not to be disposed of in a manner or
in a location where they are likely to
pollute state waters (Id. (p)).
6.1.5 Permit System
In 1974, Montana enacted the Montana Pollutant Dis-
charge Elimination System (MPDES) in order "to
implement one common system for issuing permits for
point sources discharging pollutants into state
waters pursuant to Section 69-4801 et. seq. R.C.M.
(1947) and Section 402(b) of the Federal Water
Pollution Control Act Amendments of 1972, P.L.
92-500 and to meet the requirements of the National
Pollutant Discharge Elimination System program
(M.A.C. § 16-2.14(10)-S14460, Jan. 18, 1974).
Section 402(b) provides for the transfer of juris-
diction of the NPDES in Montana from the United
States Environmental Protection Agency to the state
of Montana. On June 10, 1974, the Environmental
Protection Agency granted Montana the authority to
issue NPDES permits (See Environment Reporter, Cur-
rent Developments, May 1, 1974 to April 30, 1975,
p. 266).Permits issued under prior rules of
Montana Administrative Code (M.A.C.) 16-2.14(10)-
SH460 and M.A.C. 16-2.14(10)-S14530 will remain in
effect until a permit is issued under this rule.
The owner or operator of any point source which dis-
charges pollutants into state waters must comply
with the following:
(i) Have filed a complete Refuse Act permit
application with the U.S. Army Corps of
Engineers which satisfies the filing re-
quirements for NPDES; or
(ii) Have filed a complete NPDES permit
application with EPA; or
(iii) File an appropriate MPDES permit
application within 60 days following the
effective date of this rule (March 8, 1974,
16-2.14(10)-S14460, 4(a)).
MPDES requirements are applicable to those discharges
of irrigation return flow under NPDES requirements
'(16-2.14(10)-S14460, 4(d), emphasis added; See the
Federal Register, July 5, 1973, Vol. 38, No. 128,
Part III).
When the Department receives a completed MPDES permit
application, it will make a tentative determination
based upon effluent standards, limitations, standards
of performance for new sources of pollutants, toxic
effluent standards, prohibitions, pretreatment stan-
dards and water quality standards.
The Department will then either give written notice
to the applicant of its decision to deny the permit
or if their decision is to issue the permit they
will prepare an MPDES draft permit (Id, § 5(b)).
The draft permit must contain proposed effluent
standards, schedules of compliance and a brief de-
scription of any other proposed special conditions
which will have a significant impact upon the dis-
charge described in the permit application. Appen-
dix 6-A contains the conditions and terms of the
MPDES permits as set out in the Administrative Code.
The Department must give public notice of every com-
pleted MPDES permit application (Id, 5(c)). If
sufficient public interest is expressed to the De-
partment, it must then hold a public hearing (Id,
5(f)). The Department will then make a final deter-
mination on issuance or denial of the permit.
Before the enactment of the MPDES program, a permit
was required to "construct, modify, or operate a
disposal system which discharges to any state
waters; or construct or use any outlet for the dis-
charge of sewage, industrial wastes, or other wastes
to any state waters; or discharge sewage, industrial
wastes, or other wastes into any state waters ..."
(R.C.M. § 69-4806).
Application for a discharge permit must be submitted
to the Department of Health and Environmental Sci-
ences (R.C.M. § 69-4809). If the Department denies
an application for a permit or modifies a permit, it
must give written notice of its action. The appli-
cant can then request a hearing before the Board of
Health and Environmental Sciences (R.C.M. i 69-
4807.1). After such a hearing the Board will affirm,
modify, or reverse the Department's decision.
Modification of a permit is effective 30 days after
the holder receives the notice unless the Department
specifies a later date. If the holder has re-
quested a hearing, modification is not effective
until twenty days after receipt of notice of the
Board's action.
If a permit has been suspended or revoked by the
Department, the Department can specify that the
suspension or revocation is effective immediately
(R.C.M. 5 69-4807(2)). This is especially true if
the Department has made a finding that the violation
is likely to continue and will cause pollution which
will result in harmful effects. The holder can then
petition to the Board for a hearing on this matter.
6.1.6 Sanctions,and Enforcement Measures
Montana water laws make it unlawful to:
1. cause pollution of any state waters
or to place or cause to be placed any
wastes in a location where they are likely
to cause pollution of any state waters;
2. carry on any of the following activi-
ties without a current permit from the
Department:
(a) construct, modify, or operate a dis-
posal system which discharges to any state
waters;
(b) construct or use any outlet for the
discharge of sewage, industrial wastes,
or other wastes to any state waters; or
(c) discharge sewage, industrial wastes,
or other wastes into any state waters; or
3. violate any limitation imposed by a
current permit (R.C.M. § 69-4806).
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Pollution is defined in Montana statutes as:
contamination, or other alteration of the
physical, chemical, or biological prop-
erties of any state waters, which exceeds
that permitted by Montana water quality
standards, including, but not limited to,
standards relating to change in temperature,
taste, color, turbidity, or odor; or dis-
charge of any liquid, gaseous, solid,
radioactive, or other substance into any
state water which will or is likely to
create a nuisance or render the waters
harmful, detrimental, or injurious to
public health, recreation, safety, welfare,
livestock, wild animals, birds, fish, or
other wildlife. A discharge which is
authorized under the pollution discharge
permit rules of the board is not "pollution"
under this chapter (R.C.M. 5 69-4802(5)).
Pollutant is defined by MPDES as:
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, muni-
cipal and agricultural wastes discharged
into water. The terms "sewage," "indus-
trial waste," and "other wastes" as de-
fined in Section 69-4802, R.C.M. 1947
shall be interpreted as having the same
meaning as pollutant.
The Department has the power to modify, suspend, and
revoke a permit (R.C.M. § 69-4807.1, See also
Environment Reporter, State Water Laws, Vol. II,
831.0581 to .0587). If the Department denies or
modifies a permit, it must send notice to the appli-
cant and hold a hearing if the applicant desires to
do so. However, if the Department suspends or
revokes a permit it may do so before a hearing, pro-
vided that the Department has made a finding that
the violation is likely to continue and will cause
harmful effects. The holder then has a right to
petition for a hearing.
If the Department has reason to believe that a viola-
tion of the pollution statutes or a rule has occurred
it may have written notice served on the alleged
violator (R.C.M. § 69-4820). The Department may
then require the alleged violator to appear before
the Board for a public hearing and to answer the
charges made against him. The Board may specify the
date on which the violation will cease and can pre-
scribe any necessary timetables. In the alternative,
the Board may direct the Department to initiate
appropriate action for the recovery of a penalty.
Violation of a water pollution law, rule, permit,
effluent standard, or order subjects the violator to
a civil penalty not to exceed $10,000 for each day
the violation continues (R.C.M. § 69-4823).
Any person who willfully or negligently violates sec.
69-4806 R.C.M. 1947, or any pretreatment standard is
guilty of an offense and is subject to a fine not to
exceed $25,000 per day of violation, or by imprison-
ment for not more than one year, or both. Subsequent
convictions subject the violator to a fine of not
more than $50,000 per day per violation and/or
imprisonment of not more than two years. Finally,
any action under the above statute does not bar the
use of an injunction or other appropriate remedy.
Any person who knowingly makes a false representa-
tion or certification in any application, record,
report, plan or other document which is filed or
required under water pollution statutes, or who
falsifies or tampers with or knowingly renders in-
accurate a monitoring device, is subject to a fine
of not more than $10,000 or by imprisonment for not
more than six months, or both.
Furthermore, the violator may be assessed for the
costs of investigation and any expense incurred by
the state in removing, correcting, or terminating
any of the adverse effects upon water quality re-
sulting from the unauthorized discharge of pollu-
tants.
The Department also has the power to issue an order
to stop a violation so that substantial injury will
be avoided if a person is committing or is about to
commit an act which will cause substantial pollution
(R.C.M. i 69-4824). Upon issuance of such an
emergency order, a hearing date will be established
by the Department and after such a hearing the Board
will either affirm, modify or set aside the Depart-
ment's emergency order. The Department may also
institute an action in district court to enjoin the
discharge of pollutants which is endangering the
health, welfare or livelihood of a person (R.C.M. §
69-4824.1 and 69-4825).
In addition to all other remedies created
by this Act, the Department is authorized
to take appropriate enforcement action on
its own initiative to:
(a) prevent, abate, and control the pollu-
tion of state waters;
(b) prevent, abate, and control any viola-
tion of a condition or limitation imposed
by a permit issued under section 69-4806,
R.C.M. 1947;
(c) prevent, abate, and control any viola-
tions of regulations relating to pretreat-
ment standards (R.C.M. § 69-4802.1).
The above statute also permits the Department to
issue compliance orders in the event a violation has
occurred of any condition, limitation, standard or
other requirement. The order must identify the
violation and set the time for compliance.
6.2 ADMINISTRATION OF WATER QUALITY LAWS
6.2.1 Water Pollution Control
The Board of Health and Environmental Sciences is
the policy formulation body charged with the
following duties:
(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 con-
sideration to the economics of waste
treatment and prevention.
(c) Review from time to time, at intervals
not more than three (3) years, established
classifications of waters and standards
of water purity and classification, and
(i) The classifications, standards, and
rules which have been adopted by the state
Water Pollution Control Council under
section 69-4813 are, without necessity
of a hearing, initially adopted by the
Board.
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(ii) In revising classifications or stan-
dards or in adopting new classifications
or standards the Board may not so formu-
late standards of water purity or classify
any state water as to lower any water
quality standard applicable to any state
water below the level applicable under
the classifications and standards adopted
by the state Water Pollution Control
Council under section 59-4813.
(iii) The Board shall require that any
state waters, whose existing quality is
higher than the established water quality
standards, be maintained at that high
quality unless it has been affirmatively
demonstrated to the Board that a change
is justifiable as a result of necessary
economic or social development and will
not preclude present and anticipated
use of these waters; and
(iv) The Board shall require any indus-
trial, public, or private project or
development, which would constitute a
new source of pollution or an increased
source of pollution to high quality wa-
ters, referred to in subsection (l){c)
(iii), to provide the degree of waste
treatment necessary to maintain that
existing high water quality.
(d) Advise, consult, and cooperate with
other states, other state and federal
agencies, affected groups, political sub-
divisions, and industries in the formula-
tion of a comprehensive plan to prevent
and control pollution.
(e) Adopt rules governing application for
permits to discharge sewage, industrial
wastes, or other wastes into state waters
including rules requiring the filing of
plans and specifications relating to the
construction, modification, or operation
of disposal systems.
(f) Adopt rules governing the issuance,
denial, modification, or revocation of
permits, and:
(i) The rules governing the issuance or
continuance of a permit only if the De-
partment finds that operation consistent
with the limitations of the permit will
not result in pollution of any state
waters, except that:
(ii) The rules may allow the issuance
of a temporary permit under which pollu-
tion may result, if the Department
ensures that such permit contains a com-
pliance schedule designed to meet all
applicable effluent standards and water
quality standards in the shortest rea-
sonable period of time.
(iii) The rules shall provide that the
Department may revoke a permit if the
Department finds that the holder of the
permit has violated its terms, unless
the Department also finds that the viola-
tion was accidental and unforeseeable
and that the holder of the permit cor-
rected the condition resulting in the
violation as soon as was reasonably
possible; and
(g) Hold hearings necessary for the proper
administration of this chapter or, in
the case of permit issuance hearings,
delegate this function to the Department.
(h) Adopt rules for the administration
of this chapter.
(i) Adopt pretreatment standards for
waste water discharged into a municipal
disposal system, adopt effluent standards
as defined in section 69-4802(18), adopt
toxic effluent standards of performance
for new point source discharges.
(2) The Board may:
(a) accept loans and grants from the
federal government and other sources to
carry out the provisions of this chapter;
and
(b) establish minimum requirements for
the treatment of wastes (R.C.M. s 69-
4808.2).
Before the Board classifies streams or establishes
standards, they must hold a public hearing (R.C.M. §
69-4814). Notice of this hearing must be published
at least once a week for three consecutive weeks in a
daily newspaper of general circulation in the area
affected. Notice must also be mailed directly to
persons that the Board believes may be affected by
their proposed actions. At this hearing, all inter-
ested persons must have an opportunity to submit data,
views, or arguments.
The Department of Health and Environmental Sciences is
the chief agency responsible for administering
Montana's water pollution laws (R.C.M. § 69-4805).
The Department is authorized to use its personnel and
the personnel of local departments of health in
carrying out its duties.
The Department carries out the decisions of the Board
and the duties of the Department are specifically
defined in R.C.M. § 69-4809.1:
The Department is commanded by the above
statute to:
(a) Issue, suspend, revoke, modify, or
deny permits to discharge sewage, industrial
wastes, or other wastes to state water,
consistently with rules made by the Board;
(b) Examine plans and other information
needed to determine whether a permit should
be issued or suggest changes in plans as a
condition to the issuance of a permit;
(c) Clearly specify in any permit limita-
tions imposed as to the volume, strength,
and other significant characteristics of
the waste to be discharged;
(d) Collect and furnish information re-
lating to the prevention and control of
water pollution;
(e) Conduct or encourage necessary research
and demonstrations concerning water pollution;
(f) Issue orders to any person to clean
up any material which he or his employee,
agent, or subcontractor has accidentally
or purposely dumped, spilled, or otherwise
deposited in or near state waters and which
may pollute them.
(g) Take such actions as are authorized
or required under section 69-4802.1 to
ensure that the terms and conditions of
issued permits are complied with and to
ensure that violations of this chapter
are appropriately prosecuted.
In order to effectively carry out these duties, the
Department is given the power to require the owner or
operator of any point source to:
(1) establish and maintain records;
(2) make reports;
(3) install, use and maintain monitoring
equipment or methods, including biological
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monitoring techniques;
(4) sample effluents using specified moni-
toring methods at designated locations and
intervals; and
(5) provide other information as may be
reasonably required by the Department
(R.C.M. 5 69-4809.2(1)).
Furthermore, the authorized representative of the De-
partment may at reasonable times enter upon any pub-
lic or private property to:
(a) investigate conditions relating to
pollution of state waters or violations
of permit conditions;
(b) have access to and copy any records
required under this Act;
(c) inspect any monitoring equipment or
method required under subsection (l)(c);
and
(d) sample any effluents which the owner
or operator of such source is required to
sample under that subsection (R.C.M. §
69-4809.2(2)).
The Water Pollution Control Advisory Council (R.C.M.
S82A-607) acts as an advisor to the Department on
matters relating to water pollution (R.C.M. § 69-
4812). The Director of the Department designates a
member of the Department's staff to serve as Secretary
to the Council. The Council is given three days to
comment on any proposed action of the Board (R.C.M. 5
69-4814).
The Environmental Quality Council consists of four
members from the state senate, four members from the
house of representatives and the governor or his
designated representative (R.C.M. § 69-6508). This
Council appoints an Executive Director whose duty it
is:
(a) to gather timely and authoritative
information concerning the conditions and
trends in the quality of the environment
both current and prospective, to analyze
and interpret such information for the
purpose of determining whether such condi-
tions and trends are interfering, or are
likely to interfere, with the achievement
of the policy set forth in section 3 (69-
6503) of this act, and to compile and
submit to the governor and the legislative
assembly studies relating to such conditions
and trends;
(b) to review and appraise the various
programs and activities of the state
agencies in the light of the policy set
forth in section 3 R.C.M. 69-6503 of this
act for the purpose of determining the
extent to which such programs and activi-
ties are contributing to the achievement
of such policy, and to make recommendations
to the governor and the legislative assembly
with respect thereto;
(c) to develop and recommend to the governor
and the legislative assembly, state policies
to foster and promote the improvement of
environmental quality to meet the conserva-
tion, social, economic, health, and other
requirements and goals of the state;
(d) to conduct investigations, studies,
surveys, research, and analyses relating
to ecological systems and environmental
quality;
(e) to document and define changes in the
natural environment, including the plant
and animal systems, and to accumulate neces-
sary data and other information for a
continuing analysis of these changes or
trends and an interpretation of their
underlying causes;
(f) to make and furnish such studies,
reports thereon, and recommendations with
respect to matters of policy and legisla-
tion as the legislative assembly requests;
(g) to analyze legislative proposals in
clearly environmental areas and in other
fields where legislation might have en-
vironmental consequences, and assist in
preparation of reports for use by legis-
lative committees, administrative agencies,
and the public;
(h) to consult with, and assist legisla-
tors who are preparing environmental
legislation, to clarify any deficiencies
or potential conflicts with an overall
ecologic plan.
(i) to review and evaluate operating
programs in the environmental field in
the several agencies to identify actual
or potential conflicts, both among such
activities, and with a general ecologic
perspective, and to suggest legislation
to remedy such situations;
(j) to transmit to the governor and the
legislative assembly annually, beginning
July 1, 1972, an environmental quality
report concerning the state of the en-
vironment which shall contain:
(1) the status and condition of the major
natural, manmade, or altered environmental '
classes of the state, including, but not
limited to, the air, the aquatic, including
surface and ground water, and the terrestri-
al environment, including, but not limited
to, the forest, dryland, wetland, range,
urban, suburban, and rural environment;
(2) the adequacy of available natural
resources for fulfilling human and
economic requirements of the state in
the light of expected population pressures;
(3) current and foreseeable trends in the
quality, management and utilization of
such environments and the effects of those
trends on the social, economic, and other
requirements of the state in the light of
expected population pressures;
(4) a review of the programs and activities
(including regulatory activities) of the
state and local governments, and nongov-
ernmental entities or individuals, with
particular reference to their effect on
the environment and on the conservation,
development and utilization of natural
resources; and
(5) a program for remedying the deficiencies
of existing programs and activities,
together with recommendations for
legislation (R.C.M. § 69-6514).
Figure 1 is a detailed organization chart of the
water quality agencies.
6.2.2 Additional Agency Involvement
The Department of Natural Resources has statutory
duties to determine how, when, and where Montana's
waters are being utilized and to create and enforce
a permit system for water rights. Further, the
Department must ascertain practices of existing water
rights, adjudicate streams, enforce rules and regula-
tions adopted by the Board of Health and Environmen-
tal Sciences and assist and coordinate activities with
state, local and Federal agencies. Most importantly,
210
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Figure 1. Organizational Chart of Montana. Department of Health & Environmental Science
[
Environmental
Quality
Council
;
Laboratory Legal Unit 1
i i
Chemistry Microbiology
Laboratory Laboratory
Bureau Bureau
Chief Chief
I J
Governor
I
Board of
Health &
Environmental
Sciences
Departmf
Heall
Environn
Scier
! 1 1
Health Planning Medical Emergency
Division c=>cilities Medical
Chief Division Services
Licensing & Construction
Certification Bureau
Bureau Chief
Chief ' • 1
Air
Quality
Bureau
Chief
Water
Quality
Bureau
Chief
Advisory Water Pollutior
1
i
rental — | | '
—|||
L 1 1
i
Centralized Services Division i
Administrator |
i 1 *- i 1 !
Health Records & Management
Education Statistics Services &
Bureau Bureau Planning
Chief Chief Bureau
*— — i — ' ' 1 ' Chief
Nursing
Bureau
Chief
;
1
Environmental Health
Sciences • Services
Division Division
Administrator Administrator
Dental Health
Occupational Bureau
Health " Chlef
Bureau
Chl0f Maternal & Child
Health Bureau
Chief
Environmental
Services
Bureau Alcohol & Dependent
Nutrition
Unit
Preventive
Health Services
Bureau
Chief Drugs Bureau Chief
1 • ' Chief 1 . -J
•-—-• — — — - — - — — — — ___ — _ — --___ _
-------
Water Quality
Figure 2. Montana Water Agencies & Major Functions
Water Rights Administration
Planning & Development
Department of Health
& Environmental
Sciences
Department of
Natural Resources
Environmental Services
Division
Water
Pollution
Control
Advisory
Council
212
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the Department has established a centralized record
system for existing water rights (R.C.M. 5 89-870).
For a detailed discussion, see Appendix B, Report 6,
"Montana Water Laws," Western Water Laws & Irrigation
Return Flow Quarterly, EPA, 1977.
Figure 2 contains the organization by function of
Montana's state agencies directly in charge of water
quality and quantity control.
6.3 SPECIAL LEGISLATION
The Public Water Supply Act (R.C.M. § 69-4901 to
4908) states that it is the policy of the state to
protect, maintain, and improve the quality and pota-
bility of water for public water supplies and domes-
tic uses (R.C.M. § 69-4901). Pollution is defined by
this Act as the alteration of any properties of state
waters which is detrimental to their most beneficial
use (R.C.M. § 69-4902).
This Act gives the State Board of Health general
supervision over all state waters which are directly
or indirectly used for public water supply, domestic
purposes, or as a source of ice (R.C.M. § 69-4903).
The Board is also given the power to adopt rules,
standards and may issue orders to prevent pollution
and protect the quality of water.
The State Department of Health must make an investi-
gation of alleged pollution of a water supply upon
receipt of a complaint (R.C.M. § 69-4904). The De-
partment may then prohibit the continuance of the
pollution by ordering the removal of its cause.
Under this Act a person must not:
(1) discharge polluting matter of any kind
that will pollute the quality of state wa-
ters used by a person for domestic use or as
a source of supply by a city, town, public
institution, water, or ice company;
(2) discharge human excrement, sewage,
drainage, refuse, or polluting matter into
any state waters or on the banks of any state
waters or into any abandoned or operating
water well unless the sewage, drainage,
refuse, or polluting water is purified to
render it harmless as prescribed by the
state board;
(3) build or operate any railroad, logging
road, logging camp, electric or manufactur-
ing plant of any kind on any watershed of
a public water supply system, unless:
(a) the water supply is protected from pol-
lution by sanitary precautions prescribed
by the state board; and
(b) a permit has been issued by the Depart-
ment after approval of detailed plans and
specifications for sanitary precautions;
(4) construct, alter, or extend any system
of water supply, water distribution, sewer,
drainage, waste water, or sewage disposal
without first submitting necessary maps and
plans and specifications to the Department
for their advice and approval (R.C.M. 5
69-4905).
Violation of this Act is punishable by a fine of not
more than $1,000, imprisonment for not more than one
year, or both (R.C.M. 5 69-4908).
The Sanitation in Subdivisions Act (R.C.M. § 69-5001
to 5009, 1975 Supp.) was enacted to extend present
laws controlling water supply, sewage disposal and
solid waste disposal to include individual wells
affected by adjoining sewage disposal and individual
sewage systems to protect the quality and potability
of water supplies and domestic uses and to protect the
quality of water for other beneficial uses, including
uses related to agriculture, industry, recreation and
wildlife (R.C.M. § 69-5001).
The Department of Health and Environmental Sciences
administers this Act and approves plans for water
facilities in subdivisions (R.C.M. § 69-5003). Unless
the Department, indicates that the subdivision is not
subject to any sanitary restrictions, a person may not
file a subdivision plat, make disposition of any lot
within a subdivision, erect any building or shelter
which requires facilities for the supply of water or
disposal of sewage or solid waste.
If a person is denied approval of subdivision plans,
he may request a hearing before the Board of Health
and Environmental Sciences (R.C.M. § 69-5006). If a
written complaint alleging violation is made to the
Department and a violation is found to exist, the
Department will issue notice and hold a hearing pur-
suant to the Montana Administrative Procedure Act
(R.C.M. i 82-4201 to 82-4225). The Department may
also initiate appropriate action for injunction or for
recovery of penalty as provided in the Act (R.C.M. i
69-5007). Violation of any provision of the Act or
any rule or order issued under this Act is guilty of
an offense and subject to a fine not to exceed
$1,000 (R.C.M. § 69-5008(1)). Action taken under this
section (1) will not bar enforcement of the Montana
Administrative Procedure Act or rules or orders
issued under it by injunction or other appropriate
remedy (R.C.M. § 69-5008).
6.4 RELATED LEGISLATION
The Montana Economic Land Development Act (R.C.M. §
84-7501 to 7526, 1975 Supp.) was enacted to enable
local control and decisions to be foremost in deter-
mining the growth patterns of the state (R.C.M. 5
84-7502). The Act was designed to protect prime
agricultural land and guide industrial and commercial
development among other things (R.C.M. § 84-7503).
A complete inventory of the land and its usage must
be included in the governing bodies' plan and
include:
(i) land types, based on federal standards;
(ii) the floodplain of all streams and
rivers;
(iii) current vegetation patterns, i.e.,
cropland, irrigated land, rangeland, non-
productive land;
(iv) developed land; and
(v) all federal, state, or Indian lands.
Decisions shall be coordinated with the
Department of Revenue (Id, § 84-7505).
While this Act does not deal with water pollution, it
is closely related to the State's policy of conserving
its resources and preserving its agricultural lands.
6.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
6.5.1 Agriculture Generally
Montana's Pollutant Discharge Elimination System re-
quires that the owner of any point source which dis-
charges pollutants into state waters must obtain an
MPDES permit (Regulation 16-2.14(10) - S14460, (4)).
The regulations define a point source as, ,
213
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any discernible, confined or 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.
In this rule, the term "point source" also
includes animal confinement facilities.
Montana's water quality criteria were adopted to
establish maximum allowable changes in water quality
and establish limits for pollutants which affect
prescribed beneficial uses of state waters (Montana
Water Quality Criteria, Environment Reporter, State
Water Laws, Vol. II, § 3T:0501).
State waters means, "any body of water, irrigation
system or drainage system, either surface or under-
ground. This definition specifically excludes irri-
gation waters which are used up within the irrigation
system and not returned to any other state waters"
(Environment Reporter, State Hater Laws, Vol. II, §.
831:0501(3)).
Montana has also promulgated regulations dealing with
water pollution from livestock feeding (Montana Regu-
lation on Hater Pollution from Livestock Feeding,
State of Montana Board of Health and Environmental
Sciences Regulation for the Control of Water and Air
Pollution from Confined Animal Feeding; Effective
June 24, 1972). These regulations were enacted to
implement the Water Pollution Control Act and" the
Clean Air Act of Montana as they pertain to confined
livestock feeding operations (Id, I).
These regulations define water pollution as,
such contamination, or other alteration
of the physical, chemical, or biological
properties, of any state waters, as exceeds
that permitted by Montana water quality
standards, including but not limited to
standards relating to change in tempera-
ture, taste, color, turbidity, or odor,
or such discharge of any liquid, gaseous,
solid, radioactive, or other substances
into any state water as will or is likely
to create a nuisance or render such
waters harmful, detrimental, or injurious
to public health, recreation, safety, or
welfare, or to livestock, wild animals,
birds, fish or other wildlife, provided,
however, that any discharge which is per-
mitted by Montana water quality standards
is not "pollution" for the purposes of this
regulation. Complete definition of "pollu-
tion" requires references to the classifi-
cation of waters and the water quality
criteria which have been adopted by the
Montana Water Pollution Control Council
under Title 69, Chapter 48 as amended
through 1969 and which may be adopted by
the Board of Health and Environmental
Sciences under that title and chapter as
amended in 1971 (Id, § III, B).
A livestock waste control facility permit must be
obtained if a new or existing confined livestock
feeding operation discharges drainage water or manure
into state waters (Id, § IV). This permit is good
for five years and if an operator wants to renew his
permit he must notify the Department of Health and
Environmental Sciences (Id, § IV, J). The permit will
be renewed if the operator meets all the conditions
of the original permit and the standards for air or
water have not changed (Ibid.).
6.5.2 Irrigation Return Flow
Montana has taken a unique but realistic approach
toward the irrigation return flow quality control
issue. Beginning with the declaration of policy, it
is apparent the state recognizes the problem but is
only willing to attack it when the capability and
basis for doing so exists. In place of paraphrasing
a well-written summary of the law and regulations
that pertain to irrigation return flow, the following
quotation is provided:
Pollution from non-point sources is cur-
rently Montana's greatest water quality
problem.
For sustained production of Montana's
93+ million acres, man must adapt his
enterprises to the natural environment.
To do so he has to till, plant, cultivate
and harvest his crops on land suitable for
cultivation. He must also utilize land
for grazing and timber production. Im-
proper utilization of land not only de-
creases production but also increases
possibility of water quality degradation.
This degradation results from sediment
discharges, salinity increases, tempera-
ture increases, flow changes and discharge
of toxic agents such as pesticides, herbi-
cides and mine wastes. Montana water
pollution laws and regulations recognize
the need to utilize our resources. They
include:
Section 69-4801 (Public Policy of the
State) states in part:
(2) It is not necessary that wastes be
treated to a purer condition than the natu-
ral condition of the receiving stream.
"Natural" refers to conditions or material
present from runoff or percolation over
which man has no control or from developed
land where all reasonable land, soil and
water conservation practices have been
applied. Conditions resulting from dams
of the effective date of this act are
"natural."
Section 69-4802 (Definitions) states in
part:
(5) "Pollution" means such contamination
or other alteration of physical, chemical,
or biological properties of any state
waters as exceeds that permitted by Montana
Water Quality Standards, including but
not limited to standards relating to change
in temperature, taste, color, turbidity
or odor, or such discharge of any liquid,
gaseous, solid, radioactive or other sub-
stance into any state waters as will or is
likely to create a nuisance or render such
waters harmful, detrimental, or injurious
to public health, recreation, safety or
welfare or to livestock, wild animals,
birds, fish or other wildlife, provided,
however, that any discharge permitted by
Montana Water Quality Standards is not
pollution for the purposes of this chapter;
Section 69-4806 (Pollution Unlawful -
Permits) states in part:
It is unlawful to:
(1) cause pollution as defined in 69-4802
(5), R.C.M., 1947, of any state waters or
to place or cause to be placed any wastes
211
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in a location where they are likely to
cause pollution of any state waters;
Montana Administrative Code 16-2.14(10}-
S14480, Water Quality Standards:
General Water Quality Criteria:
(o) Pollution resulting from storm drain-
age from sewer discharges and non-point
sources including irrigation practices,
road building construction, logging prac-
tices, overgrazing, and other practices
are to be eliminated or minimized as
ordered by the department.
The key point in these laws and regula-
tions is the definition of natural. This
definition requires the Water Quality Bu-
reau to have a defensible definition of
all reasonable conservation practices and
sufficient manpower to determine if in
fact reasonable conservation practices are
being used. The Water Quality Bureau is
attempting to develop such definitions.
Due to the magnitude of the non-point prob-
lem in Montana and the lack of financial
resources, minimal effort has been devoted
to the problem. However, the emphasis of
the Water Quality Bureau is shifting to
non-point problems, and we are attempting
to assess the nature and extent of our
non-point pollution problem and develop
control programs and evaluate costs and
benefits for such a program (Hater Quality
in Montana, 1976, p. 1 & 3).
6.6 CASE LAW APPLICABLE TO AGRICULTURE
In Alder Gulch Consolidated Mining Co. v. Hayes (6
Mont. 31, 9 Pac. 581, 1886), the plaintiff, Alder
Gulch Consolidated Mining Co., was the owner of a
placer mine. The lower court had prohibited the
defendant from diverting waters so as to carry it
past the plaintiffs' mining ground, thereby depriving
them of the use of that water.
This court affirmed the lower court's decision and
held that the downstream mining claimant was entitled
to his appropriation, subject to upstream senior
appropriations and subject only to the reasonable
diminution and deterioration by the upstream users.
Fitzpatrick v. Montgomery (20 Mont. 181, 50 Pac. 416,
1897} was a case which involved the owner (plaintiff)
of real estate known as "Buffalo Creek" (agricultural
land) and a defendant who was engaged in placer min-
ing on the creek above the premises of the plaintiff.
The defendant operated and worked the mine and per-
mitted tailings, rocks and debris to run down the
wash and deposit upon the land of the plaintiff.
This allegedly destroyed it and made it unfit for
agriculture. The case was tried by jury and it
found in favor of the plaintiff for $150. The de-
fendant appealed.
In affirming the lower court decision, the Supreme
Court of Montana held that in placer mining the
operator had no right to deposit tailing, etc., in a
running stream to such an extent ap to cause his
neighbor's land to be flooded with them and thereby
to substantially impair its usefulness. If this was
done, he was liable in damages regardless of question
of negligence, whether his mine could be operated
successfully without this result, or of priority of
appropriation of the waters of the stream.
Eight years later, in Watson v. Colusa-Parrot Mining
and Smelting Co. (31 Mont. 513, 79 Pac. 14, 1905),
the plaintiff, J. W. Watson, claimed to be the owner
of certain agricultural lands situated on Deer Lodge
River below the defendant's concentrating, smelting
and reduction plant, and alleged that the defendant
had polluted the water of Silver Bow Creek, a tribu-
tary of Deer Lodge River, by the operation of its
plant, to the extent that the waters were unfit for
irrigation or domestic use. The plaintiff also
alleged that the refuse and deleterious substances
which were deposited in the stream by the defendant
had accumulated on his land and injured his crops and
caused the soil to be unproductive and sterile and
permanently injured it. The lower court held the de-
fendant jointly and severally liable.
In partly reversing the lower court, the Supreme
Court of Montana held that where a nuisance arose
from individual acts of different mining and reduc-
tion companies, which have discharged deleterious and
poison matter into the waters of a creek, providing
the injury was not a joint one, each company was
liable to the person injured for the damage caused by
its own wrongful acts and not for that caused by the
acts of others, regardless of the difficulty of
determining what part of the damage was occasioned by
the acts of each.
The court held that the measure of damages for perma-
nent injury to the land, resulting from the poisoning
of the waters of a stream, was the difference between
the value of the land prior to the injury and its
value after the injury.
The court also stated that in order to permit a re-
covery for injury to crops and for permanent injury
to the land on which the crops were raised, it had to
be distinctly alleged and proven when the permanent
injury to the land took place, how much of the land
was permanently injured, and the annual injury to
crops prior to that date.
The court further held that where a permanent and
total injury to land for agricultural purposes did
not immediately result from the perpetuation of a
nuisance, but several years elapsed before the injury
was completed, the landowners were entitled to dam-
ages for the yearly injury to their crops, caused by
the continuing nuisance until the completion of the
total and permanent injury, but no damages could be
allowed for injury to crops after that time.
In Chessman v. Hale (31 Mont. 577, 79 Pac. 254, 1905),
the complaint alleged that the plaintiff, William A.
Chessman, was the owner of certain lands, water
ditches and flumes and that he had a right to the use
of certain waters conducted to his lands through said
ditches and flumes. It also alleged that the defen-
dant conducted placer mining operations and negli-
gently polluted and fouled the waters by depositing
large quantities of debris, sand, gravel and tailings
in the plaintiff's ditches and flumes and on plain-
tiff's land. The plaintiff sought damages and an
injunction.
The defendant claimed that by being the user for 23
years he had acquired by prescription, the easement
and right of flowage of the waters said to be pollu-
ted by tailings in addition to the right acquired by
contract.
The Supreme Court of Montana, in reversing the lower
court's decision, held that an upper riparian pro-
prietor who had appropriated water and, in a contract
215
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to deliver it to a lower proprietor at a certain
place, had reserved the right to use the water for
placer mining purposes, acquired no title to the
water or any right to pollute the water to any extent
greater than that permitted by law. It also held
that the upper riparian proprietor had a right to a
reasonable use of the water for the purposes speci-
fied, although such use resulted in fouling it to
some extent, but he could not cover the lower propri-
etor's land with mining debris, so as to render it
valueless. This issue of water constitutes a nui-
sance. A nuisance was defined by the court as any-
thing injurious to health or which interferes with
comfortable enjoyment of life or property or unlaw-
fully obstructing the customary use of a river.
The case of Miles City v. Board of Health of State of
Montana (39 Mont. 405, 102 Pac. 696, 1909) involved
an action by the city of Miles City against the Board
of Health of the State of Montana. The facts which
brought about this case began in 1897 when the city
of Miles City installed a sewer system for the pur-
pose of carrying off the sewage of the city. The
outlet of the main sewer was in a slough. The slough
became so obstructed that only during high water sea-
sons was there sufficient water flowing through it to
carry off the sewage. Therefore, the sewage would
collect in the slough near the outlet of the sewer
and was a menace to the health of the people living
near the outlet. The State Board of Health pro-
hibited the discharge from this system because it
would have tended to pollute the waters of the
Yellowstone River. The district court annulled the
Board's order and it appealed. In reversing the low-
er court, the Supreme Court of Montana held that a
city could not acquire prescriptive rights to dis-
charge sewage. The state could regulate a lawful
right even if it destroyed a prescriptive right under
its police powers.
In Nelson v. C. and C. Plywood Corporation (154 Mont.
414, 465 Pac. 2d 314, 1970) the plaintiff! John A.
Nelson, alleged that his well was polluted by the
dumping of glue waste by the defendant which resulted
in obnoxious taste, color and smell. The District
Court entered a judgment for the plaintiff. The de-
fendant appealed and the Supreme Court of Montana
held that the plaintiff was limited to recovery for
two years before the filing date of the complaint.
It was therefore modified as. to damages and then
affirmed. The dumping of the glue waste constituted
a continuing temporary nuisance.
6.7 INFORMATION SOURCES
Clark, Mark A. and Harper, Bruce P., "Water, A
Problem in Montana," 32 Montana Law Review, 81, 1971.
Clark, R. E., ed., Hater and Hater Rights, Vol. 3,
1967.
, Water Quality Inventory and Management
Plan: Mussel shell River Basin, Water Quality Bureau,
Environmental Sciences Division, Department of Health
and Environmental Sciences, Helena, Montana, May 1976.
, Water Quality in Montana, 5 305(b) Report,
Water Quality Bureau, Environmental Health Services,
Department of Health and Environmental Sciences,
Helena, Montana, May, 1976.
APPENDIX 6-A
The following was extracted from 16-2.14(10)-S14460,
ps. 8-10.
(7) Conditions and terms of MPDES permits. All issued
MPDES permits shall contain special conditions which
will assure compliance with the requirements discussed
in subsections (5)(a)(i) through (5)(a)(viii).
(a) General conditions. All issued MPDES permits
shall contain general conditions consisting of, but
not limited to, the following terms:
(i) All discharges of pollutants into state wa-
ters authorized by an MPDES permit shall be consistent
with the conditions of the permit; any sewerage system,
treatment works or disposal system expansions, produc-
tion increases or process modifications, which result
in new or increased discharges of pollutants into
state waters, shall be reported by submission of a new
MPDES permit application or, if such discharge does
not violate effluent limitations specified in the
MPDES permit, by submission to the department of no-
tice of such new or increased discharges of pollutants.
(ii) The discharge of pollutants to state waters
more frequently than or at a level in excess of that
identified and authorized by an MPDES permit shall
constitute a violation of the conditions of the
permit.
(iii) An MPDES permit may be modified, suspended,
or revoked in whole or in part during its term under
provisions of Section 69-4807.1, R.C.M. 1947 for
cause, including but not limited to, and of the
following:
(aa) Violation of any conditions of the permit;
or
(ab) Obtaining an MPDES permit by misrepresenta-
tion or failure to disclose fully all rele-
vant facts; or
(ac) A change in any condition that requires
either a temporary or permanent reduction
or elimination of the authorized discharge.
(ad) A failure or refusal by the permittee to
comply with the requirements of Section
69-4809.2, R.C.M. 1947.
(iv) An MPDES permit may be modified in whole or
in part during its term to apply a more stringent
toxic effluent standard or prohibition promulgated by
the administrator.
(b) Special conditions. All issued MPDES permits
shall contain special conditions consisting of, but
not limited to, the following terms:
(i) Authorization of discharges of pollutants
into state waters from point sources.
(ii) Effluent standards and, if necessary, compli-
ance schedules on each authorized discharge of pollu-
tants into state waters.
(aa) Permittees having authorized discharges of
pollutants into state waters shall be re-
quired to take necessary steps to meet the
most stringent schedule of compliance con-
tained in applicable effluent standards,
water quality standards, and legal require-
ments developed pursuant to section (5).
(ab) In any case where the period of time for
compliance exceeds nine months, the schedule
of compliance specified in the permit will
set forth interim requirements and dates for
their achievement; in no event shall more
than nine months elapse between interim
dates. If the time necessary for completion
of the interim requirement (such as the con-
struction of a treatment facility) is more
than nine months and is not readily
divided into stages for completion, interim
dates shall be specified for the submission
216
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of reports of progress towards completion
of the interim requirement. For each
schedule of compliance, interim dates and
the final date for compliance shall, to the
extent practicable, fall on the last day of
the months of March, June, September, and
December.
(ac) Either before or up to 14 days following
each interim date and the final date of
compliance, the permittee shall provide the
department with written notice of the per-
mittee's compliance or noncompliance with
the interim or final requirement.
(ad) If a permittee fails or refuses to comply
with an interim or final requirement in an
MPDES permit, such noncompliance shall con-
stitute a violation of the permit for which
the department may modify, suspend, or re- '
voke the permit or take direct enforcement
action.
(ae) Any point source, the construction of which
is commenced after the effective date of the
act and which shall be constructed to meet
all applicable standards of performance
shall not be subject to any more stringent
standard of performance during a 10-year
period beginning on the date of completion
of such construction or during the period
of depreciation or amortization of such
facility for the purpose of Section 167 or
169 (or both) of the Internal Revenue Code
of 1954, whichever period ends first.
(ill) The basis for calculation of effluent
limitations.
(iv) The prohibition of certain discharges
without prior approval from the department.
(v) Self-monitoring requirements for each
authorized discharge, including but not limited to,
the following:
(aa) Pollutants to be monitored;
(ab) Frequency of monitoring, recording, and
reporting;
(ac) Analytical and sampling methods to be
utilized by the permittee;
(ad) Recording and reporting procedures to be
utilized by the permittee; and
(ae) Procedures for reporting other considera-
tions having an effect on authorized dis-
charges or that may affect any of the
conditions of the permit.
The permittee will be required to maintain self-
monitoring records for a minimum of three years.
The self-monitoring requirements for each
authorized discharge will be consistent with monitor-
ing, recording, and reporting requirements specified
by the administrator in regulations issued pursuant
to the act.
(vi) Requirements for consideration of unusual
discharges, including but not limited to, the
following:
(aa) Reporting procedures for accidental dis-
charges, plant bypasses, plant upsets,
and discharge of oil and hazardous
materials, and
(ab) Where applicable, required submittal of an
acceptable oil and hazardous materials
spill prevention and containment plan.
(vii) Other requirements for publicly owned
treatment works. Publicly owned treatment works shall
provide notice to the department in the following
situations:
(aa) Any new introduction of pollutants into
such treatment works from a new point source.
For sewerage system extensions to collect
sewage, the point source shall be
considered to be the entire sewerage
system extension and not each individual
household hookup.
(ab) Any substantial change in volume or
character of pollutants being introduced
into such treatment works by a point
source introducing pollutants into such
works at the time of issuance of the
permit.
Such notice shall include information on the quality
and quantity of pollutants to be or being introduced
into such treatment works and the anticipated impact
of such change in the quality and quantity of efflu-
ent to be discharged from such publicly owned treat-
ment works.
The owners of publicly owned treatment works
shall adopt an industrial user charge system to
insure compliance with Section 204(b) of the act.
Industrial users of publicly owned treatment
works shall be required to comply with all duly
promulgated pretreatment standards, toxic effluent
standards, and toxic prohibitions and to submit
reports to the treatment works with a copy to the
department of any required progress toward compli-
ance with the pretreatment standards.
(viii) Duration of MPDES permit. Every permit
issued under this rule shall have a fixed term not
to exceed five years.
217
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APPENDIX A
7. NEBRASKA
7.1 SUMMARY OF WATER QUALITY LAWS
7.1.1 Background
The first comprehensive legislation protecting envi-
ronmental quality in Nebraska was enacted in 1971
(Nebraska Session Laws, L.B. 939, 1971). This legis-
lation was entitled the "Environmental Protection
Act" and remains the basic legislation regulating
water quality (R.R.S.N. §§ 81-1503 to 81-1533, 1974
Supp.). The Act provides for the establishment of
the Environmental Control Council as the entity re-
sponsible for the control of air, water and land
pollution (R.R.S.N. § 81-1503, 1974 Supp.). Actual
administration of the Act's provisions and the regu-
lations of the Environmental Control Council is dele-
gated to the Department of Environmental Control
(R.R.S.N. i 81-1504, 1974 Supp.).
Since enactment, the Nebraska Environmental Protection
Act has been amended in all the subsequent sessions
of the Nebraska Legislature. Furthermore, several
sections of the original legislation were repealed in
1974 (R.R.S.N., L.B. 1029 §10, 1974, repealing
R.R.S.N. H 81-1521 and 81-1531).
7.1.2 Policy
The Nebraska Environmental Protection Act does not
contain a section which is intended to be a specific
declaration of legislative policy. However, the sec-
tions of the act which address water quality control
are more extensive and developed in greater detail
than those which concern air and land quality control
(R.R.S.N. § 81-1505, 1974 Supp.). Furthermore, the
Act makes it unlawful to pollute air, water, and land
and any discharge or emission which reduces the qual-
ity of air, water, or land below those standards set
by the Council is declared to be a public nuisance
(R.R.S.N. § 81-1506, 1974 Supp.).
As part of the regulations of the Environmental Con-
trol Council, a specific policy statement has been
adopted which states the following:
Water quality standards were signifi-
cantly modified on June 30, 1976.
Currently, all surface waters shall
meet general standards according to
their beneficial use. The new stan-
dards identify six types of benefi-
cial uses: full body contact, partial
body contact, fish and wildlife pro-
tection, water supply, agriculture
and industrial uses (Rule 2). The
new regulations specifically state
that these standards for beneficial
uses "pertain to water quality only"
and "are not intended in any way
to conflict with the quantitative
beneficial uses provided for in Chap.
46, R.R.S., 1943, regulating irri-
gation and the authority of the
Department of Water Resources in
that regard" (Nebraska Water Qual-
ity Standards for Surface Waters,
Effective 27 Dec. 1976).
The new standards provide general
intents covering aesthetic condi-
tions, suspended, colloidal, or
settleable solids; toxic and deleterious
substances; and residue, oil and chlo-
rides while specific criteria are devel-
oped for water in each basin, taking
into account the natural conditions where
possible.
The water quality standards apply to
all surface waters, except that only
general criteria under Rule 2.(2) apply
to effluents, waters during periods when
the flow is less than 0.1 c.f.s. or when
the flow is less than the 7-day-10-year
low flow (Rule 3). They also do not
apply to effluent dominated streams when
daily flow is totally composed of efflu-
ent nor to mixing zones (Ibid.).
Finally, the term ''water pollution" is defined in the
Act to include "the man-made or man-induced alteration
of the chemical, physical, biological and radiologi-
cal integrity of water" (R.R.S.N. § 81-1502 (20),
1974 Supp.). Other definitions in the Act which
concern water quality include "Waters of the state,"
"Point Source," "Effluent limitation," and "Schedule
of Compliance" (R.R.S.N. IS 81-1502 (21) to (24),
1974 Supp.).
7.1.3 Classification
The Environmental Control Council has been given the
authority to adopt classifications for state waters
(R.R.S.N. § 81-1505, 1974 Supp.). In adopting water
classification, the Council is required to consider
such factors as the quantity of water; the character
of the area and the purpose for which the water in
question will be put to use; the historic use for the
water in question; and the present extent of existing
pollution or contamination (Ibid.).
Prior to July 1, 1976, the Council had adopted two
basic classifications for water. Briefly, these
classifications were:
Class "A" includes those waters which are
suitable for full body contact sports,
domestic water supply, and aquatic wild-
life. This classification includes those
waters which currently have very high
water quality.
Class "B" includes those waters which are
suitable for partial body contact sports,
agriculture, industry, and aquatic wild-
life (State of Nebraska, Department of
Environmental Control, Water Quality
Standards Applicable to Nebraska Waters,
p. 22, 1973).
Also prior to July 1, 1976, Nebraska had applied a
category system to classify streams and lakes. As of
July 1, 1976, this classification system was repeal-ed
and now water quality standards are established based
upon beneficial uses of a particular body of water.
218
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7.1.4 Standards
Authorization for the adoption of (1) water quality
standards, (2) performance standards, (3) pretreat-
ment standards, and (4) toxic pollutant standards, is
also granted to the Environmental Control Council
(R.R.S.N. § 81-1505, 1974 Supp.).
Performance standards are authorized for adoption as
the control standards for pollution discharges
(R.R.S.N. § 81-1505, 1974 Supp.). The Council is re-
quired to consider the most feasible alternative
standards, including a standard which permits no
discharge (Ibid.).
Pretreatment standards are applicable to the passage
of pollutants through publicly-owned wastewater
treatment works (Ibid.). Nebraska has adopted an
extensive set of rules which affect wastewater
treatment (State of Nebraska, Department of Environ-
mental Control, Rules and Regulations Pertaining to
the Issuance of Permits Under the National Pollutant
Discharge Elimination System, 1975).
Toxic pollutant standards are authorized for Council
adoption following the consideration of the pollu-
tant's toxicity, degradability, and potential effects
(Ibid.). Toxic substance standards are part of the
standards adopted for water quality standards for
Class "A" and "B" waters (State of Nebraska, Depart-
ment of Environmental Control, Water Quality Stan-
dards Applicable to Nebraska Waters, pp. 23 & 25,
1973).
7.1.5 Permit System
In order to lawfully discharge or emit wastes into
Nebraska waters, a current permit from the Department
of Environmental Control is required (R.R.S.N. §
81-1506, 1974 Supp.). Briefly, the following activi-
ties are expressly required to have a state permit:
(1) discharges which require a permit under
the National Pollutant Discharge Elimina-
tion System created by the Federal
Water Pollution Control Act Amendments
of 1972;
(2) construction and operation of any
disposal system.
(3) increase in volume or strength of
wastes beyond that specified under
an existing permit;
(4) construction and operation of an
industrial or commercial enterprise
which would cause an increase in
the discharge of wastes in a manner
not currently authorized; and
(5) the construction or use of a new
outlet for the discharge of wastes
(Ibid.).
The original authorization for the issuance of state
permits was contained in the 1971 versions of the
Act. A later amendment in 1974 provided for the
issuance of permits under the National Pollutant
Discharge Elimination System (Nebraska Session Law,
L.8. 1029 § 4, 1974).
Application for state discharge permits is made to
the Department of Environmental Quality and the
219
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permits are issued by the Director of Environmental
Control (R.R.S.N. I 81-1507, 1974 Supp.).
7.1.6 Sanctions and Enforcement Measures
The Director of Environmental Control, as the chief
administracive officer of the Department of Environ-
mental Control, is charged with the enforcement of the
Act (R.R.S.N. § 81-1508, 1974 Supp.). Under the Act,
the Director has the authority to issue a complaint
against persons who have allegedly violated a provi-
sion of the Act or regulation of the Council (Ibid.).
The Director also sits as the hearing officer and
makes findings of fact and conclusions of law (Ibid.).
Any person who is adversely affected by a final order
or determination by the Director can appeal the deci-
sion to the district court of Lancaster County,
Nebraska (R.R.S.N. § 81-1509, 1974 Supp.).
Various penalties are provided for under the Act de-
pending on the nature of the violation. Violations of
permit conditions or limitations under the National
Pollutant Discharge Elimination System (NPDES) is
termed a misdemeanor and conviction can result in a
fine of from one hundred dollars to five hundred dol-
lars plus costs for each day the violation occurs
(R.R.S.N. § 81-1508, 1974 Supp.). Wilful violations
are punished as a misdemeanor by a fine of up to five
thousand dollars for each day of violation, or by im-
prisonment in the county jail for up to six months
(Ibid.). Penalties are also provided for refusing
entry and inspection by Department of Environmental
Control personnel, and for knowingly making false
representations on NPDES applications and records
(Ibid.).
If the violation results in the destruction of fish or
other wildlife, the violator is liable to the state
for the cost of restocking the wildlife (Ibid.). Also,
the Director, through the county attorney or the
Attorney General, can petition the district court
where the violation occurs for an injunction to pre-
vent the infraction of the Act or Council rules (Ibid).
7.2 ADMINISTRATION OF THE LAWS
7.2.1 Water Quality Control
The rule-making body for water quality concerns is the
Nebraska Environmental Control Council. The Council
is composed of sixteen members, representing various
public and private interests, who are appointed for
four and two year terms by the Governor (R.R.S.N. i
81-1503, 1974 Supp.). The duties of the Council in-
clude the adoption of rules, regulations and standards
for air, land, and water quality (R.R.S.N. § 81-1505,
1974 Supp.).
Administration of the Act and Council regulations is
vested with the Department of Environmental Control
which exercises the following powers: (1) general
supervision and enforcement of the Act and regula-
tions; (2) development of comprehensive programs for
pollution abatement; (3) coordination with other
levels of state, local and federal government, to
further the purposes of the Act; (4) to function as
the state control agency for purposes of the federal
Water Pollution Control Act Amendments of 1972; (5)
to conduct studies and investigations on the control
of pollution, and (6) to conduct public education
programs (R.R.S.N. § 81-1504, 1974 Supp.). The
Director of Environmental Control is responsible for
administration of the department and all standards,
rules and regulations adopted by the Council (R.R.S.N.
5 81-1503, 1974 Supp.). The Director is appointed by
the Governor and serves at his pleasure (Ibid.). Fig-
ure 1 illustrates the agencies with major functions
over water resources.
No other administrative agencies appear to be vested
with authority in the area of water quality control.
However, other levels of government (counties, muni-
cipalities, and special districts) are granted
authority for pollution control. These specific in-
stances are discussed in the following sections.
Responsibility for administering Nebraska's water
laws is placed with the Department of Water Resources.
The Department plays a primary role in the supervision
of the appropriation, distribution and diversion of
water. Further, the Department must determine and
record permit priorities and determine the amount of
appropriations.
7.3 SPECIAL LEGISLATION
7.3.1 County Zoning
Counties which have populations greater than thirty
thousand persons and which have adopted county zoning
regulations may "provide rules for the prevention,
abatement, and removal of nuisances, including the
pollution of air and water" (R.R.S.N. § 23-174.10,
1943). Any regulations which the county board of
commissioners adopt must be consistent with the
general laws of the state and cannot be enforced with-
in the limits of an incorporated city or village
(Ibid.).
Figure 1. Nebraska Water Agencies and Major Functions
Water Rights Administration
Water Quality
Environmental Control
Council
Governor
I
Department of
Water Resources
Water Planning and Development
Natural Resources
Commission
Department of
Environmental Control
220
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7.3.2 Municipalities
Nebraska cities and villages are given authority to
control pollution which may occur beyond their cor-
porate limits. For example, second class cities can
prevent pollution or injury to its source of water
supply up to fifteen miles beyond city limits
(R.R.S.N. § 17-536, 1943) and primary class cities are
given similar extraterritorial authority (R.R.S.N. §
15-237, 1943).
7.3.3 Mater Pollution Control Tax Refund
A recently enacted piece of legislation enables the
recovery of state sales and use taxes which have been
collected on equipment or facilities which are primar-
ily for the purpose of reducing, controlling or elimi-
nating air or water pollution caused by industrial or
agricultural waste (R.R.S.N. § 77-27, 1949, 1974 Supp).
The refund of the above taxes is dependent upon the
finding of the Department of Health and the Department
of Environmental Control that the facility is designed
and functions for the purpose stated in the Act and
that it meets the intent and purposes of the Environ-
mental Protection Act (R.R.S.N. s 77-27, 151, 1974
Supp.). The actual refund is made by the State Tax
Commissioner (Ibid.).
7.4 RELATED LEGISLATION
7.4.1 Natural Resources Districts
A 1975 Act by the Nebraska Legislature subdivided the
state into Natural Resource District with local boards
of directors, who are supervised by the State Natural
Resources Commission (R.R.S.N. §§ 2-3201 to 2-3272,
1975 Supp.). Pollution control is specifically
listed as one of the purposes for the creation of such
districts (R.R.S.N. §2-3262, 1975 Supp.).
Other special purpose districts (Rural Water Districts,
Ground Water Conservation Districts, Drainage Dis-
tricts, Reclamation Districts and Irrigation Dis-
tricts) are given the authority to merge with Natural
Resource Districts and can function as "special im-
provement areas" within the parent district (R.R.S.N.
i 2-3208, 1975 Supp.).
Initial financing for the district is provided through
a one mill levy on the tangible property within the
district, and it is possible for the voters in the
district to raise the levy by a referendum on the
issue (R.R.S.N. §2-3225, 1975 Supp.). Provision is
also made for sharing revenue collected in this manner
with other special purpose districts for the financing
of common programs during the year in which the tax is
collected (Ibid.). Further revenue can be generated
by levying an assessment against land benefited from
irrigation development (R.R.S.N. § 2-3239, 1975 Supp.).
Districts are also given the power to act as the fis-
cal agent of the United States in the operation and
management of reclamation projects constructed with
federal funds (R.R.S.N. § 2-3236, 1975 Supp.). Addi-
tionally, Natural Resource Districts are granted broad
powers to acquire water rights, exercise the power of
eminent domain, and to store, develop and transport
water for domestic purposes (R.R.S.N. i§ 2-3233 to
2-3238, 1975 Supp.).
These districts have authority to adopt land use regu-
lation controlling the land located in their bound-
aries (R.R.S.N. § 2-3248, 1975 Supp.). All regula-
tions, however, must be submitted on an item-by-item
basis for voter approval in a referendum held
specifically for their adoption (R.R.S.N. § 2-3250,
1975 Supp.).
Finally, the creation of these districts on a state-
wide basis resulted in the transfer and allocation of
those functions previously performed by Soil and
Water Conservancy Districts, Watershed Conservancy
Districts, Watershed Districts, Advisory Watershed
Improvement Boards, and Watershed Planning Boards
(R.R.S.N. § 2-3261, 1975 Supp.).
7.4.2 Drainage Districts
Boards of county commissioners are granted the
authority to undertake the performance of work on
ditches, drains and watercourses needed to drain pub-
lic and private lands (R.R.S.N.Si 31-101 to 31-142,
1943). Drainage Districts can be established by sub-
mission of a landowner's petition to the district
court (Nebraska Statutes 31-301 to 31-377, 1943) and
by land owner referendum (Nebraska Statutes 31-401 to
31-451, 1943).
7.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
7.5.1 Agriculture Generally
The Environmental Control Council is given express
authority to adopt livestock waste control regula-
tions (R.R.S.N. § 81-1505 (10), 1974 Supp.). Pursu-
ant to this authority, an extensive and detailed set
of regulations have been adopted (State of Nebraska,
Department of Environmental Control, Rules and Regu-
lations Pertaining to Livestock Waste Control, 1975).
These regulations state that "livestock waste control
facilities will be required whenever the runoff
therefrom creates a nuisance, violates Nebraska Water
Quality Standards, results in a discharge into any
waters of the State, or violates the Nebraska Envi-
ronmental Protection Act" (State of Nebraska, Depart-
ment of Environmental Control, Rules and Regulations
Pertaining to Livestock Waste Control, Rule 14, 1975).
However, livestock operations which do not cause pol-
lution can apply to the Director of Environmental
Control for a permit to operate without construction
of livestock waste constrol facilities (Ibid., Rule
10). Existing livestock operations, at the time the
rules were adopted, can continue to function for one
year before they must be in compliance, and once the
operation meets the state requirements it is deemed
to be prima facie evidence that the operation is not
a public nuisance (Ibid., Rules 22 and 23).
7.5.2 Irrigation Return Flow
In this area, Nebraska Department of Environmental
Control Rules and Regulations are significant not
because of their application to the problems of irri-
gation return flow, but because of the express
exemption of certain discharges from NPDES permits
(State of Nebraska, Department of Environmental Con-
trol , Rules and Regulations Pertaining to the Issu-
ance of Permits Under the National Pollutant Dis-
charge Elimination System, Rule 3, 1975).The dis-
charges exempt under the 1975 Department rules are:
5) Discharges of pollutants from agricul-
tural activities, including irrigation
return flow and runoff from orchards,
cultivated crops, pastures, range
lands, and forest lands, except that
this exclusion shall not apply to:
a) Animal confinement facilities requiring
waste control facilities to prevent
discharges to waters of the State,
221
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pursuant to Nebraska Rules and Regu-
lations Pertaining to Livestock Waste
Control, and
b) Point source discharges from more than
3,000 acres of irrigated land under
one ownership or under control of one
irrigation district or point source
discharges from less than 3,000 acres
identified by the Director as a sig-
nificant contributor of pollution;
c) Point source discharges from an agri-
cultural or silyicultural activity
which has been identified by the
Director or the Regional Administrator
as a significant contributor of
pollution (Nebraska Department of
Environmental Quality, NPDES, Rule
3, 1975, emphasis added).
The above rule would appear to have the effect of re-
moving the regulation of water quality control prob-
lems due to irrigation return flow from the duties of
the Nebraska Department of Environmental Control.
7.6 CASE LAW APPLICABLE TO AGRICULTURE
The predominant water quality issue which has been
litigated in private legal actions in Nebraska courts
has concerned the liability of an upstream user for
polluting waters which are subsequently used by indi-
viduals downstream. The standard approach to this
fact situation has been to bring an action in equity
to enjoin the pollution as a continuing nuisance.
The earliest case demonstrating this approach is that
of Barton v. Union Cattle Company (28 Neb. 350, 44
N.W. 454, 1889).In this case, the Nebraska Supreme
Court held that an injunction should issue against
the continuing nuisance caused by the pollution of a
stream from the waste of a cattle feeding operation
which rendered the water unfit for general farming
purposes and livestock watering (44 N.W. 454, 455).
In a more recent case, the Nebraska high court re-
fused to find that a hog feeding operation which dis-
charged waste into a stream was a nuisance as the
plaintiffs had failed to show that they had suffered
damages different from the other owners of land along
the stream (Vana v. Grain Belt Supply 148 Neb. 125,
10. N.W.2d 474, 1943).
Due to the transition that Nebraska water law has
been experiencing in moving from riparian doctrine to
that of prior appropriation, the cases which have
considered issues arising under dispute between two
users have not determined whether the appropriative
right includes a quality component as part of the
right to apply a specific quantity of water to a
beneficial use.
Harris, Helen C. and Miriam Hendrickson, "Regulation
of Water Pollution from Agricultural Point Sources in
Nebraska: Impact of the NPDES Permit Program on
Feedlot Operations," 9 Creighton L.R. 83 (1975).
Penn, Sarah J., "The Nebraska Environmental Protection
Act: Effects and Implications for the Nebraska Com-
munity," 7 Creighton L.R. 283 (1973).
Rozmarin, George, "Dual System of Water Rights in
Nebraska," 48 Neb. L.R. 488 (1969).
Scheffield, Les, contributing ed., "New Nebraska
Water Law," Irrigation Age, Sept. 1975, p. 27.
, Big Blue River Basin, Nebraska Soil
and Water Conservation Commission, State Water Plan,
publication No. 201, 1968.
Yeutler, C., "Legal Economics Critique of Nebraska
Watercourse Law," 44 Neb. L.R. 11 (1965).
, Rules & Regulations Pertaining to the
Issuance of Permits Under the National Pollutant Dis-
charge Elimination System, The State of Nebraska,
Department of Environmental Control, Lincoln, 1975.
, Water Quality Standards Applicable to
Nebraska Waters, State of Nebraska, Department of
Environmental Control, 1973.
, Nebraska Hater Quality Standards for
Surface Waters of the State, Department of Environ-
mental Control, effective 30 June 1976, Rule 1
effective 27 December 1976, Rules 3 and 7 amended
effective 26 September 1976.
At the date of this report, there have been no re-
ported decisions of Nebraska courts interpreting the
Environmental Protection Act.
7.7. INFORMATION SOURCES
Fischer, R. S., R. S. Harnsberger, and 0. C. Oeltjen,
"Rights to Nebraska Streamflows: An Historical Over-
view with Recommendations," 52 Neb. L.R. 313 (1972).
222
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APPENDIX A
8. NEVADA
8,1 SUMMARY OF WATER QUALITY LAWS
8.1.1 Background
In 1903, the Legislature enacted a statute which made
it a misdemeanor for any person to deposit any sawdust,
rubbish, filth, or poisonous or deleterious substance
or substances, liable to affect the health of persons,
fish or livestock in any waters of the state (Session
Acts, 1903, p. 214). This statute provided for a fine
of not less than $50 nor more than $5,000 upon convic-
tion. This statute was amended in 1907 to make pro-
vision for the reconstruction of old systems of drain-
age sewerage by municipalities (Session Acts, 1907,
p. 104 amended in 1909, 1911, 1913, 1915 to extend the
time for reconstruction).
In 1911, the Nevada Legislature enacted a statute which
made it a gross misdemeanor to "knowingly permit any
act or omit any duty or precaution..." whereby the
purity or healthfulness of the water supplied for pub-
lic use was impaired (1911 C and P §275; R.L. §6540;
N.C.L. § 10223).
Twenty years later, the Nevada Legislature provided
for the creation of conservation districts in order to
conserve and develop renewable natural resources
through organization and operation of these districts
(1931 NCL §6870.02). This same legislature also de-
clared its policy to be one which recognized the ever-
increasing demands on renewable resources and "the
need to conserve, protect and develop such resources
at such quality as will meet the needs of the people
of the state" (Ibid).
The State Conservation Commission was created in 1937
to carry out the policies of the state in programs for
the conservation of renewable resources and to repre-
sent the state in matters affecting such resources
(Part. 4:212:1937; See N.R.S. §548:115.175).
In 1957, the State Board of Health adopted water pollu-
tion control regulations because "the pollution of the
waters of this State constitutes a menace to health
and welfare, and adversely affects wildlife, fish and
aquatic life, and obstructs domestic, agricultural,
industrial, recreational and other legitimate uses of
water..." (State of Nevada; Division of Health, Hater
Pollution Control Regulations, adopted by the State
Board of Health, July 16, 1957, amended July 1, 1967).
In 1972, the State Commission of Environmental Pro-
tection promulgated Water Pollution Control Regulations
(see Environment Reporter, State Hater Laws, Vol. 2,
841:0501-.0518).These regulations require a waste
discharge permit before any person can discharge or
deposit wastes into public waters. Agricultural irri-
gation return waters are specifically exempted from
these regulations (Environment Reporter. State Water
Laws, Vol. 2, 841:0502, 3.1.5).One year later, the
Nevada Legislature enacted the County Sewage and Waste
Water Law (added to N.R.S. by 1973; amended 1975, 1336;
see N.R.S. §244.922 et. seq.). This act enabled
counties having a population of 200,000 or more to be-
come "the master agency within its territory for the
collection, disposal and treatment of sewage and waste
water (N.R.S. §244.9222). The applicability of this
law in relation to this study will be examined in a
later section.
The State Environmental Commission adopted NPDES Regu-
lations on October 24, 1973. The State sought delega-
tion of the NPDES by November 1, 1974 and took action
to insure this. On October 15, 1975, the Environmental
Protection Agency delegated authority to Nevada for the
discharge of pollutants into navigable waters under
NPDES (Environment Reporter, Current Developments,
May 1, 1975 to April 30, 1976, p. 455).
The Nevada Water Pollution Control Law was also enacted
in 1973 (added to N.R.S. by 1973, 1707; See H.R.S.
§445.131 et. seq.). This act remains the heart of
Nevada's water pollution control law. This act rele-
gated water pollution control to the Department of
Human Resources and the State Environmental Commission
(N.R.S. §445.141, 146, 201, 211). They later adopted
procedural regulations for the administration of dis-
charge permits in 1975 (State of Nevada—Procedural
Regulations for Administration of Discharge Permits,
adopted by the State Environmental Commission, Janu-
ary 25, 1975, Department of Human Resources, Bureau
of Environmental Health).
3.1.2 Policy
The Nevada Legislature has made a finding that the
pollution of water adversely affects public health
and welfare, is harmful to wildlife, fish and other
aquatic life and impairs agricultural and other bene-
ficial uses of water (N.R.S. §445.132(1)).
In light of these findings, it is the public policy
of the state of Nevada to:
(a) Restore and maintain the chemical,
physical and biological integrity of water
within this state;
(b) Prevent, reduce and eliminate pollution;
(c) 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 interstate agencies
and the Federal Government in carrying out
these objectives (N.R.S. §445.132(2)).
Pollution is defined in Nevada statutes as meaning
"the man-made or man-induced alteration of the chemi-
cal, physical, biological and radiological integrity
of water" (N.R.S. §445.181). Pollutant is defined in
Nevada statutes as meaning:
dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological
materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and
industrial, municipal and agricultural
waste discharged into water (N.R.S.
§445.178, emphasis added).
Further, point source is defined as:
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 animal feeding operation, or
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vessel or other floating craft, from which
pollutants are or may be discharged (N.R.S.
§445.176).
Further evidencing Nevada's policy in relation to the
state's natural resources is the declaration of legis-
lative policy in the Conservation Districts Law (N.R.S.
5548.010 et. seq.).
It is hereby declared, as a matter of legis-
lative determination:
1. That the renewable natural resources of
the State of Nevada are basic assets.
2. That they are being affected by the
ever-increasing demands of farm and ranch
operations and by changes in land use from
agricultural to nonagricultural uses, such
as, but not limited to, residential and
commercial developments, highways, and
airports.
3. That conservation, protection, and
controlled development of these renew-
able natural resources are necessary at
such rate and such levels of quality as
will meet the needs of the people of
this state (N.R.S. §548.095).
It is hereby declared to be the policy of
the legislature to recognize the ever-
increasing demands on the renewable
natural resources of the state and the
need to conserve, protect and develop
such resources at such levels of quality
as will meet the needs of the people of
the state (N.R.S. §548.110).
In a related area—that of solid waste disposal —it is
the policy of the state to:
regulate the collection and disposal of
solid waste in a manner that will:
1. Protect public health and welfare.
2. Prevent water or air pollution.
3. Prevent the spread of disease and
the creation of nuisances.
4. Conserve natural resources.
5. Enhance the beauty and quality of
the environment (N.R.S. §444.440).
8.1.3 Classification
Nevada waters are classified as either Class A, Class
B, Class C, or Class D by the State Environmental Com-
mission (Nevada Water Pollution Control Regulations,
adopted by the State Environmental Commission, Novem-
ber 14, 1972 last amended on January 25, 1975. See
Environment Reporter, State Water Laws, Vol. 2, §841:
0504 to 841:0518).
The "A" classification is "intended primarily to in-
clude waters... located in areas of little human hab-
itation; no industrial development or intensive agri-
culture; and where the watershed is relatively
undisturbed by man's activity" (Environment Reporter,
State Hater Laws, Vol. 2, §841:05, §4.2.1).
Beneficial uses included under this classification
include: "Drinking water supply with treatment by dis-
infection only suitable for aquatic life habitat,
wildlife propagation, agricultural use, recreation,
boating and esthetics" (Environment Reporter, State
Water Laws, Vol. 2, §841:05, §4.2.1.1);
The "B" classification includes waters which are lo-
cated in areas of light or moderate human habitation,
little industrial development, light to moderate agri-
cultural development, and where the watershed is only
moderately influenced by man's activity (Environment
Reporter, State Hater Laws. Vol. 2, §841:0510, §4.2.2).
Beneficial uses under this classification include:
"Drinking water supply with treatment by disinfection
and filtration only, for agricultural use, aquatic
life and wildlife propagation, recreation, industrial
supply and esthetics" (Environment Reporter, State
Hater Laws, Vol. 2, §841:0510, §4.2.2.1).
Waters falling under the "C" classification include
those ''which are located in areas of moderate to urban
habitation, industrial developments present in moder-
ate amounts, intensive agricultural practices and the
watershed considerably altered by man's activity"
(Environment Reporter, State Mater Laws, Vol. 2
§841:0514, §4.2.3).
Beneficial uses included under this classification
are: "Domestic water supply following complete treat-
ment, agricultural use, aquatic life, wildlife propa-
gation, recreation and industrial supply."
Waters under the "D" classification include: "waters
...located in areas of urban development, highly
industrialized or intensively used for agriculture
or combination of all the above and where effluent
sources include a multiplicity of waste discharges
from the highly altered watershed" (Environment
Reporter, State Water Laws, Vol. 2, §841:0517, §4.2.4).
Beneficial uses under this classification include
"agricultural use, boating and esthetics and indus-
trial supply except for food processing purposes"
(Environment Reporter, State Water Laws, Vol. 2,
§841:0517, §4.2.4.1).
8.1.4 Standards
The State Environment Commission establishes water
quality standards:
1. To protect the public health or wel-
fare;
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 (N.R.S. §445.244).
In promulgating discharge standards, consideration must
be given to:
a. The effect of the discharge on the
receiving water and its beneficial use.
b. The need for standards that specify
by chemical, physical, biological or
other characteristics the extent to which
pollution by various substances will not
be tolerated.
c. Requirements for establishing water
quality standards promulgated from time
to time by the Federal Environmental Pro-
tection Agency (Nevada Water Pollution
Control Regulations, loc. cit. §3.1.3).
The quality of any waters that receive waste dis-
charges must be such that no impairment of the benefi-
cial usage of water occurs (Nevada Water Pollution
Control Regulations, §4.1). However, the Commission
has recognized that natural water conditions may be
outside of the limits established by standards (Ibid).
Furthermore, water quality criteria as it relates to
agricultural use must be maintained in a quality which
is "suitable for stock watering and irrigation without
224
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treatment" (Nevada Hater Pollution Control Regulations,
54.1.1.a).
Nevada also has narrative standards which are appli-
cable to all waters of the State (Nevada Hater Pollu-
tion Control Regulations, §4.1.2). These standards
provide that all waters of the State must be:
a. Free from substances attributable to
domestic or industrial waste or other con-
trollable sources that will settle to form
sludge or bottom deposits in amounts suf-
ficient to be unsightly, putrescent or
odorous, or in amounts sufficient to inter-
fere with any beneficial use of the water.
b. Free from floating debris, oil, grease,
scum, and other floating materials attrib-
utable to domestic or industrial waste or
other controllable sources in amounts
sufficient to be unsightly or in amounts
sufficient to interfere with any benefi-
cial use of the water.
c. Free from materials attributable to
domestic or industrial waste or other
controllable sources in amounts sufficient
to produce taste or odor in the water or
detectable off-flavor in the flesh of fish,
or in amounts sufficient to change the
existing color, turbidity or other condi-
tions in the receiving stream to such degree
as to create a public nuisance, or in amounts
sufficient to interfere with any beneficial
use of the water.
d. Free from high temperature, biocides,
organisms pathogenic to human beings, toxic,
corrosive, or other deleterious substances
attributable to domestic or industrial waste
or other controllable sources at levels or
combinations sufficient to be toxic to
human, animal, plant or aquatic life or in
amounts sufficient to interfere with any
beneficial use of the water... (Nevada
Water Pollution Control Regulations.
§4.1.2).
8.1.5 Permit System
The Department of Human Resources is the agency who
issues discharge permits. These permits are issued
for a period not to exceed five years and the Depart-
ment will issue a new permit upon expiration of an
existing permit if:
1. The permit holder is in compliance with
or has substantially complied with all the
terms, conditions, requirements and sched-
ules of compliance of the expired permit;
2. The Department has current information
on the nature, contents and frequency of
the permit holder's discharge, either pur-
suant to the submission of new forms and
applications or pursuant to monitoring
records and reports submitted to the
Department by the permit holder; and
3. The discharge is consistent with
applicable effluent standards and limit-
ations, water quality standards and other
legally applicable requirements (N.R.S.,
1445.227).
Applications for renewal must be filed at least 180
days prior to the expiration of the permit (Nevada
Water Pollution Control Regulations, Environment
Reporter, State Hater Laws, Vol. 2, §841:0502). Each
permit must insure compliance with effluent limita-
tions, standards of performance for new sources,
effluent standards, prohibitions and pretreatment
standards (N.R.S. §445.231). The permit must also
specify average and maximum daily or other appropriate
quantitative limitations for the level of pollutants
in the discharge (N.R.S. §445.231(2)).
A permit will not be issued if the proposed discharge
would be inconsistent with an areawide waste treatment
management plan, or which would be inconsistent with
any rules, regulations, and guidelines promulgated by
the State Environmental Commission (N.R.S. §445.224).
The Commission requires that notification be made to
the Department by "all permit holders whose production
increases, or whose process modifications or facility
expansion result in new or increased discharges"
(N.R.S. §445.234).
A permit may be revoked, modified or suspended if there
has been a violation of any term or condition of the
permit, the permit was obtained by misrepresentation,
or there has been a change of conditions (N.R.S.
§445.271).
Nevada water pollution control regulations prohibit
the conducting of an agricultural operation which will
or may cause or tend to cause pollution of any waters
of the state without first obtaining a permit from the
Department (Nevada Hater Pollution Control Regulations,
§3.1.2, adopted by the State Environmental Commission.
See Environment Reporter, State Hater Laws, Vol. 2,
§841:0501 et. seq.).Specifically exempted from per-
mit requirements are agricultural irrigation return
waters (Nevada Uater Pollution Control Regulations,
§3.1.5 (c), emphasis added).
Any person required to obtain a new,
modified or renewal permit from the
Department shall submit a written appli-
cation on a form provided by the Bureau
of Environmental Health. All application
forms must be completed in full, signed
by the applicant or his legally author-
ized representative, and accompanied by
three copies of all required exhibits.
The name of the applicant must be the
legal name of the owner of the facilities
or his agent or the lessee responsible
for the operation and maintenance of the
facilities. An application submitted by
a corporation must be signed by the prin-
cipal executive officer and who has been
designated by the principal executive
officer to make such applications on be-
half of the corporation. In the case of
a partnership or a sole proprietorship,
the application must be signed by a gen-
eral partner or by the proprietor. In
the case of a municipal, State or other
public facility the application must be
signed by either a principal executive
officer, ranking elected official, or
other duly authorized employee. Each
application must contain a certification
by the person signing the application
that he is familiar with the information
provided, that to the best of his know-
ledge and belief such information is
complete and accurate, and that he has
the authority to sign and execute the
application. An application is not deemed
to be complete until any additional infor-
mation requested by the Department is sub-
mitted by the applicant (Nevada Hater Pol-
lution Control Regulations, §3.4.1).
The Department is given the authority to issue special
permits for unexpected emergency activities or
225
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discharges which are essential to the protection of
property and preservation of public health and welfare
(Nevada Uater Pollution Control Regulations, 53.7.1).
It is unlawful for any person to discharge any pollut-
ant from any point source into any waters of the State
unless a permit authorizes such a discharge (State of
Nevada Procedural Regulations for Administration of
Discharge Permits, adopted by the State Environmental
Commission on January 25, 1975, Article 3.1). Nevada's
procedural regulations for the administration of dis-
charge permits require that a person who is presently
discharging pollutants to file a complete Refuse Act
or NPDES application with the Federal Government
(Nevada Procedural Regulations, Article 3.2.1).
Any person who desires to commense discharges of pol-
lutants must file a complete permit application with-
in 180 days in advance of the date of the proposed
discharge, or within a time which is sufficient to
insure compliance with Section 306 of the Federal
Water Pollution Control Act (P.L. 92-500; 33 U.S.C.
1251 et. seq.).
The Department of Human Resources must formulate a
tentative determination regarding permit applications
in advance of public notice of the proposed issuance
or denial' of the permit (Nevada Procedural Regulations,
Article 4.1.1). This determination must include a
proposed determination to issue or deny a permit for
the described discharge.
If the determination is to issue the permit, the de-
termination must include: (1) proposed effluent
limitations; (2) a proposed schedule of compliance,
including interim dates and requirements for meeting
the proposed effluent limitations; and (3) a brief
description of any cither proposed special conditions
which will have a significant impact upon the discharge
described in the application (Nevada Procedural Regu-
lations. Articles 4.1.1 to 4.1.1.2.3).
Public notice of every complete application for a per-
mit must be circulated in a manner which is designed
to inform interested persons (Nevada Procedural Regu-
lations, Article 4.2). This notice must be circulated
within the geographical area of the proposed discharge
by publishing in local newspapers and periodicals
(Nevada Procedural Regulations, Article 4.2.1.1). The
contents of the public notice must include the follow-
ing: (1) the name, address and phone number of the
Department; (2) the name and address of each applicant;
(3) a brief description of each applicant's activities
or operations which result in the discharge described
in the application; (4) the name of the waterway to
which each discharge is made, a short description of
the location of each discharge and an indication of
whether the discharge is existing or new; (5) a state-
ment of the tentative determination to issue or deny a
permit for the discharge; (6) a brief description of
the procedures for the formulation of final determina-
tions including the required 30 day comment period;
and (7) the address and phone number of the premises
at which interested persons may obtain further infor-
mation, request a copy of the draft permit, request a
copy of the fact sheet, and inspect a copy of relevant
forms and documents (Nevada Procedural Regulations,
Articles 4.2.3 to 4.2.3.7).
For every discharge, the Director must prepare a fact
sheet which must include the following:
1. A sketch or detailed description of the location
of the discharge.
2. A quantitative description of the discharge de-
scribed in the NPDES application which includes
the following:
a. the rate or frequency of the proposed
discharge; if the discharge is continuous,
the average daily flow in gallons per day
or million gallons per day;
b. for the thermal discharges subject to
limitation under the Act, the average sum-
mer and winter temperatures in degrees
Farenheit; and
c. the average daily discharge in pounds
per day of any pollutants which are present
in significant quantities or which are
subject to limitations or prohibition
under Sections 301, 302, 306, or 307 of
the Act and regulations published there-
under.
3. The tentative determinations discussed earlier.
4. A brief citation, including a brief identification
of the uses for which the receiving waters have
been classified, of the water quality standards
and limitations applied to the proposed discharge;
and
5. A fuller description of the procedures for the
formulation of final determinations than that
given in the public notice including:
a. the 30 day comment period;
b. procedures for requesting a public hearing
and the nature thereof; and
c. any other procedures by which the public
may participate in the formulation of the final
determinations (Nevada Procedural Regulations,
Articles 4.3.1 to 4.3.1.5.3).
The Director must specify the average and maximum
daily quantitative limitations for the level of pol-
lutants in the authorized discharge in terms of
weight (Nevada Procedural Regulations, Article 5.3)
and any discharge which is authorized by a permit may
be subject to monitoring requirements for the flow
(in gallons per day) and the following pollutants:
1. pollutants which are subject to reduction or elim-
ination under the terms and conditions of the
permit;
2. pollutants which the Director finds could have a
significant impact on the quality of the waters
of the State;
3. pollutants specified by the administrator of the
Environmental Protection Agency as subject to mon-
itoring; and
4. any pollutants in addition to the above which the
Regional Administrator of the Environmental Pro-
tection Agency requests in writing be monitored
(Nevada Procedural Regulations, Article 7.1 to
7.1.2.2.4).
Discharge of pollutants from agricultural activities,
including irrigation return and runoff from orchards,
cultivated crops, pastures, rangelands, and forest
lands are specifically exempted from the requirements
of obtaining a discharge permit (State of Nevada Water
Control Regulations, adopted by the State Environmental
Commission, October 24, 1973 last amended on January
25, 1975, Article 2.2.1.1, 2.2.1.1.3).
This exclusion does not apply to:
discharge of irrigation return flows (such
as tailwater, tile drainage, surfaced ground-
water flow or bypass water), operated by
public or private organizations or indivi-
duals, if: (1) there is a point source of
discharge (e.g., a pipe, ditch, or other
defined or discrete conveyance, whether
natural or artificial); and (2) the return
flow is from land areas of more than 3,000
contiguous acres, or 3,000 non-contiguous
acres which use the same drainage system;
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and discharges from any agricultural...
activity which have been identified by
the Administrator of the Environmental
Protection Agency or the Director of the
Department of Human Resources as a signi-
ficant contributor of pollution (Nevada
Water Pollution Control Regulations,
Article 2.2.1.1.3.4 and .5).
8.1.6 Sanctions and Enforcement Measures
Nevada water pollution control regulations make it un-
lawful for any person to discharge any pollutant from
any point source into any waters of the State (Nevada
Water Pollution Control Regulations, Article 2.2.1.
See also N.R.S. 544b.271)1
When the Director finds a violation of the Federal
Water Pollution Control Act, the Nevada Water Pollution
Control Law, or any rule, regulation, standard or per-
mit, he may issue an order pursuant to N.R.S. Sect.
445.324, commence a civil action, or request the
Attorney General to institute by indictment or infor-
mation a criminal prosecution oursuant to N.R.S. Sect.
445.334 and 445.337 (Nevada Water Pollution Control
Regulations, Article 2.11.1 to 2.11.1.3. See also
N.R.S. §445.317). Alleged violations of water pollu-
tion control statutes and regulations are investigat-
ed by a member of the Bureau of Environmental Health's
staff (State of Nevada Water Pollution Control Program
Plan FY 1975, p. 18, 8.TT The Attorney General is
responsible for enforcing the water pollution control
statutes and regulations, while enforcement of stat-
utes and regulations which concern subdivisions and
individual sewage disposal is given to the District
Attorney (Water Pollution Control Program Plan, 8.2),
If a discharge fails to comply with N.R.S. Sect. 445.
231 and .234, the Department has the authority to
require the permit holders to take specific steps to
bring the discharge within these statutes (N.R.S.
§445.241).
To enforce any rule, regulation, order or permit, the
Director or his authorized representative has the pow-
er to enter any premises to inspect any monitoring
equipment and sample any discharge (N.R.S. §445.304).
Further, the Director is authorized to seek injunctive
relief to prevent the continuance or occurence of any
act or practice which violates the Nevada Water Pollu-
tion Control Law, or any permit, rule, regulation or
order (N.R.S. §445.327). If the Director can show
that a violation exists, a court may issue prohibitory
and mandatory injunctions including temporary restrain-
ing orders issued ex parte or after notice and hearing
and preliminary or permanent injunctions (N.R.S.
§445.327).
Violation of any water pollution control statute, per-
mit, rule, regulation, standard or order subjects the
violator to a civil penalty up to $10,000 per day
(N.R.S. 1445.331). The Department may also recover
actual damages to the state resulting from the viola-
tion and includes any expenses incurred in removing,
correcting and terminating any adverse effects result-
ing from the discharge of pollutants and compensation
•for any loss or destruction of wildlife, fish or
aquatic life (N.R.S. §445.331(2) and (3)).
Any person who intentionally or with criminal negli-
gence commits a violation of N.R.S. Sect. 445.221 or
.254, or any effluent limitation standard or perform-
ance, or toxic'and pretreatment effluent limitation,
or the terms or conditions of any permit, is guilty of
a gross misdemeanor and is punishable by a fine of
not more than one year, or both (N.R.S. §445.334).
If a second violation occurs, such person is upon
conviction guilty of a felony and is subject to a
fine of up to $50,000 or by imprisonment in the state
prison for not less than one year nor more than six
years, or by both fine and imprisonment (N.R.S. §445.
334).
Finally, by knowingly making a false statement,
representation or certification in any application,
record, report, plan or other document, such person
is guilty of a gross misdemeanor punishable by a
fine of not more than $10,000, or by imprisonment in
the county jail for not more than one year, or both
(N.R.S. §445.337).
8.2 ADMINISTRATION OF THE LAWS
Water pollution control is largely the responsibility
of the Department of Human Resources (hereafter
Department) and the State Environmental Commission.
The Department consists of the State Health Division
which has a branch entitled the Bureau of Environ-
mental Health.
8.2.1 Department of Human Resources
The Department is the designated water pollution con-
trol agency for the state of Nevada for all purposes
of federal water pollution control legislation (N.R.S.
§445.211). The Department must establish a continu-
ing planning process which is consistent with all
applicable federal requirements to develop plans for
all waters of the state (N.R.S. §445.257). These
plans must include:
1. adequate effluent limitations and
schedules of compliance;
2. the incorporation of all elements of
any applicable areawide waste management
plans and basin plans under N.R.S. §445.
131 to 445.354, inclusive;
3. total maximum daily load for pollutants;
4. procedures for revision;
5. adequate authority for intergovernmental
cooperation;
6. adequate implementation, including
schedules of compliance, for revised or
new water quality standards;
7. controls over the disposition of all
residual waste from any water treatment
processing; and
8. an inventory and ranking, in order of
priority, of needs for construction of
waste treatment works required to meet
applicable requirements (N.R.S. §445.257).
The Department may by order or permit require the
owner or operator of any source of a discharge of
pollutants into state waters to establish and maintain
such records, make reports, install and maintain bio-
logical monitoring methods, sample discharges and
provide any required information relating to dis-
charges (N.R.S. §445.307).
Most importantly, the Department is the final author-
ity in the administration of water pollution preven-
tion, abatement and control (N.R.S. §445.344). Any
other department or agency is expressly prohibited
from permitting the discharge of wastes into the
waters of the state which would result in the pollu-
tion of such waters in excess of any water quality
standard (N.R.S. §445.344).
The Director of the Department has the following powers
and duties:
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1. To perform any acts consistent with the
requirements of NRS 445.131 to 445.354, in-
clusive, and the requirements of federal water
pollution control legislation and conditions
thereof relating to participation in and
administration by this state of the National
Pollution Discharge Elimination System;
2. To administer and enforce the provisions
of NRS 445.131 to 445.354, inclusive, and
all rules, regulations and standards promul-
gated by the commission, and all orders and
permits promulgated or issued here under by
the department;
3. To examine and approve or disapprove
plans and specifications for the construc-
tion and operation by a political subdivision
of new sewerage systems and treatment works
and extensions, modifications of or additions
to new or existing sewerage systems or treat-
ment works;
4. To advise, consult and cooperate with
other agencies of the state, the Federal
Government, other states, interstate agen-
cies and with other persons in furthering
the purposes of NRS 445.131 to 445.354,
inclusive;
5. To qualify for, accept and administer
loans and grants from the Federal Govern-
ment and from other sources, public or
private, for carrying out any functions
under NRS 445.131 to 445.354, inclusive;
6. To encourage, request, participate in
or conduct studies, investigations, re-
search, experiments, demonstrations and
pilot programs by contract, grant or other
means;
7. To maintain and to require others to
maintain records, monitoring devices and
procedures for making inspections and
obtaining samples necessary to prepare
reports;
8. To collect and disseminate information
to the public as the director deems advis-
able and necessary for the discharge of his
duties under NRS 445.131 to 445.354, inclu-
sive;
9. To develop comprehensive plans and pro-
grams for preventing, reducing or eliminat-
ing pollution, with due regard to the
improvements which are necessary to conserve
such waters for the protection and propaga-
tion of fish and aquatic life, wildlife,
recreational purposes, public water supply,
agricultural, industrial and other purposes;
10. To certify all costs and expenditures
for any facility, land, building, machinery,
equipment, treatment works, sewerage or dis-
posal systems which are acquired, constructed
or installed in conformity with the purposes
of NRS 445.131 to 445.354, inclusive:
11. To hold hearings, to issue notices of
hearings, to issue subpenas requiring the
attendance of witnesses and the production
of evidence, to administer oaths, and to
take testimony as the director finds neces-
sary to carry out the provisions of NRS
445.131 to 445.354, inclusive;
12. To exercise all incidental powers neces-
sary to carry out the purposes of NRS 445.131
to 445.354, inclusive; and
13. To delegate any function or authority
granted to him under NRS 445.131 to 445.354,
inclusive (N.R.S. §445.214, emphasis added).
The Director is also authorized to take any appropriate
action against a pollution source when he has evidence
that the pollution is presenting an imminent and sub-
stantial endangerment to the health or welfare of
persons (Nevada Mater Pollution Control Regulations,
Article 3.9).Figure 1 shows the organization of
the Department of Human Resources.
Figure 1. Nevada Water Quality Administration
Director
Department of Human Resources
State Health Division
Chief
Bureau of Environmental Health
Assistant Chief
Bureau of Environmental Health
228
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The State Health Division is given the statutory
authority to regulate sanitation and sanitary practices
in the interests of the public health and provide for
the sanitary protection of water and food supplies and
control sewage disposal (Nevada Water Pollution Control
Program Plan, FY 1975. §5711:
The Bureau of Environmental Health is a branch of the
Health Division which is a section of the Department
of Human Resources. The Bureau collects water samples
and performs analyses for dissolved oxygen and BOD
(Nevada Hater Pollution Control Program Plan, FY 1975,
§7.2.2).
During 1975, the Bureau designated principle aquifers
and accumulated data to develop an inventory of ground
water pollution sources and a list of wells which
would comprise a ground water monitoring network
(Nevada Water Pollution Control Program Plan, FY 1975,
§7.3.7).(This information was submitted to the
Environmental Protection Agency on April 15, 1976.)
The Bureau also investigates alleged violations of
water pollution control statutes and regulations
(Nevada Hater Pollution Control Program Plan, FY 1975.
__.
8.2.2
Additional Agency Involvement-Department of
Conservation and Natural Resources
The Department of Conservation and Natural Resources
has general administrative supervision overall natural
resources agencies (N.R.S. §232.020). The Director of
this department must coordinate all studies in Nevada
that concern the supply, development, use and conser-
vationof water (N.R.S. §232.070).
The State Engineer, who is the executive head.of the
Division of Water Resources, must develop a comprehen-
sive water resource plan and review proposals from
federal, state and local agencies that deal with water
and flood control. Further, the State Engineer handles
all applications for the appropriation of water, per-
mits to change the place of diversion, manner or place
of use, and is responsible for ensuring the proper
distribution of appropriated waters (N.R.S. §533.325,
.270 and §534.050). Figure 2 shows the relationship
of the various agencies involved with water quantity
and quality control.
The State Environmental Commission was created in 1973
as a branch of the Department of Conservation and Nat-
ural Resources to promulgate rules and regulations for
the control of water pollution. The State Conservation
Commission carries out the policies of Nevada in pro-
grams for the conservation of renewable natural re-
sources and represents the state in matters affecting
such resources (N.R.S. §548.175).
The Commission is composed of the following members;
the Director of the Nevada Department of Fish and
Game, the State Forester Firewarden, the State Engi-
neer, the Executive Director of the State Department
of Agriculture, a member of the State Board of Health,
and four members appointed by the Governor.
Figure 2,
Water Quality
Nevada Water Agencies and Major Functions
Water Rights Administration
Planning
and Development
Chief
Bureau of
Environmental Health
Assistant Chief
Bureau of
Environmental Health
(State
surface
program,
EIKO
branch
office)
(Water
right
appropria-
tions and
licensing
of water
right
surveyors)
(State
ground
program,
Las Vegas
branch
office)
(State
water plan
& coordi-
nation of
land use
planning)
229
-------
The Commission must:
(a) Develop, propose, promulgate and amend
from time to time, after notice and public
hearing, rules and regulations implementing
and- furthering the provisions of NRS§445.131
to 445.354, inclusive, including standards
of water quality and waste discharge,
(b) Advise, consult and cooperate with other
agencies of the state, the Federal Govern-
ment, other states, interstate agencies and
other persons in furthering the provisions
of NRSS445.131 to 445.354, inclusive.
2. In promulgating regulations, water
quality standards and effluent limitations
pursuant to NRS 445.131 to 445.254, inclu-
sive, the commission shall recognize the
historical irrigation practices in the
respective river basins of this state, and
the economy thereof, and their effects.
3. The commission may hold hearings,
issue notices of hearings, issue subpenas
requiring the attendance of witnesses and
the production of evidence, administer oaths,
and take testimony as it deems necessary to
carry out the provisions of subsections 1 and
2 and for the purpose of reviewing water
quality standards (N.R.S. §445.201).
Further, the Commission must provide an opportunity
for each permit applicant, interested agency, or any
person to request a public hearing with respect to
each permit application (N.R.S. §445.267).
8.3 SPECIAL LEGISLATION
8.3.1 Solid Waste Disposal
While Nevada's Solid Waste Disposal legislation ex-
pressly excludes "any agricultural activity" from its
requirements for a plan for a solid waste management
system, this legislation does reflect the state's
concern for its environment (N.R.S. 5444.620).
The state's policy in regulating the collection and
disposal of solid waste is one which will:
1. Protect public health and welfare.
2. Prevent water or air pollution.
3. Prevent the spread of disease and
the creation of nuisances.
4. Conserve natural resources.
5. Enhance the beauty and quality of
the environment (N.R.S. §444.440).
Solid waste is defined as:
all putrescible and nonputrescible refuse
in solid or semisolid form, including, but
not limited to, garbage, rubbish, junk ve-
hicles, ashes or incinerator residue, street
refuse, dead animals, demolition waste,
construction waste, solid or semisolid com-
mercial and industrial waste and hazardous
waste, including explosives, pathological
waste, chemical waste, and herbicides or
pesticide waste (N.R.S. §444.490).
The State Environmental Commission is the agency who
is responsible for adopting regulations concerning
solid waste management systems. However, the Depart-
ment of Human Resources is designated as the state
agency for such purposes as are required by the Solid
Waste Disposal Act (42 U.S.C. §3251-3259, N.R.S.
§444.560, .590).
8.3.2 County Sewage and Waste Hater Law
The County Sewage and Waste Water Law provides that
county officers must develop an areawide management
plan (N.R.S. §244.9262). This plan must include a
process to identify agriculturally related nonpoint
sources of pollution, including runoff from manure
disposal areas and from land used for livestock and
crop production (N.R.S. §244.9262(f)).
8.4 RELATED LEGISLATION
The Nevada Conservation Districts Law commands the
State Conservation Commission:
To serve, along with conservation dis-
tricts, as the official state agency
for cooperating with the Soil Conserv-
ation Service of the United States
Department of Agriculture in carrying
on conservation operations within the
boundaries of conservation districts
... (N.R.S. §548.175(5)).
In making a determination that a conservation district
is needed, the Commission must give due weight and con-
sideration to:
(a) The topography of the area considered
and of the state.
(b) The composition of soils therein.
(c) The distribution of erosion.
fd) The prevailing land use practices.
(e) The desirability and necessity of
including within the boundaries the par-
ticular lands under consideration and
the benefits such lands may receive from
being included within such boundaries.
(f) The relation of the proposed area
to existing watersheds and agricultural
regions, and to other conservation dis-
tricts already organized or proposed for
organization under the provisions of this
chapter.
(g) Such other physical, geographical
and economic factors as are relevant,
having due regard to the legislative
determinations set forth in NRS 548.095
to 548.110, inclusive (N.R.S. §548.195).
Nevada's State Land Use Planning legislation states
that there is a statewide public interest in a more
efficient system of land use planning and decision-
making and that:
The rapid continued growth of the state's
population, expanding urban development,
increasing pressures upon natural re-
sources, conflicts in patterns of land
use, a lack of state land use policy and
planning and the increased size, scale
and impact of private actions have created
a situation in which land use management
decisions of wide public concern often are
being made on the basis of expediency, tra-
dition, short-term economic considerations
and other factors which too frequently are
unrelated or contradictory to sound envi-
ronmental, economic and social land use
considerations (N.R.S. §3210.640).
The executive head of the division of state lands of
the Department of Conservation and Natural Resources
must develop and carry on a statewide land use plan-
ning process which must include projections of the
nature and quantity of land needed and suitable for
the "conservation and preservation of natural re-
sources, agriculture, mineral development and
230
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forestry" (N.R.S. §321.720(4)) and the preparation of
an inventory of environmental, geological and physical
conditions (including soil types) which influence the
desirability of various uses of land (N.R.S. §321.720
(5)).
The Executive Director is commanded to "adopt a land
use plan for the integrated arrangement and general
location and extent of, and the criteria and stand-
ards for, the uses of land, water, air space and other
natural resources within the area..." (N.R.S. §321.
770). Among the goals of a comprehensive physical
land use plan are those to: "preserve the quality of
the air and water resources of the state and to con-
serve prime farm lands for the production of crops
..." (N.R.S. §378.655).
8.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
Nevada Water Pollution Control Regulations were adopt-
ed by the State Commission of Environmental Protection
on November 14, 1972 and were last amended on January
25, 1975 (see Environment Reporter, State Water Laws,
Vol. 2, §841.0501 to .0518).
These regulations prohibit the discharge of any pollut-
ant from any point source into any waters of the State
unless authorized by a permit which was issued by the
Department of Human Resources (Nevada Water Pollution
Control Regulations, Article 2.2.1, 1975).
Specifically exempted from the requirements of obtain-
ing a permit are discharges of pollutants from agricul-
tural activities, including irrigation return flow and
runoff from orchards, cultivated crops, pastures,
rangelands, and forest lands (Nevada Water Pollution
Control Regulations, Article 2.2.1.1.3). This exeinp-
tion does not apply to:
Discharges from animal confinement facilities,
if such facility or facilities contain, or at
any time during the previous 12 months con-
tained, for a total of 30 days or more, any
of the following types of animals at or in
excess of the number listed for each type
of animal:
1,000 slaughter and feeder cattle;
700 mature dairy cattle (whether milkers
or dry cows);
2,500 swine weighing over 55 pounds;
10,000 sheep;
55,000 turkeys;
If the animal confinement facility has con-
tinuous overflow watering, 100,000 laying
hens and broilers;
If the animal confinement facility has
liquid manure handling systems, 30,000
laying hens and broilers;
5,000 ducks.
Discharges from animal confinement facili-
ties, if such facility or facilities contain,
or at any time during the previous 12 months
contained for a total of 30 days or more, a
combination of animals such that the sum of
the following numbers is 1,000 or greater;
the number of slaughter and feeder cattle
multiplied by 1.0, plus the number of mature
dairy cattle multiplied by 1.4, plus the
number of swine weighing over 55 pounds
multiplied by 0.4, plus the number of sheep
multiplied by 0.1;
Discharges from aquatic animal production
facilities;
Discharges of irrigation return flow (such
as tailwater, tile drainage, surfaced
groundwater flow or bypass water), operated
by public or private organizations or
individuals, if: (1) there is a point
source of discharge (e.g., a pipe, ditch,
or other defined or discrete conveyance,
whether natural or artificial) and;
(2) the return flow is from land areas of
more than 3,000 contiguous acres, or 3,000
non-contiguous acres which use the same
drainage system; and
Discharges from any agricultural or silvi-
cultural activity which have been identi-
fied by the Administrator or the Director
as a significant contributor of pollution
(Nevada Mater Pollution Control Regulations,
Articles 2.2.1.1.3.1 to 2.2.1.1.3.5).
8.6 CASE LAW APPLICABLE TO AGRICULTURE
The only case to reach the Supreme Court of Nevada
which dealt with water pollution was the case of City
of Reno v. Stoddard (40 Nev. 537, 167 P. 317, 19177V
This case concerned a municipal corporation's sewage
disposal fund and does not affect irrigation return
flow problems.
8.7 INFORMATION SOURCES
, Nevada Hater Quality Inventory Report,
First Annual Report to the U.S. Environmental Protec-
tion Agency and the Congress, Dept. of Human Resources,
April 1975.
Dunn, L. E. and Hanson, Robert A. Chemical Composi-
tion and Quality of Nevada Maters, Agricultural
Experiment Station, August 1967.
Dunn, L. E. and Henson, R. A. Quality Standards of
Irrigation Waters for Nevada Soils, Agricultural
Experiment Station, March 1970.
, Mater for Nevada, Vols. 1-3, Special
Planning Report and Summary, 1971.
, Water Quality Impacts of Land Disturbing
Activities, Interim Report, Prepared by Stevens,
Thompson E., Ruyon, Inc., and Vasey-Scott Engineering
Co., Inc., for State of Nevada, Environmental Protec-
tion Services, Department of Human Resources, Carson
City, Nevada, July 1976.
231
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APPENDIX 8-A
Class A Water Quality Standards
Item 1: Floating solids, sludge deposits, tastes or
odor producing substances.
Specifications: None attributable to man's activities.
Item 2: Sewage, industrial wastes or other wastes.
Specifications: None.
Item 3: Critical materials; oils; deleterious sub-
stances; colored or other wastes.
Specifications: None.
Item 4: Settleable solids.
Specifications: Only amounts attributable to man's
activities which will not make the waters unsafe or
unsuitable as a drinking water source or which will
not be detrimental to aquatic life or for any other
beneficial use established for this class.
Item 5: pH.
Specifications:
Range between 6.5 to 8.5
Item 10: Total dissolved solids.
Specifications: Shall not exceed 500 mg/1 or one-
third above that characteristic of natural conditions
(whatever is less).
Class B Water Quality Standards
Item 1: Floating solids, settleable solids; sludge
deposits.
Specifications: Only such amounts attributable to
man's activities which will not make the waters un-
safe or unsuitable as a drinking water source, injur-
ious to fish or wildlife or impair the waters for any
other beneficial use established for this class.
Item 2: Sewage, industrial wastes or other wastes.
Specifications: None which are not effectively treated
to the satisfaction of the Commission.
Item 3: Odor producing substances.
Specifications: Only such amounts which will not im-
pair the palatability of drinking water or fish or
have a deleterious effect upo'n fish, wildlife or any
beneficial uses established for waters of this class....
Item 5: pH
Specifications:
Range between 6.5 to 8.5
Item 6: Dissolved oxygen.
Specifications: For trout waters not less than 6.0
miligrams/liter; for nontrout waters not less than
5.0 milligrams/liter
Item 10: Total dissolved solids.
Specifications: Shall not exceed 500 mg/1 or one-third
above that characteristic of natural conditions (which-
ever is less).
Class C Water Quality Standards
Item 1: Floating solids, settleable solids; sludge
deposits.
Specifications: Only such amounts attributable to
the activities of man which will not make the re-
ceiving waters injurious to fish or wildlife or im-
pair the waters for any beneficial use established
for this class.
Item 2: Sewage, industrial wastes, or other wastes.
Specifications: None which are not effectively
treated to the satisfaction of the Commission.
Item 3: Critical materials; oils; deleterious sub-
stances; colored or other wastes; or heated or
cooled liquids.
Specifications: Only such amounts as will 'not
render the receiving waters injurious to fish and
wildlife or impair the waters for any beneficial use
established for this class.
Item 4: pH.
Specifications:
Range between 6.5 to 8.5
Item 9: Total dissolved solids.
Specifications: Shall not exceed 500 mg/1 or one-
third above that characteristic of natural condi-
tions (whichever is less).
Class D Hater Quality Standards
Item 1: Floating solids, settleable solids; sludge
deposits.
Specifications: Only such amounts attributable to
the activities of man which will not impair the re-
ceiving waters for any beneficial use established
for this class.
Item 2: Sewage, industrial wastes or other wastes.
Specifications: None which are not effectively
treated to the satisfaction of the Commission.
Item 3: Critical material; oils; deleterious sub-
stances; colored or other wastes; or heated or
cooled liquid.
Specifications: Only such amounts as will not impair
the receiving waters for any beneficial use estab-
lished by the Commission.
Item 4: pH.
Specifications: Range between 6.0 and 9.O....
232
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APPENDIX A
9. NEW MEXICO
9.1 SUMMARY OF WATER QUALITY LAWS
9.1.1 Background
The present New Mexico Water Quality Act was first
adopted in 1967 (N.M. Laws 1967, ch. 190). The
"Water Quality Act" has subsequently been amended in
1970, 1971 and 1973 sessions of the state legislature
(N.M. Laws, 1970, ch. 64; N.M. Laws, 1971, ch. 277;
N.M. Laws, 1973, ch. 326).
Although passage of the Water Quality Act predated
the enactment of the New Mexico Environmental Quality
Act in 1973, the former act is now a coordinate part
of state legislation controlling the use of the en-
vironment. It is also interesting to note that regu-
lation of water quality also preceded the passage of
a constitutional amendment in 1971 which proclaimed
the fundamental importance of the state's natural
environment and charged the legislature with the duty
of providing effective pollution controls (N.M. Const.
Art. 10 § 21).
9.1.2 Policy
The New Mexico Water Quality Act does not contain a
section which states specific state policy on water
pollution. However, the act does contain an inter-
esting section which expressly limits the scope of
the act (N.M.S. § 75-39-11). This section centers on
important limitations from the viewpoint of agricul-
tural use of water. The section limits the applica-
tion of the act to in any way modify vested property
rights in water, prohibits the adoption of regula-
tions which affect the use of water which is entire-
ly confined within the boundaries of an individual's
property if the water does not combine with other
waters, and allows for "reasonable degradation of
water quality resulting from beneficial uses" (Ibid.).
Although water pollution is not declared to be a pub-
lic nuisance per se, the act is not to be construed
so as to limit actions in equity or law to suppress
nuisances or abate pollution (N.M.S. 5 75-39-12).
Water Quality Standards adopted pursuant to the
Water Quality Act offer additional help on determin-
ing a state water control policy. The introduction
to the regulations states:
Agricultural, municipal, domestic and in-
dustrial water supply are other essential
uses of New Mexico's water; however, water
contaminants resulting from these activities
will not be permitted to lower the quality
of streams below that which is required
for recreation and maintenance of'a fishery,
where practicable (N.ew Mexico Water Quality
Standards, New Mexico Water Quality Com-
mission, August 22, 1973).
The New Mexico Water Quality Control Commission's
standards announce an antidegradation policy; however,
reasonable degradation will be permitted if "it is
justifiable as a result of necessary economic and
social development" (Ibid.).
The overall state policy on environmental control as
stated in the New Mexico Environmental Quality Act
is to:
declare a state policy which will encourage
productive and enjoyable harmony between man
and his environment, promote efforts to
prevent or eliminate damage to and im-
prove the environment and biosphere and
stimulate the health and welfare of
man ... (N.M.S. § 12-20-1.1).
It is unclear if such a broad statement of environ-
mental policy is of any use in defining state atti-
tudes on water quality control.
9.1.3 Classification of Waters
The Water Quality Act authorizes the Water Quality
Commission to adopt standards for specific classes of
water (N.M.S. § 75-39-4). The Commission, however,
has chosen to regulate water quality according to
specific geographical areas and has adopted standards
for various river basins.
9.1.4 Standards
The Water Quality Commission is directed to "adopt
water quality standards as a guide to water pollution
control" (N.M.S. § 75-39-4 (D)). Pursuant to this
authority, the Commission has adopted: (1) General
Standards, which apply to all surface waters suitable
for recreation and support of desirable aquatic life;
(2) Salinity Standards, which are numerical measure-
ments taken at the downstream point of the reach in
question; and (3) Stream Use and Designation Stan-
dards, which apply on a basin-by-basin approach and
designate which types of water use are permitted
(New Mexico Water Quality Standards, New Mexico Water
Quality Control Commission, August 22, 1973). The
New Mexico Water Quality Control Commission has also
prohibited the disposal of refuse in natural water
courses (Water Quality Control Commission Regulations,
5 2-201, New Mexico Water Quality Control Commission,
September 3, 1973).
In the adoption of regulations for water quality
standards, the Commission is given the following
statutory directive:
[to] adopt, promulgate and publish regula-
tions as to prevent or abate water pollu-
tion in the state or in any specific
geographic area or watershed of the state
or in any part thereof, or for any class
of waters. Regulations shall not specify
the method to be used to prevent or abate
water pollution, but may specify a standard
of performance for new sources which re-
flects the greatest degree of effluent
reduction which the Commission determines
to be achievable through application of
the best available demonstrated control
technology, processes, operating methods,
or other alternatives, including, where
practicable, a standard permitting no
discharge of pollutants . . . (N.M.S.
§ 75-39-4(0)).
General standards have been adopted for such factors
as stream bottom deposits, floating solids, oil and
grease, color, odor and taste of fish, plant nutri-
ents, hazardous substances, radioactivity, pathogens,
temperature, turbidity, salinity, and dissolved
gases (Ibid.). Stream Use and Designation Standards
determine whether the water in a particular basin is
suitable for such uses as irrigation, warm or cold
233
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water fishery, livestock and wildlife watering, con-
tact recreation and industrial water supply (Ibid.).
The river basins which have had standards applied to
them include the Rio Grande Basin, the Canadian River
Basin, the San Juan River Basin, the Gila River Basin,
the Dry Cimarron River, and the closed basin of the
Rio Tularosa (Ibid.).
9.1.5 Permit System
While the Commission is not itself authorized to is-
sue water quality permits for discharges, it is em-
powered to determine which individuals must obtain
a discharge permit from one of the Commission's con-
stituent agencies (N.M.S. 5 73-39-4.1). The duty to
issue, deny or modify a discharge permit rests with
the so-called constituent agency (Ibid.). Permits
issued by these agencies cannot be for terms exceed-
ing five years (Ibid.). Under such an administrative
structure it is incumbent upon the Water quality Con-
trol Commission to (1) determine by regulation what
type of activity requires a discharge permit, and (2)
designate the constituent agency which will have the
responsibility for issuing the permit.
The state departments and agencies which comprise the
constituent agencies of the Commission are as follows:
(1) the Environmental Improvement Agency;
(2) the State Engineer and the Interstate
Stream Commission;
(3) the New Mexico Department of Game and
Fish;
(4) the Oil Conservation Commission;
(5) the State Park and Recreation Commission;
(6) the New Mexico Department of Agriculture;
(7) the State Natural Resource Conservation
Commission;
(8) the New Mexico Bureau of Mines (N.M.S.
i 75-39-2).
Administration of the rules and regulations promul-
gated by the water Quality Control Commission per-
taining to permitting procedures are assigned to its
constituent agencies "so as to assure adequate cover-
age and prevent duplication of effort" (N.M.S. i
75-39-4 (E)). Any jurisdictional dispute between
constituent agencies is decided by the Commission
(Ibid.).
New Mexico has not adopted state regulations imple-
menting the National Pollutant Discharge Elimination
System (NPDES) (Environment Reporter, State Hater
Laws, vol. 2, pp. 856:0101 856:1010, Bureau of
National Affairs, Washington, D.C., 1976). Corre-
spondence with Mr. John R. Wright, Chief of Water
Quality Division, New Mexico Environmental Improvement
Agency, states that while New Mexico is attempting to
cooperate with the U.S. Environmental Protection
Agency in implementing the NPDES permit program, the
limitation on the modification of vested water rights
contained in N.M. Stat. § 75-39-11 has caused the
impasse (Letter to George E. Radosevich, March 25,
1976). The New Mexico Environmental Improvement
Agency has taken the following position with respect
to the methodology to be used in the regulation of
water quality aspects of irrigation return flow:
It is the position of the Water Quality
Division that the most suitable and equitable
alternative available to the Environmental
Protection Agency capable of realistically
dealing with the water quality problems
associated with irrigation return flow is
the designation of irrigation return flow
as nonpoint sources, to be dealt with under
Section 208 of Public Law 92-500 (Methods of
Managing Irrigation Return Flows Under Public
Law 92-500, Oct. 1975).
Despite the above discussed impasse in the approach
to regulation of return flow, some progress has been
made in controlling return flow by state participa-
tion in the U.S. Dept. of Agriculture's Agricultural
Conservation Program (ACP). The scope of this pro-
gram is outlined in correspondence from Mr. Steve
Reynolds as follows:
. . . the state's participation is restricted
to those community ditch systems which
through organization bylaws, qualify as
governmental organizations. These are
commonly known as acequias. Such organ-
izations can receive up to a 70% cost-
sharing from the federal government, a
152 grant from the State Engineer, and a
loan rate of 2^% interest for up to 10
years from the New Mexico Interstate
Stream Commission. There is a direct
benefit to irrigation return flow quality
through the ACP, and the state part of
the effort of the program in the sense
that efforts to improve water use effi-
ciency through canal lining and systems
rehabilitation results in more efficient
water use, and consequently, improved
water quality (Letter to George E.
Radosevich, April 9, 1976).
Although federal matching funds have not been equal
to state participation, approximately 500 miles of
irrigation canals have been lined under the ACP
(Ibid.).
9.1.6 Sanctions and Enforcement Measures
The Commission's constituent agencies are directed to
"make every reasonable effort to obtain voluntary
cooperation in the prevention or abatement of water
pollution" (N.M.S. § 75-39-8). In the event that
voluntary compliance cannot be secured by a constitu-
ent agency, the Commission is authorized to request
the State Attorney General to initiate proceedings in
the district court for the county where the violation
has occurred (N.M.S. § 75-39-9). The Commission may
seek relief in the form of injunction and civil
penalty (Ibid.). The district court can impose fines
not to exceed one thousand dollars for each convic-
tion of violation of the Water Quality Act, and each
day of violation constitutes a separate offense
(Ibid.).
Additional means of enforcing the act are also avail-
able. The Commission is given the option of accept-
ing a written assurance from the party engaging in
the unauthorized pollution if the assurance specifies
the time within which the pollution will be discon-
tinued (Ibid.). In the event of an emergency situa-
tion which poses a threat to human health, the
Director of the Environmental Improvement Agency can
issue a cease and desist order which is valid for
forty-eight hours before judicial action is required
(N.M.S. § 75-39-10).
9.2 ADMINISTRATION OF THE LAWS
The following agencies are involved in the administra-
tion and implementation of New Mexico's water laws.
9.2.1 Water Quality Control Commission
As the previous discussion indicates, the Water
Quality Control Commission has been delegated princi-
pal authority for water quality control in New
Mexico. The nine-member Commission is composed of
the chief administrative officer of each of the
eight constituent agencies and an additional member
234
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Figure 1. Organizational Chart of New Mexico Environmental Improvement Agency
Council on
Environmental Quality
Environmental Improvement Agency
01 rector
Water Quality
Control Commission
-------
of the public appointed by the Governor (N.M.S. §
75-39-3). The Commission functions as the state wa-
ter pollution control agency for the purposes of the
Federal Water Pollution Control Act, the Water Quality
Act of 1965 and the Clean Waters Restoration Act of
1966 (Ibid.).
The Commission has the authority to adopt a compre-
hensive water quality program; adopt water quality
standards; promulgate regulations to prevent and
abate water pollution; classify waters; receive and
allocate funds made available by the Federal Govern-
ment; and grant variances from Commission regulations
(N.M.S. § 75-39-4). The Commission also assigns the
responsibility for administering its regulations to
the appropriate constituent agency. This places the
Commission in the position of performing the function
of policy making while the "line" or administrative
agencies are given the authority to enforce the regu-
lations in the generic or substantive areas for which
they are responsible. The Commission also prescribes
the manner in which the constituent agencies admin-
ister their permit programs (N.M.S. s 75-39-4.1).
The constituent agencies are given power to investi-
gate sources of pollution under their jurisdiction;
to recommend regulations for adoption to the Commis-
sion; and inspect pollution control equipment (N.M.S.
S 75-39-8). Issuance of discharge permits is the
duty of these agencies (N.M.S. § 75-39-4.1).
Application of the act and the authority of the Com-
mission and its constituent agencies is specifically
limited in certain areas. These areas include the
modifications of property interest in the use of
water; water which does not return to a water course;
permission for reasonable degradation of water qual-
ity resulting from beneficial uses; and non-inter-
ference with the authority of the Oil Conservation
Commission (N.M.S. § 75-39-11). Any person who is
adversely affected by a regulation of the Commission
has a direct right of appeal to the New Mexico Court
of Appeals (N.M.S. s 75-39-6).
9.2.2 Environmental Improvement Agency and Council
on Environmental Quality
The New Mexico Environmental Improvement Act of 1971
promoted the former Environmental Services Division
of the Health and Social Services Department to full
departmental status as the Environmental Improvement
Agency (EIA) (Othmer and Rivera, 1973). The EIA is
to function as an enforcement agency under the Act
and as a constituent agency under the Water Quality
Act (N.M.S. § 12-12-10 and 75-39-3). Among the
operative area for which the EIA has authority, the
ones more directly related to water quality control
are water pollution and water supply (N.M.S. 5
12-12-10 & 11). See Figure 1.
In 1973 the Environmental Quality Act was passed
creating the New Mexico Council on the Environment
(N.M.S. 5 12-20-1 et. seq.). The Council acts as an
over-sight body which is to recommend environmental
improvements or management practices; administrative
changes and organizational alignments; and budgetary
requirements to implement legislative and administra-
tive action (N.M.S. 5 12-20-4). The legislature
further provided in the Environmental Quality Act for
specific guidelines for interpretation and administra-
tion of laws and regulations which concern environ-
mental protection (N.M.S. § 12-20-6). Briefly, these
guidelines include the following:
(1) use of a systematic and interdiscipli-
nary approach in planning and making
environmental decisions;
(2) consultation with the Council on
Environmental Quality to ensure that all
social and economic values have been
considered;
(3) environmental impact statements of
major state actions which will signifi-
cantly affect the human environment
(N.M.S. i 12-20-6).
Effective May 15, 1974, the Act was repealed, abolish-
ing the environmental impact statement requirement
and the Council on Environmental Quality (Envir. Re-
porter, Current Developments, Vol. 4, No. 46, Mar. 15,
1974, p. 1902).
9.2.3 Office of the State Engineer
The State Engineer is the principal officer charged
with administration of water rights in New Mexico.
The State Engineer has general supervision, measure-
ment, appropriation and distribution powers over the
waters of the state (N.M.S. § 75-2-1, 75-2-9).
Finally, the State Engineer has the power to refuse
any proposed appropriation of surface waters if
approval would be contrary to the public interest
(N.M.S. § 75-5-5, 75-5-6). See Figure 2.
In its 1976 session, the New Mexico Legislature
adopted enabling legislation which allows the State
Board of Finance to sell bonds under the Severance
Tax Bonding Act for the purpose of making matching
funds available under the Federal Water Pollution
Control Act for the construction of sewage treatment
facilities (N.M.S. § 72-18-37.29). The Finance
Board can issue up to $3,267,000.00 in bonds for this
program when the Water Quality Control Commission
certifies that the need exists (Ibid.).
This type of financing is also available for the
purposes of the New Mexico Water Supply Construction
Act (N.M.S. s 72-18-37.31). The Construction Act was
passed to finance local water supply facilities, and
when the Environmental Improvement Board certifies
the need for the issuance of the bonds, the state
Finance Board can issue up to $2,475,000 in Severance
Tax Bonds (Ibid.).
9.4 RELATED LEGISLATION
9.4.1 Special Purpose Districts
There are a number of special purpose districts in
New Mexico which have some responsibility for the use
and conservation of water resources. These districts
include Water and Sanitation districts (N.M.S. s
75-18-1 et. seq.); Drainage Districts (N.M.S.§75 arts
19, 20, and 21); Irrigation Districts (N.M.S. 5 75
arts 22, 23, 24, 25, 26, and 27); Conservancy Dis-
tricts (N.M.S. § 75 arts 27, 28, 29, 30, 31, and 32);
and Artesian Conservancy Districts (N.M.S. § 75-13-1
et. seq.). None of the above districts is expressly
given any statutory authority over water quality
control.
9.4.2 Acequias and Water User Associations
Enabling legislation has been enacted for the forma-
tion and operation of Community Ditches or Acequias
(N.M.S. s 75-14-1 et. seq.) and Water User Associa-
tions (N.M.S. i 75^17-1 et. seq.). Both organiza-
tions are intended to operate as entities which sup-
ply water to its users, primarily for the purpose of
irrigation and have not been delegated any express
duties for water quality control.
236
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Water Quality
Environmental
Improvement Agency
Figure 2. New Mexico Water Agencies and Their Functions
Water Rights Administration
Water Planning & Development
Water Quality
Control Commission
Interstate Stream Commission
Water Quality Division
Advisory Committee
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9.4.3 Water Supply Construction Act
The Water Supply Construction Act was passed to pro-
vide financial assistance to local governments for
the construction of water supply facilities (N.M.S. 5
75-41-2 et. seq.). Financing is in the form of
grants or loans made from funds derived from the sale
of Severance Tax Bonds (Ibid.).
9.4.4 Mater Research, Conservation and Development Act
This act was passed for the purpose of providing
"solutions to water shortage, conservation and utili-
zation problems through research, conservation or
development projects for the benefit of the citizens
of New Mexico" (N.M.S. § 75-42-1 et. seq.). Funds
for the Act are provided from the severance tax in-
come fund and are under the administration of the
Interstate Stream Commission (Ibid.).
9.4.5 Interstate Stream Commission
The Interstate Stream Commission has been delegated
specific responsibilities relating to interstate
water in which the State of New Mexico has an inter-
est (N.M.S. § 75-34-1 et. seq.). The Commission is
authorized to negotiate compacts with other states
for the equitable division of waters in interstate
streams. The Commission can also cooperate with the
Federal Government in financing the development of
interstate waters (Ibid.). Although the Commission
is not given specific duties in the area of water
quality control, it would be governed by those
environmental policies announced in the Environmental
Quality Act (N.M.S. § 12-20-6).
9.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
9.5.1 Agriculture Generally
At the time of this report, the New Mexico Water
Quality Control Commission has not adopted any regu-
lations concerning the use of water for agricultural
purposes. It should be noted that while the New
Mexico Water Quality Act does not absolutely pro-
hibit such regulation, the limitations contained in
N.M. 75-39-11 pose difficult problems in construing
legislative intent in this area.
9.5.2 Irrigation Return Flow
No state regulations on agricultural return flow have
been adopted by the Water Quality Control Commission.
In one report, the Commission has taken the following
position on the subject:
Until regulations are published in the
Federal Register regarding irrigation re-
turn flows, the Environmental Improvement
Agency will include these drains in the
general agricultural category to be con-
sidered during the continued planning
process as a nonpoint source of pollution.
(Lower Rio Grande Basin Plan, New Mexico
Water Quality Control Commission, September,
1-4, 1975).
The above statement, when taken with the earlier dis-
cussion on implementation of the NPDES, implies that
there will be little state leadership in New Mexico
on regulating irrigation return flow.
The New Mexico Water Quality Control Commission has
the authority under the state water quality act to
implement the planning program for water quality as
specified in Section 208 of the Federal Water Pollution
Control Act of 1972. Section 208 is primarily
concerned with areawide wastewater treatment and
non-point sources of pollution. Since New Mexico
contends that irrigation return flow should be
managed as a non-point source of pollution, the
state's planning approach in implementing Section
208 water quality planning should be of interest.
The following statement is taken from the most re-
cent report of the New Mexico Water Quality Control
Commission:
The Commission will incorporate relevant
local plans and policies in its water
quality management planning, including
those affecting present and future land
use. Throughout the planning process,
instream and ground water quality will
be analyzed and, when it is documented
that present or probable land uses sig-
nificantly impact water quality or will
significantly impact water quality, al-
ternative engineering, land use manage-
ment and regulatory approaches to prevent-
ing water pollution in these specific
areas will be reviewed (The State of
New Mexico Continuing Planning Process
for Water Quality Management, p. 23,
New Mexico Water Quality Control Com-
mission, March, 1976).
The above statement indicates that should monitoring
of water quality parameters reveal that irrigation
return flow, as a non-point source of pollution,
pose a threat of significant impact on water quality
that the Commission would place a regulatory re-
striction on water use.
9.6 CASE LAW APPLICABLE TO AGRICULTURE
9.6.1 Water Quality Act
The New Mexico Water Quality Act has been before the
State Supreme Court in the cases of State of New
Mexico v. Arizona Public Service Company (85 N.M.
165, 510 P.2d 98, 1973); City of RosweTT v. New
Mexico Water Quality Control Commission (84 N.M.
561. 505 P.2d 1237. 1973); and New Mexico Water
•.Quality Control Commission v. City of Hobbs (86 N.M.
444, 525 P.2d 371, 1974).Although none of the
above cases have dealt with the issue of agricultural
pollution, they are illustrative of the method in
which the New Mexico Court has approached the opera-
tion of the Water Quality Act.
In State of New Mexico v. Arizona Public Service
Company, involving injunctive relief to abate
a Ileged public nuisances caused by the operation of
the Four Corners Power Plant, the Court noted that
plaintiff's claim relating to mercury emissions as
a source of water pollution were controlled by the
operation of the New Mexico Water Quality Act of
1967 (510 P.2d 98, 100). As the agency had not
adopted control standards for mercury emissions, the
Court declined to substitute its judgment for that of
the Water Quality Control Commission and entered no
finding on the issue (5.0 P.2d, 90, 105). This
position indicates that the Court will not exercise
its discretion in the area of pollution standards
when the agency statutorily responsible has not
addressed itself to the problem in the form of
regulations.
The issue on the City of Roswell was whether the
Water Quality Control Commission as an environmental
protection agency was exempt from the provisions of
the New Mexico Environmental Quality Act which re-
quired that state agencies consider the impact that
agency action has on the environment in adopting
238
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regulations. The Court found that the Commission's
role in protection of the environment did not exempt
it from compliance with the Environmental Quality
Control Act (505 P,2d 1237, 1240).
In City of Hobbs, the Court found that the Commission
had the authority to require that the city furnish
free hook-ups and meter connections to the potential
users along the water lines, stop discharging efflu-
ent at the present location, and improve the quality
of the effluent. The court further found that the
city was negligent in the operation of its sewage
treatment plant and that it was strictly liable for
damages caused by operation of the plant (525 P.2d
371, 373).
9.6.2 Irrigation and Water Quality
In respect to a water quality component for an appro-
priative right one commentator has stated:
As a general principle, the appropriator
is entitled to the flow of water in the
stream to his diversion works in such
state of natural purity as to substantial-
ly fulfill the purposes for which his ap-
propriation was made. If not protected in
this particular [aspect], the usefulness
of his water right may be depreciated or
even destroyed (Hutchins, Hater Rights
Laws in the Nineteen Western States,
Vol. I, pp. 448, USDA Misc. No. 1206,
1971).
Although the above rule has not been as succinctly
stated in decisions rendered by the New Mexico Su-
preme Court, there are some decisions which are
supportive of the principle.
First, the Court has recognized that while an appro-
priator is entitled to his beneficial use require-
ments, he is not allowed to waste water. This rule
was announced in the case of Snow v. Abalos, 18 N.M.
681, 140 P. 1044 (1914), where an action was brought
to adjudicate the rights for the Elephant Butte Irri-
gation Project. The Court found that where the water
was administered by a community acequia, the individ-
ual appropriator did not have the right to waste
water (140 P. 1044, 1049).
Snow was cited as authority for the court's holding
in the more recent case of Worley v. United States
Borax and Chemical Corp., 78 N.M. 112, 428 P.2d 651,
1967. In the Worley case the plaintiff, a downstream
senior appropriator, brought an action for damages
suffered to crops due to insufficient water reaching
his point of diversion against upstream junior users.
Although the case was decided against the senior be-
cause he had failed to demand the quantity of water
to which he had a vested right, the case is of inter-
est from the standpoint of water quality being a com-
ponent of the appropriative right, because the
plaintiff expressly contended, "AS SENIOR APPROPRIATOR
PLAINTIFF IS ENTITLED AS AGAINST ALL SUBSEQUENT
CLAIMANTS TO THE EXCLUSIVE USE OF THE WATER TO THE
EXTENT OF HIS APPROPRIATION WITHOUT DIMINUTION OR
MATERIAL ALTERATION IN QUANTITY OR QUALITY" (428 P.2d
651, 653). The discussion of this contention by the
Court is notable because the Court devoted consider-
able discussion to the quantitative aspect of
plaintiff's right without addressing any dicta to the
qualitative point. Therefore, the issue of the water
quality nature of a water right can only be seen as
an open question in New Mexico.
On a more positive point, it is settled law in New
Mexico that an irrigator is liable for injuries
inflicted by the willful or negligent use of water.
This point is demonstrated by Stroup v Frank A
Hubbell Co. (27 N.M. 35, 192 P. 519, 1920), where
defendant willfully drained excess water containing
alkali salts onto plaintiff's crops. This case pro-
vides some support for the position that an irrigator
who alters water quality to the detriment of other
users will be liable to those users for the damage
his water management practices have caused whether
they are willful or negligent.
The New Mexico Court has also had occasion to consid-
er the validity of applications to supplement surface
water rights with water supplies from ground water
from the same basin aquifer which feeds the river.
This issue has been discussed in Durand v. Reynolds
(75 N.M. 497, 406 P.2d 817, 1965); and Langenegger v.
Carlsbad Irrigation Dist. (82 N.M. 416, 483 P.2d 297.
1971).In the Durand case, the Court upheld the
refusal of the State Engineer to grant the permit be-
cause substantial injury to existing surface rights
would result.
A similar result was reached in Langenegger where
senior appropriators whose flows had been reduced by
withdrawals from the ground water basin aquifer were
allowed to supplement their rights by ground water
withdrawals which did not constitute a grant of a
new appropriation. Both cases demonstrate judicial
protection of established surface rights in a
situation where conjunctive management of surface and
ground water appropriations are affecting the same
ground water basin.
9.7 INFORMATION SOURCES
Othmer, Craig T., and Rivera, Henry M., "On Building
Better Laws for New Mexico's Environment," 4 N. Hex.
L. Rev., 105 (1973).
Walterschied, Edward C., et al., "Control of Indus-
trial Water Pollution in New Mexico," 9 Nat. Res. J.
629 (1969).
, Methods of Managing Irrigation Re-
turn Flows Under Public Law 92-500, New Mexico En-
vironmental Improvement Agency, Water Quality Oiv.,
presented at U.S. E.P.A. hearing at Denver, Colorado,
Oct. 1975.
, The State of New Mexico Continuing
Planning Process for Water Quality Management, New
Mexico Water Quality Control Commission, March 1976.
, Water Quality in New Mexico, New
Mexico Water Quality Control Commission, May 1975.
, Lower Rio Grande Basin Plan, New
Mexico Water Quality Control Commission, Sept. 1975.
239
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APPENDIX A
10. NORTH DAKOTA
10.1 SUMMARY OF WATER QUALITY LAWS
10.1.1 Background
Legislation protecting the quality of public waters
from refuse, petroleum products and livestock waste
was enacted before the turn of the century in North
Dakota (N.D.C. §5 61-01-12 to 61-01-14). This early
legislation has since been repealed following the
passage of more comprehensive legislation (Repealed
by S.L. 1975, ch. 106, § 673).
The first comprehensive water quality legislation was
passed in 1967. The title of the act is expressly
directed at the water quality problems of surface wa-
ter supplies. However, it is clear from the body of
the legislation that the act was not intended to
function in such a limited fashion. As one commenta-
tor has noted, "For example, 'Waters of the State'
are defined to include 'all other bodies or accumula-
tions on or under the surface of the earth'" (Beck,
1972).
The act created a State Water Pollution Control Board
consisting of 10 members representing various State
departments and private interest groups (N.D.C. §
16-28-03). The board may, in conjunction with the
North Dakota Department of Health, and after notice
and public hearing, adopt standards of water quality
and fix a reasonable time for compliance with these
standards (N.D.C. § 61-28-05).
10.1.2 Policy
The policy announced in the legislation is stated as
follows:
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 continued use as public and pri-
vate water supplies, propagation of wild-
life, fish and aquatic life and for domes-
tic, agricultural, industrial, recreational
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 (N.D.C. § 61-28-01).
Further articulation of state policy is found in the
first section of the North Dakota State Department
of Health's Standards of Surface Water Quality for
State of North Dakota. This statement of administra-
tive policy states that the standards will be admin-
istered to maintain and improve the quality of water
as it existed as a matter of record when the first
standards were established in 1967, or later if
records indicate an improved quality of water (Stan-
dards of Surface Water Quality State of North Dakota,
§ I, North Dakota Dept. of Health, 1973).Degradation
of water quality will only be approved in those situa-
tions where it can be "affirmatively demonstrated
that a change in quality is justifiable to provide
necessary economic and social development and will not
adversely affect the stated beneficial uses of the
water" (Ibid.).
10.1.3 Classification
The regulations which have been jointly adopted by
the Department of Health and the Water Pollution
Control Board establish four stream classifications
which are summarized as follows:
Class I Water of such quality as to permit
the propagation of fish, swimming,
irrigation, stock watering and
wildlife use without injurious
effects. Specific chemical cri-
teria are also listed.
Class IA Water of such quality to permit
the uses in Class I, except that
treatment for municipal use may
also require softening to meet
the chemical requirements for the
Department of Health.
Class II Primarily a classification for
streams which have low or no-flow
periods, quality must be such as
to permit uses in Class I, except
that treatment to remove dissolved
solids and meet chemical require-
ments of the Department of Health.
Class III Also a classification for intermit-
tent streams, and which, due to
these factors have questionable
value for beneficial use during
periods of low or no-flow. Water
quality for Class I uses is speci-
fied, except that saline water
treatment is required (Standards
of Surface Water Quality State of
North Dakota, §VI North Dakota
Dept. of Health, 1973).
State standards also list the classifications under
the above system, which have been given to more im-
portant river basins, subbasins, and tributaries in
North Dakota (Ibid. , i VIII). Water courses which
are not listed in this tabulation are governed in
accordance with Section VI, General Conditions, of
the Standards (Ibid.).
10.1.4 Stream and Discharge Standards
In addition to classification based on suitability
for specific beneficial uses as discussed in the
preceding section, stream classification is a func-
tion of standards for dissolved mineral salts,
fecal coll, coliform, turbidity, color, pH, dissolved
oxygen, temperature and radiological criteria (Stan-
dards of Surface Water Quality State of North Dakota,
§ VI, North Dakota Dept. of Health, 1973).Specific
limitations for each criterion have been established
by the Department of Health and are listed for each
of the classes I, IA, II, and III (Ibid.).
10.1.5 Permit System
The Department of Health is given the authority to
make rules governing the application for discharge
permits and to regulate the issuance, denial, modi-
fication or revocation of permits (N.D.C. § 61-28-04
(18) and (19)). Briefly, a permit from the Depart-
ment is required for the discharge of wastes due to
the following activities:
240
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(1) construction and operation of any
disposal system not previously approved
by the Department and the State Water
Commission;
(2) an increase in the strength or volume
of waste discharged from a previously ap-
proved facility;
(3) construction and operation of an indus-
trial establishment which would discharge
wastes that would alter water quality
parameters;
(4) construction or use of any new outlet
for the discharge of wastes into state
waters (N.D.C. S 61-28-06).
A review of the regulations of the North Dakota State
Department of Health does not show that the Department
has adopted or proposed specific regulations governing
waste discharge permits. However, North Dakota
adopted the National Pollution Discharge Elimination
System (NPDES) in July, 1975.
10.1.5 Sanctions and Enforcement Measures
The North Dakota act provides for both civil and
criminal penalties for violation of its provisions.
The range of these penalties are summarized as
follows:
Willful Violations $25,000 per day of viola-
tion, or imprisonment in county jail for one
year, or both. Penalty is doubled for re-
peat offenders.
False Statements on Applications and Reports
$10,000 or imprisonment in county jail for
six months or both, for knowingly made
mi srepresentati ons.
Violation of Permit Conditions or Department
Order $10.000 per day of violation (N.D.C.
§ 61-28-08).
The Department is also authorized to maintain an ac-
tion for injunctive relief in the name of the state
against a party which is in violation of the statute
or departmental regulation (Ibid.).
The Department can also maintain an action for damages,
in cooperation with other departments, for injury
which results from violations of the provisions of the
water quality act (N.D.C. 5 61-28-04 (24)).
The Department of Health is given the authority to
enforce the provisions of the Act and its own admin-
istrative rules by issuing administrative orders
prohibiting or abating waste discharges (N.D.C. §
61-28-04 (7)). Such actions must be according to the
"Administrative Agencies Practice Act" (N.D.C. §
61-28-07).
In 1975, the North Dakota Legislature enacted legis-
lation known as the North Dakota Environmental Law
Enforcement Act of 1975. This Act gives the State
Attorney General the authority to enforce any state
environmental statute, rule, or regulation (N.D.C. §
32-40-05). Environmental statute, rule, or regulation
is defined as meaning:
. . . any statute, rule, or regulation of
the state for the protection of the air,
water, and other natural resources, in-
cluding but not limited to land, minerals,
and wildlife, from pollution, impairment,
or destruction (N.D.C. § 32-40-03 (2)).
The Act also allows state agencies, other political
subdivisions, and persons aggrieved by the violation
of state environmental laws to bring an action in
district court for the enforcement of the law and
recovery of damages (N.D.C. § 32-40-06). However,
no damages can be recovered from a governmental sub-
division (Ibid.). The court can order the complain-
ant to post up to a five hundred dollar bond and
costs can be awarded to the defendant if the suit is
found to have been frivolous (N.D.C. si 32-40-08 and
32-40-10).
10.2 ADMINISTRATION OF THE LAWS
Several agencies are involved in the implemen-
tation and administration of North Dakota water laws.
10.2.1 Water Pollution Control Board—Department of
Health
The Water Pollution Control Board consists of ten
members including the heads of the Departments of
Health, Water Conservation, Game and Fish, the
State Geologist, one member each representing muni-
cipal, industrial and wildlife interests, and three
members representing agricultural interests (N.D.C.
§ 61-28-03). Non-agency members are appointed by
the Governor (Ibid.). The Chief Sanitary Engineer
of the Department of Health serves as the Executive
Secretary of the Board (Ibid.). The Board functions
as a policy review body in the formulation of rules
and regulations governing the control of water
quality (N.D.C. s 61-28-05).
The supervision, administration, and enforcement of
water quality legislation and regulation is delegated
to the North Dakota Department of Health (N.D.C. S
61-28-04). The Department has the power and duty to
develop a comprehensive program for the prevention,
control and abatement of new or existing pollution;
to accept and administer loans and grants from the
Federal Government; to require the submission of
plans and specifications for the construction or ex-
tension of disposal systems, and to require the
proper maintenance and operation of such systems once
constructed (N.D.C. § 61-28-04). The Department is
organized into several divisions, with the Water
Quality Control Section of the Division of Environ-
ment responsible for water pollution control
activities (See Figure 1).
Adoption of agency rules requires a joint public
hearing with the Water Pollution Control Board fol-
lowing publication of notice (N.D.C. § 61-28-05).
All hearings for rule making or contested cases are
governed by the Administrative Agencies Practice Act
(N.D.C. § 61-28-07).
10.2.2 State Water Commission
Among the powers and duties of the Water
Commission which are listed by statute is the power
"to provide sufficient water flow for the abatement
of stream pollution" (N.D.C. § 61-02-14). The
Commission is also authorized to cooperate with
agencies of the Federal Government in the "prevention
of water pollution" (N.D.C. 5 61-02-24).
Originally, the Commission was limited in their
authority to declare waters to be polluted without a
finding to that effect first being made by the De-
partment of Health; however, that statute was re-
pealed in 1975 and the Commission has more latitude
in the area of water quality control (N.D.C. §61-02-
15, Repealed by S.L. 1975, ch. 575, 52).
211
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Figure 1. Water Agencies and Their Major Functions
Water Quality
Water Quantity Administration
Water Planning and Development
Director of
Division of
General Engineering
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The primary function of the Water Commission is over
the allocation of water. It is the policy body and
appoints the State Engineer, who is also the
Secretary to the State Water Commission. The State
Engineer's primary duties include: allocating water
and adjudicating water rights subject to Commission
approval (N.D.C. § 61-02-30). In allocating water
under a permit for agriculture, the State Engineer
must make a determination of the amount of water
needed according to water availability and soil
type (N.D.C. § 61-14-03).
10.2.3 jndustrial Commission
The Industrial Commission has control over pollution
to ground water supplies caused by wastes from oil and
gas production (N.D.C. S 38-08-04, 1960). Public con-
cern over the quality of ground water supplies was
developed in a series of state-wide community water
conferences sponsored by the North Dakota Water Re-
sources Research Institute, Fargo, North Dakota
(Beck, 1972, p. 14).
10.3 SPECIAL LEGISLATION
10.3.1 Drainage Permits
A permit issued by the Water Conservation Commission
and approved by the board of commissioners of the
local water management district is required prior to
draining water from any impoundment comprising forty
acres or more into a natural water course (N.D.C. 5
61-01-22). The permit holder is statutorily liable
for any damages caused by such drainage. Rules and
regulations governing the drainage of such ponds were
adopted on 27 September 1976 and became effective 1
November 1976 (R61-01-22.1 to -22.16).
10.3.2 Garrison Diversion Conservancy District
This district functions as a state corporation and
was created in 1955 to supervise the operation of the
Garrison Diversion Project in North Dakota which
covers 25 counties (N.D.C. i 61-24-02, 1960). The
District is governed by a board of directors which
are elected to office (N.D.C. § 61-24-03, 1960). The
District is authorized to exercise the power of
eminent domain and financing is provided by tax levy
(N.D.C. § 61-24-08, 1960).
10.4 RELATED LEGISLATION
10.4.1 Water Management Districts
A 1973 amendment to the section of statutes creating
Water Management Districts placed all the land in
North Dakota within a district as of July 1, 1974
(N.D.C. § 61-16-05). Those areas not in previously
established districts were organized into districts
formed by action of the Water Conservation Commission
(Ibid.).
District board of commissioners are given broad powers
to plan for and control the conservation and use of
water resources in their respective districts (N.D.C.
§ 61-16-11). The commissioners are specifically em-
powered to "prevent the pollution, contamination or
other misuse of the water resources . . . included
within the district" (Ibid.).
General operation and special improvements are fi-
nanced by the levy of special assessments and the
•issuance of bonds (N.D.C. § 61-16-21). Districts can
also enter into cost-sharing agreements with the
Federal Government (N.D.C. § 61-16-19).
10-4.2 Irrigation Districts
An extensive body of law is concerned with the organ-
ization, government, fiscal management, and bound-
aries of irrigation districts in North Dakota.
Briefly, formation is accomplished by submission of
a petition to the State Engineer who authorizes an
election for approval of the district and issues an
order creating the district (N.D.C. §§ 61-05 to 21,
1960). Government of the district is performed by
an elected board of directors (N.D.C. Si 61-06-01 to
04, 1960).
Irrigation districts are given the power to construct
irrigation works, deliver water and perform other
necessary functions (N.D.C. 55 61-07-01 to 33, 1960).
Financing is handled through the issuance of revenue
and assessment bonds which are approved for offer by
a special bond election (N.D.C. §§ 61-08-01 to 40,
1960).
10.4.3 Drainage Projects
Drainage activities (such as the improvement of
drains, channelization of streams, construction of
levees and dikes) in North Dakota is undertaken on
the county level (N.D.C. § 61-21-02, 1960). The
board of county commissioners appoints a board of
drainage commissioners to control the operation of
the drainage project (N.D.C. § 61-21-03, I960). The
cost of providing drainage is assessed against those
lands which are benefited (N.D.C. § 61-21-20, I960).
10.4.4 Water Conservation Bonds
The State Water Commission is authorized to issue up
to three million dollars in revenue bonds for the
purpose of financing the cost of further irrigation
development (N.D.C. i 61-02-46). The maturity date
for the bonds, their denomination and rate of inter-
est are to be determined by the Commission (N.D.C. §§
61-02-47 to 48).
10.4.5 Natural Resources Development Bonds
This legislation was enacted after state electors
had adopted a constitutional provision enabling the
state to undertake natural resource development
(N.D.C. ch. 21-11 and N.D. Const, art. 76). The
stated purpose of the statute is to provide "a
source of low cost power in order to promote economic
growth, development of natural resources and pros-
perity and welfare of the people" (Ibid.).
10.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
10.5.1 Agriculture Generally
The regulations of the Department of Health define
water for "Agricultural Uses" as meaning, "Water
suitable for irrigation, stock watering, and other
farm uses, but not as a source for domestic supply
for the farm unless satisfactory treatment is pro-
vided" (Standards of Surface Water Quality State of
North Dakota,, s II, North Dakota Dept. of Health,
1973).• "Pollution" is defined to include any sub-
stances which are likely to create a nuisance or to
be detrimental to beneficial uses of water, including
agricultural (Ibid.).
In 1971, the Department turned its attention to feed-
lot runoff (North Dakota Dept. of Health, Rules and
Regulations for the Control of Pollution from Certain
Livestock Enterprises, Reg. No. 61-28, 1972).Such
runoff is considered to be one of the major sources
243
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of water pollution in agricultural states such as
North Dakota (Nines, 1970). Under these regulations,
livestock feeding operations must have their waste
disposal methods approved by the State Department of
Health.
10.5.2 Irrigation Return Flow
The State Department of Health does not have regula-
tions which specifically address the issue of agricul-
ture return flow as a water quality problem. However,
nothing in statute or regulation appears to prevent
the adoption of such regulations. Furthermore, De-
partment regulations have focused on the issue of
salinity in the following manner:
High salinity (total dissolved solids) is
recognized as a significant water quality
problem which often causes adverse physical
and economic impacts on water users. High
salinity is recognized as a problem in many
streams and rivers in the State. The Depart-
ment will continue to cooperate with other
State and Federal agencies in determining
problem areas and salinity reductions
through improved water management and con-
servation practices.
The Department will take such steps as
may be economically and technically feasible
to control specific controllable sources by
use of the antidegradation policy set forth
in these standards (Standards of Surface
Water Quality State of North Dakota, S VII,
North Dakota State Department of Health,
1973).
Such a recognition of the problem of salinity by the
Department certainly leaves the "door open" to the
possibility of controls on irrigation return flow.
Finally, correspondence with the State Water Conserva-
tion Commission reveals that that agency has no rules
or regulations on agricultural return flow (letter
from Murray G. Sagsveen, Director of Legal Services,
dated April 5, 1976).
10.6 CASE LAW APPLICABLE TO AGRICULTURE
Bard, Dean F., and Robert E. Beck, "An Institutional
Overview of the North Dakota State Water Conservation
Commission: Its Operation and Setting," 46 N.D.L. Rev.
31 (1969).
Beck, Robert E., "A Survey of North Dakota Environ-
mental Law," 49 N.D.L. Rev. 1 (1972).
Beck, Robert E., and John C. Hart, "The Nature and
Extent of Rights in Water in North Dakota," 51 N.D.L.
Rev. (1974).
Beck, R. E., and R. A. Newgreen, "Irrigation in North
Dakota Through Garrison Diversion: An Institutional
Overview," 44 N.D.L. Rev. (1968).
Hines, N. William, "Agriculture Unseen Foe in War on
Pollution," 55 Cornell L. Rev. 740, 1970.
Hill, Vance K., "Ground Water: What is the Law in
North Dakota?" 37 N.D.L. Rev. 260 note (1960).
, Standards of Surface Water Quality,
North Dakota Department of Health, 1973.
No cases have been reported at this time which involve
the activities of the State Department of Health and
the Water Pollution Control Board.
There is no case law which relates to other as-
pects of water quality. No cases construing an
appropriative right to have a quality component are
reported. Further, although the basic irrigation
code following the appropriation doctrine was adopted
in 1905, it was not until 1968 that the validity of
the appropriation was tested in the case of Baeth v.
Hoi seen, 157 N.W. 728 (N.D. 1968). The issue in
Baeth was whether an overlying landowner has a vested
right to unused ground water for irrigation purposes
without applying to the State Engineer for a permit.
The court upheld the statutory scheme for appropria-
tion by the earliest permittee and that the landowner
had no vested right in the ground water.
10.7 INFORMATION SOURCES
Ayres, E. Kent, and Robert E. Beck, "Water Management
Districts in North Dakota," 48 N.D.L. Rev.361 (1972).
244
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APPENDIX A
11. OKLAHOMA
11.1 SUMMARY OF WATER QUALITY LAWS
11.1.1 Background
The nature and extent of the water pollution problem is
a multifaceted and fascinating study. Questions deal-
ing with the character of water resources relate to
the quantity, quality and availability of water.
These factors determine the amount of water that can
be used, the capability of lakes and watercourses to
accept the burden of pollutants and the needs for re-
using water. In Oklahoma, the quality of water varies
greatly and natural pollution causes much of the
available waters to become unsuitable for use (Pyle,
p. 319, 1969).
Early attempts to control the quality of waters failed
to develop any comprehensive statutory controls to
prevent pollution. Individuals had to seek relief
through an action for damages or the acquisition of an
injunction. Early statutes came into play only when
particular acts of pollution became so common and
flagrant that public opinion was aroused. These acts
carried small fines and were strictly remedial in
their effect (See 21 Okla. Stat. § 1194, 1961, 29
Okla. Stat. § 409, 1961, and 51 Okla. Stat. § 296,
1961, as examples). One must still rely upon a pri-
vate settlement with a polluter or litigation to
obtain financial redress even though he can look to
the state agencies for abatement.
The pollution of waters can result in injuries to land
and chattels, interference with water use, or inter-
ference with the use and enjoyment of land. These
distinctions must be drawn in order to determine what
cause of action exists and the relevant factors in
seeking recovery for injuries.
When the pollution interferes with the rights to water
use, the action must be based on the parties' water
rights and therefore requires the consideration of
these rights. Injury to, or the interference with,
the use and enjoyment of land and chattels is governed
by tort law. When the polluted waters have physically
entered the plaintiff's land and caused an interfer-
ence with the possession or condition of the land or
the chattels, the proper remedy is a trespass action.
Nuisance becomes the proper remedy when the polluted
waters have interfered with the use and enjoyment of
the land, but have not actually entered upon the
plaintiff's land. However, a defendant's act of pol-
luting must have been intentional, negligent, or fall
under a strict liability theory (Pyle, 1969). Fur-
thermore, the plaintiff must show a connection between
the act of pollution and the alleged injury (Prest-0-
11te Co. v. Howery, 169 Okla. 408, 37 P.2d 303, 1934).
The enactment of the Oklahoma Water Pollution Control
Act of 1955 paved the way for a comprehensive state
administrative program (Laws 1955, p. 476, § 1, emer-
gency effective June 7, 1955, Renumbered by laws 1968,
c. 263 §4, emergency effective April 29, 1968, Re-
pealed by laws 1972, c. 242, i 14, see now, O.S.A. 82
S 926.1 to 926.13, Supp. 1976). This act provided
that:
... no waste be discharged into the waters
of the state without first being given the
degree of treatment necessary to protect the
legitimate beneficial uses of such waters
. . . (O.S.A. 82 i 902, 1961, See now, 82
5 926.2).
Furthermore, it was the declared policy of the act to
provide for the prevention, abatement, and control
of any new or existing water pollution (Ibid.). This
act also established that it was a misdemeanor and a
public nuisance to pollute any waters of the state
(O.S.A. 82 § 911, 912, 1961).
The Oklahoma Water Resources Board was created in
1957 (O.S.A. 82 § 1071-1084, 1961, 82 § 926.3, 1972,
1976 Supp.). This Board took over the duties of the
State Planning and Resources Board, who had been re-
sponsible for the planning, financing and enforcing
of the Pollution Control Act (O.S.A. 82 5 1073, 1961,
82 i 926.3, 1976 Supp., See also 82 § 904, 1961).
In response to the Federal Water Quality Act of 1965
(79 Stat. 903), the Governor created the Oklahoma Wa-
ter Quality Coordinating Committee to establish water
quality criteria. This Committee established water
quality standards for each enforcement agency so that
they could determine the existence of pollution.
The Pollution Control Coordinating Act of 1968 cre-
ated the Department of Pollution Control (O.S.A. 82 §
931-939, 1971 Supp.). The Department consists of the
Pollution Control Coordinating Board and any special
task forces it designates as such. This Board has
assumed the broad planning and policy determination
duties which were originally given to the Water Re-
sources Board. Basically, the Pollution Control
Coordinating Board must maintain a surveillance of all
the state's waters, control water quality, and prevent
and abate pollution (O.S.A. 82 5 932). (The Water Re-
sources Board and the Pollution Control Coordinating
Board will be discussed in greater detail in section
11.2.)
As of September 10, 1976, Oklahoma has not been ac-
cepted into the NPDES program by the Environmental
Protection Agency (See Environment Reporter, Current
Developments, 1971-1976T'
11.1.2 Policy
The state of Oklahoma enacted water pollution legisla-
tion in part because it recognized the fact that the
pollution of state waters "constitutes a menace to
public health and welfare, creates a public nuisance,
is harmful to wildlife, fish and aquatic life, and
impairs legitimate beneficial uses of water" (O.S.A.
825 926.2). The state further recognizes that "the
problem of water pollution within the state is
closely related to the problem of water pollution in
adjoining states" and therefore sets forth its
policy:
1) to conserve the waters of the state and
to protect, maintain and improve the qual-
ity thereof for public water supplies, for
the propagation of wildlife, fish and
aquatic life and other legitimate bene-
ficial uses;
2) to provide that no waste be discharged
without first being given the degree of
treatment necessary to protect the legiti-
mate beneficial uses of such waters;
3) to provide for the prevention, abate-
ment, and control of new or existing water
pollution;
4) and to cooperate with other agencies of
this state, agencies of other states, and
245
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the federal government . . . (Ibid.)
Pollution is defined as the:
contamination or other alteration of
the physical, chemical or biological
properties of any natural waters of the
state, or such discharge of any liquid,
gaseous or solid substance into any
waters of the state as will or is like-
ly to create a nuisance or render such
waters harmful or detrimental or injur-
ious to public health, safety or wel-
fare, or to domestic, commercial, indus-
trial, agricultural, recreational, or
other legitimate beneficial uses, or
to livestock, wild animals, birds, fish
or other aquatic life (O.S.A. § 926.1
(D).
Furthermore, Oklahoma has expressly recognized that:
certain waters of the State possess an
existing water quality which exceeds those
levels necessary to support propagation
of fish, shellfish, wildlife, and recrea-
tion in and on the water. These high
quality waters shall be maintained and
protected unless the State decides, af-
ter full satisfaction of the inter-
governmental coordination, and public
participation provisions of the State's
continuing planning process, to allow lower
water quality as a result of necessary and
justifiable economic or social development.
Furthermore, where limited degradation is
justified, the State shall require that
any new point-source of pollution or
increased load from an existing point-
source, protect all the existing designated
uses through the highest statutory and
regulatory requirements, and feasible
management or regulatory programs pursu-
ant to Section 208 of Public Law 92-500
for non-point sources.
No degradation shall be allowed in
high quality waters which constitute an
outstanding national resource, such as
waters of National and State Parks and
Wildlife Refuges, and waters of exception-
al recreational or ecological significance
(Oklahoma's Water Quality Standards. Pub-
lication 79, Oklahoma Water Resources
Board, 1976, p. 3).
11.1.3 Classification
The Water Resources Board must classify waters ac-
cording to their best uses in the interest of the pub-
lic under such conditions as the Board may prescribe
for the prevention, control and abatement of pollu-
tion (O.S.A. 82 5 926.3 (6)). Waters of the state
are grouped into classes according to their best
present and future uses in order to progressively
improve the quality (O.S.A. 82 § 926.6).
The waters of Oklahoma have been classified in ac-
cordance with beneficial use. This classification is
based on present or potential beneficial uses and
specifies water quality objectives of lakes and
streams. This scheme does not place a limitation on
beneficial use, prohibit beneficial uses, or indicate
any preference of uses. All reservoirs are protected
to a degree which will permit primary and secondary
body contact recreation. The specific classification
is as follows:
BENEFICIAL USE
CODE
A
B
Cl
Public and private water supplies
Emergency public and private water supplies
Fish and wildlife propagation
C,, Fish and wildlife propagation to the extent
allowed by specifically stated water quality
parameters
D Agriculture (includes livestock watering and
irrigation)
E Hydroelectric power
F-, Industrial and municipal cooling water
F? Receiving, transporting and/or assimilation
of adequately treated waste
G-, Recreation, primary body contact (includes
recreational uses where the human body may
come in direct contact with the water to
the point of complete body submergence).
G? Recreation, secondary body contact (includes
recreational uses, such as fishing, wading
and boating, where ingestion of water is not
probable)
H Navigation
I Aesthetics
0 Small-mouth bass fishery excluding lake waters
K Trout fishery (put-and-take)
CODE LIMITATION
(a) All streams and reservoirs designated (a) are
protected by prohibition of any future dis-
charge of pollutants.
(b) All streams designated (b) are return flow
streams for which special water quality
standards have been established.
(c) Streams or stream systems in which advanced
waste treatment of all waste discharges is
required are designated (c).
The Water Resources Board must conduct public hearings
prior to the classifying of waters (O.S.A. 82 i
926.6). This classification must be effectuated by
an order from the Board and published according to
law. Persons discharging waste into waters have a
reasonable time to comply with the classification un-
less the discharge creates an actual or potential
hazard to the public health. Furthermore, any dis-
charge which is in accord with a classification or
standard is deemed not to be a pollution.
11.1.4 Standards
The Water Resources Board must promulgate standards
of quality of the waters of the state according to
their best uses in the interest of the public under
such conditions as the Board may prescribe for the
prevention, control and abatement of pollution
(O.S.A. 82 5 926.3). The Board must adopt standards
of quality for each classification and must conduct a
public hearing before setting any such standards.
The Water Resources Board has adopted General and
Special Standards (Water Quality Standards. Pub. 79,
1976). General standards relate to in-stream numeri-
cal criteria, while the Special standards have been
established for return flow streams and for mixing
zones of passage (O.S.A. 82 § 926.6).
11.1.5 Permit System
Any person who discharges a waste into the waters of
the State due to the process of industry, manufactur-
ing, trade, or business or from the development, pro-
cessing, or recovery of any natural resource must se-
cure a permit from the Water Resources Board before
committing such activity (Oklahoma Water Resources
Board Rules and Regulations, Publication 45, § 505.1
p. 30, 1973, O.S.A. 82 S 926.4).
Any industry whose wastes are discharged directly
into a municipal treatment facility, or whose dis-
charges are subject to regulations by the Oklahoma
Corporation Commission, are exempt from the permit
requirements. All applications for a discharge per-
mit must be on typewritten forms supplied by the
Board •(Oklahoma Water Resources Board Rules and Regu-
lations § 510.1) and must be accompanied by a $25.00
246
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filing fee, signed, and it must give the name and
address of the applicant (Oklahoma Water Resources
Board Rules and Regulations, § 510.2, .4, .5).The
application must set forth the location of the plant
and show the source of water supply and the amount
used (Oklahoma Mater Resources Board Rules and Regu-
lations, § 510.6 and 510.7).
The regulations also set forth specific requirements
for application information for domestic water dis-
posal (Oklahoma Mater Resources Board Rules and Regu-
lations,§510.9) , solid waste disposal (Oklahoma Wa-~
ter Resources Board Rules and Regulations, § 510.10),
and industrial waste disposal (Oklahoma Water Re-
sources Board Rules and Regulations, 5 510.11).
Once an application has been duly filed and accepted,
a notice will be prepared which sets forth the date
and place of the public hearing (Oklahoma Water Re-
sources Board Rules and Regulation!, § 515.1).Notice
is by publication (at the applicant's expense) once a
week for two consecutive weeks (Oklahoma Mater Re-
sources Board Rules and Regulations, s 515.2).
The application, information obtained at the hearing,
and the staff's recommendations are presented to the
Board for their consideration (Oklahoma Mater Re-
sources Board Rules and Regulations, § 520.1).The
Board may then require special conditions to be in-
cluded in the permit.
Violation of Board regulations or orders is consid-
ered to be a misdemeanor and could be enjoined for
continuing the violation (Oklahoma Mater Resources
Board Rules and Regulations, I 525.IT
11.1.6 Sanctions and Enforcement Measures
The Oklahoma Water Resources Board has the power to
prohibit or abate discharges of wastes and can re-
quire the modification of, or the construction of,
new disposal systems (O.S.A. 82 § 926.3). Whenever
the Board has determined that the act or any of its
orders has been violated, it must give notice to the
violator, which requires the matter to be corrected
(O.S.A. 82 § 926.7). The Board may act without a
hearing in an emergency situation. Violation of the
Act or a Board order is considered to be a misdemean-
or and could result in an injunction (O.S.A. 82 §
926.10).
The Pollution Control Coordinating Board may issue
written complaints whenever it has reason to believe
that there was a violation of the Act, any regulation,
a Board order, or when an agency failed to take nec-
essary actions (O.S.A. 82 § 936). Any person who
knowingly or wilfully violates a Board order is
guilty of a misdemeanor and upon conviction can be
punished up to $500 per day for ten days and up
to $1000 per day for each day thereafter, or by
imprisonment for no more than 90 days, or by both
fine and imprisonment (O.S.A. 82 § 937). Further-
more, any person, firm, or corporation whose viola-
tions cause the death of fish or other wildlife are
liable for damages in addition to the above mentioned
penalties.
11.2 ADMINISTRATION OF THE LAWS
There are two entities in Oklahoma which are primar-
ily responsible for the administration of water
pollution control. These agencies are the Pollution
Control Coordinating Board (hereafter referred to as
the P.C.C.B.) and the Water Resources Board (here-
after referred to as the Board). See Fi gure 1.
11.2.1 Pollution Control Coordinating Board
The P.C.C.B. is made up of the head administrators
from the Water Resources Board, the State Health De-
partment, the Corporation Commission, the Department
of Agriculture, and the Department of Wildlife
Conservation (O.S.A. 82 § 932). Its primary function
is to coordinate the pollution activities of the var-
ious agencies in order to avoid a duplication of
effort and to promote efficient pollution abatement
(O.S.A. 82 i 934).
The P.C.C.B. may act on its own initiative to abate
pollution when three members concur that an agency
has failed to discharge its duties. The mere exis-
tence of the P.C.C.B. has provided centralized plan-
ning and policy determinations regarding the state's
internal pollution control programs. The P.C.C.B.
also serves as a focal point for public opinion,
allowing the legislature to concentrate upon specific
pollution problems within the state.
11.2.2 Water Resources Board
The Water Resources Board is the primary agency for
water resource development and water rights admin-
istration (O.S.A. 82 % 1071-1084). The Board also
acts as the enforcement agency over industrial pol-
lution. Daily functions of the Board are carried
out by the Executive Director and his staff.
The Board is composed of nine members who are ap-
pointed by the Governor. Six members are appointed
from each of the six congressional districts of the
State and three members are appointed at large. The
Board conducts a statewide water quality sampling
program and issues permits to dispose of treated
wastes (O.S.A. 82 § 926.3). Permit applications must
contain the location and nature of the waste, loca-
tion and volume of the effluent discharge, and the
nature of waste treatment.
If pollution is suspected, an investigation follows.
Samples are taken of the effluent and of the stream
above and below the point of discharge. These sam-
ples are then compared with water quality standards
for that particular stream. If the investigation
discovers that detrimental pollution exists, the
industry is informed of the necessity for abatement.
If the industry takes no action within a reasonable
time, the Board may issue a cease and desist order to
prevent the discharge of the pollutant (O.S.A. 82 §
926.10).
11.2.3 Additional Agency Involvement
Other agencies do exist which play a role in the con-
trol of water pollution. The State Health Department
controls municipal sewage disposal and treatment, the
Corporation Commission regulates to prevent pollution
which occurs in the production and refinement of
petroleum, the Department of Agriculture inspects and
licenses the use of pesticides that present a poten-
tial water pollution problem and finally, the Depart-
ment of Wildlife Conservation is a watchdog over wa-
ter pollution that interferes with the protection and
propagation of game and fish.
The Water Resources Board, which was discussed above,
is also responsible for the administration, control,
and regulation of waters in the state. It also has
the power to develop a state water plan so that the
most effective use of water in the state will be
insured (O.S.A. 82 5 1085.1 & .2).
247
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Figure 1. Oklahoma Agencies Involved in Water Quality Control
Governo
State Board of Health
-Cr
do
Pollution Control
Coordinating Board
Department of Health
Water Resources Board
Director
I
Department of Pollution
Control
Environmental Health
Services
(water pollution
from oil and gas)
(non-point pollution
activities, erosion,
and flood control)
(regulates agricultural
related operations includ-
ing water pollution, NPDES
programs for agriculture)
-------
11.4 RELATED LEGISLATION
The Oklahoma State Drainage Act was created in 1910
(R.L. 1910, § 2959; Laws 1910-1911, c. 132, p. 289,
§1). This act was created to provide for the con-
struction of drains and ditches to be used in carry-
ing surface or flood water off lands and for the pre-
vention of the inundation of lands by flood waters
(O.S.A. 82 s 281). This act was repealed in 1972,
but all district which were formed under this law
are allowed to continue to operate (Repealed by Laws
1972, c. 133, § 1).
A 1935 act declared it to be a public necessity
to promote, build and encourage the build-
ing of lakes, reservoirs, ponds, the
terracing of lands, the prevention of wind
and water erosion, the promotion of con-
tour cultivation of lands, the irrigation
of lands, and the saturation and storage
of water in lands, and encourage the
seeding of waste, abandoned or eroded
lands to water-conserving and erosion
preventing plants, trees and grasses and
such other and further methods as shall
economically effect such conservation
(O.S.A. 82 § 456).
This act was subsequently repealed in 1972 (Laws
1972, c. 253 5 29).
11.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
A person must secure a permit from the Oklahoma Water
Resources Board before discharging a waste into the
waters of the State (Oklahoma Water Resources Board
Rules and Regulations, Publication 45, 1973, 500.1
Neither the Water Resources Board nor the Pollution
Control Coordinating Board has promulgated regula-
tions which deal with irrigation return flows or
agricultural discharges. However, the Water Re-
sources Board has adopted standards for return flow
streams and mixing zones of passage.
11.6 CASE LAW APPLICABLE TO AGRICULTURE
In Oklahoma there exists a plethora of water quality
cases. A large segment of these cases revolved
around the following statute:
No inflammable product from any oil or
gas well shall be permitted to run into
any tank, pool or stream used for water-
ing stock; and all waste of oil and refuse
from tanks or wells shall be drained into
the proper receptacles at a safe distance
from the tanks, wells or buildings, and be
immediately burned or transported from the
premises, and in no case shall it be per-
mitted to flow over the land. Salt water
shall not be allowed to flow over the sur-
face of the land (Okla. Rev. Stat. 52 i
296). '
In Markwardt v. City of Guthri_e_ (18 Okl. 32, 90 P.
26, 1907) the plaintiff alleged that due to the
defendant's discharge of sewage, the water of Cotton-
wood Creek was rendered unfit for irrigating and made
his vegetables unfit for marketing. The Supreme
Court of Oklahoma held that a city does not have the
power to discharge sewage into rivers and is liable
for the wrongful maintenance of a public nuisance.
:For a comprehensive list of these cases see O.S.A.
52 5 296 and the cases that are listed following
that statute.
The Supreme Court of Oklahoma held in City of Cushing
VL High (73 Okl. 151, 175 P. 229, 1918) that one
could recover damages for discomfort, annoyance and
personal inconvenience caused from the pollution of a
stream.
In Comar Oil Co. v. Hackney (119 Okl. 285, 250 P. 93,
1926) the Supreme Court of Oklahoma held that an
award of damages for the injuries to his realty could
properly include future damages. In this case, salt
water from the defendant's oil operation had per-
meated the soil and permanently destroyed the land
for agricultural purposes. The court stated that the
destructive effect upon the soil by salt water is of
such common notoriety as to constitute judicial
knowledge.
In 1931, the Oklahoma Supreme Court held in Tidal Oil
Co. v. Pease (5 P. 24 389, 1939) that in order to
make tort feasors jointly liable, there must be some
sort of community in the wrongdoing and the injury
must be in some way due to their joint work. The
court went on to say that it was not necessary for
the tort feasors to be acting together or in concert
if their concurring wrongful acts occasioned the
injury. This case involved an action to recover dam-
ages for the pollution of a stpckwater supply caused
by the acts of the defendants in allowing oil, salt
water, and other deleterious substances to escape
from their oil-mining operation.
In 1935, the Oklahoma Supreme Court held that an
earlier denial of an injunction does not prevent an
action for damages from the pollution of a stream
(Champ!in Refining Co. v. Brooks, 172 Okl. 124 42
P.2d 811, 1935).
Martin British American Oil Producing Co. (102 P.2d
124, 1940) involved an action to recover damages
caused by the defendant's act of constructing a
pipeline which discharged pollutants into a stream
which ran through the plaintiff's land. The court
held that one riparian owner could use water from a
stream as he deemed proper, so long as that use was
reasonable and did not injure or damage other ripar-
ian owners. In cases such as this, reasonable use
is a question of fact for the jury.
11.7 INFORMATION SOURCES
Pyle, Ronnie D., "Water and Watercourses: Water
Pollution Laws and Their Enforcement in Oklahoma,"
22 Oklahoma Law Review 317, (1969).
, Oklahoma Water Quality Standards, Publi-
cation No. 79, Okla. Water Resources Board, 1976.
, Oklahoma Water Resources Board Rules and
Regulations, Publication No. 45, Oklahoma Water
Resources Board, 1973.
249
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APPENDIX A
12. OREGON
12.1 SUMMARY OF WATER QUALITY LAWS
12.1.1 Background
As early as 1889, Oregon statutes prohibited the pol-
lution of water used for domestic or farm purposes
(Gen. Laws of Ore. 1889, p. 89 § 1). Other laws were
subsequently passed which prohibited people from
putting any "dead animal carcass or part thereof,
excrement, putrid, nauseous, noisome, decaying, dele-
terious, or offensive substance into or in any other
manner not herein named which befouls, pollutes, or
impairs the quality of any spring, river, brook,
creek, branch, well, cistern or pond of water which is
or may be used for domestic purposes of to which . . .
domestic stock have access ..." (Gen. Laws of Ore.
1919, ch. 264, § 115).
A major step toward control of water quality in Oregon
came in the 1939 general election when the voters
approved an initiative measure establishing the State
Sanitary Authority within the State Board of Health.
The act was designated as Chapter 3, Oregon Laws 1939
and the title to this act was as follows:
An act providing for the purification of
waters, rivers, streams, lakes, watersheds
and coastal areas of the state of Oregon;
regulating and controlling the use of such
waters as to pollution, sewage, and other
wastes; authorizing and providing for the
means, facilities, operations and proceed-
ing for carrying into effect such provi-
sions, and for all other matters and things
properly connected therewith.
This law, as amended in subsequent sessions of the
legislature, was codified as Oregon Revised Statute
(O.R.S. 51 449.015 to 449.100). In State Sanitary
Authority v. Pacific Meat Co., (226 Ore. 494, 360
P.2d 364, 1961) the court stated that the present
statute (Chapter 449) was the amended form of the
1939 anti-pollution statute.
This legislation has subsequently been reinacted under
Chapter 468 in the 1975 Session of the Oregon Legis-
lature (O.R.S. §§ 468.005 through 468.997). The
apparent reason for this change was the creation of a
section of Oregon law which would be exclusively de-
voted to Pollution Control. The major subdivisions
of the present act cover the topics of General Admin-
istration (O.R.S. 55 468.005-.075), Enforcement (O.R.S.
Si 468.090-.140), Pollution Control Facilities Tax
Credit (O.R.S. 55 468.150-.190), State Pollution
Control Bonds (O.R.S. §5 468.195-.260), County Pollu-
tion Control Facilities (O.R.S. 55 468.263-.272),
Air Pollution Control (O.R.S. §5 468.275-.350), Motor
Vehicle Pollution Control (O.R.S. 55 468.360-.420),
Field Burning Regulation (O.R.S. 55 468.450-.485),
Regional Air Quality Control Authorities (O.R.S. 55
468.500-.580), Aerosol Spray Control (O.R.S. §§468.600
-.605), Water Pollution Control (O.R.S. 55 468.700-
.775), Oil Spillage Regulation (O.R.S. 55 468.780-
.815), and Penalties (O.R.S. §§ 468.900-.997).
12.1.2 Policy
The Oregon act provides for the creation of an En-
vironmental Quality Commission consisting of five
members who are appointed by the Governor (O.R.S. 5
468.010). The Commission is responsible for estab-
lishing the policies for operation of the Department
of Environmental Quality (O.R.S. 5 468.020). The
statutorily announced policy on water pollution
focuses attention on the following items:
(1) To conserve the waters of the state;
(2) To protect, maintain, and improve the
quality of the waters of the state for
public water supplies, for the propagation
of wildlife, fish and aquatic life and for
domestic, agricultural, industrial, muni-
cipal, recreational and other legitimate
beneficial uses;
(3) To provide that no waste be discharged
into any waters of this state without first
receiving the necessary treatment or other
corrective action to protect the legiti-
mate beneficial uses of such waters;
(4) To provide for the prevention, abate-
ment and control of new or existing water
pollution; and
(5) To cooperate with other agencies of
the state, agencies of other states and
the Federal Government in carrying out
these objectives (O.R.S. § 468.710,
Emphasis Added).
The pollution of water in Oregon is further declared
to be contrary to public policy and the Department
of Environmental Quality is given the duty of imple-
menting the above policy by fostering cooperation
among water users to prevent pollution and by re-
quiring the use of those methods which conform to the
established water quality standards (O.R.S. 5
468.715).
Although the act does not expressly declare water
pollution to be a public nuisance, the term "Pollu-
tion" as is used in the regulations of the Department
of Environmental Quality equates pollution with the
creation of a public nuisance (Oregon Administrative
Rules, hereafter O.A.R., Ch. 340, 5 41-005 (4)).
12.1.3 Classification
Oregon does not have a system to classify their
waters.
12.1.4 Standards
The Oregon Environmental Quality Commission has
adopted an extensive set of standards for water
quality and purity under the authority granted to
that body by statute (O.R.S. 5 468.735). The enabling
legislation requires the commission to consider the
following factors in the adoption of these standards:
(a) The extent, if any, to which floating
solids may be permitted in the water;
(b) The extent, if any, to which sus-
pended solids, settleable solids, colloids,
or a combination of solids with other sub-
stances suspended in water may be permitted;
(c) The extent, if any, to which organisms
of the coliform group, and other bacterio-
logical organisms or virus may be permitted
in the waters;
(d) The extent of the oxygen demand which
may be permitted in the receiving waters;
(e) The minimum dissolved oxygen content
of the waters that shall be maintained;
(f) The limits of other physical, chemical,
biological or radiological properties that
may be necessary for preserving the quality
250
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and purity of the waters of the state;
(g) The extent to which any substance
must be excluded from the waters for the
protection and preservation of public health;
and
(h) The value of stability and the public's
right to rely upon standards as adopted
for a reasonable period of time to permit
institutions, municipalities, commerce,
industries and others to plan, schedule,
finance and operate improvements in an
orderly and practical manner (Ibid.).
As an additional requirement, the water quality
standards which are established must be consistent
with the policies and programs which the Water Pol-
icy Review Board adopts for the use and control of
state water resources under O.R.S. i§ 536.210 to
536.550 (Ibid.). The Commission is also given
authority to establish rules regulating effluent
limitations, as defined in Section 502 of the Federal
Water Pollution Control Act, and other minimum re-
quirements for waste disposal (O.R.S. § 468-725).
The Commission has taken a dualistic approach to the
adoption of water quality standards. First, they
have adopted General Water Quality Standards which
apply to all waters of the state unless expressly
superseded (O.A.R. 340, § 41-025, 1975). General
standards cover the following parameters of re-
stricted water pollution:
(1) The dissolved oxygen content of sur-
face waters to be less than six (6) milli-
grams per liter unless specified otherwise
by special standards;
(2) The hydrogen-ion concentration (pH)
of the waters to be outside the range
of 6.5 to 8.5 unless specified otherwise
by special standards;
(3) The liberation of dissolved gases,
such as carbon dioxide, hydrogen sulfide
or any other gases, in sufficient quanti-
ties to cause objectionable odors or to
be deleterious to fish or other aquatic
life, navigation, recreation, or other
reasonable uses made of such waters;
(4) The development of fungi or other
growths having a deleterious effect on
stream bottoms, fish or other aquatic
life, or which are injurious to health,
recreation or industry;
(5) The creation of tastes or odors or
toxic or other conditions that are dele-
terious to fish or other aquatic life or
affect the potability of drinking water
or the palatability of fish or shellfish;
(6) The formation of appreciable bottom
or sludge deposits or the formation of
any organic or inorganic deposits dele-
terious to fish or other aquatic life or
injurious to public health, recreation or
industry;
(7) Objectionable discoloration, turbidity,
scum, oily slick or floating solids, or
coat the aquatic life with oil films;
(8) Bacterial pollution or other conditions
deleterious to waters used for domestic
purposes, livestock watering, irrigation,
bathing, or shellfish propagation, or be
otherwise injurious to public health;
(9) Any measurable increase in temperature
when the receiving water temperatures are
64° F. or greater; or more than 0.5° F.
increase due to a single-source discharge
when receiving water temperatures are
63.5° F. or less; or more than 2° F.
increase due to all sources combined
when receiving water temperatures are
62° F. or less;
(10) Aesthetic conditions offensive to
the human senses of sight, taste, smell,
or touch;
(11) Radioisotope concentration to ex-
ceed Maximum Permissive Concentrations
(MFC's) in drinking water, edible fishes
or shellfishes, wildlife, irrigated crops,
livestock and dairy products or pose an
external radiation hazard; or
(12) The concentration of total dissolved
gas relative to atmospheric pressure at
the point of sample collection to exceed
one hundred and five percent (105%) of
saturation, except when streamflow ex-
ceeds the 10-year, 7-day average flood
(Ibid., Emphasis added).
As mentioned above, General Water Quality Standards
will be applied unless they are superseded. This
brings into play the second level of water standards
used in the Oregon scheme—the Special Water Quality
Standards. Special Water Quality Standards are
those which have been adopted for specifically desig-
nated waters of the state (See O.A.R., Chapter 40,
§§ 41-035 through 41-105, to determine specific
standards applicable to a certain river system).
12.1.5 Permit System
A permit from the Department of Environmental Qual-
ity is required before the following activities can
take place in Oregon:
(1) Discharge of any wastes into the waters
of the state from any industrial or com-
mercial establishment or activity or any
disposal system;
(2) Construct, install, modify, or operate
any disposal system or part thereof or
any extension or addition thereto;
(3) Increase in volume or strength of
any wastes in excess of the permissive
discharges specified under an existing
permit;
(4) Construct, install, operate or conduct
any industrial, commercial, or other
establishment or activity or any exten-
sion or modification thereof or addition
thereto, the operation or conduct of which
would cause an increase in the discharge
of wastes into the waters of the state
or which would otherwise alter the phy-
sical, chemical or biological properties
of any waters of the state in any manner
not already lawfully authorized;
(5) Construct or use any new outlet for
the discharge of any wastes into the
waters of the state (O.R.S. § 468.740).
Application for discharge or construction permits is
made to the Department of Environmental Quality.
The enabling legislation allows the issuance of
permits subject to compliance with specified condi-
tions and permits are only issued for a specific
duration (O.R.S. § 468.065). The department can also
establish fee schedules for permits and the submis-
sion of plans and periodic reports (Ibid..). The
Department is authorized to deny, modify, suspend,
or revoke a permit which it has issued on grounds of
material misrepresentation in the original applica-
tion, failure to comply with the conditions of the
permit, or for violations of the statute or rule of
the Commission (O.R.S. § 468.070). Any such action
of this nature on the part of the Department is to
251
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be conducted as a contested case before the admin-
istrative agency with the right to petition for judi-
cial review (Ibid.). This procedure for the issuance
of permits has functioned since the 1971 version of
the Act.
The Commission is given the authority to perform any
acts necessary to implement on the state level the
provisions of the Federal Water Pollution Control Act
of 1972 and any supplemental amendments to the Act
(O.R.S. I 468.730).
Pursuant to this authority, the Commission has
adopted regulations governing the issuance of dis-
charge permits under the National Pollutant Discharge
Elimination System program (O.A.R., Ch. 58, § 45-005
to 45-065). Under these regulations, a permit is re-
quired for the initial discharge of wastes into state
waters or the increase in volume or strength of
existing discharges (O.A.R., Ch. 58, § 45-015). The
term "wastes" for the purpose of the above regulations
includes agricultural wastes "which will or may cause
pollution or tend to cause pollution of any waters of
the state" (O.A.R., Ch. 58, § 44-005(3)).
12.1.6 Sanctions and Enforcement Measures
Enforcement of water quality controls is delegated to
the Department of Environmental Quality (O.R.S. §5
468.090 to 468.140). The legislation directs the
Department to first attempt to endeavor to gain com-
pliance of the Act or agency regulations by confer-
ence and conciliation (O.R.S. § 468.090). If this
method fails to resolve the situation, the Department
can bring enforcement proceedings (Ibid.). Persons
who are adversely affected by the order issued by
the Department have the right to appeal the order to.
court and request a stay of enforcement (O.R.S. 5
468.110).
The Oregon law provides for the imposition of both
civil and criminal penalties. The Commission is em-
powered to adopt by regulation a schedule for civil
penalties, but the penalty cannot exceed $500 per day
(O.R.S. § 468.130). The penalty is due and payable
when the offender has received notice of the violation
(O.R.S. § 468.140). Persons who violate the terms
and conditions of waste discharge permits incur a
civil penalty of up to $10,000 for each day of the
violation (O.R.S. s 468.140).
Willful or negligent violations are treated as mis-
demeanors and convictions can result in a fine of up
to $25,000 or a jail sentence of up to one year
(O.R.S. § 468.990). Each day of violation is treated
as a separate offense (Ibid.).
12.2 ADMINISTRATION OF WATER QUALITY LAWS
The following agencies are involved in the administra-
tion and implementation of Oregon's water laws.
12.2.1 Water Quality Control
The Environmental Quality Commission is established as
the policy making body under the Environmental Quality
Act (O.R.S. § 468.015). In this capacity, the Commis-
sion is responsible for adopting the rules and regula-
tions which control the operation of the Department
of Environmental Quality (O.R.S. § 468.020). The
Commission consists of five members of the public who
are appointed to four-year terms by the Governor
(O.R.S. § 468.010).
The administrative operation of the Act is delegated
to the Department of Environmental Quality. As such,
the Department is directed to: (1) encourage volun-
tary cooperation in restoring and preserving the
quality and purity of the waters of the state; (2)
conduct studies and investigations pertaining to wa-
ter quality; and (3) advise, consult, and cooperate
with other agencies of the state, the federal govern-
ment, other political subdivisions, and industry re-
garding water pollution control (O.R.S. § 468.035).
The Department also has general authority for the
enforcement of the water pollution control laws of
the state (Ibid.). The Department has been estab-
lished of the executive-administrative branch and
consists of the Director of the Department and the
other personnel (O.R.S. § 468.030).
The Director functions as the administrative head of
the Department and is custodian of the records of the
Department (O.R.S. § 468.045). The Director is
appointed by the Commission and serves at their
pleasure (O.R.S. S 468.040). See Figure 1 for the
organization chart of the Department.
12.2.2 Additional Agency Involvement
The Health Division is given the authority to make
and enforce regulations regarding the quality of wa-
ter used for human or animal consumption (O.R.S. §5
448.205 to 448.325). This agency also has authority
over the quality of water of public swimming areas
(O.R.S. §§ 431.110 and 448.215).
A significant reorganization took place in 1975 that
may cause confusion in keeping straight the agencies
concerned with water quantity control in Oregon.
Prior to July 2, 1975, the water administration was
carried out by the Office of State Engineer with
policy direction and formulation made by the Water
Resources Board. On July 2, 1975, House Bill 3180
was signed, abolishing these two bodies and creating
the Department of Water Resources and Water Policy
Review Board. See Figure 2 for the relationship of
the various state agencies concerned with water.
The Board, originally created in 1955, is composed of
seven members appointed by the Governor (O.R.S. 5
536.014; H.B. 3180, § 15, 1975). It was created to
determine the policy of the state in providing for
the proper utilization and control of the state's
water resources through a coordinated and integrated
multipurpose water resource policy designed to secure
the maximum beneficial use of water (O.R.S. § 536.220).
In fulfilling this policy, the Board is required to
take into consideration additional legislative decla-
rations of policy which require a multipurpose
approach to water development and utilization, and
provide that a wide range of beneficial uses be eval-
uated in the planning process (O.R.S. § 536.310).
Subject to existing rights, the Board may classify
water sources according to their highest and best
use, quantities of use, and may also designate prefer-
ences for future use (O.R.S. § 536.340). Classifica-
tion by the Board has the effect of restricting the
use and quantities of use of the unallocated water in
accordance with the classification noted (Ibid.).
The policy statements which the Board adopts under
the statutory guidelines are binding upon every state
agency and public corporation in carrying out their
duties (O.R.S. 5 536.360). Furthermore, no agency
is to exercise any function which is in conflict with
the announced water resources policy without obtain-
ing the approval of the Board (O.R.S. 8 536.370).
The Board may withdraw any unappropriated water frpm
252
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Figure 1. Organization Chart of the Department of Environmental Quality
ENVIRONMENTAL QUALITY
COMMISSION
TECHNICAL PROGRAMS
COORDINATOR
-I AIR QUALITY DIVISION
- WATER QUALITY DIVISION
TECHNICAL SERVICES
SECTION
SUBSURFACE AND
ALTERNATIVE SEWAGE
SYSTEMS SECTION
SOLID WASTE
MANAGEMENT SECTION
LABORATORY AND APPLIED RESEARCH
DIVISION
— AIR QUALITY MONITORING
WATER QUALITY PROGRAM
DEVELOPMENT SECTION
REGIONAL OPERATIONS DIVISION
AIR QUALITY LAB
I WATER QUALITY LAB
— SCIENTIFIC SERVICES LAB
SOLID WASTE LAB
-------
appropriation if it deems such action is necessary
to insure compliance with the state water resources
policy, or that such action is needed to protect the
public interest in conserving the water resources of
the state (O.R.S. 5 536.410). It has been given the
authority to apply to the circuit court for an order
restraining other state agencies or public corpora-
tions from carrying out actions which are in viola-
tion of Board policies (O.R.S. § 536.400).
In the area of water quality, the Board is expressly
directed to develop policies which support "The main-
tenance of minimum perennial stream flows sufficient
to aquatic life and to minimize pollution shall be
fostered and encouraged if existing rights and pri-
orities under existing laws will permit" (O.R.S. §
536.310(7)). The Board is further directed that "Due
regard shall be given in the planning and development
of water recreation facilities to safeguard against
pollution" (O.R.S. i 536.310(9)). As stated previ-
ously, the water quality standards adopted by the
Environmental Quality Commission are required to be
consistent with the policies of the Water Policy
Review Board (O.R.S. § 468.753).
The Director of the Department of Water Resources is
charged with administrative responsibility relative
to distribution of water and control of water rights
and to carry out the policies and directions of the
Board. To insure local administration of the law,
the sute is divided into water districts and super-
vised by watermasters appointed by the Director.
These watermasters are required to limit gross waste
of water and can reduce diversions if necessary to
reduce waste.
12.3 SPECIAL LEGISLATION
Oregon statutes contain two chapters of special
legislation affecting water quality control. The
first provides for regulation of sewage treatment
and disposal systems (O.R.S. § 454.010 to .755).
This chapter 454 does not relate to agricultural
uses or discharges.
The second chapter, on solid waste management, chap-
ter 459, likewise does not directly affect irrigated
agriculture (O.R.S. 15459.005 to .995). However, in
setting out the policy and procedures for solid waste
management in the State, the legislation defines
solid wastes to be all putrescible and nonputrescible
wastes including manure but not
(b) Materials used for fertilizer or for
other productive purposes or which are
salvageable as such materials are used
on land in agricultural operations and
the growing or harvesting of crops and
the raising of fowls or animals" (O.R.S.
§ 459.005(11)).
12.4 RELATED LEGISLATION
12.4.1 Soil and Hater Conservation Districts
Among the purposes for which Soil and Water Conserva-
tion Districts are organizedare the prevention of
soil erosion, flood control, the conservation and
development of water resources and improvement of
water quality (O.R.S. i 568.225). Districts are
organized on a state-wide basis and are under the
direction of the State Soil and Water Conservation
Figure 2. Oregon water Agencies and Major Functions
Water Quality
Water Quantity Administration
Planning & Development
Department of
Water Resources
Water
Board
Policy
Review
254
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Commission (O.R.S. 5 568.210). The Commission is
composed of five members who are appointed by the
Governor (O.R.S. i 568.240).
Local districts are formed by the submission of a
petition to the Commission which is signed by at
least twenty-five landowners who hold title to 70% of
the land to be included in the proposed district
(O.R.S. 5 568.300). Final approval of the district
is accomplished by referendum ballot (O.R.S. §
568.350). The activities of local districts are
governed by an elected board of directors (O.R.S §
568.520).
The board of directors formulate land use regulations
which are submitted by referendum to landowners within
the district for their approval (O.R.S. 5 568.640).
The directors can petition the county circuit court
for enforcement of the adopted land use regulations
(O.R.S. § 568.700).
12.4.2 Sanitary District and Authorities; Hater
Supply Authorities
These special districts and authorities are formed
for the purposes of providing water and sanitation
facilities and services (O.R.S. § 450.009). Forma-
tion of these entities is possible only in areas be-
yond the corporate boundaries of cities and towns
(O.R.S. § 450.245).
Financing is provided by issuance of revenue or
general obligation bonds (O.R.S. § 450.265 and i
450.895). Repayment is accomplished through tax
levies and assessments (O.R.S. §§ 450.300 and
450.875).
12.4.3 Drainage Districts
The purpose of these districts is to assist owners of
land which can be reclaimed and protected by drainage
or otherwise from the effects of water used for
sanitary or agricultural purposes (O.R.S. § 547.005).
Drainage districts are formed by submission of a
petition signed by the owners of 50% of the contig-
uous lands in the area which are swamp, wet or
overflowed (Ibid.). The petition is submitted to
the county circuit court (O.R.S. § 547.010).
The affairs of the district are governed by an
elected board of supervisors (O.R.S. § 547.105).
District financing is accomplished by issuance of
bonds which are repaid by taxes and special assess-
ments (O.R.S. §§ 547.455 to 547.697).
Also, counties which have populations over 50,000
people are given authority to undertake programs with
respect to water conservation and flood control
(O.R.S. s 549.710).
12.4.4 Irrigation Districts
Oregon statutes contain extensive provision for the
establishment of irrigation districts. Formation of
these districts is initiated by filing a petition
with the county circuit court (O.R.S. § 545.003).
Final action is taken by referendum election follow-
ing a hearing by the county court.
Irrigation districts are given broad powers to con-
struct and operate works, engage in drainage pro-
grams, enter into contracts with the Federal Govern-
ment and other districts for construction of irriga-
tion and other water use works (O.R.S. §5 545.102 to
545.124).
Other provisions confer development of lands by the
United States (O.R.S. i§ 545.172 to 545.178), issu-
ance of bonds (O.R.S. 51 545.192 to 545.290), and
levying and collecting assessments (O.R.S. §5545.482
to 545.508).
12.4.5 Diking Districts
These districts are organized for the purposes of
carrying out improvement of land subject to tidal
overflow or freshets (O.R.S. § 551.020). Formation
is begun by filing a petition with the county circuit
court (Ibid.) . District activities are governed by
an advisory board and a superintendent which are se-
lected by the landowners (O.R.S. i 551.090). Cost
of improvements is apportioned among landowners
whose lands are benefited (O.R.S. § 551.060).
12.4.6 Hater Improvement Districts
These districts are formed for the purpose of under-
taking any type of improvements which result in
greater efficiency in the beneficial use of water
(O.R.S. § 552.013). Organization is accomplished
through the typical petition and hearing process in
the county court (O.R.S. § 552.113). These districts
must include a minimum of 1000 acres which can in-
clude areas which are already part of municipalities,
and other special districts (Ibid.) .
Such districts have the power to: (1) exercise
eminent domain, (2) contract with all levels of
government for the construction and operation of
works; and (3) to acquire water rights and sell,
lease or deliver water services (O.R.S. S 552.305).
All district plans for water improvement must con-
form to state water resource policy as declared in
O.R.S. § 536.220 (O.R.S. § 552.423).
Financing is accomplished by issuance of bonds which
are repaid by charges for water services, tax
levies, and special assessments (O.R.S. §§ 552.603
to 552.670).
12.4.7 Hater Control Districts
Water Control Districts are established for the pur-
poses of constructing and operating drainage, irri-
gation, flood and surface water control works to
prevent damage and destruction due to flooding
(O.R.S. § 553.020). To accomplish these purposes,
the districts are given such powers as eminent do-
main, the ability to acquire water rights, and to
sell or lease water (O.R.S. § 553.090).
Financing is accomplished through the issuance of
bonds which are repaid by assessments (Ibid.).
Activities of water control districts are governed
by a board of directors who are elected by the
voters of the district (O.R.S. § 553.210).
Hater
12.4.8 Corporations for Irrigation, Drainage,
Supply or Flood Control
Private companies are authorized to incorporate for
the purpose of providing irrigation, drainage, water
supply or flood control services (O.R.S. § 554.010).
These corporations can be organized as nonprofit
corporations, as well as profit making entities.
Activities are controlled by a board of directors
elected by the stockholders. Financing is accom-
plished by the issuance of bonds which are retired
by the payment of assessments from benefited stock-
holders. Indebtedness cannot exceed the amount of
assessments, or value of benefits.
255
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12.4.9 Comprehensive Planning Coordination; Planning
Districts
Oregon has enacted extensive provisions for state-
wide planning and coordination of planning efforts
between state, regional and local efforts. The main
area of interest for these planning efforts is land
use.
On the state level, a Conservation and Development
Commission is created as the policy body for prepar-
ing and adopting state-wide land use goals and guide-
lines (O.R.S. §§ 197.005 197.060). These goals and
guidelines are formulated during an extensive public
hearing process (O.R.S. § 197.235). Once adopted,
city and county planning commissions are required to
have their comprehensive plans comply with state
goals (O.R.S. § 197.330).
To facilitate the Commission in the accomplishment of
their duties, the legislation provides for the estab-
lishment of a Land Conservation and Development
Department (O.R.S. § 197.075). A Joint Legislative
Committee on Land Use is also created to review the
need for legislative action in the areaof land use
control (O.R.S. § 197.125). Finally, state and
county citizen advisory committees are established
to provide further public input into land use
decisions (O.R.S. § 197.160).
This legislation enables Planning Districts to be
formed across city and county boundaries as a means
of coordinating planning efforts between local gov-
ernments (O.R.S. 5 197.705). Approval of the
Governor is required before these districts are
officially constituted (O.R.S. § 197.725).
12.4.10 Fill and Removal Permits
The Director of the Division of State Lands is given
the authority to issue permits for the filling or
removal of more than 50 cubic yards of material at
one location during the calendar year (O.R.S. §
541.605). The permit must be issued in conformity
with the rules of the State Water Resources Board
(O.R.S. 5 541.625). It is a public nuisance to en-
gage in the filling or removal of material beyond
the above limits without a permit (O.R.S. 8 541.645).
The State Water Resources Board is given the author-
ity to enforce compliance with the Act by bringing an
action for abatement of a public nuisance (O.R.S. s
541.650).
12.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
12.5.1 Agriculture in General
Department of Environmental Quality regulations de-
fine "pollution" to include the contamination or
alteration of water quality in a manner which is
harmful to a number of beneficial water uses in-
cluding agriculture (O.A.R., Ch. 340, § 41-005(4),
1976).
Specific regulations addressing water quality prob-
lems associated with confined livestock feeding
operations have been adopted by the Department of
Environmental Quality (O.A.R., Ch. 340, §§ 51-005 to
51-080, 1972). The regulations were adopted for the
purpose of protecting the quality of the environment
and public health by requiring the application of
"best practicable waste control technology relative
to location, construction, operation, and maintenance
of confined animal feeding or holding facilities and
operations" (Ibid., s 51-005). The effect of the
regulations is to require Departmental approval of
all the plans for such operations prior to
construction.
Additional regulations have been adopted which con-
trol the operation of: (1) facilities for the
removal of fruit and vegetable wastes (O.A.R., Ch.
340, 5 43-005, 1950); (2) facilities for the cleaning
of slaughterhouses and meat packing plants (O.A.R.,
Ch. 340, i 43-015, 1950); (3) collection of wastes
from slaughterhouses and meat packing plants (O.A.R.,
Ch. 340, 5 43-020, 1950); (4) poultry killing and
packing plants (Q.A.R., Ch. 340, § 43-025, 1950); and
(5) hog feeding farms (O.A.R., Ch. 340, S 43-030,
1950).
12.5.2 Irrigation Return Flow
Oregon laws and regulations contain neither express
provisions controlling irrigation return flow, nor
are there any specific prohibitions concerning the
regulation of that aspect of on-farm water use.
As a practical matter, the Department of Environmen-
tal Quality has issued NPDES permits to approximately
half of the state's large irrigation districts under
the provision of Oregon Administrative Rules, Depart-
ment of Environmental Quality, Chapter 340, §5 45-005
through 45-030. Appendix 12-A is an example of the
permits issued. The remaining irrigation districts
have contested the requirement that they obtain per-
mits which are ostensibly for the control of point-
source discharges (Letter from D.E.Q. to Radosevich,
dates 3/26/76).
The Oregon Department of Environmental Quality favors
the development of an Agricultural Practices Act as
the appropriate method for controlling water quality
problems through improved practices rather than
point-source treatment.
12.6 CASE LAW APPLICABLE TO AGRICULTURE
12.6.1 Before the Environmental Quality Act
As mentioned in the introductory portion of this re-
port, the legislative history of the present legis-
lation can be traced back to the legislation estab-
lishing the State Sanitary Authority in 1939 (State
Sanitary Authority v. Pacific Meat Co., 226 Ore. 494,
360 P.2d 634, 1961).During this early period,
there were few cases decided by the Oregon Courts
which involved water pollution control. However,
certain cases are reported which involved proceedings
instituted by private litigants, such as Brown v.
Gold Coin Mining Co., (48 Ore. 277. 86 P. 361, 1906),
where a farmer successfully enjoined a mining company
from dumping tailings from a quartz mill into a
stream which was used by the plaintiff for irrigation
purposes. A similar case with agricultural overtones
was Adams y. Clover Hills Farms (86 Ore. 140, 167 P.
1015, 1917), where a neighboring farmer enjoined
defendant from allowing his dairy farm refuse to go
into a stream.
One of the few reported cases in Oregon illustrating
the enforcement of statutory provisions during the
formative stages of pollution control legislation is
the case of Smith v. Silverton (71 Ore. 379, 142 P.
609, 1914), where the State Board of Health brought
an action to enjoin the discharge of municipal wastes
into a riparian stream. Although the injunction was
refused on an issue of sufficiency of evidence, the
court stated the following:
256
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The right of the state to enjoin a nuisance
may be delegated to and exercised by a city
or other power especially named for that
purpose (Bernard v. Willamette Box & Lumber
Co., 64 Ore. 226, 129 P. 1039, Ibid, at
394, 142 P. at 611). "
Such language was indicative of the direction of ju-
dicial policy in Oregon and provided incentive for
the subsequent enactment of more comprehensive legis-
lation in 1939 granting the State Sanitary Authority
the power to enforce water quality legislation.
The only reported case where an injunction instituted
by the State Sanitary Authority was appealed is State
Sanitary Authority v. Pacific Meat Co. (226 Ore. 494,
360 P.2d 634, 1961).The court sustained the injunc-
tion's validity and pointed out that the state had
the authority beyond that granted the agency to abate
a public nuisance.
12.6.2 Environmental Quality Act
One writer has noted the improvements and additions
made by subsequent sessions of the Oregon Legislature,
primarily during the 1960's, which aided the attain-
ment of state water quality goals (Quesseth, 1965).
At the time of this writing, no appeals have been
taken under the sections of Oregon law which provide
for regulation of water quality. However, it is
interesting to note that suits by private parties to
enjoin water pollution still continue despite the
statutory provisions. In Swango v. Country Squire
Motel. Inc. (247 Ore. 601,"431 P.2d 839, 1967),
plaintiff brought an action to enjoin pollution of a
stream and a request for damages due injury to his
cattle from that pollution. The decision of the
trial court was affirmed by. the Oregon Supreme Court
and no relief was granted the plaintiff due to insuf-
ficiency of evidence that the pollution was the cause
of the injury.
12.7 INFORMATION SOURCES
Bonney, Louis S., "Oregon's Coordinated Integrated
Water Resources Policy," 3 Willamette L.J., 295
(1965).
Clark, Chapin D., Survey of Oregon's Water Laws,
Water Resources Research Institute, Oregon State
University, March 1974.
Haskins, Robert L., "Towards Better Administration of
Water Quality Control," 49 Ore. L. Rev. 373, 1970.
Bell, Neal H., "Beneficial Use of Water,"
Willamette L.J.. 382 (1965).
Note, 3
Quesseth, Cecil H., "Water Pollution Control Laws of
Oregon: Problems of Enforcement," 3 Willamette L.J.,
284 (1965).
, Oregon's Long-Range Requirements for
Water, Summary Report, May 1969, and Appendix VI,
Hater Quality, June 1969, Water Resources Depart-
ment,* Salem, Ore., 1969.
, Trends and Anticipated Changes in Mater-
Use Practices for Irrigation in the Willamette
Valley, Ore. State Univ. and Water Resources Dept.,*
Salem, Ore., Nov. 1965.
*These reports were prepared by the former State En-
gineer and Water Resources Board. Reference to the
current Water Resources Department is to facilitate
identification.
, Water Laws of Oregon. Water Resources
Department,* Salem, Ore., 1972.
, Water Quality Control in Oregon: A
Status Report, Department of Environmental Qua!ity,
Portland, Ore., April, 1975.
257
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APPENDIX 12-A
National Pollutant Discharge Elimination System
WASTE DISCHARGE PERMIT
Department of Environmental Quality
1234 S.W. Morrison Street
Portland, Oregon 97205
Telephone: (503) 229-5696
Issued in accordance with the provisions of ORS
449.083 (Recodified as 468.740) and Federal Water
Pollution Control Act Amendments of 1972, P.L. 92-500,
Oct. 18, 1972 (33 U.S.C. 5 1251 et seq.) (Hereinafter
referred to as the "Federal Act"71
Issued to:
The North Unit Irrigation District
Route 2, Box 1224
Madras, Oregon 97741
Plant Site:
Issued by the Department of Environmental Quality
Reference Information
File Number: 61835
Appl. No.: OR-002671-9 Received 10-1-73
Major Basin: Deschutes
Minor Basin:
Receiving Stream: Deschutes & tributaries
River Mile: 87 to 105
County: Jefferson
Permitted Activities
Until such time as this permit expires or is modified
or revoked, the North Unit Irrigation District is
herewith permitted to:
a. Discharge irrigation return water to the
Deschutes River and its tributaries.
b. Construct, operate and maintain waste water con-
trol facilities.
All of the above activities must be carried out in
conformance with the requirements, limitations and
conditions which follow.
All other waste discharges are prohibited.
Special Conditions
SI. Prior to November 1, 1975, the permittee shall
submit for approval a program and time schedule
for minimizing the discharge of pollutants from the
District to the maximum practicable extent by 1985.
The program shall:
a. Identify and assess alternative water management
control procedures for minimizing the discharge
of Suspended Solids to public waters.
b.
c.
d.
Identify a reasonably attainable Suspended
Solids limitation for each major discharge
identified pursuant to Condition S3 of this
permit.
Identify the appropriate mechanisms for attaining
and enforcing Suspended Solids limitations to be
stipulated in subsequent NPDES permits.
Identify reasonably attainable dates by which
each significant implementing action can be
achieved.
An annual progress report on achieving these goals
shall be submitted each December beginning December
1976.
S2. As much as practicable the permittee shall
monitor the use of toxic aquatic weed control chemi-
cals applied to ditches and canals in the District.
All water to which the toxic chemicals have been
applied shall be disposed of on land without dis-
charge to public waters or otherwise rendered non-
toxic to fish or other aquatic life. A record of
the chemical application shall be maintained and
made available to the Department upon request.
NOTE: For the purposes of this permit the waste
water shall be considered non-toxic if there
is no mortality to juvenile rainbow trout
after 24 hours contact with full-strength
waste water, using suitable bioassay
techniques.
S3. As soon as practicable, but not later than
November 1, 1974, the permittee shall analyze the
return flow patterns and submit to the Department
for approval a plan for either measuring or pro-
viding a reasonable estimate of discharge from the
District. The plan shall also include a list of
proposed monitoring locations extensive enough to
provide representative monitoring of at least
ninety (90) per cent of the pollutants discharged
from the District.
S4. All significant municipal, industrial, domestic,
agricultural (other than irrigation return flow) or
other discharges of pollutants into irrigation
canals or return flow channels shall be identified
and inventoried by the permittee. A listing of the
pollutant discharge inventory shall be submitted to
the Department as soon as practicable but no later
than December 31, 1975.
S5. The permittee is expected to meet the compli-
ance schedules and interim dates which have been
established in conditions SI, S3 and S4 of this
permit. Either prior to or no later than 14 days
following any lapsed compliance date the permittee
shall submit to the Department a notice of compliance
or non-compliance with the established schedule.
S6. Prior to constructing or modifying any waste
water control facilities, detailed plans and speci-
fications shall be approved in writing by the
Department.
S7. Notwithstanding the effluent limitations estab-
lished by this permit, no wastes shall be discharged
and no activities shall be conducted after April 1,
1976 which will violate Water Quality Standards as
adopted in OAR 340-41-105 except in the following
defined mixing zones:
The allowable mixing zone for the Willow
Creek discharge shall include Willow
Creek from the point of discharge to
its mouth. The turbidity of Willow Creek
between river mile 2 and its mouth shall
not be increased more than 20 JTU above
background levels.
The allowable mixing zone for the Camp-
bell Creek discharge shall include
258
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Campbell Creek from the point of dis-
charge to its mouth plus a 60-foot wide
strip of the Deschutes River along the
east bank, extending from the mouth of
Campbell Creek to 200 feet downstream.
The allowable mixing zone for the Mud
Springs Creek discharges shall include
Mud Springs Creek from the point of dis-
charge to its confluence with Trout Creek,
Trout Creek from Mud Springs Creek to the
Deschutes River and that portion of the
Deschutes River within a radius of 50
feet from the mouth of Trout Creek. The
turbidity of Trout Creek shall not be in-
creased more than 20 JTU above background
levels.
The mixing zone at all other points of
discharge shall not exceed that portion
of each receiving stream within a radius
of 100 feet from the point of discharge.
S8. No petroleum-base products or other substances
which might cause the Water Quality Standards of the
State of Oregon to be violated shall be discharged
or otherwise allowed to reach any of the waters of
the state. Petroleum-base aquatic weed control
chemicals may be applied within the District in
accordance with Condition S2.
S9. Beginning as soon as possible but not later than
April 1, 1975, the permittee shall monitor the
quantity and quality of the supply water and wastes
discharged in accordance with procedures approved
pursuant to the requirements of Condition S3. A
record of all such data shall be maintained and sub-
mitted to the Department of Environmental Quality at
the end of each calendar month. Unless otherwise
agreed to in writing by the Department of Environ-
mental Quality, data collected and submitted shall
include but not necessarily be limited to the follow-
ing parameters and minimum frequencies:
Parameter
Waste Water
Flow
Suspended Solids
Turbidity
Specific Conductance
Supply Water
Suspended Solids
Turbidity
Specific Conductance
Minimum Frequency
Weekly
Monthly grab sample
Weekly grab sample
Weekly grab sample
Weekly grab sample
Monthly grab sample
Weekly grab sample
Weekly grab sample
General Comments
Sources of pollutants
affecting the discharges
but are not associated
with irrigation practices
As they occur
NOTE: In order to establish a possible correlation,
monthly Suspended Solids samples shall be taken at
the same time and place as the weekly turbidity
samples.
S10. Moss, debris and dredgings dislodged or re-
moved from canals and ditches shall be collected as
much as practicable and disposed of on land in a
manner which will minimize entry into public waters.
Sll. Conditions G2a and 63 of the attached General
Conditions do not apply to this permit.
General Conditions
61. All discharges and activities authorized herein
shall be consistent with the terms and conditions of
this permit. The discharge of any pollutant more
frequently than or at a level in excess of that
identified and authorized by this permit shall
constitute a violation of the terms and conditions of
this permit.
62. Monitoring procedures:
a. Monitoring shall begin on the first day of
the month following issuance of this permit.
b. Monitoring reports shall be submitted by the
15th day of each following month.
c. Monitoring reports shall be submitted on
approved NPDES report forms.
d. All records of monitoring activities and
results, including all original strip chart
recordings for continuous monitoring instru-
mentation and calibration and maintenance
records, shall be retained by the permittee
for a minimum of three years. This period
of retention shall be extended during the
course of any unresolved litigation regard-
ing the discharge of pollutants by the per-
mittee or when requested by the Director.
e. The permittee shall record for each measure-
ment or sample taken pursuant to the re-
quirements of this permit the following
information: (1) the date, exact place and
time of sampling; (2) the dates the analyses
were performed; (3) who performed the
analyses; (4) the analytical techniques or
methods used; and (5) the results of all
required analyses.
f. Samples and measurements taken to meet the
requirements of this condition shall be
representative of the volume and nature of
the monitored discharge.
g. All sampling and analytical methods used to
meet the monitoring requirements specified
in this permit shall, unless approved
otherwise in writing by the Department,
conform to the latest edition of the
following references:
1) American Public Health Association,
Standard Methods for the Examination
of Water and Wastewaters (13th ed. 1971).
2) American Society for Testing and Mater-
ials, A.S.T.M. Standards, Part 23,
Water, Atmospheric Analysis (1970).
3) Environmental Protection Agency, Water
Quality Office, Analytical Control Labor-
atory, Methods for Chemical Analysis of
Water and"Wastes [April, 1971).
G3. All waste solids, including dredgings and
sludges, shall be utilized or disposed of in a manner
which will prevent their entry, or the entry of con-
taminated drainage or leachate therefrom, into the
waters of the state and such that health hazards and
nuisance conditions are not created.
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G4. The diversion or bypass of any discharge from
facilities utilized by the permittee to maintain com-
pliance with the terms and conditions of this permit
is prohibited, except (a) where unavoidable to pre-
vent loss of life or severe property damage or (b)
where excessive storm drainage or runoff would damage
any facilities necessary for compliance with the
terms and conditions of this permit. The permittee
shall immediately notify the Department in writing of
each such diversion or bypass in accordance with the
procedure specified in Condition G12.
G5. The issuance of this permit does not convey any
property rights in either real or personal property,
or any exclusive privileges, nor does it authorize
any injury to private property or any invasion of
personal rights, nor any infringement of Federal,
State, or local laws or regulations.
66. Whenever a facility expansion, production in-
crease or process modification is anticipated which
will result in a change in the character of pollu-
tants to be discharged or which will result in a new
or increased discharge that will exceed the condi-
tions of this permit, a new application must be sub-
mitted together with the necessary reports, plans and
specifications for the proposed changes. No change
shall be made until plans have been approved and a
new permit or permit modification has been issued.
67. After notice and opportunity for a hearing this
permit may be modified, suspended or revoked in whole
or in part during its term for cause including but
not limited to the following:
a. Violation of any terms or conditions of this
permit or any applicable rule, standard, or
order of the Commission;
b. Obtaining this permit by misrepresentation or
failure to disclose fully all relevant facts;
c. A change in the condition of the receiving waters
or any other condition that requires either a
temporary or permanent reduction or elimination
of the authorized discharge.
G8. If a toxic effluent standard or prohibition
(including any schedule of compliance specified in
such effluent standard or prohibition) is established
under Section 307(a) of the'Federal Act for a toxic
pollutant which is present in the discharge author-
ized herein and such standard or prohibition is more
stringent than any limitation upon such pollutant in
this permit, this permit shall be revised or modified
in accordance with the toxic effluent standard or
prohibition and the permittee shall be so notified.
G9. The permittee shall, at all reasonable times,
allow authorized representatives of the Department
of Environmental Quality:
a. To enter upon the permittee's premises where an
effluent source or disposal system is located or
in which any records are required to be kept
under the terms and conditions of this permit;
b. To have access to and copy any records required
to be kept under the terms and conditions of
this permit;
c. To inspect any monitoring equipment or monitoring
method required by this permit; or
d. To sample any discharge of pollutants.
G10. The permittee shall maintain 1n good working
order and operate as efficiently as practicable
all treatment or control facilities or systems
installed or used by the permittee to achieve
compliance with the terms and conditions of this
permit.
Gil. The Department of Environmental Quality, its
officers, agents and employees shall not sustain any
liability on account of the issuance of this permit
or on account of the construction or maintenance of
facilities because of this permit.
612. In the event the permittee is unable to comply
with all of the conditions of this permit because
of a breakdown of equipment or facilities, an acci-
dent caused by human error or negligence, or any
other cause such as an act of nature, the permittee
shall:
a. Immediately take action to stop, contain and
clean up the unauthorized discharges and
correct the problem.
b. Immediately notify the Department of Environmen-
tal Quality so that an investigation can be made
to evaluate the impact and the corrective action
taken and determine additional action that must
be taken.
c. Submit a detailed written report describing the
breakdown, the actual quantity and quality of
resulting waste discharges, corrective action
taken, steps taken to prevent a recurrence and
any other pertinent information.
Compliance with these requirements does not relieve
the permittee from responsibility to maintain
continuous compliance with the conditions of this
permit or the resulting liability for failure to
comply.
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APPENDIX A
13. SOUTH DAKOTA
13,1 SUMMARY OF WATER QUALITY LAWS
13.1.1 Background
South Dakota has had a comprehensive body of law con-
trolling water pollution since 1935 (S.D.L. § 46-25-1
to 46-25-17, Repealed by S.L. 1973 ch. 280, § 21).
Known as the State Water Pollution Control Act, an
interagency committee on water pollution was created
consisting of the State Health Officer, the Chief
Engineer of the Water Resources Commission, the
Director of the Department of Game, Fish, and Parks,
and four representatives of water user groups ap-
pointed by the Governor (Ibid.).
The committee was authorized to classify water
courses, investigate sources of pollution, aid in the
construction of public water pollution control pro-
jects, and to take administrative and judicial action
to enforce provisions of the Act (Ibid.). The legis-
lation was amended in 1955, I960, and 1966 and finally
superseded by the enactment which created the Board
and Department of Environmental Protection (S.L. 1973,
ch. 280). By Executive Order, which later became ch.
2 SL 1973, the Secretary of Environmental Protection
succeeded to the powers of the Director of the Divi-
sion of Sanitary Engineering and the Board of Environ-
mental Protection succeeded to the powers of the Water
Pollution Control Commission.
13.1.2 Policy
In adopting the most recent version of state water
quality legislation, the South Dakota Legislature
found that water pollution is a public nuisance and
is harmful to legitimate beneficial uses of water in-
cluding agriculture (S.D.L. $ 46-25-23, Supp. 1976).
The Act further states that it is the public policy
of the State . . .
to conserve the waters of the state and
to protect, maintain and improve the qual-
ity thereof for water supplies, for the
propagation of wildlife, fish and aquatic
life, and for domestic, agricultural, in-
dustrial, 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 . . . (Ibid.).
Another section of the Act goes on to provide that
"The board shall establish policy for prevention,
control and abatement of new or existing pollution of
water of the state" (S.D.L. § 46-25-29). The above
section is one of the broadest delegations of policy
making authority from legislative to administrative
level of any of the states considered in this
analysis.
13.1.3 Classification
The Board of Environmental Protection is directed to
"establish and modify the classification of all waters
in accordance with their present and future most bene-
ficial uses" (S.D.L. I 46-25-32). These classifica-
tions are to be reviewed at intervals not to exceed
three years (S.D.L. 5 46-25-35).
The 1935 act gave the Committee on Water Pollution the
authority to classify state waters as either being
"Class A" or "Class B" waters. The distinction be-
tween these two classifications was as follows:
Class A waters where the pollution could
be controlled in such a manner that the
receiving water would not be unfit for
domestic use, fish or plant life, as a
source of public water supply, and would
not cause a public nuisance.
Class B waters which are suitable as
carriers for waste, providing such wastes
are not detrimental to public health.
In the 1973 act, the classification of public waters
adopted by the Committee on Water Pollution was
adopted by reference and is to remain effective as if
they had been passed on by the Board of Environmental
Protection (S.D.L. s 46-25-31). Although the earlier
act was expressly repealed in the new legislation,
the policies of that act which were preserved by
agency rules and standards have been perpetuated in
the 1973 legislation.
13.1.4 Standards
The Board is authorized to issue standards for: (1)
Water Quality; (2) Effluent Discharges; (3) Pretreat-
ment Standards for Industrial Users of Inadequate Pub-
lic Treatment Works (S.D.L. §§ 46-25-33, 46-25-34 and
46-25-34.1). These standards are subject to review
every three years (S.D.L. § 46-25-35).
Earlier standards formulated by the Committee on Water
Pollution were likewise adopted by reference in the
1973 Act (S.D.L. § 46-25-31). The most comprehensive
set of such standards is contained in South Dakota
Board of Environmental Protection, Surface Water
Quality Standards, Ch. 34:04:02 (1975T:
The South Dakota Board of Environmental Protection has
adopted specific water quality parameters for irriga-
tion waters. The specific areas covered by these reg-
ulations are as follows:
(1) Coliform organisms shall not exceed
a MPN or MF of five thousand per one hundred
milliliters, as a geometric mean based on
not less than five samples obtained during
separate 24-hour periods during any 30-day
period, nor shall the number exceed ten
thousand per one hundred milliliters in
any one sample.
(2) Fecal Coliform organisms shall not ex-
ceed one thousand per one hundred mini-
liters as a geometric mean based on not less
than 5 samples obtained during separate
24-hour periods during any 30-day period;
nor shall the number exceed two thousand
per one hundred milliliters in any one
sample.
(3) Total dissolved solids shall not ex-
ceed 1500 milligrams per liter with a vari-
ation allowed under Section 34:04:02:32(3).
(4) Conductivity shall not exceed 2500
micromohs/cm. at 25 degrees C with a vari-
ation allowed under Section 34:04:02:32(3).
(5) The sodium absorption ration shall not
exceed 10 with a variation allowed under
Section 34:04:02:32(3). S.D. Board of
Environmental Protection (Surface Water
Quality Standards, ch. 34:04:02:43, 1975).
261
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The above criteria for irrigation waters is applicable
only from May 15 to September 30 (Ibid.). Also, the
criteria for coliform and fecal coliform organisms is
applicable only to water used to irrigate root crops
or irrigation areas (Ibid.).
13.1.5 Permit System
It is unlawful to cause water pollution or to dis-
charge waste which lowers water quality below that
level existing on March 27, 1973, in South Dakota
(S.D.L. §S 46-25-39 and 46-25-40). Violation of
either of these provisions is actionable as a public
nuisance (S.D.L. § 46-25-41).
Despite the above prohibitions, discharge of wastes
is allowed if the discharge will not result in the
violations of water quality standards and is found
by a majority of the Board to be justifiable as a re-
sult of necessary economic or social development
(S.D.L. § 46-25-42). If such a finding is made, the
Board is authorized to issue a permit, which is re-
viewable every two years, for the discharge (S.D.L. §
46-25-44). The Board is given the authority to adopt
rules controlling the application for and issuance of
discharge permits (S.D.L. § 46-25-46).
A permit from the Board of Environmental Protection is
required for the discharge of wastes due to the fol-
lowing activities:
(1) construction and operation of any dis-
posal system;
(2) an increase in the strength or volume
of waste discharged from a previously ap-
proved facility;
(3) construction and operation of an indus-
trial establishment which would discharge
wastes that would alter water quality
parameters; or
(4) construction of any new outlet for the
discharge of wastes into state waters
(S.D.L. § 46-25-45).
Administration of the permit system is delegated to
the Secretary of the Board of Environmental Protection
(S.D.L. §§ 46-25-55 to 46-25-57).
South Dakota has not adopted the NPDES program to
date. However, the Board has also proposed an exten-
sive set of regulations to implement the NPDES program
(South Dakota Board of Environmental Protection, NPDES
Permit Regulations, Ch. 34:04:06, 1975). The provi-
sion of these proposed regulations concerning "Dis-
charge of irrigation return flow" are discussed in
section 13.5 of this report.
13.1.6 Sanctions and Enforcement Measures
The South Dakota legislation provides for both crimi-
nal and civil penalties for violation of its provi-
sions. A fine of up to twenty-five thousand dollars
per day of violation can be assessed, or imprisonment
for one year, or both can be set for violation of the
statute or permit conditions (S.D.L. § 46-25-91).
Civil penalties for violation of the statute or permit
conditions cannot exceed ten thousand dollars for each
day of violation (S.D.L. § 46-25-92). The punishment
for knowingly making false statements, or tampering
with monitoring devices, is a fine of up to ten thou-
sand dollars, or six months imprisonment, or both
(S.D.L. § 46-25-93). The Board can also seek equi-
table relief by filing an action for an injunction
against the continuation of any alleged violation
which has been the basis for the suspension or revoca-
tion of a permit by the Secretary (S.D.L. 5 46-25-89).
Administrative enforcement of the Act is vested with
the Secretary of Environmental Protection, who issues
orders following formal hearings, or in emergency
situations without hearings, to prevent, abate, or
control pollution (S.D.L. §§ 46-25-76 and 46-25-84).
After formal notice has been given, the Secretary has
authority to revoke, suspend or modify discharge per-
mits for violation or misrepresentation (S.D.L. §
46-25-66). The Secretary can also initiate action for
the recovery of criminal penalties against convicted
violators (S.D.L. § 46-25-90). Finally, the Secretary
can bring suit in district court to restrain persons
allegedly discharging pollutants if it presents an
imminent threat to public health (S.D.L. § 46-25-88).
All administrative action taken by the Secretary is
subject to judicial review (S.D.L. § 46-25-79).
South Dakota law allows an action to be filed in cir-
cuit court seeking declaratory and equitable relief
against political subdivisions or private parties for
the alleged violation of laws "for the protection of
the air, water and other natural resources and the
public trust therein from pollution, impairment or
destruction" (S.D.L. § 21-10A-1). The following par-
ties have standing to bring such an action under the
"South Dakota Environmental Protection Act of 1973":
The attorney general, any political sub-
division of the state, any instrumental-
ity or agency of the state or of a politic-
al subdivision thereof, any person, part-
nership, corporation, association, organ-
ization or other legal entity . . . (Ibid.).
13.2 ADMINISTRATION OF THE LAWS
13.2.1 Board of Environmental Protection—Department
of Environmental Protection
The "lead agency for the implementation of water
quality control in South Dakota is the Board of Envi-
ronmental Protection, which functions as the policy
body" (S.D.L. § 46-25-29). The Board of Environmental
Protection consists of seven members appointed by the
Governor to sit as representatives of various interest
groups and the general public (S.D.L. § 1-38-4).
The law also provides for the creation of a Department
of Environmental Protection whose administrative head
is the Secretary of Environmental Protection (S.D.L.H
1-38-1 to 1-38-2). Figure 1 shows the organization of
this Department.
13.2.2 Department of Natural Resources Development
South Dakota water law provides:
A landowner may not prevent the natural
flow of the stream, or of the natural
spring from which it commences its defi-
nite course, or of a natural spring aris-
ing on his land which flows into and con-
stitutes a part of the water supply of a
natural stream, nor pollute the same . . .
(S.D.L. § 46-5-1, emphasis added).
Administration of the above section and others per-
taining to the appropriation of water in South Dakota
is vested with the Water Rights Commission, which ex-
ercises its powers as a division of the Department of
Natural Resource Development (S.D.L. i 1-40-4). The
Department of Natural Resource Development was cre-
ated in 1973 as the result of an executive reorganiza-
tion of state government!Garton, 1976). Figure 2 re-
flects the Department's organizational structure.
262
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Figure 1. Organization of the Department of Environmental Protection
ro
en
UJ
Board c
Operator Ce
(Six Me
rtlflcatlon oei.rei.dry Lnviryri
mbers)
Env. Spec. I
Regional Of fires
I 1
Rapid City
Office
Env. Engr. Ill
1
Staff Engineer
Env. Engr. V
Sioux Falls
Office
Env. Engr. IV
1
Training Spec.
Technician II
Clerk
Stenographer
Environmental
Sanitarian I
I
Water Qualit
EPA Assignee
y
in. Sec. II
i i
Training Spec. I C
1 i
Env. Engr. II
I
Env. Engr. II
Env. Engr. IV
lerk I
I
i->
Board of
mental Protection
even Members)
Assistant
Attorney General
... .._..,
Environmental
Policy Analyst
Administrative
Services Officer I
1
Accounting
Clerk III
Accounting
Clerk II
Water Hygiene
Env. Engr. IV
1 1
Env. Spec. I Env. Engr. II
1
Env. Tech. I
Env. San. II
Env. San. II —
Env. Engr. I
Env. San. II
Env. Engr. Ill
Land/Water
Clerk I
Clerk Typist I
Adm. Sec. I
G
Public Info. Administ
Specialist I Secretar
1
Comp . Ma
Operator
F : 1-
i
Comp. Machine Comp. Ma
Operator I Operate
I
Air Quality and
Solid Waste
Env. Engr. IV
2ologist II — Admin. Sec.
i n
Env. Engr. I
Env. Sanitarian III En
1 , - -
Env. Engr.
Env. San. I
Env. Sanitarian I „„
i
rative Planner I
ch i ne
II
1
chine Comp. Machine
r I Operator I
II | — 1 Clerk Typist I
- 1
1 1
v. Engr. I Env. San.
Assignee EPA Assignee
-------
The purpose of the Department of Natural
Resource Development is to research, pro-
mote, plan and implement multiple purpose
natural resource projects and programs
with particular emphasis being placed on
development for economic benefits. The
department is comprised of six formerly
separate agencies and for the first time
South Dakota is able to view the develop-
ment of its natural resources from a
comprehensive viewpoint.
The department is organized into four
divisions: Geological Survey, Resource
Management, Water Rights, and Weather Modi-
fication. Each of the divisions, except
Geological Survey, is headed by a director
appointed and removable by the Secretary
for a four year term and is removable for
cause only.
A newly formed Board of Natural Re-
source Development acts as the principal
policy authority for the department. The
Board consists of seven persons serving
four year staggered terms. The Board
exercises the functions of the former Water
Resources Commission with respect to water
projects development and coordination, the
Board of Directors of the Conservancy Dis-
trict and the Water Projects Formulation
and Finance Committee with respect to wa-
ter projects planning and development, and
the Oil and Gas Board with respect to the
development and regulation of oil and gas
production. The latter three boards were
abolished. In sum, the Board is responsible
for reviewing and approving water develop-
ment plans and projects, supervising special
resource project districts, supervising oil
and gas production and establishing over-
all policy for the development of natural
resources.
The Division of Geological Survey con-
ducts ground water and mineral studies for
counties, municipalities and rural water
districts, supervises the drilling and pro-
duction of oil and gas in the state and
performs geologic mapping and special geo-
logical investigations.
The Division of Resource Management
is responsible for developing and imple-
menting overall plans for the development
of the resources of the state. Particular
emphasis is presently placed on the devel-
opment of the State Water Plan and the
selection of water projects for implementa-
tion. As discussed in conjunction with
the State Planning Bureau, the water plan-
ning process has been altered through re-
organization to insure input from all
viewpoints concerned with the use of the
natural resources. The division also super-
vises local drainage, irrigation, watershed
and water conservancy districts and conserv-
ancy subdistricts. This division also is
responsible for reviewing and commenting
on federal water projects and interstate
planning, coordination and development.
The Division of Water Rights is re-
sponsible for granting rights to the use
of surface and ground waters and regulating
the use of that water. The Water Rights
Commission (former Water Resources Com-
mission) is attached to the division and
exercises quasi-legislative and quasi-
judicial authority with respect to granting
water rights. This involves promulgating
rules to govern the issuance of rights,
granting rights to the use of water and
adjudicating disputes arising over water
rights.
The Division of Weather Modification
is responsible for administering a weather
modification program to increase precipi-
tation and suppress hail occurrence, to
evaluate the effect of such program, and
to research and develop scientific data
and methods to improve the effectiveness
of the program. The Weather Modification
Commission is attached to the division and
continues to provide policy direction and
regulation of weather modification
operators (Memo from Mr. Vern W. Butler,
Secretary, Dept. of Natural Resource
Development, dated Feb. 20, 1974).
13.4 RELATED LEGISLATION
13.4.1 Irrigation Districts
An extensive body of law is concerned with the organ-
ization, operation and financing of irrigation dis-
tricts in South Dakota. Creation of districts is
accomplished by submission of a petition to the board
of county commissioners where the proposed district
will be located (S.D.L. ii 46-12-1 to 46-12-7, 1973).
An election is then held to approve the formation of
the district and for selection of a board of
directors (S.D.L. IS 46-12-15 to 46-12-40).
In operation of irrigation districts, the board of
directors have the authority to exercise the power of
eminent domain to acquire property, to construct
necessary water delivery works, to contract with the
Federal government for construction, operation and
maintenance of works and to contract with water con-
servancy districts for delivery of water (S.D.L. §§
46-13-1 to 46-13-22). Irrigation District board of
directors are required to submit reports and recom-
mendations to the Water Rights Commission of the
Department of Natural Resources Development (S.D.L. S
46-13-30).
Financing is provided by the issuance of assessment
bonds or Federal cost-sharing (S.D.L. § 46-14-49).
Repayment of bonded indebtedness is achieved by as-
sessments levied by the board of directors based on
the apportionment of benefits to irrigated land
(S.D.L. §§ 46-15-1 to 46-15-46).
13.4.2 Water Conservancy Districts
Water Conservancy Districts are formed for the pur-
pose of construction of systems of works, conserva-
tion, storage distribution and utilization of water
(S.D.L. § 46-16-1, 1973). Formation of the district
is initiated by filing of a petition with the Water
Rights Commission of the Department of Natural Re-
sources Development, followed by an election to ap-
prove the formation and selection of a board of
directors (S.D.L. §§ 46-16-3 to 46-16-28, 1973).
The board of directors have broad powers to acquire
property, undertake construction of works and fi-
nancing (S.D.L. §§ 46-16-38 to 46-16-54, 1973). The
board can also set rates and charges for delivery of
water from district systems (S.D.L. § 46-16-59,
1973).
-------
13.4.3 South Dakota Conservancy District and
Subdivisions
By an act of the South Dakota Legislature, the entire
state has been organized into.a single district
called the "South Dakota Conservancy District." Al-
though the creation of such a structure is for pur-
poses related to the conservation and development of
water resources, the prime factor in creating the
district was to provide a means whereby the state
could lend financial assistance to local water devel-
opment programs across political boundaries (S.D.I.
S§ 46-17-1 to 46-17-4, 1973). The Water Rights Com-
mission functions as the district board of directors
(S.D.L. § 46-17-5, 1973).
Conservancy Subdistricts can be established and their
operation and financing is according to the earlier
section on Water Conservancy Districts (S.D.L. ii
46-18-1 to 46-18-48, 1973).
13.4.4 Watershed Districts
Watershed Districts are formed for the purposes of
conservation of natural resources, flood control and
"protection of the public health and welfare and the
provident use of the natural resources" (S.D.L. §
46-24-1, 1973). Formation of watershed districts is
done by having the local Soil and Water Conservation
District conduct hearings on the feasibility of cre-
ating a watershed district within the area adminis-
tered by the Soil and Water Conservation District
(S.D.L. S 46-24-3, 1973). A referendum on approval of
the district is held and a board of managers is
elected (S.D.L. §S 46-24-18 to 46-24-32, 1973). The
board of managers has the power to assess and collect
taxes, borrow funds, and condemn private property
(S.D.L. i 46-24-33, 1973).
13.4.5 South Dakota Environmental Policy Act
All state agencies must prepare an environmental im-
pact statement on any major action they propose or
approve which will have a significant effect on the
environment (S.D.L. § 11-1A-4). This statement is to
be made available to public and private bodies for
comment and submitted to the Secretary of the Depart-
ment of Environmental Protection (S.D.L. § 11-1A-9).
Those actions which require the preparation of a
statement under the Nation Environmental Policy Act
of 1969 are exempt from complying with the state
act (S.D.L. § 11-lA-ll).
13.4.6 State Development Plan and Planning Commis-
sion and Planning Bureau
South Dakota has a comprehensive, state-wide planning
effort administered by the State Planning Bureau and
headed by the State Planning Commissioner (S.D.L. §i
11-1-2 to 1-2.1). A commission composed of department
heads and citizens has been appointed to assist the
State Planning Commissioner (S.D.L. §§ 11-1-3 to
1-3.1). Locally, planning is undertaken by planning
and development districts which are area-wide plan-
ning organizations comprised of several political
subdivisions and responsible for planning in a
specific geographical area (S.D.L. § 11-1-1).
Figure 2. Organization of Department of Natural Resource Development
BOARD OF NATURAL
RESOURCE DEVELOPMENT
DEPARTMENT OF NATURAL
RESOURCE DEVELOPMENT
OFFICE OF THE SECRETARY
DIVISION OF
GEOLOGICAL SURVEY
ADMINISTRATIVE SERVICES
DIVISION OF RESOURCES
MANAGEMENT
DIVISION OF
WATER RIGHTS
DIVISION OF
WEATHER MODIFICATION
WEATHER MODIFICATION
COMMISSION
265
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13.4.7 Public and Private Nuisances
Water pollution is considered to be actionable as a
public or private nuisance under South Dakota law
(S.D.L. § 21-10-3, 1973). This provision was upheld
in the case of Watson v. Great Lakes Pipeline Co.
(85 S.D. 176, 179 N.W.2d 15, 1970), where the court
found that the pumping from defendant's tank farm had
polluted water in adjacent wells and in time would
constitute a public nuisance.
13.5 SUMMARY OF REGULATIONS
Aside from the regulations in the water quality stan-
dards (S.D. Regulations 34:04:02:43), South Dakota
has not adopted any regulations specifically pertain-
ing to irrigation return flows. The water quality
regulations, incidentally, pertain to the recovery
waters and not the return flows. However, the Board
of Environmental Protection did adopt NPDES permit
regulations for the purpose of a public hearing which
contains significant reference to irrigation return
flow. The keys are that as a general rule, "Dis-
charge of pollutants from agricultural and silvi-
cultural activities, including irrigation return flow
and runoff from orchards, cultivated crops, pastures,
rangelan'ds, and forest lands, will not require an
NPDES permit provided such discharge does not fall
under the requirements of sections 34 R.606 to 34R.611,
inclusive" (S.D. Proposed, NPDES Permit Regulations,
ch. 34:04:06:05, 1975). Discharges from irrigation
return flow do require permits, described as follows:
Discharges of irrigation return flow,
including but not limited to tailwaters,
tile drainage flow, surfaced ground wa-
ter flow, and bypass water if there is
a point source of discharge, whether natu-
ral or artificial, and the return flow is
from land areas of more than one hundred
sixty contiguous acres, or one hundred
sixty noncontiguous acres which use the
same drainage system (S.D. Board of En-
vironmental Protection, NPDES Permit
Regulations, ch. 34:04:06709, 1975).
Finally, the Secretary of the Department of Environ-
mental Quality has the authority to require a permit
under the NPDES system if the agricultural activity
is causing a violation of Surface Water Quality Stan-
dards, as set out in 34:04:02 to 34:04:04 and the
activity is of a continuing nature (S.D. Board of
Environmental Protection, NPDES Permit Regulations,
ch. 34:04:06:10, 1975). As of 1 January 1977, these
regulations have not been officially adopted.
rights, including quality, have yet to be defined by
South Dakota courts.
No cases have been reported at this time which in-
volve the duties of the Board and Department of
Environmental Protection in the area of water quality
control.
13.7 INFORMATION SOURCES
Christensen, Gary L., "South Dakota's Water Conser-
vancy District Law," Note, 7 S.D.L. Rev. 157 (1962).
Garton, Max A.,"South Dakota's System of Water Man-
agement and Its Relation to Land Use and Economic De-
velopment," 21 S.D.L. Rev. 1 (1976).
Gors, Max A., "Law of Water Distribution in Iowa and
South Dakota: A Comparison of the Riparian and Ap-
propriation Systems," 20 Drake L. Rev. 256 (1971).
Mattson, Oohn, "Water Rights and the Constitutional-
ity of the 1955 South Dakota Water Act," Note, 11
S.D.L. Rev. 374 (1966).
Munro, James, "South Dakota and the Water Impasse,"
11 S.D.L. Rev. 255 (1966).
13.6 CASE LAW APPLICABLE TO AGRICULTURE
No cases in South Dakota have been reported which have
found that an appropriative right had a quality com-
ponent. The main focus of water rights cases has been
whether legislation establishing the doctrine of prior
appropriation in South Dakota is constitutional and
whether that legislation abridges vested riparian
rights. Although South Dakota's first appropriation
statute was struck down in 1913 for depriving the
riparian owners of artesian wells of property without
due process (St. Germain Irrigating Co. v. Hawthorn
Ditch Co., 32 S.D. 466, 143 N*W. 124, 1913) the 1955
act was subsequently sustained after express recogni-
tion was given to the protection of vested rights
(Knight v. Grimes. 80 S.D. 517, 127 N.W.2d 708, 1964).
Based on this pattern of judicial decisions, riparian
rights would still be measured by the doctrine of
reasonable use and the various aspects of appropriative
266
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APPENDIX A
14 TEXAS
14.1 SUMMARY OF WATER QUALITY LAWS
14.1.1 Background
The first legislation enacted in Texas relating to
water quality appeared in 1913. By an act of the
33rd Legislature of the State of Texas, the Board of
Water Engineers was created and given the authority
to develop and conserve the State's water resources
and to supervise the use and distribution of the pub-
lic waters of the State (General Laws, Chapter 171,
April 9, 1913). Four years later, the 35th Legisla-
ture designated this Board as the trustee of the
surface water resources of the State of Texas.
In 1913, a statute was enacted which forbade the
deposition of crude petroleum or oil into any water-
course (Acts 1913, 33rd Leg., p. 90, ch. 47, 5 2,4).
This statute also prohibited the pollution of any
water which was used for livestock, drinking or do-
mestic purposes by the discharge of any sewage, un-
clean water or unclean or polluting matter. If the
pollution affected aquatic life, the Game, >ish, and
Oyster Commission was given the power to enforce this
act by means of an injunction (See also Acts 1915,
34th Leg., p. 38, ch. 23, § 1 and Acts 1923, 38th
Leg., p. 177, ch. 85, § 1). In all other instances,
the enforcement of this statute was in the hands of
the State Board of Health (Ibid.).1 In City v.
Turner (237 S.W. 635, Texas, 1951), the Texas Su-
preme Court held that a suit brought under this
statute required the joinder of the State Board of
Health as a necessary party.
The Texas Legislature also enacted a statute in 1913
which gave qualified cities the full power of local
self-government (Acts 1913, 33rd Leg., p. 303, § 4).2
Section 19 of this statute gave each city the power
to define and prohibit nuisances and the pollution of
any stream, drain or tributary which was a source of
supply for the city (amended by Acts 1967, 60th Leg.,
p. 189, ch. 100, § 1, eff Aug. 28, 1967).
A statute which prohibited the depositing of "the car-
cass of any dead animal, tin cans, discarded buckets
or pails, garbage, ashes, baling or barbed wire,
earth, offal, or refuse of any character (into) any
canal, lateral, reservoir or lake" was enacted in
1917 (Acts 1917, 35th Leg., ch. 88, p. 211, i 70).
Violation of this statute carried a fine of not less
than ten, nor more than one hundred dollars, or im-
prisonment for a term not to exceed six months, or
both. This statute was subsequently repealed in 1961
(Repealed, Acts 1961, 57th Leg., 1st C.S., p. 156,
ch. 42, § 114, eff. Nov. 1, 1962).
The year 1917 also led to the adoption of § 59 to
Article 16 of the Texas Constitution. This article
gave the Legislature the power to enact statutes to
effectuate the conservation and development of all
the natural resources of the state and provided for
the creation of conservation and reclamation dis-
tricts. Public rights and duties in this amendment
included the right to control, store, preserve and
distribute the waters of rivers and streams for
irrigation purposes. Rights under this amendment
were further delineated to allow for the reclamation
and irrigation of arid and semi-arid lands, and for
the reclamation of lands needing drainage.
Pollution was first defined in the Texas Penal Code
in 1948, as the:
throwing, or discharging . . . into any
public body of surface water of this State
any substance, material, or thing in such
quantity that the said water is thereby
rendered unfit for one or more of the
beneficial uses for which the water was
fit or suitable prior to the introduction
of such substance, material, or thing,
or is thereby rendered harmful to public
health, game birds or game animals (Texas
Penal Code (Vernon 1948), art. 698 b § 2).
This statute expressly repealed article 697, which
was passed in 1860, and articles 698 and 698a.
In 1949, the 51st Legislature of Texas created the
Texas Interim Water Code Committee to make a thorough
study of the water laws of the state and to report
its findings with recommendations regarding revisions
of the water laws to the governor and the 52nd Legis-
lature. 3
The 53rd Legislature in 1953 created the Water Pollu-
tion Advisory Council and set forth the public policy
of the state "to conserve its waters for public water
supply for domestic, municipal, agricultural, indus-
trial, recreational, for the propagation of fish and
aquatic life, and other beneficial uses by establish-
ing a more comprehensive program in the public inter-
est for the prevention, abatement and control of
pollution." (Emphasis added; Acts 1953, 53rd Leg.,
p. 868, ch. 353; Repealed by Acts of 1961, 57th Leg.,
1st C.S. p. 156, ch. 42, S 114 eff. Nov. 1, 1962).
The chief water pollution control agency in Texas in
1955 was the State Department of Health, which shared
its responsibilities with the Game and Fish Commis-
sion, home rule cities and water improvement and con-
servation districts (Taylor, p. 376, 1955). The De-
partment's jurisdiction was state-wide and covered
the pollution of every watercourse.
The Water Pollution Control Board was created by the
Water Pollution Control Act of 1961. This Board was
given the power to regulate the discharge of sewage
effluents (T.C.A. art. 7621(d), Vernon Supp. 1965).
This Act was amended four years later to give the
Railroad Commission sole responsibility for "the
control and disposition of waters and the abatement
and prevention of pollution of water (both surface
and subsurface) resulting from activities associated
with the exploration, development, or production of
oil or gas" (T.C.A. Art. 7621(d) § 10(c)4, Vernon
Supp. 1965, as amended, Acts, 59th Leg. 1965, ch.
382 p. 705; art. 7621(d) was repealed by Acts 1967,
60th Leg. p. 758, ch. 313 § 23, effective Sept. 1,
1967).
^ee also Art. 7621 (d) T.C.A. (Vernon Supp. 1965).
2See also Art. 1175 Vernon's Texas Civil Statutes,
vol. 2B.
3Senate Concurrent Resolution No. 36 Texas Laws 1949,
p. 1393. This committee rewrote chapter 1 of Title
128 Tex. Civ. Stat. (Vernon 1948), art. 7466 et. seq.
The House never took any action on this recommenda-
tion (See Milstead, 1951).
267
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The Board of Water Engineers that was created in
1913 had its name changed to the Texas Water Commis-
sion in 1962 in the Third Called Session of the 59th
Legislature. The 59th Legislature realigned the
function of the state water agencies in 1965. The
Texas Water Commission was renamed the Texas Water
Rights Commission and was given the rights and duties
previously held by the Board of Water Engineers and
the Texas Water Commission. Thus, the Texas Water
Rights Commission was expressly created to "regulate
the uses and conservation of water resources declared
to be the property of the State of Texas" (Rules,
Texas Water Rights Commission, 129.01.01.001, 1976)."
The primary impetus for adopting water quality stan-
dards in Texas was the enactment of the Federal Water
Pollution Control Act of 1965 (33 U.S.C. § 466).
This Act required all states to adopt standards for
interstate water (334 S.C. § 466(g)c(Z)). Under the
shadow of this legislation, the Texas Water Quality
Act of 1967 created the Texas Water Quality Board and
gave it the power to promulgate standards for all
Texas waters (T.C.A. § 21.075, Acts 1967, 60th Leg.
p. 745, ch. 313; Acts 1969, 61st Leg. p. 2229, ch.
760, § 1 T.C.A. art. 7627 d-1 § 1.02). On June 26,
1967, water quality standards were adopted by the
Board and then later approved by the Secretary of
the Interior on January 27, 1968 (Texas Water Quality
Board and U.S. Dept. of the Interior, Water Quality
Standards. Summary 17, 1969).
Before the enactment of statutes dealing with water
quality and the pollution of waters, suits against
water polluters found their basis in the common-law
doctrines of negligence and nuisance actions. If
the plaintiff alleged injury to private property or
a personal injury, he then had to demonstrate to the
court that the defendant was negligent. Thus, a
plaintiff had to prove negligence before he could
recover damages (Turner v. Big Lake Oil Co., 128
Tex. 155, 96 S.W. 2d 221, 1936).The proof of negli-
gence can be accomplished by snowing that the up-
stream polluter had failed to warn downstream users
about his pollution and its potential dangers
(American Cyanamid Co. v. Sparto, 267 F. 2d 245, 5th
CTF!1959).Proving negligence is unnecessary when
the plaintiff can show negligence per se, i.e.,
where the defendant's pollution was in violation of
a regulation or statute (Texas Penal Code Annotated,
article 698 c § 3.4 Supp. 1969).
If the plaintiff's injury is the result of a single
act of pollution, the proper relief is for damages.
However, if the pollution is continuous, or there is
a threat of serious injury, the proper remedy would
be an injunction (Carssow, 1970).
In a nuisance action, the plaintiff need not prove
that the defendant failed to use reasonable care
(Humble Pipe Line Co. v. Anderson, 339 S.W. 2d 259,
Texas, 1960).The plaintiff must show that the
nuisance has caused or will cause injury peculiar to
him (Parker v. Fort Worth, 281 S.W. 2d 721, Texas,
1955). However, if the injury is to the public in
general and no individual sustains special injury,
only governmental entities have standing to sue the
polluter (Tex. Penal Code Ann., art. 698 c § 2, 3,
4, 14 (b)j.
The court will "balance the equities" by weighing the
damage to the plaintiff against the value to the
""Letter from Joe D. Carter, Chairman of the Texas
Water Rights Commission, to the principal investi-
gator, February 21, 1975.
community of the defendant's activities in deciding
whether an injunction should be issued (Hill v.
Villarreal, 383 S.W. 2d 463, Texas, 1964).
No provision in the Texas Water Quality Act is to be
construed to affect "the right of any private corpor-
ation or individual to pursue any available common-
law remedy to abate a condition of pollution or other
nuisance or to recover damages" (T.C.A., § 21.263).
14.1.2 Policy
It is the policy of (the state of Texas)
... to maintain the quality of water
(to a degree which is) consistent with
the public health and enjoyment, the
propagation and protection of terrestrial
and aquatic life, the operation of
existing industries and the economic de-
velopment of the state; to encourage and
promote the development and use of region-
al and area-wide waste collection, disposal
needs of the citizens of the state; and
to require the use of all reasonable
methods to implement this policy (T.C.A.
§ 21.002).
In order to carry out this policy, the Texas Water
Quality Board has been designated by the State Legis-
lature as the principal authority in the State on
matters relating to water quality (Rules of Practice
and Procedure, Texas Water Quality Board, January
1976, 130.01.12.001). Furthermore, the Board must
develop a general comprehensive plan for the control
of water quality in the state (T.C.A. § 21.062).
The heart of the Texas Water Quality Act is the
general prohibition of pollution. Pollution is de-
fined by the Act as:
the alteration of the physical, thermal,
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 useful-
ness or the public enjoyment of the water
for any lawful or reasonable purpose . . .
(T.C.A., § 21.003(1)).
The Water Quality Act further provides that dis-
charges of sewage, municipal waste, recreational
waste, agricultural waste or industrial waste are
illegal unless authorized by the Water Quality Board
(T.C.A. § 21.251).
Agricultural waste is defined by the Water Quality
Act as:
waterborne liquid, gaseous, or solid sub-
stances that arise from the agricultural
industry and agricultural activities, in-
cluding without limitation, agricultural
animal feeding pens and lots, structures
for housing and feeding agricultural ani-
mals, and processing facilities for agri-
cultural products. The term "agricultural
waste" does not include tail water or
runoff water from irrigation, or rainwater
runoff from cultivated or cultivated range-
land, pastureland and farmland (Emphasis
added; id., § 21.003 (8)).
The Board must also "encourage the voluntary coopera-
tion by the people, cities, industries, associations,
agricultural interests and representatives of other
268
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interests in preserving the greatest possible
utility of water in the state" (T.C.A. § 21.067(1)).
In implementing the policy set forth in the Texas
Water Quality Act, it is the policy of the Texas Wa-
ter Quality Board
that the waters in the State whose exist-
ing quality is better than the applicable
water quality standards (established by
the Board) ... be maintained at their
high quality and no waste discharges may
be made which will result in the lower-
ing of the quality of these waters unless
... it has been demonstrated to the . . .
Board that the change is justifiable as
a result of desirable economic or social
development (Texas Water Quality Standards,
Texas Water Quality Board Water Quality
Standards, Approved October 25, 1973,
Amended October 1974, January 1975,
Approved by the EPA February 9, 1976,
Environment Reporter, State Water Laws,
vol. 2, 921:1001 to 921:1031). '
Therefore,
the Board will not authorize or approve
any waste discharge which will result in
the quality of any of the waters in the
state being reduced below water quality
standards without complying with the Fed-
eral and State laws applicable to the
amendment of water quality standards
(Texas Hater Quality Standards, § III,
p. 1, 1975, See Environment Reporter,
State Water Laws, vol. 2, 921:1001 to
__"-
On March 6, 1976, the Texas Water Development Board
adopted a broad policy statement in response to the
growth in Texas:
It is the Board's view that population
and economic growth of Texas will con-
tinue and that continued orderly devel-
opment of Texas water resources to meet
present and increasing future needs is
imperative. In meeting the water re-
quirements of the people of Texas, the
Board recognizes that it is necessary
to plan well so as to provide the neces-
sary water resources while at the same
time proper provision is made to protect
the environment, in compliance with the
Texas and national environmental
policy . . . ("Board Adopts . . . , "
Water for Texas, 1976, p. 12).
14.1.3 Classification
Surface waters in Texas are classified into four
major categories:
1. River Basin Waters - those surface
inland waters comprising the major rivers
and their tributaries, including listed
impounded 'waters, and including the tidal
portion of the river to the extent that
it is confined in a channel.
2. Coastal Basin Waters - those surface
inland waters, including listed impounded
waters, exclusive of 1 above discharging
or flowing or otherwise communicating
with bays or the gulf including the tidal
portion of streams to the extent that
they are confined in channels.
3. Bay Waters - all tidal waters exclu-
sive of those included in river basin
water, coastal basin waters, and gulf waters.
4. Gulf Waters those waters which are
not included in or form a part of any
bay or estuary but which are a part of
the open waters of the Gulf of Mexico
to the limit of Texas' jurisdiction
(Texas Water Quality Standards, § IV,
p. 2, 1975. See Environment Reporter,
State Water Laws, vol. 2, § 921:1001).
14.1.4 Standards
The Texas Water Quality Board sets water quality stan-
dards for the state (T.C.A. 5 21.075, Standards Ap-
proved Oct. 25, 1973, Approved by the Environmental
Protection Agency on Feb. 9, 1976). Water quality
standards define the minimum acceptable levels of
water quality in all inland and tidal waters of the
State. These standards consist of General Criteria,
Numerical Criteria, and Water Uses and serve as
guidelines for the Board by setting the maximum
amount of waste which is tolerable in a given stream.
The Board is authorized to hold hearings to establish
these standards (T.C.A. § 21.075 to 21.078).
General criteria are applicable to all surface waters
of the State at all times to the maximum extent
feasible and were established to apply specifically
to substances which are attributable to waste dis-
charges or the activities of man as opposed to natural
phenomena and are applicable to all surface waters.
They are:
1. Taste and odor producing substances
shall be limited to concentrations in the
waters of the State that will not interfere
with the production of potable water by
reasonable water treatment methods, or im-
part palatable flavor to food fish, including
shellfish, or result in offensive odors
arising from the waters, or otherwise in-
terfere with the reasonable use of the
waters.
2. The surface waters of the State shall
be maintained so as to be essentially free
of floating debris and settleable suspended
solids conducive to the production of
putrescible sludge deposits or sediment
layers which would adversely affect benthic
biota or other lawful uses.
3. The surface waters of the State shall
be maintained so as to be essentially free
of settleable suspended solids conducive
to changes in the flow characteristics of
stream channels, to the untimely filling
of reservoirs and lakes, and which might
result in unnecessary dredging costs.
4. The surface waters of the State shall
be maintained in an aesthetically attrac-
tive condition.
5. There shall be no substantial change
in turbidity from ambient conditions due
to water discharges.
6. There shall be no foaming or frothing
of a persistent nature.
7'. There shall be no discharge of radio-
active materials in excess of that amount
regulated by the Texas Radiation Control
Act, Article 4590 (f), Revised Civil Stat-
utes, State of Texas and Texas Regulation
for Control of Radiation.
8. The surface waters of the State shall
be maintained so that they will not be
toxic to man, fish and wildlife, and other
terrestrial and aquatic life.
269
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With specific reference to public
drinking water supplies, toxic materials
not removable by ordinary water treatment
techniques shall not exceed those enumer-
ated in U.S. Public Health Service,
Drinking Water Standards, 1962 edition,
or later revision.
For a general guide, with respect to fish
toxicity, receiving waters outside mixing
zones should not have a concentration of
nonpersistent toxic materials exceeding
1/10 of the 96-hour TLm, where the bio-
assay is made using fish ingredients to
the receiving waters. Similarly, for
persistent toxicants, the concentrations
should not exceed 1/20 of the 96-hour
TLm.
In general, for evaluations of toxicity,
bioassay techniques will be selected as
suited to the purpose at hand. However,
bioassays will be conducted under water
quality conditions (temperature, hardness,
pH, salinity, dissolved oxygen, etc.)
which approximate those of the receiving
stream as closely as practical.
9. As detailed studies are completed,
limiting nutrients identified, and the
feasibility of controlling excessive
standing crops of phyto-plankton or other
aquatic growths by nutrient standards
will be established on the surface waters
of the State. Such decisions will be
made on a case-by-case basis by the Board
after proper hearing and public participa-
tion. The establishment of a schedule
for decisions as to the need for nutrient
standards for specific waters and what
standards should be adopted is not
feasible at this time.
10. The surface waters of the State shall
be maintained so that no oil, grease, or
related residue will produce a visible
film of oil or globules of grease on the
surface, or coat the banks and bottoms
of the watercourse (Texas Hater Quality
Standards, § VI, pp. 5-8. See Environment
Reporter, State Mater Laws, vol. 2, 921:
1002 and 100TT
Numerical criteria are applicable where specific
surface waters have been designated in the standards.
These criteria are inapplicable to this study with
the exception of pH range parameters which represent
maximum and minimum conditions.
The water quality criteria which follow are used as
guidelines to determine the suitability of waters
of the State for various water uses:
The designation of a segment as desirable
for a particular water usage1 reflects the
objective of the Texas Water Quality Board
to attain or maintain a quality of water
appropriate to a specific water usage for
a stream segment (Addendum to Proposed
Revisions to Texas Water Quality Standards,
October 1, 19757":
a. Contact recreation waters
Surface waters suitable for contact
recreation shall not exceed a logarithmic
mean (geometric mean) fecal coliform con-
tent from a representative sampling of
not less than 5 samples collected over
not more than 30 days, as determined
by either multiple-tube fermentation or
membrane filter techniques, of 200/100 ml,
nor shall more than 10 percent of total
samples during any 30-day period exceed
400/100 ml.
Simple compliance with bacteriological
standards does not insure that waters
are safe for primary contact recreation,
such as swimming. Long-standing public
health principles mandate that watershed
sanitary surveys be conducted in order
to adequately evaluate the sanitary
hazards potentially present on any natu-
ral watercourse.
b. Noncontact recreation waters
Surface waters for general or noncontact
recreation should with specific and limited
exceptions be suitable for human use in
recreation activities not involving signifi-
cant risks of ingestion. These waters
shall not exceed a logarithmic mean (geo-
metric mean) fecal coliform content of
2,000/100 ml and a maximum of 4,000/100
ml in more than 10 percent of the samples
except in specified mixing zones adjacent
to outfalls.
In waters designated for recreation use
other than primary contact recreation,
the fecal coliform content should not
exceed a logarithmic mean (geometric
mean) fecal coliform content of 1,000/100
ml, nor equal or exceed 2,000/100 ml in
more than 10 percent of the samples, ex-
cept in specified mixing zones adjacent
to outfalls.
c. Domestic raw water supply
It is the goal that the chemical quality
of all surface waters used for domestic
raw water supply conform to the U.S.
Public Health Service, Drinking Water
Standards, revised 1962, or latest revi-
sion. However, it must be realized that
some surface waters are being used that
cannot meet these standards. Since in
these cases it is the only source avail-
able, these surface waters may be deemed
suitable for use as a domestic raw water
supply, where the chemical constituents
do not pose a potential health hazard.
It is desirable that the total coliform
content should not exceed 100/100 ml and
the fecal coliform content 20/100 ml;
however, domestic water supplies should
not be considered unacceptable if an
adequate number of samples show monthly
arithmetic averages for total coliform
to be less than 10,000/100 ml and fecal
coliform to be less than 2,000/100 m..
The evaluation of raw water cannot be
reduced to simply counting bacteria of
any kind and the foregoing must be used
with judgment and discretion and this
paragraph is not intended to limit the
responsibilities and authorities of
responsible local governments or local
health agencies.
d. Irrigation waters (The following
standards for irrigation waters were
270
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proposed in 1975 but have not been adopted
by the Texas Water Quality Board).
The suitability of water for irrigation
is influenced by:
(1) the total salt concentration or salin-
ity hazards;
(2) the total amount of sodium and its re-
lation to other cations (positively
charged ion);
(3) the concentration of boron and other
constituents that may be toxic; and
(4) the bicarbonate content in relation
to calcium and magnesium (Texas Hater
Quality Standards, V, p. 4, 1975).
The suitability of water for irrigation is based on
an irrigation water classification system prepared by
the USDA salinity laboratory.
These irrigation water classifications are based on
the salinity classes which follow.
Class #1 low-salinity water can be used
for irrigation with most crops on most
soils with little likelihood that soil
salinity will develop.
Class #2 medium-salinity water can be
used if a moderate amount of leaching
occurs. Plants with moderate salt tol-
erance can be grown in most cases without
special practices for salinity control.
Class #3 high-salinity water cannot be
used on soil with restricted drainage.
Class #4 very-high-salinity water is
not suitable for irrigation under
ordinary conditions but may be used
occasionally under special circumstances.
The soil must-be adequate, irrigation wa-
ter must be applied in excess to provide
considerable leaching and highly salt-
tolerant crops must be selected.
"The SAR (sodium absorption ratio) should not exceed
8 for waters safe for irrigation. Sampling and
analytical procedures . . . (should be ) adequate for
the protection of irrigation waters" (Ibid.).
d. Propagation of fish and wildlife
The water quality requirements necessary
to support the propagation of fish and wild-
life are too diverse to be defined by a
single set of numerical criteria. Different,
but equally desirable, biological communi-
ties may have substantially different water
quality requirements. Also, the impact
of a given chemical or physical component
on a biological community can be assessed
only when the other components of the sys-
tem are known since synergistic and antago-
nistic interactions are common. Determina-
tion of the suitability of a stream for
the propagation of fish and wildlife is
most effectually accomplished by an assess-
ment which considers both the physical-
chemical parameters of the stream and the
biological community present in the stream.
Specific criteria do exist with respect
to shellfish waters. In shellfish areas
in the bays and outside the buffer zones,
the coliform criteria shall be limited and
guided by the U.S. Public Health Service
Manual, "Sanitation of Shellfish Growing
Areas," 1965 revision, or latest revision
(Texas Hater Quality Standards, Environ-
ment Reporter, State Water Laws, vol. 2,
§ 921: 1001 et. seq.J.
14.1.5 Permit System
The permit system is the heart of the Texas scheme of
water pollution control. A permit is defined in the
Texas Water Quality Act, § 21.003 (16) as:
an order issued by the Board in accordance
with the procedures prescribed in this chap-
ter establishing the treatment which shall
be given to wastes being discharged into or
adjacent to any water in the state to pre-
serve and enhance the quality of the water
and specifying the conditions under which
the discharge may be made.
Unless authorized by a discharge permit, a rule, or a
regulation, no person may:
(1) discharge sewage, municipal waste,
agricultural waste, or industrial waste
into or adjacent to any water in the state;
(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 . . . (T.C.A. § 21.251, 1 & 2).
Waste is defined by the same Act as, "sewage, indus-
trial waste, municipa-1 waste, recreational waste,
agricultural waste, or other waste (T.C.A. § 21.003
(4).Emphasis added).However, the definition of
"other waste" does include: "tail water or runoff
water from irrigation, or rainwater runoff from
cultivated or uncultivated range land, pasture land,
and farmland that may cause impairment of the quality
of the water in the state" (T.C.A. 5 21.003 (10)).
Permits to discharge waste into waters of the state
are issued by the Texas Water Quality Board (T.C.A.
§ 21.079). While the Board does have the statutory
authority to regulate the quality of irrigation re-
turn flows (See T.C.A. % 21.251), they have chosen
not to do so (personal interview). Applications for
a permit must be submitted to the Board and contain
all information required by the Board or its Execu-
tive Director.
A public hearing must be held on an application for a
permit, or the amendment of a permit (T.C.A. § 21.080).
Notice of such a hearing must be given to any person
who could be affected.
With each permit, the Board describes the conditions
on which it is issued. These conditions include:
1. the duration of the permit;
2. the location of the point of discharge
of the waste;
3. the maximum quantity of waste that may
be discharged under the permit at any time
and from time to time;
4. the character and quality of waste
that may be discharged under the permit;
and
5. any monitoring and reporting requirements
prescribed by the board for the permittee
(T.C.A. § 21.081).
A permit does not become a vested right and may be re-
voked or suspended by the Board if the permittee has
failed, or is failing, to comply with the conditions
of the permit. This permit is subject to cancella-
tion or suspension under Sec. 21.201 when the opera-
tions have been abandoned, or the permit is no longer
used by the permittee.
State participation in the National Pollutant Dis-
charge Elimination System (NPDES) pursuant to section
402(b) of the Federal Water Pollution Control Act
271
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(92-500, 86 Stat. 816 (1972); 33 U.S.C. 1251 et. seq.)
will not receive approval by the Regional Administra-
tor until the State has developed a continuing plan-
ning process pursuant to § 130.41 of the Act. Texas
constructed a Continuing Planning Process which di-
rects the development and implementation of water
quality management plans (See the State of Texas Con-
tinuing Planning Process, prepared by the Texas Water
Quality Board, February, 1976). This planning pro-
cess was adopted June 13, 1973 and was amended to con-
form to regulation revisions on November 28, 1975
(40 CFR Part 130, 131, to comply with Sec. 208 of the
Federal Water Pollution Control Act).
As was stated earlier, the 1972 amendment to Section
401(a) of the Federal Water Pollution Control Act
requires an applicant for an NPDES permit, or a state
discharge permit, to obtain a certification that the
discharge will comply with Sections 301, 302, 306 and
307 of the Federal Act. The Texas Water Quality
Board adopted the following certification procedure:
. . . Certification notice will be published
(by the State of Texas) as part of the notice
from the Environmental Protection Agency of
the intention to issue an NPDES permit when:
(a) the discharge is authorized by an
existing State permit; and
(b) the applicant seeks no significant in-
crease in the volume of effluent or quantity
of pollutants authorized for discharge by the
State permit; and
(c) the effluent requirements of the State
permit are consonant with the requirements
of Sections 301, 302, 306, and 307 of the
Federal Act (See Rules of Practice and Pro-
cedure. Texas Water Quality Board, § 130.01.
60.001 & 002, Jan. 1976).
If the application is for a discharge which the State
does not allow, or for an increase in quantity of
pollutants, a public hearing must be held (Id, §
.003). If the certification application is for a dis-
charge which is authorized by a State permit, but
does not comply with Federal requirements, notice
must be given to the applicant, the Federal Environ-
mental Protection Agency, the state agencies repre-
sented on the Texas Water Quality Board, the city, if
any, and county whose boundaries include the point of
discharge (Id. § .004). This notice must specify the
kinds of changes in the State permit requirements
which are necessary to make the permit comply with
the Federal Act (Ibid.).
When the Texas Water Quality Board has certified a
National Pollution Discharge Elimination System per-
mit, it may upon notice to the applicant amend the
Texas State permit to conform to the NPDES permit
(Id, i .005).
On July 12, 1976 the Environmental Protection Agency
issued regulations which require general rather than
individual water pollution control permits for
agricultural activities defined as point sources
(40 CFR 124, 125, 41 FR 28493, issued July 12th
Environmental Reporter, Current Developments, vol. 7,
Number 111, July 16, 1976)^These regulations define
a point source in the agricultural category as "any
discernible, confined and discrete conveyance from
which any irrigation return flow is discharged into
navigable waters." Specifically excluded from these
regulations are water pollution from agricultural and
silvicultural activities, including runoff from
orchards, cultivated crops, pastures, range!ands and
forest lands.
Criteria which relate to water quality and irrigation
return flows are also found in the requirements for a
permit to appropriate waters. In an application for
a permit to appropriate water, the applicant may be
required to submit evidence to the Texas Water Rights
Commission which will assist the Commission in assess-
ing the environmental, social and economic impacts of
the proposed project Rules. Texas Water Rights Com-
mission, 1976, 129.03.25.008). In addition, the ap-
plicant must describe the location where return or
surplus water will be returned to the stream (Id, S
129.02.15.008).
As of the date of this report, Texas has not enacted
the NPDES permit program, nor has the Environmental
Protection Agency given approval to the Texas dis-
charge permit program.
14.1.6 Sanctions and Enforcement Measures
The Texas Water Quality Act prohibits the discharge
of sewage, municipal waste, recreational waste, agri-
cultural waste, or industrial waste into any water of
the State without a permit (T.C.A. § 21.251). The
Act further prohibits the discharge of "other wastes"
that cause or will cause pollution.
The Water Quality Board has the authority to insti-
tute court proceedings to compel compliance with any
of its rules, orders, permits, or decisions (T.C.A.
§ 21.066). The legal means used to curtail proscribed
pollution include the use of restraining orders, in-
junctions, and monetary penalties.
The Board attempts to enforce compliance with the
Act through negotiations and voluntary cooperation.
If these measures prove unproductive, the Board will
issue formal orders which demand that the violator
cease his activities (T.C.A. § 21.071).
The Board holds formal hearings to further examine
the alleged violation before it refers the case to
the Attorney General for prosecution (Carssow, et al..
1970). The hearing is to determine the extent of the
violation and to collect information for a possible
trial.
If evidence produced at the hearing indicates a vi-
olation of the Act, the Board will issue an order to
the violator to cease discharging in violation of
his permit (T.C.A. § 21.253). If the discharge con-
tinues, the case is referred to the Attorney General
for initiation of legal proceedings. The Attorney
General will then issue a letter to the violator
which requests that the violation cease or the con-
sequence will be immediate prosecution (Carssow, et.
AL., 1970).
As a general practice, the Attorney General will first
seek a temporary injunction requesting the court to
issue a temporary restraining order to maintain the
status quo by limiting the discharge to the level
authorized by the permit (Rattikin Title Co. v.
Grievance Committee of the State Bar of Texas, 272
S.W. 2d 948, Texas, 1954).If a temporary injunction
is obtained and the suit successful, a permanent in-
junction can then be sought.
The Act provides for penalties ranging from $50 to
$1,000 per day for each violation (T.C.A. § 21.252).
Further, the Texas Penal Code provides that a dis-
charge of waste into state waters that causes or
will cause pollution without a permit is a misdemean-
or which is punishable by a fine of $10 to $1,000
(T.C.A. S 21.553).
272
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14.2 ADMINISTRATION OF WATER QUALITY LAWS
14.2.1 Hater Quality Control
There are only two agencies in Texas who possess the
statutory authority necessary to deal with strong
abatement activities. Other agencies exist, but they
carry out only minor or specific water quality func-
tions.
The Water Quality Board and the Railroad Commission
are the two agencies who are primarily responsible
for water pollution control in Texas. Before the
Water Quality Board was created, the Health Depart-
ment had conducted many of the State's water pollution
control activities. The Health Department is still
responsible for approving construction plans for new
public waste disposal plants and for improvements to
existing plants (T.C.A. 521.260). The Department also
certifies sewage plant operators and conducts monitor-
ing activities over the quality of public drinking
water supplies. The Water Quality Act limits the power
of the Department to abate those nuisances not covered
by the Water Quality Act.
The Texas Water Quality Board is made up of three mem-
bers appointed by the governor and four ex-officio mem-
bers who represent other state agencies who are directly
concerned with water pollution control (T.C.A. §21.022).
The four ex-officio members are the directors of the
Water Development Board, the Department of Health, the
Parks and Wildlife Department, and the Texas Railroad
Commission. Members who are appointed by the Governor
hold office for staggered terms of six years (T.C.A.
§21.023).
The Water Quality Board's major functions are the pro-
mulgation of water quality standards and the issuance
and enforcement of discharge permits. Water quality
standards define the minimum acceptable levels of water
quality and serve as guidelines for the Board in their
decisions on permit applications (T.C.A. §21.075). See
Figure 1 for the Board's organizational chart.
The Texas Water Quality Board has the power to amend
water quality standards if the amendment is preceded
by public hearings (T.C.A. §21.075 and .076). The
Board also establishes sampling standards with samples
being taken monthly at each sampling station (Rules of
the Texas Water Quality Board. Sec. 120, 1970).
Upon determining that water quality standards have
established a maximum level of waste that each stream
segment can withstand according to designated uses,
the Board will then regulate the amount of each dis-
charge by the issuance of permits (T.C.A. §21.079).
If the Board accepts an application, it will then
schedule a public hearing within 60 days of the date
the application was filed (T.C.A. §21.081). Good
cause is shown by demonstrating that increased popu-
lation density along a stream has caused the aggre-
gate discharge limitations to exceed stream stand-
ards, or that technological advances have rendered
obsolete permits issued under earlier technological
conditions (Carssow, 1970).
14.2.2 Additional Agency Involvement
The Railroad Commission regulates injection wells for
the disposal of wastes resulting from the production
of oil or gas (T.C.A. §21.261). The Commission is
solely responsible for the control and disposition
of waste and the abatement and prevention of pollu-
tion of both surface and subsurface waters which re-
sult from activities associated with the development,
exploration and production of oil or gas. The Rail-
road Commission issues permits for the discharge of
waste from these activities.
The Water Quality Act also authorizes the Parks and
Wildlife Department to file suit against illegal dis-
charges when aquatic life or wildlife is affected
(T.C.A. §21.259). The Parks and Wildlife Department
also conducts research on pollution problems and
advises the Water Quality Board on the ecological
effects of particular discharges (Carssow, 1970).
Figure 1. The Texas Water Quality Board
SEVEN -MEMBER BOARD
EXECUTIVE DIRECTOR
DEPUTY DIRECTOR
Executive Division Siaff
Adminisirativc
Coordinator
Sun Aisisuni
Public Information
General Legal Coun>L'l
Agency Divisions
ADMINISTRATIVE
OPERATIONS
FINANU-. &
PKOLURLMI-.NI
CENTRAL
OPERATIONS
FIELD
OPERATIONS
ENFORCEMENT
HEARINGS
273
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The Texas Water Rights Commission is composed of three
full-time Commissioners, appointed by the Governor.
The Commission has a supporting staff. See Figure 2
for the Commission's organization shown in relation to
other State agencies having major water management,
conservation and development responsibilities. The
Commission's duties center on its role as the trustee
of the public waters of Texas, defined in Section 5.021,
Texas Water Code. The Commission is the regulatory
agency responsible for the administration of surface
water rights.
Texas has both the riparian and appropriation doctrines
in effect for surface water quantity allocation and use.
However, for all practical purposes, all surface water
rights are now required to be filed, approved and ad-
ministered by the Texas Water Rights Commission.
The Water Rights Adjudication Act enacted in 1967 pro-
vided a new procedure for determining the validity and
extent of all claims to public water, except domestic
and livestock uses which are exempt. Under the Act,
the Commission is directed to investigate all claims
of water rights and to determine their validity and
extent through a series of hearings in each county
where evidence will be received in adversary proceedings.
Prior to enactment of the Act, adjudication of water
rights was accomplished through the district courts of
Texas. This was found to be unsatisfactory, too
expensive and too time consuming. Under the Water
Rights Adjudication Act, the Commission became in
effect a state-wide water regulatory agency performing
quasi-judicial functions. After completion of a stream
adjudication the Commission is directed to establish
water divisions in the State under supervision of water-
masters. Through these watermasters, the Commission
has a continuing duty to guarantee to each water user
adjudicated to have a right that the water to which he
is lawfully entitled will be available to him in
accordance with his right and priority. (Sections
5.031 through 5.341, Texas Water Code.)
To carry out its statutory responsibilities, the Com-
mission has specific programs to ensure the most ben-
eficial uses of water and protect vested superior
rights; to determine administratively, with judicial
review, the legal basis and extent of surface water
rights; to maintain a current inventory of dams and
ensure that the dams are designed, constructed and
maintained safely; to create, supervise, or dissolve
various types of water districts for water control,
improvement, conservation, and management; and to par-
ticipate in governmental interagency joint planning
and coordination for natural resources development,
conservation and management. (See: The Thirty-Second
Report of the Texas Water Rights Commission Covering
the Biennium September 1, 1974 thru August 31. 1976
(T976), and Rules (1976, Second Printing).)
In appropriating State water, the Commission shall
give preference to the following uses in the order
listed (see Section 5.024 and 5.122, Texas Water Code):
1. domestic and municipal uses, including
water for sustaining human life and the
life of domestic animals;
2. industrial uses, being processes de-
signed to convert materials of a lower
order of value into forms having greater
usability and commercial value, including
the development of power by means other
than hydroelectric;
3. irrigation;
4. mining and recovery of minerals;
5. hydroelectric power;
6. navigation;
7. recreation and pleasure; and
8. other beneficial uses.
The Water Development Board carries the responsibility
for long-range planning in the development and use of
Texas water resources and must take cognizance of the
necessity for improved water quality (T.C.A. §21.265).
This Board also fulfills an advisory capacity to the
Water Quality Board on matters which relate to the
quality of ground water in the State.
14.3 SPECIAL LEGISLATION
The Solid Waste Disposal Act was enacted in 1969 to
meet the state's need for coordinating and regulating
solid waste activities. Amendments were added in
1971 to conform with the County Solid Waste Control
Act. The policy of the Act is to safeguard the
health, welfare and physical property of the people
through controlling the collection, handling, stor-
age and disposal of solid waste (Art. 4477-7 Vernon's
Texas Civil Statutes sec. 1).
In the event of any unauthorized disposal of indus-
trial solid waste, the Board will seek recourse
against the owner and operator of the disposal
facility (Id_. S 1.03). The Act prohibits the dis-
posal of industrial solid wastes in such a manner so
as to cause:
1. The discharge or imminent threat of
discharge of waste into or adjacent to
the ground or surface waters of the state,
unless they possess a valid permit from
the Water Quality Board.
2. The creation or maintenance of a
nuisance.
3. The endangerment of the public health
and welfare; and/or
4. The disposal of industrial solid waste
in an unauthorized site by either the
generator or carrier (ii, § 1.04).
The Solid Waste Disposal Act is administered by the
Water Quality Board and the Texas State Department
of Health. The Board is designated as the state's
solid waste agency with respect to the collection,
handling, storage and disposal of industrial solid
waste, while the Department of Health is designated
as the state's solid waste agency with respect to
the collection, handling, storage and disposal of
municipal solid waste.
The Injection Well Act is administered by the Water
Quality Board and the Texas Railroad Commission.
The Board regulates the disposal by injection well of
industrial and municipal waste, other than salt
water, or other waste arising from the drilling for
or production of oil and gas. The Railroad Commis-
sion regulates the disposal by injection well of
salt water or other waste arising out of, or inci-
dental to, the drilling for or the producing of oil
or gas.
14.4 RELATED LEGISLATION
Texas has no Land Use Act. The General Land Office
is authorized to adopt and enforce rules and regula-
tions to prevent the pollution of water from the
development of oil, gas and other natural resources
from, and the use for, industrial purposes of the
University and other lands, Gulf lands, public free
school lands, and all other lands and waters within
the public domain (Rules of the Texas Water Quality
Board. Rule 205.5, T970T
274
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Figure 2. Texas Water Agencies and Major Functions
Water Quality
Water Quantity Administration
Planning and
Development
Water Quality Board
Water Rights Commission
Executive Director
Water
Development Board
Executive Director
[Enforcement]
-------
The Geothermal Resources Act of 1975 gives the Rail-
road Commission the power to regulate the exploration,
development, and production of geothermal energy and
associated resources on public and private land in
order to conserve that resource and protect correla-
tive rights (T.C.A. Art. 5421 s (4)).
This Act commands that consideration be given:
to protection of the environment, to pro-
tection of correlative rights and to
conservation of natural resources by all
agencies and officials of the State of
Texas involved in directing and prescribing
rules, regulations, or orders governing
the exploration, development and produc-
tion of geothermal energy and associated
resources and by-products in Texas (T.C.A.
Art. 5421 s (3)).
14.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
No discharge of agricultural "waste" is allowed unless
it has been authorized by a waste control order, a
registration entered in the official records of the
Texas Water Quality Board, a regulation or other order
of the Board, or an order of the Executive Director
as authorized by the Board (Rules of Practice and Pro-
cedure, Texas Water Quality Board, January 1976, §
130.01.130.005, 130.01.11.001(b)).
Agricultural waste is defined in the Texas Water
Quality Act as "Waterbourne liquid, gaseous, or solid
substances that arise from agricultural industry and
agricultural activities ..." (T.C.A. § 21.003 (8)}.
Tailwater or runoff water from irrigation is specifi-
cally excluded from this definition. However, in
defining "other waste," the Texas Water Quality Act
includes tailwater or runoff water from irrigation
(T.C.A. 5 21.003(10)}. Thus, while the Texas Water
Quality Board has the statutory authority to regulate
the quality of irrigation return flows, they have
chosen not to do so. Furthermore, specific regulations
dealing with irrigation return flows have not been en-
acted.
14.6 CASE LAW APPLICABLE TO AGRICULTURE
In Turner v. Big Lake Oil Co. (128 Tex. 155, 96 S.W.
2d 221, 1936), the Supreme Court of Texas held that
one can only recover for damages from the pollution of
a natural waterhole on private land by alleging and
proving a specific act of negligence by the defendants,
or by alleging and proving that the water which was
polluted was public waters, the pollution of which was
specifically prohibited by statute (T.C.A. §7467, 7469).
The defendant had constructed large artificial earthen
ponds into which they held polluted waters from their
wells. Waters escaped from these ponds and ran over
the plaintiff's land, injuring the grass and finally
into the plaintiff's livestock watering ponds. The
plaintiff based his action on negligence, but the jury
acquitted the defendants of any negligence. The Court
of Appeals upheld the lower court's judgment and the
Supreme Court affirmed.5
In Magnolia Petroleum Co. v. State (218 S.W. 2d 855,
Texas, 1949), the Court of Appeals of Texas held that
the granting of an injunction to enjoin the defendants
from discharging salt water into rivers was proper.
There are no equities on behalf of anyone who is pol-
luting public waters which are used for domestic
purposes.6
American Cyananrid Company v. Sparto (267 F. 2d 425, 5th
Cir., 1959) was an action by farmers who used'waters of
stream for irrigation purposes against an upstream
chemical company for damages to land and crops alleg-
edly caused by the company's discharge of soluble salts
into the stream. The lower court entered a judgment
for the farmers and the defendants appealed. The
Court of Appeals held that the company had a duty to
warn the farmers that their discharge created a risk
of injury and the failure to do so constituted negli-
gence.
Humble Pipe Line Co. v. Anderson (339 S.W. 2d 259,
Texas, 1960) involved a suit for injuries to land
alleged to have resulted from the pollution of well
water by crude oil. The lower court rendered judgment
for the plaintiffs. On appeal, the Court of Appeals
reversed. It held that the maintenance and operation
of a pipe line is not a nuisance per se and the trial
court was in error in rendering a judgment against the
defendant in the absence of a finding of negligence.
Atlas Chemical Industries. Inc. v. Anderson (514 S.W.
2d 309, Texas, 1974) involved a suit by a landowner
against a carbon processing plant to recover damages
alleged to have been caused to his land by the defend-
ant's discharge of industrial waste into a creek which
crossed the plaintiff's land. The lower court rendered
judgment for the plaintiff and the defendant appealed.
The Court of Civil Appeals held that in cases of in-
tentional continuing pollution, each day's act of pol-
lution is a new, separate and independent offense or
injury; the fact that the defendant had been granted a
permit did not constitute a defense in an action for
pollution damages and the correct measure of damages
was the diminution of fair market value or cost of
restoration, whichever was less.
INFORMATION SOURCES ^
, "Board Adopts Statement on Water Resources
Development Policy," Water for Texas, Vol. 6, No. 4,
April 1976, Texas Water Development Board publication.
Carssow, Tim, et^al_., "Water Pollution Control in
Texas," 48 Texas Law Review 1029, 1970.
Gambell, Ernest L., "Agricultural Legislation's
Potential in Reducing Discharge of Pollutants," Amer.
Water Res. Assn, Water Resources Bulletin, Vol. 12,
No. 6, December 1976, pp. 1171-1179.
Milstead, Richard C., "Administrative Techniques in
Preventing Waste of Stream Water," 29 Texas Law Review
939, 1951.
Pisano, Mark A. "Nonpoint Sources of Pollution: A
Federal Perspective," Amer. Soc. of Civil Engineers,
Journal of the Environmental Engineering Division,
Vol. 102, No. EE3, June 1976, pp. 555-565.
Taylor, Boyd D., "Control of Stream Pollution," 33
Texas Law Review 370, 1955.
, The Texas Water Plan. Texas Water Develop-
ment Board, Austin, Texas, Nov. 1968.
5See also Nash and Windfohr v. Edens, 109 S.W. 2d 496,
Texas, 1937; Barakis v. American Cyanamid Co., 161 F.Supp.
25, 1958; Gillum v. Rogers, 430S.W. 2d 822. Texas. 1968.
6See also Continental Oil Co. v. City of Groesbeck
95 S.W. 2d 715, Tdxas, 1936.
276
-------
, A Report to the Governor and to the 62nd
Legislature, by Texas Water Resources Study Committee,
House Chamber (includes a report on water quality),
Austin, Texas, 1970.
, The 31st Report of the Texas Water Rights
Commission (covering the Biennium Sept. 1. 1972 thru
Aug. 31, 1974), Texas Water Rights Commission, Joe D.
Carter, Chairman, Austin, Texas, 1974.
, The 32nd Report of the Texas Water Rights
Commission (covering the Biennium Sept. 1, 1974 thru
Aug. 31, 1976), Texas Water Rights Commission, Joe D.
Carter, Chairman, Austin, Texas, 1976.
, Rules, 2nd Printing, Texas Water Rights
Commission, Austin, Texas, 1976.
, Texas Water Quality Standards (to be con-
sidered at Public Hearing in Austin), Texas Water
Quality Board, Austin, Texas, Oct. 1975; plus,
Addendum to Proposed Revision, Oct. 15, 1975.
, Water for Texas (monthly publication),
Texas Water Department Board, Austin, Texas.
, Rules of Practice and Procedure, Texas Water
Quality Board, Austin, Texas, Jan. 1976.
, Texas Water Quality Act, Agency Pub. 72-02,
Texas Water Quality Board, Austin, Texas, revised
July 1976.
, The State of Texas: Continuing Planning
Process (5208 and 303c Report), Texas Water Quality
Board, Austin, Texas, Feb. 1976.
, Rice Irrigation Return Flow Study (Brookshire
and Garwood Projects, Texas, Interim Report 1969-73),
Texas Water Development Board, Austin, Texas, Aug.
1974).
277
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APPENDIX A
15. UTAH
15.1 SUMMARY OF WATER QUALITY LAWS
15.1.1 Background
The first comprehensive legislative program for the
control of water quality was enacted in 1953 (Utah
Session Laws, Ch. 41, 1953). This enactment provided
for the establishment of the State Water Pollution Con-
trol Board as the administrative agency responsible for
enforcement of the act (Ibid, 54). Substantial amend-
ments were made to this legislation in 1967 and the
result was the basic structure for the present Utah
Water Pollution Control Act (U.C.A.SS73-14-1 to 73-14-
13). The authority which had been originally vested
in the Water Pollution Control Board was delegated to
the State Committee on Water Pollution. This change
in authority was completed in 1969 when amendments
substituted "committee" for "board" where it appeared
in the act (Utah Session Laws, Ch. 197, 1969). Addi-
tional amendments were made in 1973 to allow the State
of Utah to "meet the requirements of federal law re-
lated and pertaining to water pollution" (UCA §73-14-
4 (m).
15.1.2 Policy
The water pollution policy of Utah expressly recognizes
that water quality degradation is a menace to public
health, creates public nuisances, is harmful to fish
and wildlife and other beneficial uses, and is con-
trary to the state's policy for conservation of water
resources. It is the policy of Utah to protect, main-
tain and improve the quality of the State's waters and
to require proper treatment to be given to discharged
wastes (U.C.A. §73-14-1). The Utah Water Pollution
Control Act also provides that it is a public nuisance
"to place or cause to be placed any wastes in a loca-
tion where they will cause pollution to any waters of
the state" (U.C.A. §73-14-5).
To carry out the legislative mandates, the Utah State
Division of Health adopted an anti-degradation policy
calling for the maintenance of the quality of water
where it is higher than required by quality standards
(Utah Code of Waste Disposal Regulations, hereafter
cited as U.C.W.D.R., Part 11-3, 1968). This higher
quality will be protected unless a change is economic-
ally or socially justified and present or anticipated
uses of the water will not be precluded.
15.1.3 Classification
The State of Utah has developed an extensive system
for the classification of state waters. The authority
for this process is contained in the Water Pollution
Control Act. The Water Pollution Committee is empower-
ed to "group the waters of the state into classes
according to their present most reasonable uses"
(U.C.A. §73-14-6). When it is found to be in the pub-
lic interest, and subject to legislative approval, the
Committee may upgrade the classification of state
waters.
The Act provides for public input in the classification
of waters and requires the Committee to allow a reason-
able time for persons who are discharging wastes to
comply with state classifications and standards (U.C.A.
§73-14-6)
Briefly, the classification that has been adopted is
as follows:
Class "A" Waters are protected against
pollution so as to be suitable at all times
for beneficial use without treatment;
Class "B" Maters are protected against
pollution to such an extent that only
disinfection is required prior to use;
Class "C" Waters are protected against
pollution to the extent that treatment
by coagulation, sedimentation, filtration,
and disinfection is required prior to use;
Class "CC" Waters are protected against
specific levels for temperature and dis-
solved oxygen;
Class "CM" Haters are protected against
specific temperature increases;
Class "CR" Waters are to be suitable
for swimming and other specific uses;
Class "CCR" Waters are protected as
Class "CC" and "CR" waters;
Class "CWR" Waters are protected as
Class "CW" and "CR" waters;
Class "D" Waters are those waters which
are to be suitable at all times for
limited irrigation purposes;
Class "E" Waters are those waters which
are protected against pollution which
may result as a health hazard or nuisance;
Class "S" Waters are protected as Class
"A" waters except that the Committee can
permit specific waste discharges (U.C.W.
D.R., Part II-6 to 11-16, 1968).
15.1.4 Standards
In addition to classifying state waters, the Water
Pollution Committee is authorized to establish water
quality standards for each classification that are
"consistent with most reasonable present and future
use of such waters" (U.C.A. §73-14-6). Once adopted,
the standards can be modified or changed by the
Committee.
The standards which have been adopted by the Committee
are published in the Utah Code of Waste Disposal Reg-
ulations, Part II, Standards of Quality for Waters of
the State (1968). The purpose of the standards is to
preserve higher water quality upstream from the low-
est downstream point identified with a given classi-
fication (U.C.W.D.R., Part II-4, 1968).
15.1.5 Permit System
Current Utah law requires that the Committee issue a
permit for the disposal of wastes under the following
circumstances:
278
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(1) construction and operation of treatment
works;
(2) an increase in volume or strength of
discharges specified under an existing
permit;
(3) construction and operation of any
operation which would alter water quality
in any manner not already authorized; and
(4) construction or use of any new outlet
for discharge (U.C.A. §73-14-5).
The Committee is empowered to issue the permits subject
to submission of plans and is given the authority to
attach specific conditions to the issuance of the per-
mit.
15.1.6 Sanctions and Enforcement Measures
It is a misdemeanor to violate the provisions of the
Utah Water Pollution Control Act and the rules of the
Committee which have been promulgated under the act
(U.C.A. §73-14-10). Each day the violation continues
is treated as a separate offense. In addition to the
criminal sanctions, the State Attorney General, on the
request of the Committee, can bring an action to en-
join the violation of the act or regulation (Ibid).
Judicial review of any final determination by the Com-
mittee is provided by filing a petition in district
court (U.C.A. §73-14-11).
15.2 ADMINISTRATION OF WATER QUALITY LAWS
15.2.1 Water Quality Control
Prior to 1967, water pollution control was under the
jurisdiction of the State Water Pollution Control Board.
In 1967, the Pollution Control Act was amended to create
the Committee on Water Pollution within the Division of
Health of the Department of Social Services (See
Figure 1). Primary jurisdiction for water quality
control rests with the Committee.
The Committee's membership includes eight persons (rep-
resenting various water user interest groups and the
public) who are appointed to four-year terms by the
Governor (U.C.A. §37-14-3). The Director of the Divi-
sion of Health is also a member of the Committee (Ibid.)
The Committee is given specific duties and powers by
statute which include the adoption of regulations and
standards for controlling water pollution; enforcement
of those rules; issuance and conditioning of discharge
permits; research and investigatory powers; issuance
of orders on specific matters relating to water qual-
ity; dissemination of information; and intergovern-
mental coordination (U.C.A. §73-14-4). However, the
legislature directed that in carrying out the 13
enumerated duties, first priority will be given to
prevention or abatement of pollution which results in
hazards to public health (Ibid).
The Committee also acts as the hearing board for det-
erminations of whether violations of the act have
occurred, and is required to make findings of fact and
law regarding the possible violation (U.C.A. §73-14-7).
The same process for administrative review is available
for those persons who have their permit denied or re-
voked by the Committee (Ibid).
The Committee is given the authority to enter public
or private property, at reasonable times, to inspect
and investigate conditions affecting water quality
(U.C.A. §73-14-9). The Committee has additional
authority to inspect the records of disposal systems
(Ibid).
15.2.2 Additional Agency Involvement
The Utah Public Health Code grants the Division of
Health the authority to regulate "potable water sys-
tems" (U.C.A. §26-15-4.5). However, the enabling
legislation for this control specifically prohibits
the "exercise of administrative control over water
used solely for irrigation purposes" (Ibid). The
above restriction only applies to those regulations
which are promulgated under the provisions of Chapter
15 of Title 26, Utah Code and does not affect the
regulatory scheme of the Utah Water Pollution Control
Act which is found under Chapter 14 of Title 73.
Under Utah law, the State Engineer in the Division of
Water Rights, Department of Natural Resources, is also
given the authority to prevent the pollution or contam-
ination of state waters (U.C.A. §73-2-1). He has the
power to reject applications for the appropriation of
water as not being in the public interest if he
Water Quality
Figure 1. Utah Water Agencies and Their Functions
Water Quantity
Administration
Water Planning
and Development
Department of
Social Services
Divisi
Hea
on of
Ith
Committee on
dater Pollution
Board of
Health
Adjudication and
(Jater Management
Department of
Natural Resources
Executive Director
1
Division of Water Right
State Engineer
(Deputy State Engineer!
Division of
Jater Resources
s
-fest. Attorney General!
1
Board of
Water Resources
[Distribution! Appropriation] [Records!
279
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concludes that the proposed use will unreasonably
affect the natural stream environment (U.C.A. §73-3-8,
1953).
The recently enacted Wildlife Resources Code makes it
unlawful for anyone to pollute waters which are con-
sidered by the State Wildlife Board to be necessary
propagation of aquatic wildlife and insects (U.C.A.
§23-15-6). Each day the pollution exists constitutes
a separate offense.
On the local government level, a 1959 amendment to the
Utah Constitution enabling legislation for flood con-
trol projects specifically grants authority to boards
of county commissioners to enforce all laws and regu-
lations against the pollution water (U.C.A. §17-8-5).
This legislation apparently provides an alternative,
at the local level, to the enforcement mechanism at
the state level.
15.3 SPECIAL LEGISLATION
The 1976 Session of the Utah Legislature enacted a
measure which allows municipal and county governments
to undertake the financing of pollution control equip-
ment for installation in private business operations
(U.C.A. §11-17-1.5, 1976 Interim Supp.). The stated
purpose in passing this legislation was to promote
industrial development within the State of Utah (Ibid).
15.4 RELATED LEGISLATION
15.4.1
Improvement Districts for Water, Sewer or
Sewage Systems
Utah statutes provide for the formation of special
districts for: (1) the provision of water supply,
treatment and distribution; (2) collection, treatment
and disposal of sewage; and (3) flood control (U.C.A.
§§17-6-1 to 17-6-32). This legislation is more com-
monly known as "County Sewer and Water Districts" due
to the county-wide nature of the districts'operation.
These districts can function within municipal as well
as unincorporated areas (U.C.A. §17-6-2).
County Sewer and Water Districts are initiated by
filing a petition with the board of county commission-
ers stating the nature of the operations of the pro-
posed district (U.C.A. §17-6-2). The internal affairs
of the district are governed by an elected board of
trustees (U.C.A. §17-6-3.1).. Financing is accomplished
by the issuance of either general obligation or
revenue bonds which are repayable from taxes and
operating revenues (U.C.A. §17-6-3.2). These dis-
tricts have also been given the power to condemn
private property by eminent domain (U.C.A. §17-6-3.8).
15.4.2 Flood Control Projects
The boards of county commissioners can contract with
the United States Department of Interior, Bureau of
Reclamation, for the construction of flood control proj-
ects (U.C.A. §§17-8-1 to 17-8-7). It is, however,
interesting to note that the State Engineer is given
the authority for the actual operation of the projects
(U.C.A. §17-8-3). The area of operation for such
projects can include more than one county, and repay-
ment of construction costs is accomplished by a county
tax on real property (U.C.A.§§17-8-4 and 17-8-6).
As stated earlier, under this Flood Control Projects
Act, the boards of county commissioners are granted
concurrent authority with agencies of state government
to enforce all state laws and regulations against
water pollution (U.C.A. §17-8-5, 1975 Cum. Supp.).
15.4.3 Drainage Districts
The Drainage District Law is intended to provide a
governmental structure for the purpose of land recla-
mation through drainage programs (U.C.A.§§19-1-1 to
19-1-20). Formation of a drainage district is ini-
tiated by the filing of a landowner's petition with
the local board of county commissioners (U.C.A.
§19-1-1). The petitioners must also file an amount
equal to 2 percent of the estimated cost of the pro-
posed improvements with the county commissioners
(U.C.A. §19-1-2).
Internal operations of these districts are governed
by a board of supervisors appointed by the county
commissioners (U.C.A. §19-1-7). Costs of district
operations are paid for by assessments on benefited
property and the districts have the power of eminent
domain to take property and water rights by condem-
nation (U.C.A. §19-1-8).
15.4.4 Soil Conservation Districts
The Soil Conservation District Law was enacted for
the purpose of promoting proper land use practices
(U.C.A. §162-1-1 to 62-1-17). The act provides for
the creation of a State Soil Conservation Committee
which then oversees the operation of local districts
(U.C.A. §62-1-4).
Local districts are formed by submission of a land
occupiers petition to the state Soil Conservation
Committee (U.C.A. §62-1-5). Supervisors for local
districts are then elected by land occupiers within
the district (U.C.A. §62-1-6).
15.4.5 Irrigation Districts
Utah statutes provide for the formation of irrigation
districts on the county level (U.C.A. §§73-7-1 to
73-7-64). Irrigation districts are organized to con-
serve and prevent the waste of water by placing it to
beneficial use (U.C.A. §73-7-1, 1953). Formation of
the district is initiated by the filing of a petition
with the board of county commissioners (U.C.A. §73-
7-2). An election by landowners determines the
establishment of the district and the members of the
district's board of directors (U.C.A.§§73-7-4 and
73-7-7).
The legislation provides for the State of Utah to
cost-share half of the expense with the county
(U.C.A. §73-7-2). Local funding is provided by the
issuance of assessment bonds (U.C.A. §73-7-16).
15.4.6 Water Conservancy Districts
A fairly recent act provides for the creation of
water Conservancy Districts as a means of increasing
the benefits from the use of water (U.C.A. §§73-9-1
to 73-9-42). Among the enumerated purposes for
establishing such districts is to:
Directly benefit lands now under irrigation
by stabilizing the flow of water in streams
and by increasing the flow and return flow
of water to such streams (U.C.A. §73-9-1,
emphasis added).
The process for formation of a conservancy district
is begun by filing a petition with the district court
(U.C.A. §73-9-4). Upon court approval of the peti-
tion, an order is issued incorporating the district
and the appointment of the district's first board of
directors (U.C.A.§§73-9-8 and 73-9-9). Directors
are then subsequently elected to office (U.C.A.
§73-9-11).
280
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Financing is provided by the issuance of bonds follow-
ing an election (U.C.A. §73-9-22). The bonds are repaid
by taxes, assessments and the sale or lease of water
to irrigation districts and private persons (U.C A
§§73-9-15 and 73-9-18 to 73-9-19).
15.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
The Utah Committee on Water Pollution has adopted a
five-part series of regulations which comprise the
Code of Waste Disposal Regulations of the Utah State
Division of Health. The entire set of regulations
consists of the following:
Part I - Definitions and General Requirements;
Part II - Standards of Quality for Waters of
the State;
Part III - Sewers and Wastewater Treatment
Works;
Part IV - Individual Wastewater Disposal
Systems; and
Part V - Small Underground Wastewater Disposal
Systems.
In addition to the above mentioned regulations, the Utah
Water Pollution Committee from time to time has issued
Orders on stream classification and effluent standards
for waste discharges.
A review of these regulations and orders does not
reveal the existence of specific application to agri-
culture in general or the problem of irrigation return
flow quality. Likewise, the same regulations and
orders do not contain any exemptions from the general
application of state regulations to the agricultural
use of water. The only specific mention of agricul-
ture is found in the definition of "pollution" as taken
from the Act and reproduced in the regulations (U.C.A.
§73-14-2). This term expressly recognizes that water
pollution includes discharges which are harmful t£
agriculture but not from agriculture.
15.6 CASE LAW APPLICABLE TO AGRICULTURE
Several rulings by the Utah Supreme Court have recog-
nized the concept that water quality is a component
of the right to appropriate a specific quantity of
water. In the earliest Utah decision on this point,
Mr. Justice Moffat, writing for tyie court, said:
water from the source to the point where
the appropriator or user captures or div-
erts it into his conveying channels or
containers is publici juris; and others
have the same right to use it as the
appropriator, so long as they do not
interfere with the appropriator's use,
by diminishing his quantity or impair-
ing the quality (Wrathall v. Johnson, 86
Utah 50, 40 P.2d 755,776, 1955; emphasis
added).
This contention was cited with approval in the subse-
quent ruling by the Utah Court in Adams v. Partage
(95 Utah 1, 72 P.2d 648, 1957). The Adams case
turned on the issue of whether a person could acquire
a right in a stream for livestock and domestic use
without the act of making a diversion. The court
found that such action was lawful as long as these
actions did not interfere with the right that prior
apprapriators have in the quantity and quality to
satisfy their appropriation (Adams v. Partage, 95
Utah 1, 72 P.2d 648,654, 1937~T
In the case of Rocky ford Irrigation Company y. Kents
Lake Reservoir Co^ (140 P.Zd 638, Utah, 1943), the
Utah Supreme Court, in interpreting the section of
Utah Code granting certain powers to the State Engi-
neer, noted that among the powers given that Office
was the authority to:
bring suit in courts of competent juris-
diction to enjoin the unlawful appropria-
tion, diversion, and use of both surface
and underground water and to prevent
waste, loss, or pollution thereof...
(Rocky Ford Irr. Co. V. Kents Lake Reser-
voir Co., 104 Utah 216, 140 P.2d 638,639,
1943; emphasis added).
The only court test found of the Utah Water Pollution
Control Act is State Water Pollution Control Board v.
Salt Lake City (6 Utah 2d 247. 311 P.Zd 370. 1957).
In ruling on whether the State Board (now the Commit-
tee) had the constitutional authority to regulate
municipal waste discharges, the court held that the
Board had the power over cities to prohibit pollution,
but it does not have the authority to apply rules
which would interfere with the internal operation of
a municipal sewer system.
15.7 INFORMATION SOURCES
Bliss, Robert L., "Ecology Symposium," 1970 Utah L.
Rev. 383, et. seq. ~
Maack, Robert D., "Environmental Contamination: A
Foul and Pestilent Congregation of Vapors," 1970
Utah L. Rev. 1.
Raisch, Jerry W., "Utah Environmental Problems and
Legislative Response," 1972 Utah L. Rev. 479, 1973
Utah L. Rev. 1.
, Planning for Water Quality in the Bear River
System in the State of Utah, Utah Water Research
Laboratory in Cooperation with the Bureau of Envi-
ronmental Health, State of Utah, Logan, Utah (March
1974).
, Planning for Water Quality in the Sevier
River System in the State of Utah, Utah Water Research
Laboratory in Cooperation with Bureau of Environmental
Health, State of Utah, Logan, Utah (March 1974).
, Planning for Water Quality in the Virgin
River System in the State of Utah, Utah Water Re-
search Laboratory in Cooperation with Bureau of
Environmental Health, State of Utah, Logan, Utah
(March 1974).
Anderson, M. H., "The Efficient Use of Utah's Irri-
gation Water: Increased Transferability of Water
Rights." Utah Law Rev., Spring 1975, pp. 158-78.
, Mater Quality Report (305(b) Report),
Bureau of Water Quality, Environmental Health Ser-
vices Branch, Division of Health, Department of So-
cial Services. State of Utah, Salt Lake City, Utah
(April 1975).
Meyer, D. J. Irrigation Return Flows in Utah Valley.
Unpublished Masters Thesis, Dept. of Agricultural
Engineering, Colo. State Univ., Ft. Collins, Colo.
(July 1974).
Haws, F. W. A Study of Water Institutions in Utah
and their Influence on Planning, Development and
Managing of Water Resources, Report No. PRWG-79-1,
Utah Water Research Laboratory, College of Engineer-
ing, Utah State Univ., Logan, Utah (Sept. 1973).
281
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APPENDIX A
16. WASHINGTON
16.1 SUMMARY OF WATER QUALITY LAWS
16.1.1 Background
The beginning of a water pollution control program in
Washington was initiated by a fact finding program by
the Departments of Health and Fish and Game from 1925
to 1935 (Powe, p. 427, 1967). As a result of this
program, a Pollution Control Commission was created
which consisted of the directors of the Departments
of Health, Fish and Game and Conservation.
Pollution control bills were introduced in 1941 and
1943, but both failed to pass. However, in 1945, the
legislature enacted the Water Pollution Control Act
(R.C.W. §90.48, 1961). This Act created a statutory
commission which was made up of the above directors
plus the Director of the Department of Agriculture
(R.C.W. §90.48.021) and a director appointed by the
Governor (R.C.W. §90.48.023).
This Commission was directed to maintain the highest
possible standards of water Quality consistent with
the water uses of the state (R.C.W. §90.48.010).
Under this Act, the Commission was given the power to
promulgate rules and regulations (R.C.W. §90.48.035),
determine the conditions of the waters of the state
(R.C.W. §90.48.070), and to issue orders (R.C.W.
§90.48.120).
Further sections were added in 1948 in response to
federal water pollution control legislation (see 62
Stat. 1155, 1948; R.C.W. 190.48.153, .156, 1961).
Finally, in 1955 the legislature enacted a statute
which required all industrial operations which dis-
charge any waste materials into the waters of the
state to obtain a permit from the Commission (R.C.W.
§90.48.160). Permits were conditional upon the
maintenance of standards designed to prevent undue
pollution of the waters of the state (R.C.W. §90.48.
180).
In 1963, procedures were modified to provide that if
cooperative attempts failed, a staff member would in-
form the Director of this fact and a letter would be
issued from the Attorney General's office stating
that the violation may be a crime and could be subject
to abatement (Powe, p. 433, 1967). After the letter
was sent, the statutory procedure would then be used
if the violator refused to comply (R.C.W. §90.48.120).
The Water Pollution Control Act was strengthened in
1967 by the enactment of two sections. Section 90.
48.130 which provided for a stay of Commission orders
during a hearing and appeal was repealed. Before this
section was repealed, a polluter generally found that
a delay while an order was stayed enabled him to chal-
lenge a Commission order. The 1967 amendments provided
that the Commission could not stay an order unless it
determined that a stay would not be detrimental to
the public interest (Wash. Sess. Laws, 1967, ch. 13
§12). These changes also meant that a determination
by the Commission could be reversed only if the order
was unsupported by material and substantial evidence
or was arbitrary and capricious (R.C.W., §34.04.130
(6) e, f, 1959). The substantial evidence test was
later changed to a test of clearly erroneous in view
of the entire record as submitted and the public
policy contained in the act of the legislature auth-
orizing the decision or order (Wash. Sess. Laws 1967,
ch. 237, S6(6)e).
Additional penalties were also enacted which provided
that a violation of a waste discharge permit was sub-
ject to a penalty of $100 per day (Wash. Laws Ex.
Sess. 1967, ch. 139, |14). Finally, amendments were
made to the summary abatement section (Wash. Sess.
Laws 1967, ch. 13, §22). These changes provided that
if it appeared to the Director of the Commission that
water quality conditions existed which required imme-
diate action to protect the public health or welfare,
he had the authority to issue an order without any
prior notice or hearing, which afforded the polluter
an alternative of either immediately discontinuing or
modifying the discharge or appearing before the Com-
mission.
In 1970, the Department of Ecology was created and
all powers of the Water Pollution Control Commission
were transferred to this Department (R.C.W. 543.21A.
040, .060, in general see 543.21A.010 et. seq.) This
Department and its duties will be examined in a sub-
sequent section (see 16.2).
16.1.2 Policy
It is the declared policy of Washington to maintain
the:
highest possible standards to insure the
purity of all waters of the state consis-
tent with public health and public enjoy-
ment thereof, the propagation and protec-
tion of wildlife, 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
reasonable methods by industries and others
to prevent and control the pollution of the
waters of the state of Washington. Consis-
tent with this policy, the state of Wash-
ington will exercise its powers, as fully
and as effectively as possible, to retain
the secure high quality for all the 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 cer-
tain portions thereof are within the juris-
dictional 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 vigorously 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 Wash-
ington (R.C.W. §90.48.010, 1975 Supp.).
The Washington Legislature has also declared:
...that it is a fundamental and inalien-
able right of the people of the state of
Washington to live in a healthful and
pleasant environment and to benefit from
the proper development and use of its
natural resources. The legislature
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further recognizes that as the population
of our state grows, the need to provide for
our increasing industrial, agricultural,
residential, social, recreational, economic
and other needs will place an increasing
responsibility on all segments of our
society to plan, coordinate, restore and
regulate the utilization of our natural
resources in a manner that will protect
and conserve our clean air, our pure
and abundant waters, and the natural
beauty of the state (R.C.W. §43.21A.010).
16.1.3 Classification
The Department of Ecology has classified the waters of
Washington as either Lake Class, Class AA, Class A,
Class B, or Class C (Washington Administrative Code,
Hater Quality Standards, effective July 19, 1973,
§173-201-030).Under general classifications (W.A.C.
§173-201-070), all surface waters lying within the
mountainous regions of the state assigned to national
parks, national forests, and/or wilderness areas are
classified as either Class AA or Lake Class. All
lakes and their feeder streams are classified as
either Lake Class or Class AA, respectively. All
reservoirs with an average detention greater than 15
days are placed under the Lake Class, while all lakes
with less than 15 days average detention are classi-
fied the same as the river section in which they are
located. All reservoirs which have been built on
preexisting lakes are classified as Lake Class. Fin-
ally, all other waters are designated as Class A.
Water quality in each of the above classifications
must meet or exceed the requirements for the uses set
forth in the classification (water quality criteria
will be discussed in the following section).
Lake Class--
Characteristic uses under this classification include:
1. Water supply (domestic, industrial, agricul-
tural);
2. Wildlife habitat, stock watering;
3. General recreation and aesthetic enjoyment
(picnicking, hiking, fishing, swimming, skiing,
and boating);
4. Fish and shellfish reproduction, rearing,
and harvest (W.A.C. §173-201-030(5)).
Class AA (Extraordinary)—
Characteristic uses under this classification include,
but are not limited to the following:
1. Water supply (domestic, industrial, agricul-
tural);
2. Wildlife habitat, stock watering;
3. General recreation and aesthetic enjoyment
(picnicking, hiking, fishing, swimming, skiing,
and boating);
4. General marine recreation and navigation.
5. Fish and shellfish reproduction, rearing
and harvest (W.A.C. §173-201-030(1)).
Class A (Excellent) —
Characteristic uses under this classification include,
but are not limited to, the following:
1. Water supply (domestic, industrial, agricul-
tural);
2. Wildlife habitat, stock watering;
3. General recreation and aesthetic enjoyment
(picnicking., hiking, fishing, swimming, skiing,
and boating);
4. Commerce and navigation.
5. Fish and shellfish reproduction, rearing
and harvest (Ibid., s(2)).
Class B (Good) —
Characteristic uses under this classification include,
but are not limited to, the following:
1. Industrial and agricultural water supply;
2. Fishing and wildlife habitat;
3. General recreation and aesthetic enjoyment
(picnicking, hiking, fishing and boating);
4. Stock watering.
5. Commerce and navigation.
6. Shellfish reproduction and rearing, and
Crustacea (crabs, shrimp, etc.) harvest
(Ibid. §(3)).
Class C (Fair) —
Characteristic uses under this classification include,
but are not limited to, the following:
1. Cool ing water;
2. Commerce and navigation;
3. Fish passage;
4. Boating (Ibid., §(4)).
16.1.4 Standards
Water quality standards are established for each of
the previous classifications (see Appendix B).
At the boundary between waters of different classifi-
cations, the water quality criteria for the higher
classifications prevails (W.A.C. §173-201-040). With
the exception of aesthetic values and acute biological
shock conditions, the water quality criteria do not
apply:
(a) Within immediate mixing zones of a
very limited size adjacent to or surround-
ing a wastewater discharge;
(b) In the case of total dissolved gas,
when the stream flow exceeds the 10-year,
7-day average flood;
(c) In a manner contrary to the applicable
conditions of a valid discharge permit
(W.A.C. §173-201-040(3)).
16.1.5 Permit System
Before the enactment of the National Pollutant Dis-
charge Elimination System (NPDES) program in 1974,
the conduct of a commercial or industrial operation
of any type which disposes solid or liquid wastes
into the waters of the state meant that the operator
had to acquire a permit from either the Department
of Ecology or the Thermal Power Plant Site Evaluation
Council (R.C.W. §90.48.160). A person discharging
domestic sewage into a sewage system was not covered
under this statute. This permit system was extended
to any county or any municipal or public corporation
operating a sewage system (R.C.W. §90.48.162).
Furthermore, any city, town or municipal corporation
operating a sewage system was given the authority to
issue permits for the discharge of wastes into their
system, if the Department had ascertained that the
sewage system and programs conducted by the city,
town, or municipal corporation would protect the pub-
lic interest (R.C.W. §90.48.165). These permits
could be revoked by the Department if the system was
not conducted in a manner which would protect the
public interest.
Applications for permits had to contain the name and
address of the applicant, a description of his opera-
tions, the quantity and type of disposal, and any
other relevant information (R.C.W. §90.48.170).
Applications had to be made at least 60 days before
the commencement of any proposed discharge and the
applicant had to publish notice in a newspaper of gen-
eral circulation within the county at least two times.
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The Department would issue a permit unless it found
that the disposal of waste material would pollute the
waters of the state in violation of public policy
(R.C.W. S90.48.180). The Department could specify
conditions in a permit and had the power to issue a
temporary or a permanent permit. A permanent permit
was only valid for five years from the date it was
issued (R.C.W. §90.48.180).
A permit could be terminated upon 30 days notice in
writing if the Department had made a finding that:
1. it was procurred by misrepresentation of any
material fact or by a lack of full disclosure in the
application;
2. there had been a violation of the conditions
of the permit; or
3. a material change in quantity or type of
waste disposal existed (R.C.W. §90.48.190).
If the Department failed to act upon an application
within 60 days after it had been filed, the applicant
was deemed to have received a temporary permit (R.C.W.
§90.48.200).
In 1974, the Department adopted regulations entitled
"NPDES Permit System," which was approved by the
Environmental Protection Agency in 1974. The state
water discharge permit system discussed previously
was largely superseded by this permit program.
Washington adopted this permit system in order to
comply with Federal requirements for discharge per-
mits under the Federal Water Pollution Control Act.
Under Washington's NPDES program, no discharge of pol-
lutants is permitted without an authorized permit
(W.A.C.§173-220-020). Any person presently discharg-
ing pollutants must file an application with the
Department at least 180 days before the date of the
desired discharge. Public notice of every applica-
tion must be circulated by:
(i) Posting in the post office and public
places of the municipality nearest the prem-
ises of the applicant in which the effluent
source is located;
(ii) Posting near the entrance of the
applicant's premises and in nearby places;
and
(iii) Publishing by the applicant, at his
own cost, through a notice form provided by
the department in local newspapers and per-
iodicals or, if appropriate, in a daily
newspaper of general circulation (W.A.C.
§173-220-050).
No permit issued by the Department can authorize a
person to:
(1) Discharge any radiological, chemical
or biological warfare egent or high-level
radioactive waste into navigable waters;
(2) Discharge any pollutants which the
Secretary of the Army acting through the
Chief, Corps of Engineers, finds would
substantially impair anchorage and navi-
gation;
(3) Discharge any pollutant to which the
Regional Administrator, not having waived
his right to object pursuant to section
402(c) of the FWPCA, has objected in writ-
ing pursuant to section 402(d) of the FWPCA:
(4) Discharge from a point source any
pollutant which is in conflict with the
plan or amendment thereto approved pur-
suant to section 208(b) of the FWPCA
(Id W.A.C.S173-220-120).
Permits issued by the Department must meet or comply
with all the following:
(a) Effluent limitations under sections
301 and 302 of the FWPCA;
(b) Standards of performance for new
sources under section 306 of the FWPCA;
(c) Effluent standards, effluent prohibi-
tions and pretreatment standards under
section 307 of the FWPCA;
(d) Any more stringent limitation, in-
cluding those:
(i) Necessary to meet water quality
standards, treatment standards or
schedules of compliance established
pursuant to any state law or regula-
tion under authority preserved to the
state by section 510 of the FWPCA; or
(ii) Necessary to meet any federal
law or regulation other than the FWPCA
or regulations thereunder; or
(iii) Required to implement any applic-
able water quality standards; such
limitations to include any legally
applicable requirements necessary to
implement total maximum daily loads
established pursuant to section 303(d)
and incorporated in the continuing
planning process approved under section
303(c) of the FWPCA and any regulations
and guidelines issued pursuant thereto^;
(iv) Necessary to provide all known,
available and reasonable methods of
treatment;
(e) Any more stringent legal applicable
requirements necessary to comply with a
plan approved pursuant to section 208(b)
of the FWPCA; and
(f) Prior to promulgation by the admin-
istrator of applicable effluent standards
and limitations pursuant to sections 301,
302, 306, and 307 of the FWPCA, such con-
ditions as the department determines are
necessary to carry out the provisions of the
FWPCA (Id, W.A.C.§173-220-120).
The permit may be modified, suspended or revoked in
whole or in part for any of the following:
(i) violation of any term or condition of
the permit;
(ii) obtaining a permit or misrepresenta-
tion or failure to disclose fully all
relevant facts; and
(iii) either a temporary or permanent
reduction or elimination of the per-
mitted discharge (W.A.C. §173-220-150).
16.1.6 Sanctions and Enforcement Measures
Enforcement powers are given to the Department to in-
sure that the provisions of chapter 90.48 R.C.W., the
standards for water quality, the terms of waste dis-
posal permits, and other orders and directives of the
Department are fully complied with (W.A.C. §173-201-
120). The Department is given the following enforce-
ment tools:
1. Issuance of regulating notifications, orders
and directives (R.C.W. §90.48-037);
2. Initiation of actions requesting injunctive
or other appropriate relief in the various state
courts (R.C.W. §90.48.037);
3. Levying of civil penalties (R.C.W. §90.48.
144);
4. Initiation of criminal proceedings by the
appropriate county prosecutor (R.C.W. §90.48.140);
and
284
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5. Issuance of regulating orders or directives
(R.C.W. §90.48.240).
Section 90.48.080 makes it unlawful to discharge any
organic or inorganic matter which would cause or tend
to cause pollution into the waters of the state. The
Department, with the assistance of the Attorney Gener-
al, is authorized to bring any appropriate action at
law or in equity in the name of the people of the
state of Washington (R.C.W. §90.48.037). Further,
the Department has the authority to issue, process and
subpoena witnesses throughout the state; compel atten-
dance; administer oaths and require the production of
any books or papers relating to the matter under con-
sideration (R.C.W. §90.48.095).
Any person found guilty or willfully violating any of
the provisions of chapter 90.48 of the Revised Code
of Washington, or any final written orders or direc-
tives of the Department or a court, is deemed guilty
of a crime and upon conviction is subject to a fine
or not more than one year in jail, or both (R.C.W.
§90.48.140). Each day of a violation may be deemed a
separate and additional violation.
Any violation which 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 Department standards,
is liable in damages to an amount equal to the sum of
money necessary to restock such waters, replenish
such resources, or otherwise restore the stream or
lake (R.C.W. 590.48.142).
Every person who:
1. Violates the terms or conditions of a
waste discharge permit issued pursuant to
R.C.W. 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 per-
mit as required by R.C.W. 90.48.160; or
3. Violates the provisions of R.C.W.
90.48.080, shall incur, in addition to
any other penalty as provided by law, a
penalty of up to five thousand dollars
a day for every such violation.
Further, each violation constitutes a separate and
distinct offense. The penalty is imposed by a notice
in writing, either by certified mail with return re-
ceipt or by personal service, to the person incurring
the same from the Director of the Department or his
authorized delegate describing such violation with
reasonable particularity (R.C.W. §90.48.144).
Section 90.48.336 provides for strict liability for
any person who owns oil or has control over it and
the oil enters into state waters. Furthermore, any
person who intentionally or negligently discharges
oil is subject to a penalty in an amount of up to
$20,000 for each'violation (R.C.W. §90.48.350).
16.2 ADMINISTRATION OF WATER QUALITY LAWS
Water pollution control in Washington'is the respons-
ibility of the Department of Ecology and the Ecological
Commission. The Department of Ecology was created in
1970 and was given all the powers, duties and functions
of the Water Pollution Control Commission (R.C.W.
§43.21A.040, .060). Furthermore, the Department of
Ecology was also given all the powers, duties and
functions of the Department of Water Resources, the
State Air Pollution Control Board and the Department
of Health with respect to its duties regarding air
pollution and the control of pollution problems
created by the disposal of solid waste (R.C.W. §43.
21A.060).
The Department has the power to promulgate, amend or
rescind rules and regulations which are necessary to
carry out water pollution statutes (R.C.W. §90.48.
035). This power extends to the promulgating of
water quality standards in order to maintain the
highest possible standards for the waters of the
state.
The Department has the authority to bring legal action
to enforce Washington's Water Pollution statutes
(R.C.W. §90.48.080) and has jurisdiction to control
and prevent the pollution of streams, lakes, rivers,
ponds, inland waters, salt waters, watercourses and
other surface and underground waters of the state of
Washington (R.C.W. §90.48.030).
The Ecological Commission, also created in 1970, con-
sists of seven members who are appointed by the Gov-
ernor from the electors of the state who possess a
general knowledge of, and an interest in, environ-
mental matters (R.C.W. S43.21A.170). One public mem-
ber must be a member of organized labor, one from the
agricultural community, one from the business commun-
ity, and four members from the public-at-large.
The Commission must provide advice and guidance to
the Director on each of the following:
1. Any positions proposed to be taken by
the Department on behalf of the state be-
fore interstate and federal agencies or
federal legislative bodies on matters re-
lating to or affecting the quality of the
environment of the state;
2. Any comprehensive environmental quality
plan, program or policy proposed for adop-
tion by the Department as a state plan or
policy pertaining to an environmental
management activity;
3. Any procedures for the financial assist-
ance grants proposed to be given to munici-
pal, regional, county or state organizations
for environmental quality purposes;
4. Any procedures for considering applica-
tions for and granting variances;
5. Any proposal developed for submission
to the legislature as a Department request
bill; and
6. Any other matter pertaining to the
activities of the Department submitted
by the Director for which advice and
guidance is requested (R.C.W. I43.21A.190).
In addition to its water quality control functions,
the Department of Ecology is responsible for the gen-
eral administrative supervision of Washington's water
resources. In other words, both water quality and
water quantity functions rest in the Department. See
Figure 1 for the organization of the Department re-
lated to water matters.
16.3 SPECIAL LEGISLATION
The Protection from Water Pollution Act was enacted
in 1965 and was based on laws of 1899, ch. 7, section
2, p. 115 (R.C.W. §35.88.010, _g£. seq.). This act was
passed to protect the water which is furnished to the
inhabitants of cities and towns from pollution and
to preserve and protect the purity of the water sup-
ply (R.C.W. §35.88.010).
285
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The Act provides that:
The establishment or maintenance of any
slaughter pens, stock feeding yards, hog-
pens, or the deposit or maintenance of any
uncleanly or unwholesome substance, or the
conduct of any business or occupation, or
the allowing of any condition upon or suf-
ficiently near the (1) sources from which
the supply of water for the inhabitants
of any city or town is obtained, or (2)
where its water is stored, or (3) the
property or means through which the same
may be conveyed or conducted so that such
water would be polluted or the purity of
such water or any part thereof destroyed
or endangered, is prohibited and declared
to be unlawful, and is declared to consti-
tute a nuisance, and may be abated as other
nuisances are abated (R.C.W. S35.88.030).
Furthermore, any person violating the above statute is
deemed to be guilty of creating and maintaining a nui-
sance and upon conviction is subject to a fine of $500
(R.C.W. §35.88.040). A nuisance can be abated by
the acquisition of an injunction (R.C.W. §35.88.070).
The Act further provides that:
Any city not located on tidewater, having
a population of one hundred thousand or
more, is hereby prohibited from discharging,
draining or depositing, or causing to be
discharged, drained or deposited, any sew-
age, garbage, feculent matter, offal, refuse.
filth, or any animal, mineral, or vegetable
matter or substance, offensive, injurious
or dangerous to health, into any springs,
streams, rivers, lakes, tributaries thereof,
wells, or into any subterranean or other
waters used or intended to be used for
human or animal consumption or for domestic
purposes. Anything done, maintenance or
suffered, in violation of any of the pro-
visions of this section, shall be deemed
to be a public nuisance, and may be sum-
marily abated as such by any court of
competent jurisdiction at the suit of the
Director of Health or any person whose
supply of water for human or animal con-
sumption or for domestic purposes is or
may be affected (R.C.W. §35.88.060).
The Environmental Coordination Procedures Act (R.C.W.
§90.62.010, e_t. sea.) was enacted in 1973 to:
(a) Provide for an optional procedure to
assist those who, in the course of satis-
fying the requirements of state government
prior to undertaking a project which con-
templates the use of the state's air, land,
or water resources, must obtain a number of
permits, from the Department of Ecology and
one or more state or local agencies by estab-
lishing a mechanism in state government which
will coordinate administrative decision-
making procedures, and related quasi-judicial
and judicial review, pertaining to such
documents;
Water Quality
Figure 1. Washington Water Agency and Major Functions
Water Rights Administration
Water Planning
and Development
Water Quality
Management Division
Water Quality
Monitoring Section
I
Water Quality
Management Section
286
-------
(b) Provide to members of the public a
better and easier opportunity to present
their views comprehensively on proposed uses
of natural resource and related environment-
al matters prior to the making of decisions
on such uses by state or local agencies;
(c) Provide to members of the public who
desire to carry out the aforementioned
projects within the state of Washington a
greater degree of certainty in terms of
permit requirements of state and local
government;
(d) Provide better coordination and
understanding between state and local
agencies in the administration of the
various programs relating to air, water
and land resources; and
(e) Establish the opportunity for mem-
bers of the public to obtain information
pertaining to requirements of federal
and state law which must be satisfied
prior to undertaking a project in the
state (R.C.W. §90.62.010).
Any person proposing a project can submit a master
application to the Department of Ecology and request
the issuance of all necessary permits (R.C.W. §90.62.
040).l The Department will then notify each inter-
ested agency for their response. Finally, the Depart-
ment upon affirmation by the affected agency will
issue the various required permits to the applicant.
16.4 RELATED LEGISLATION
Washington created a State Land Planning Commission
which was subsequently dissolved on May 15, 1973
(R.C.W. §43.120.010 et. seq.).
The Solid Waste Recovery and Recycling Act was en-
acted in 1976 to establish a comprehensive state-wide
program for solid waste handling and solid waste re-
covery and/or recycling which will prevent land, air
and water pollution and conserve the natural, economic
and energy resources of the state (Sec. 2, chap. 41,
1975-1976 Second Extra Session).
The legislature created this act because traditional
methods of disposing of solid wastes were no longer
adequate to meet the state's ever-increasing problems
(Id, i(l)). The legislature found that improper
methods and practices of handling and disposing of
solid wastes polluted the land, air and water resources
and damaged the overall quality of the environment.
The Solid Waste Advisory Committee (id, §3) must re-
view standards for solid waste handling relating, but
not limited, to the following:
(1) Vector production and sustenance;
(2) Air pollution (coordinated with regu-
lations of the Department of Ecology);
(3) Pollution of surface and ground waters
(coordinated with the regulations of the
Department of Ecology);
(4) Hazards to service or disposal workers
or to the public;
(5) Prevention of littering;
(6) Adequacy and adaptability of disposal
sites to population served;
(7) Design and operation of disposal sites;
and
(8) Recovery and/or recycling of solid
waste (Id,. 8(4)).
!DOE issues only those permits under its specific
jurisdiction and authority. Other permits are issued
by the responsible agencies.
The Department of Ecology is directed to work closely
sith the Departments of Commerce and Economic
Development, General Administration and with other
state departments and agencies, the Washington State
Association of Counties, the Association of Washington
Cities and Business Association in order to carry out
the objectives of this act.
16.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
Washington's regulations entitled "NPDES Permit Pro-
gram" provide that:
No pollutants or other wastes or substances
shall be discharged directly to any navig-
able water of the state from a point source,
except as authorized by a permit... (W.A.C.
§173-220-020).
Point source is defined by these regulations as:
any discernible, confined and discrete
conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling
stock, concentrated animal feeding opera-
tion, or vessel or other floating craft,
from which pollutants are or may be dis-
charged (W.A.C. §173-220-030(6)).
Pollutant is defined as:
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, muni-
cipal and agricultural waste discharged
into water. This term does not mean
sewage from vessels within the meaning
of section 312 of the FWPCA (W.A.C.
§173-220-030(7)).
Finally, the definition of "discharge of pollutants"
is set forth in these regulations as:
(a) any addition of any pollutant to nav-
igable waters from any point source, (b)
any addition of any pollutant to the waters
of the contiguous zone or the ocean from
any point source other than a vessel or
other floating craft (W.A.C. §173-220-030
(12)).
The Ecological Commission must adopt water pollution
control and abatement plans for sewage drainage ba-
sins (Washington Water Pollution Control Planning
Regulations, W.A.C. chap. 372-68; see Environment
Reporter, State Water Laws, Vol. 2, §941:0701 et. seq.).
The water pollution control and abatement plan must
include a basis for planning which takes into
consideration the:
(i) Topography—general description;
(11) Soil and drainage characteristics--
adequate interpretation.of soil types and
surface grades to determine suitability
for septic tank filter fields;
(iii) Hydrology--a brief summary of stream
discharge records to include maximum, mean
and minimum annual flows and 7-day, 10-year
low-flow; areas where low-flow establish-
ment is needed; where applicable, a brief
summary of information pertaining to the
water table and flood plains (100 year floods);
(iv) Water quality--a brief summary of avail-
able water quality data; classification
287
-------
by interstate and intrastate water quality
standards;
(v) This section is to include maps of
topography, soil and drainage characteris-
tics, flood plains, watercourse classifica-
tion and water quality problem areas, and
location of sampling stations for quantity
and quality (W.A.C. §372-68-060).
Further, the plan must include "other water quality
considerations—to include discussion and location of
other water quality sources including:"
a. Storm runoff;
b. Soil erosion and land development runoff;
c. Agricultural waste water, including irriga-
tion return flow and animal feedlot wastes.
d. Solid waste disposal runoff and seepage
water.
16.6 'CASE LAW APPLICABLE TO AGRICULTURE
In City of Aberdeen v. Lytle Logging and Mercantile
Co. (108 Pac. 945 (1910)), the Supreme Court of Wash-
ington held that where a lumber company maintained a
bridge across a stream in such a condition as to pol-
lute the water when hauling logs over the bridge and
the bridge could be lifted at a trifling expense to
obviate the pollution, the lumber company must raise
the bridge. It also held that a riparian owner may be
restrained from polluting a stream forming a water
supply of a city maintaining a pumping station on its
banks, where to obviate the pollution it is only nec-
essary to lift a bridge at a trifling expense.
In Parkwood v. Mendota Coal and Lake Co. (146 P. 163
(1915)), the Supreme Court of Washington held that a
lower owner is entitled to the water in a stream in
substantially the natural flow and without material
pollution. The lower owner may recover if the stream
is polluted so as to be unfit for ordinary domestic
use. In this case, the defendant polluted the waters
through his mining operations and rendered it unfit
for the plaintiff's domestic use.
In Naches and Cowiche Ditch Co. v. Weikel (151 P. 494
(1915)), the Supreme Court of Washington affirmed a
lower court judgment for dismissal. In this case,
the plaintiff sought to enjoin the defendants' from
allowing water used for irrigation to flow from their
lands into Cowiche Creek. The plaintiffs irrigated
their lands and permitted waste water to escape into
a stream which caused silt t.o settle in the plain-
tiffs' canal, but the water was not rendered unfit for
irrigation. The lower court dismissed the action be-
cause the evidence was insufficient to show injurious
pollution and that the drainage of waste waters from
the defendants' land did not violate the plaintiffs
rights. The Supreme Court states tliat a prior appro-
priator of water in a stream is entitled to have the
stream continue to flow without pollution rendering
the water unfit for the use to which it has been put.
A 1941 case, Snavely v. City of Goldendale (117 P.2d
221 (1941))',involved a plaintiff, who alleged that
the city of Goldendale and others polluted the waters
of the Little Klickitat River which runs near Golden-
dale. The plaintiff was riparian to the stream,
owned land about a half mile below the city, which
was used for dairy farming. The plaintiff further
alleged that the pollution consisted of raw sewage
dumped into the river which rendered it unfit for
domestic use and harmful to health.
Another of the defendants allegedly operated a stock
and slaughter yard on the banks of the stream which
they caused and permitted the refuse, blood and waste
from slaughtered animals and other filth thereby con-
taminating and polluting the water and rendering it
unfit for domestic use.
The lower court dismissed on defendant's demurrer to
the complaint that several causes of action had been
improperly united. The Supreme Court held that with
respect to actions for damages resulting from the
pollution of streams, those who contribute to the
common injury may be joined as defendants in the same
action.
The case of Haveman v. Beulow (217 P.2d 313 (1950))
involved an action by H. J. Haveman against C. F.
Beulow to recover damages for the pollution of water
in the plaintiff's wells. The Superior Court of
Whatcom County awarded each of the plaintiffs a money
judgment and enjoined and directed cessation of the
acts of the defendants' as a nuisance. The defend-
ants appealed.
The Supreme Court of Washington upheld the findings of
the lower court by finding that the evidence was sub-
stantially supported, the measure of damages was prop-
er and that the lower court properly granted relief by
the injunction and abatement.
Bradley v. Consolidated Silver Mountain Mines Co. (298
Pac. 324 (1931)) found the Supreme Court of Washington
upholding a lower court decision for the plaintiff.
The plaintiff owned a dairy ranch located near the
defendant's mine. The plaintiff's cattle drank from
a small stream which was a short distance from the
mine. Tailings from the mill had been permitted to
enter this stream. The action was brought by T. E.
Bradley against the Consolidated Silver Mountain
Mines Co. to recover damages for the plaintiff's
cattle which occurred when the cattle drank water
which had been polluted by the tailings from the
defendant's mine and mill.
Drake v. Smith (337 P.2d 1059 (1959)) was a joint
action of five landowners for damages for pollution
of a stream from which they used water for domestic
purposes by means of a community water system. The
defendants were engaged in logging operations and
deposited debris in the stream. The lower court
entered a judgment against the defendants and they
appealed.
The Supreme Court of Washington held that the defen-
dants had no intention of removing the debris from the
stream. It sustained the decision that the pollution
of the stream was permanent.
Tyler v. Van Aelst (512 Pac. 2d 760 (1973)) was an
action brought by the owners of a water diversion
system against the defendants for damages for injury
to the water diversion system and also for a permanent
injunction enjoining defendants from committing future
damage to the system. The defendants counter-sued for
damages and for an injunction. The Superior Court
enjoined the defendants from committing future damage
to the water diversion system, but it denied either
party any damages. Both parties appealed.
The Court of Appeals held that a water right in a
creek was a sufficient legal right to base a permanent
injunction to prohibit the defendants from interfer-
ring with that right.
288
-------
16.7 INFORMATION SOURCES
Powe, L. A., Jr., "Water Pollution Control in Washing-
ton," 43 Washington Law Review 425, 1967.
., Water Quality Assessment Report, Vol.'s 1 & 2,
1975.
Agricultural Return Flow Management in the
State of Washington, prepared by CH2M Hill, Consul-
tants for Washington Department of Ecology, April 1975.
Technical Bulletin No. 8, Dept. of Ecology,
April 1975.
Van Ness, W. Washington Mater Law. Open file Report
#2, Water Res. Center, Univ. of Wash., Pullman, Wash.
Feb. 1967.
Rosenow, B. A Study of Various Procedures Utilized
by Selected Water-Oriented Special Districts Which are
Common to All of Them. Completion Report, OWRT
Project No. A-03Q-WASH, Univ. of Wash. School of Law,.
Seattle, Wash., July 1970.
Van Ness, W. Uncertainty in Washington Water Sights.
Draft Report, OWRR Project No. A-002-WASH, Univ. of
Wash. School of Law, Seattle, Wash., Feb. 1967.
Whittlesey, N. and J. H. Allison, Jr. The Value of
Water Used in Washington Irrigated Agriculture. Bui.
#745, Washington Agricultural Experiment Station,
Wash. State Univ., Pullman, Wash., Nov. 1971.
Davis, R. D. Some Recommendations for Improving
Implementation of Washington State Water Law. Report
No. 24, Water Research Center, Wash. State Univ.,
Pullman, Wash., March 1976.
Davies, R. D. (editor). Proceedings: Conference on
Regulating Appropriation of Water in the State of
Washington. Rept. No. 24, Supplement, Water Research
Center, Washington State Univ., Pullman, Wash., Mar.
1976.
289
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APPENDIX A
17. WYOMING
17.1 SUMMARY OF WATER QUALITY LAWS
17.1.1 Background
The first water quality legislation in Wyoming was
enacted in 1921 and was directed at protecting those
uses, including agriculture, for which water could be
appropriated from pollution and contamination due to
the activities of manufacturing or industry (W.S.A. §
35-196). This statute made it a misdemeanor, with
.naxlmum penalties of $100 fine and up to six months
imprisonment, for conviction of polluting a natural
stream or lake.
Two yaars later, in 1923, the Department of Health was
given "general oversight and care of all inland waters"
(W.S.A.§35-184). The Department's authority extended
to control of water pollution which adversely affected
uses which included livestock and agricultural crops.
The Department of Health was given the authority to
develop rules and regulations to "prevent pollution
and secure sanitary protection of all such waters as
are used for domestic uses" (W.S.A.§35-185). Action
could be taken by the Department to enjoin any pollut-
ing activity as a public nuisance upon complaint of any
municipal officer, or upon its own initiative (W.S.A.
§ 35-190).
Legislation adopted in 1945 further expanded the scope
of public nuisance to include those actions which:
Directly or indirectly cause or threaten to
cause pollution or impairment of the purity
or usefulness of the waters of any spring,
stream, irrigation ditch, lake or water
supply; whether surface or subterranean,
which are used wholly or partly as a source
of public or domestic water supply (W.S.A.
§ 35-462).
The penalty for conviction of this offense is a fine of
up to $100 or imprisonment for up to ninety days, or
both (W.S.A.§35-468).
In 1973, the Environmental Quality Act was adopted as a
comprehensive means for administering air, water and
land quality provisions (W.S.A.§35-502.1 to 35-502.56,
1975 Cum. Supp.). This legislation is the major effort
in Wyoming to deal with water quality concerns. Most
state functions in the area of water quality have been
consolidated and placed under the administration of the
Water Quality Division of the Department of Environ-
mental Quality (W.S.A.§35-502.7(c), 1975 Cum. Supp.).
It is important to note that this Act does not limit
or interfere with the jurisdiction, duties or author-
ity of the State Engineer and several other officials
only remotely concerned with water pollution control
(W.S.A. §35-502.56). In 1974, the provision which ex-
cluded the Act's application to any irrigation practice
was repealed (Wyo. Laws 1974, Ch. 14, §24).
17.1.2 Policy
In 1973, the Environmental Quality Act established the
policy of Wyoming to protect public health and welfare
values, including agriculture, from the adverse affects
of pollution to air, water and land resources (W.S.A.
§35-502.2, 1975 Cum. Supp.). The specific goal for
water quality was adopted by the Department of
Environmental Quality. It is stated:
The goal of the water pollution control
program is to maintain the best possible
quality of water commensurate with use. All
sources of pollution, whether man-made or
natural, shall be considered. Control shall
be applied toall sources where physically
and economically feasible. By the nature
of the problems, they will evolve into long-
range and short-range programs to reach the
ultimate goal. Definition of such problems
and control programs will be part of the
State Continuing Planning Process (Wyo.
Water Quality Rules and Regs., hereafter
W.W.Q.R.R., Ch. I, §3, 1974).
To implement this policy and goal, the waters of the
state have been classified and water quality stan-
dards adopted. The assurance that these standards
will be met is the incorporation of the discharge
permit system initiated by the Federal Water Pollu-
tion Control Act amendments of 1972 into the state
program.
17.1.3 Classification
Wyoming waters have been divided into the three
classes:
Class I: Those waters which, based on
information supplied by the Wyoming Game
and Fish Department, are determined to be
presently supporting fish or have the
hydrologic and natural water quality poten-
tial to support game fish.
Class II: Those waters which, based on
information supplied by the Wyoming Game
and Fish Department, are determined to be
presently supporting non-game fish or
have the hydrologic and natural water
quality potential to support non-game
fish.
Class III: Those waters which, based on
information supplied by the Wyoming Game
and Fish Department, are determined as
having the hydrologic or natural water
quality to support fish (W.W.Q.R.R.,
Ch. I, §4, 1974).
Specific waters will be classified according to a
priority system for classifying those waters which
receive pollutants first (Ibid., Ch. I, §5, 1974).
A stream must have been classified prior to issuance
of a permit for discharge into it (Ibid).
17.1.4 Standards
Specific stream standards have been established for
fifteen different parameters (Ibid., Ch. I, §6, 1974).
Provision has also been made for adoption of addi-
tional standards required by existing conditions
(Ibid). In addition to the stream standards, there
are standards which cover effluent water quality.
Effluent standards and limitations for discharge
purposes include those state and Federal Water Pollu-
tion Control Act Amendments of 1972 standards which
control effluent, performance standards, toxic efflu-
ent standards, and pretreatment standards (Ibid,
290
-------
Ch. II, §2, 1974). Water quality standards which are
adopted by reference include state and federal stan-
dards which have been approved by the Administrator
of the Environmental Protection Agency.
17.1.5 Permit System
Discharge permits are issued by the Department of En-
vironmental Quality in conformity with the require-
ments of the National Pollutant Discharge Elimination
System (NPDES), for point source waste discharge into
state waters (Ibid., Ch. II, si, 1974). Compliance
with state law can also be accomplished by applica-
tion to the U.S. Army Corps of Engineers for a Refuse
Act Permit, or by filing a complete NPDES permit
application with the EPA (Ibid., Ch. II, §3, 1974).
Additional permits are required under state law for
such activities as construction of water supply and
sewage systems and alteration of various chemical and
physical properties of state water (W.S.A. §35-502.18,
1975, Cum. Supp.). Application is to the Water Qual-
ity Division of the Department. The permits are
issued by the Director of the Department (W.S.A. §
35-502.53, 1975, Cum. Supp.).
17.1.6 Sanction and Enforcement Measures
If the Division Administrator or Department Director
has reason to believe that any persons are violating
the act or rules adopted under the act, they are em-
powered to perform an investigation of the complaint.
Furthermore, the Director is given the authority to
issue a cease and desist order where it is determined
that a violation does exist (W.S.A. 535-502.46, 1975
Cum. Supp.). Upon issuance of such an order it is
possible to request a hearing before the Environmental
Quality Council upon the merits of the administrative
action. Figure 1 illustrates the enforcement actions
and alternatives that can be taken under the Environ-
mental Quality Act.
The penalties for violation of the provisions of the
Environmental Quality Act range from a fine of up to
$10,000 for each day of violation for unintentional
or negligent violations, to $25,000 for each day
that a willful violation of the act continues, as
well as imprisonment for up to one year, or both. In
addition, the person responsible for the violation is
liable for the reasonable value of the fish, aquatic
Figure 1. Necessary State Action in Controlling Water
Pollution in Wyoming
PROGRAM ELEMENT: ENFORCEMENT
Public health or ^
wildlife imperiled-^^
Polluter voluntarily W.Q.D. issues
agrees to correct cease and
the violation desist order
L(Sec. 46(b))
^*
Case referred
to D.E.Q.
attorney for
injunctive
relief
(Sec. 15(b))
1
DISCOVERY 3F NPOES VIOLATION
OR ANY PROVISION OF THE 1973
ENVIRONMENTAL QUALITY ACT
Director has authority to conduct
an investigation (Sec. 46(a))
W.Q.D. investigates and evaluates
the water pollution problem
ronuier rec tacitrant *c~
i
W.Q.D. issues a
certified written
order to the pol-
luter specifying
the ACT or NPDES ^
violations, and a
schedule of cor-
rective actions
to be taken.
(Sec. 46(b))
Order
. ized
dsys
(Sec.
1
final-
in 30
46(c)>
Polluter contests Polluter
written order complies"
»
Hearing before
|Council (Sec. 46(c)
Order Order ^ Oraer \^0rder
confirmed (modified rescinded affirmedi
by Council I ____
but ignored
by polluter
Case referred
to D.E.Q. attorney
for possible
court enforcement
SOURCE: Wyoming Department of Environmental Quality
Wyoming (June 20, 1974), Second Edition, p
i
Conference, conciliation and Polluter voluntarily
persuasion between W.Q.D. and-*agrees to correct
polluter (Sec. 46(a)) the problem
-> POLLUTION PROBLEM RESOLVED
Authority: 1973
Wyoming Environmental
Quality Act, Sections
35.502.1 35.502.5
Water Quality Division. Water Pollution Control in
291
-------
life, game or bird life which is destroyed (U.S.A.
§35-502.49, 1975 Cum. Supp.). Fines and jail sentences
are doubled for convictions of second violations.
Finally, the Department can seek an injunction to halt
or prevent a possible violation of the act (Ibid).
17.2 ADMINISTRATION OF WATER QUALITY LAWS
17.2.1 Department of Environmental Quality
Under the provisions of the "Wyoming Environmental
Quality Act" (W.S.A.§§35-502.1 to 35-502.56, 1975 Cum.
Supp.) the major responsibility for water pollution
control in Wyoming is vested with the Water Quality
Division, Department of Environmental Quality (W.S.A.
§35-502.18 to 35-502.19, 1975 Cum. Supp.). This legis-
lation was originally enacted by the 1973 Session of
the Wyoming Legislature. Formerly, the authority for
water quality matters had been delegated to the State
Department of Public Health, which still retains some
responsibilities in the area of water quality as it
pertains to water supply and waste water systems
(W.S.A.§§35-186 to 35-187 and 35-196 to 35-200).
The Water Quality Division, one of three divisions
which comprise the Department of Environmental Quality
(DEQ), is responsible for issuing permits for the fol-
lowing activities which affect water quality:
1. discharge of pollution and wastes;
2. alteration of physical, chemical, radiological
biological or bacteriological nature of the water;
3. construction, modification and operation of sew-
age and other water treatment facilities;
4. any increase in the quantity or concentration of
discharges; and
5. construction, installation, modification, and
operation of public water supply systems (W.S.A. §35-
502.18, 1975 Cum. Supp.).
It is interesting from the historical point to note
that when the above legislation was first enacted,
the term "pollution" as it was defined for the pur-
pose of water quality specifically exempted "...
waters diffused across meadow lands or crop lands for
irrigation purposes, or return flows, whether dif-
fused or collected in drains, from such water dif-
fused across meadow or crop lands" (W.S.A. §35-502.3
(c)(i), 1975 Cum. Supp.). This exclusionary provision
was deleted from the act's definition of pollution in
1947 (S.L., Ch. 14, §1, 1974), and subsequent regula-
tion of DEQ define pollution to include "...agricul-
tural waste discharged into water" (W.W.Q.D.R.
Ch. I, §2(q), 1974).
According to the chain of command under the act, the
Administrator of the Water Quality Division, subse-
quent to consultation with the Division's citizen
advisory board, is responsible for the recommendation
of proposed rules and regulations to the Director of
DEQ (W.S.A. §35-502.19, 1975 Cum. Supp.) for later
adoption by the Environmental Quality Council (W.S.A.
§35-502.19, 1975 Cum. Supp.).
The Environmental Quality Act created an independent
seven-member Environmental Quality Council and five-
member Water Quality Advisory Board to assist the
Division in water pollution control. The Council
acts as the hearing board for adoption of rules and
regulations, as well as cases or issues which arise
under the legislation, rules, regulations, standards,
and orders involving the Wyoming Environmental Quality
Act (W.S.A. §35-502.12(a)(i), 1975 Cum. Supp.). See
Figure 2 for an organizational chart of the water
quality entities.
17.2.2 Additional Agency Involvement
As mentioned earlier in this section, prior to the
enactment of the 1973 Environmental Quality Act, water
Figure 2. Department of Environmental Quality Organizational Chart
292
-------
quality programs were the responsibility of other state
agencies. Specifically, these agencies were the Water
Pollution Advisory Council and the Sanitary Engineering
Services Branch of the Division of Health and Medical
Services (U.S.A. §35-503.7(c), 1975 Cum. Supp.). The
duties and authority of these bodies was later incorp-
orated in the DEQ (Ibid).
The Division of Health has retained authority in sever-
al areas closely related to water quality. First, the
Board of Health is directed to consult with municipal-
ities and private individuals on the most advisable
method for developing water supply and water treatment
facilities (W.S.A. §35-187). The Division of Health
also has authority to impose fines for contamination
of streams and lakes from industrial activities (W.S.A.
§35-196). Finally, the Division is empowered to set
standards for public drinking water supplies and to
investigate and determine liability for violation of
those standards (W.S.A.§§35-197 to 35-200). Values
which these standards are designed to protect include
fish, domestic, stock watering, irrigation, and any
other use for which water can be appropriated under
state law (W.S.A. §35-187).
Allocation and distribution of water and administration
of water rights is vested in the Office of State Engi-
neer and the Board of Control. The state is divided
into four water divisions, each headed by a water di-
vision superintendent who administers water law with-
in the division (W.S.A. §41-55). The State Engineer
and four superintendents are appointed by the governor
(Wyo. Const. Art. 8, §5 and W.S.A. 141-55). Together,
these five officials comprise the Board of Control.
See Figure 3 for a diagram of the state agencies in-
volved with water quantity and quality control.
The duties of the State Engineer include general super-
vision of the waters of the state and offices connected
with the distribution of these waters, issuing permits
to use water, making proper preparations for adjudica-
tions of water rights by the Board, and coordinating
a state water and related resources plan. He is also
president of the Board of Control, compact commissioner
on several interstate streams, advisor on water matters
to various agencies, and member of numerous boards and
committees affected by water laws.
The Board of Control supervises the appropriation,
distribution and division of waters of the state and
has quasi-judicial power to adjudicate water rights.
The Board also rules on amendments, changes and
transfers of water rights and decides matters of
abandonment and statutory forfeiture.
To assist the division superintendents, each division
is divided into districts under the charge of water
commissioners. These commissioners are required to
divide and control the use of water and prevent waste
or excessive use (W.S.A. §41-63).
17.3 SPECIAL LEGISLATION
Wyoming has passed enabling legislation for a number
of special districts which are intended to function
at the local level, primarily as administrative and
revenue generating units of government, in the pro-
motion of water quality goals.
17.3.1 Health Districts
Health Districts are primarily concerned with prevent-
ing disease and promoting general public health by
controlling local water quality (W.S.A.§§35-27 to
35-35). These districts can be created either by
resolution of county and municipal governing boards,
or by voter referendum.
Operation of the Health District is under the super-
vision of an elected board of directors. Financing
is derived from a maximum mill levy of one mill and
general fund appropriations.
Presently, four Health Districts have been estab-
lished under the above statute (Stickley, 1976).
17.3.2 Sanitary and Improvement Districts
Sanitary and Improvement Districts can be organized
in unincorporated areas to establish and operate water
supply and sewage disposal systems (W.S.A.5§35-141 to
35-165). These districts are excluded from exercising
territorial jurisdiction in cities, towns and any
tract larger than 20 acres which is primarily used
for industrial purposes.
Figure 3. Wyoming Water Agencies and Major Functions
Water Quality
Water Quantity
Administration
Planning and
Development
Dept. of
Health
Division
of
Dept. of
Environmental
Quality
Water
Quality
—
,, '
^
V
Environmental Office
Quality State
Commission Enginef
of
;r
i — .
Water Ground water
Juality Water Rights
Rnard Section Section
BO
o
Con
ira
f --,
trol
._,
Division
Superintendents
District
Water
Commissioners
Wyoming
Water
Planning
Dept. of
Economic
Planning
& Development
Program
W
Pla
iter
nning
293
-------
Districts are organized by election following submis-
sion of a petition to the state district court for
the area where the district will be located. Sanitary
and Improvement Districts can levy up to one mill on
taxable property within the district. Furthermore,
the district can enter into service contract arrange-
ments with other local governments.
Five Sanitary and Improvement Districts have been
formed under this act.
17.3.3 Water and Sewer Districts
The purpose for organizing Water and/or Sewer Dis-
tricts is to furnish domestic water supply, sewage
and drainage systems in unincorporated areas (W.S.A.
5541-479.1 to 41-479.5, 1975 Cum. Supp.). Land lo-
cated within municipalities or industrial tracts
larger than 20 acres is exempt from district partici-
pation. It is also possible to implement local Sani-
tary and Improvement Districts under this legislation.
Organization of these districts is achieved under the
standard procedure of an election following district
court approval of a voters petition. Operations are
financed by a mill levy of up to eight mills on real
property, sales of service and user charges.
Fifteen Water and Sewer Districts have been organized
in Wyoming.
17.3.4 Drainage Districts
Drainage Districts are authorized to construct and
maintain drains, ditches, and levies, and to reclaim
or otherwise benefit any "wet or overflowed lands"
(W.S.A. §§41-335 to 41-479). These districts are
formed following district court approval of a land-
owner petition. It is also possible to form joint
Irrigation-Drainage Districts under this legislation.
There are currently twenty Drainage Districts in
Wyoming.
17.4 RELATED LEGISLATION
17.4.1 Industrial Development Information and Siting
Act
The most significant legislation related to water
quality is the Industrial Development Information and
Siting Act (W.S.A. §§35-502.75 to 35-502.94, 1975
Cum. Supp.) enacted in 1975. This legislation requires
that large-scale energy production and other large in-
dustrial facilities obtain a permit from the State
Industrial Siting Council prior to construction and
operation of activities controlled by this Act.
Specific water quality consideration under this Act
includes plans for sewer and water facilities, water
supply plans (W.S.A. §35-502.81, 1975 Cum. Supp.) and
a detailed study by the siting council of the impact
on water resources from the proposed development
(W.S.A. §35-502.84, 1975 Cum. Supp.). The applicant
for an industrial siting permit must inform the
siting council of other state or federal permits and
approvals which will be required by the facility.
Wyoming law makes it a misdemeanor to place refuse
and dead animals into rivers and ditches (W.S.A.
§35-452 to 35-463). It is also a criminal misdemeanor
to dispose of sawdust in a watercourse within the
State of Wyoming (W.S.A. §35-464).
17.4.2 Wyoming Farm Loan Board
The original Farm Loan Act was passed by the Wyoming
Legislature in 1921 and the following purpose was set
forth:
For the purpose of fostering and encourag-
ing agriculture, dairying and livestock
raising in the State of Wyoming and
development and improvement of farm lands
... (Wyo. Stat. §11-610).
In 1955,the legislature expanded the role of the
Wyoming Farm Loan Board (WFLB) to include the issu-
ance of water development loans (Wyo. Stat.§§11-655
to 11-658). This expansion also directed the execu-
tive director of the State Department of Economic
Planning and Development (DEPAD) to advise on and
approve potential loans which the WFLB is requested
to make in the area of water development (Wyo. Stat.
§11-556). A significant change occurred in 1975 as
an amendment to W.S.A. §11-655. This amendment pro-
vides that loans up to $150,000 can be made to indi-
viduals or organized water users for development of
small projects (S.L. 1975, Ch. 122, §1). Small pro-
jects may include lateral lining, turnouts, sprinkler
systems, etc. The consequences may not only benefit
water quantity by increasing the efficiency rate, but
also improve the quality of return flows.
The most obvious disadvantage to financing water
resources development by the WFLB is that the board
only approves or disapproves applications, with the
advice of the executive director of DEPAD, and lacks
any authority to initiate coordination and planning
(Stickley, 1976). Also, the WFLB is dependent upon
the legislature to set the ceiling on the amount of
funds which are to be made available from the perm-
anent land funds of the state for water development.
17.5 SUMMARY OF REGULATIONS AFFECTING AGRICULTURE
As discussed earlier, the definition of "pollutant"
in both the Water Quality Standards for Wyoming
(W.W.Q.R.R., Ch. I, §2(q), 1974) and Chapter II,
Discharges/Permit Regulations for Wyoming (Ibid,
Ch. II, §2(o))of the Wyoming Department of Environ-
mental Quality applies to agricultural waste which
is discharged into water. Furthermore, state water
quality standards recognize salinity as a water qual-
ity parameter which is affected by the processes of
(1) salt-loading due to man-made sources, and (2)
salt concentration due to loss of water by consump-
tive use (Ibid, Ch. I, §29).
Regulations state that "emphasis will be placed on
controlling high salinity through improved water
management and conservation practices" (Ibid). The
State of Wyoming is a member of the Colorado River
Basin Salinity Control Forum and has adopted that
group's policy, in state water quality regulation,
of developing and adopting a plan of implementation
for controlling salinity in the Colorado River System
by October 18, 1985 (Ibid).
State regulations covering permits for point-source
waste discharges into waters requires approval for
any extensions, modifications, or additions to con-
centrated animal feeding operations (Ibid, Ch. II,
§3(a)(3)). This policy was adopted in compliance
with the requirements of the National Pollutant Dis-
charge Elimination System for point source dis-
charges into state waters (Ibid., Ch. II, §1).
Finally, while no standards have been specifically
adopted to cover water quality problems created by
294
-------
agricultural return flow, it should be remembered
that it was not until 1974 that the statutory prohi-
bition on such regulation was removed (Ibid, Ch II
§1).
17.6 CASE LAW APPLICABLE TO AGRICULTURE
Water quality issues as they relate to agriculture
have received little appellate review either in a his-
torical context or under the more recent environmental
quality legislation.
The earliest reported decision which considered water
quality as a factor related to agricultural water use
was Sussex Land and Livestock Co. v. Midwest Refining
(294" F. 597 (D. Wyo. 1923) affirming 276 F. 932 (D.
Wyo. 1922)}. In that case, an oil well operator
allowed oil to escape from his well field into a
stream which overflowed causing damage to plaintiff's
pasture. The Federal District Court interpreted
Article 8, Section 1 of the Wyoming Constitution and
state statutes which provide for prior appropriation
to include the concept of quality as well as quantity
in the nature of the right, and that an oil well pro-
ducer has no right to deteriorate the quality of
water in a stream as against downstream users having
priority of right (294 F. 597, 603 (0. Wyo. 1923)).
A later state court ruling in Mitchell Irr. Dist. v.
Whiting (136 P.2d 502, 1943) also employed the concept
of water quality as a component of a right acquired
under the doctrine of prior appropriation in reaching
its conclusion that a prior appropriator cannot inter-
fere with the rights of subsequent appropriators on
the stream so long as the senior user revives all the
water of satisfactory quality to the full extent of
his appropriation (136 P.2d 502, 508, 1943).
There are no reported decisions on actions which have
arisen under the present Wyoming water quality legis-
lation. At the time of this report, the Wyoming
Supreme Court has recently heard oral argument on the
case of the City of Torrington v. Wyoming Department
of Environmental Quality (136 P.2d, 502. 508, 1976).
which is the first appeal taken under the 1973 Envi-
ronmental Quality Act. The suit seeks to test
necessity of obtaining solid waste disposal and water
discharge permits for a municipal waste disposal sys-
tem located adjacent to a watercourse.
Although over a dozen actions have been filed in
district court by DEQ, the actions have been resolved
by the payment of fine and application for discharge
permit by the offending party.
17.7 INFORMATION SOURCES
Ohrenschall, John C. and Edgar A. Imhoff, "Water Law's
Double Environment: How Water Law Doctrines Impede
the Attainment of Environmental Enhancement Goals,"
5 Land & Water L. Rev. 259, 1970.
Shelledy, W. R., Jr., "Agricultural Irrigation and
Saline Quality of Water," 5 Land & Water L. Rev. 490,
1970.
Ausness, Robert C., "A Survey of State Regulation of
Dredge and Fill Operations in Nonnavigable Waters,1
8 Land & Water L. Rev._ 451, 1973.
Nixon, Sunny Jeane, "Groundwater Pollution in the
Western States—Private Remedies and Federal and State
Legislation," 8 Land 8. Water L. Rev,. 537, 1973,
Orf, Ted E., "The Wyoming Water Quality Act and the
Federal Water Pollution Control Act Amendments of
1972: A Comparison, 9 Land 4 Water L. Rev. 79, 1974.
Stickley, Dennis C., "Alternatives for Financing Water
Resources Development and Related Issues," Governor's
Interdepartmental Water Conference, Cheyenne,Wj(o.,1976.
. Water Pollution Control in'Wyoming. Dept. of
Environmental Quality, Cheyenne, Wyo., 1973.
Hause, V. W. and J. t. Cahill, Everybody's Guide to
Wyoming Water Administration. Vul. 479, Agr. Exten-
sion Service, Univ. of Wyo., Laramie, Wyo., Oct. 1967.
, A Water Development Program for Wyoming.
Office of State Engineer, Cheyenne, Wyo., Oct. 1974.
295
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APPENDIX B
ARIZONA
Department of Health Services
Dr. Ronald L. Miller, Chief
Bureau of Water Quality Control
Environmental Health Services
1740 West Adams Street
Phoenix, Arizona 85007
(602) 271-5453
State Land Department
Fritz Ryan, Director
Water Rights Division
1624 West Adams Street
Phoenix, Arizona 85007
(602) 271-4629
Arizona Water Commission
Wes Steiner, State Engineer
22 North Central Avenue
Phoenix, Arizona 85004
(602) 253-7561
CALIFORNIA
State Water Resources Control Board
Donald Maughan, Chairman*
William Attwater, Chief Counsel, Legal Division
Harry Schueller, Supervising Engineer, Legal Division
1416 9th Street
Sacramento, California 95801
*(916) 445-5471
Central Valley Regional Water Quality Control Board
Gene Merrill, Land and Water Resources Specialist*
Ron Vanderpool, Chris Lynds, Jim Robertson, staff
3201 South Street
Sacramento, California 95816
*(916) 445-0270
Colorado River Board of California
Myron Holbert, Chief Engineer
107 South Braudun
Room 8103
Los Angeles, California 90012
(213) 620-4480
COLORADO
Department of Health
Frank Rozich, Director*
Fred Matter and Don Carlson, staff
Division of Water Quality
Evan Oildine, Technical Secretary**
Water Quality Control Commission
4210 East llth Avenue
Denver, Colorado 80220
(303) 388-6111, *ext. 231, and ** ext. 378
Department of Natural Resources
Clarence Kuiper, State Engineer and Director
Division of Water Resources
1313 Sherman Street
Denver, Colorado 80203
(303) 892-3581
STATE AGENCIES AND PERSONNEL CONSULTED
IDAHO
Department of Health and Welfare
Al Murray, Chief
Robert Brown, Assistant Chief*
Environmental Services
Division of Environment
Chuck Foss, Department Counsel
Frank Kline, Idaho SCS, but on loan to DOE
State House
Boise, Idaho
*(208) 384-2433
Department of Water Resources
C. Steven Alfred, Planning Director*
John Hammond, Economist
373 West Franklin
Boise, Idaho
*(208) 384-2212
KANSAS
Department of Health and Environment
Jack Burris, Director
Water Quality Control Section
Division of Environment
535 Kansas Avenue
Topeka, Kansas 66612
(913) 296-3825
Board of Agriculture
Guy E. Gibson, Chief Engineer
Division of Water Resources
1720 South Topeka Avenue
Topeka, Kansas 66612
(913) 296-3251
MONTANA
Department of Health and Environmental Services
D. S. Williams, Chief
Water Quality Bureau
Environmental Sciences Division
Cogswell Building
Helena, Montana 59601
(406) 449-2406
Department of Natural Resources and Conservation
William F. Throm, Assistant Administrator
Water Resources Division
Natural Resources Building
32 South Ewing
Helana, Montana 59601
(406) 449-2872
NEBRASKA
Department of Environmental Control
Robert Wall, Chief*
Clark Haberman, Ecologist
Water Pollution Control Division
1424 "P" Street
Lincoln, Nebraska 68509
*(402) 471-2186
296
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NEBRASKA (con't)
Department of Hater Resources
Marion E. Ball, Director
1420 "P" Street
Lincoln, Nebraska 68509
(402) 471-2363
NEVADA
Department of Human Resources
Ernest G. Gregory, Chief
Environmental Health Services
201 South Fall Street
Carson City, Nevada
(702) 885-4670
Department of Conservation and Natural Resources
Roland Westergard, State Engineer
Division of Water Resources
201 South Fall Street
Carson City, Nevada 89701
(702) 885-4380
NEW MEXICO
Environmental Improvement Agency
Charles Nylander, Chief*
Richard Holland, Michael Snavely, John Dudley, staff
Water Quality Division
Post Office Box 2348
Santa Fe, New Mexico 87503
*(505) 827-3121
Office of State Engineer
Carl Slingerland, Deputy State Engineer*
Paul Bloom, Legal Advisory to State Engineer
Bataan Memorial Building
Santa Fe, New Mexico 87503
*(505) 827-2127
Al Utton
Professor of Law and Editor, Natural Resources Journal
College of Law
University of New Mexico
Albuquerque, New Mexico 87100
NORTH DAKOTA
Department of Health
Norman Peterson, Director
Division of Water Supply and Pollution Control
State Capital Building
Bismark, North Dakota 58505
(701) 224-2386
State Hater Commission
Murray Saqsveen, Director
Legal Services
900 East Boulevard
Bismark, North Dakota 58505
(701) 224-2750
OKLAHOMA
State Department of Health
Charles B. Newton, Chief*
F. M. Keene, Assistant Chief
Water Quality Service
N.E. 10th Street and Stonewall
Oklahoma City, Oklahoma 73105
*(405) 271-6315
Oklahoma Water Resources Board
Jim Shirazi, Chief*
Harold Springer, staff
Water Quality Division
Jim Thorpe Building
Oklahoma City, Oklahoma 73105
*(405) 521-3945
OREGON
Department of Environmental Quality
Kent C. Ashbaker, Supervisor
Water Pollution Control Section
1234 S.W. Morrison
Portland, Oregon 97205
(503) 229-5309
Department of Water Resources
Larry Jebousek, Administrator
Water Rights Division
1178 Chemeketa Street
Salem, Oregon 97301
(503) 378-3066
Harold Henigson
Attorney for Irrigation Districts
106 Main Street
Nyssa, Oregon
(503) 372-2268
SOUTH DAKOTA
Department of Environmental Protection
Richard L. Howard, Chief
Water Quality Program
State Office Building #2
Pierre, South Dakota 57501
(605) 224-3351
Department of Natural Resources Development
Vern W. Butler, Secretary
Office Building #2
Pierre, South Dakota 57501
(605) 224-3151
TLXAS
Texas Hater Quality Board
Don Spraggins, Supervisor, Agricultural Branch*
Nicholas, Murphy, General Counsel
Chesley Blevins, Assistant Director, Hearings Branch
Margaret Currie, Assistant General Counsel
Tom Remaby, Chief, 208 Planning
1720 North Congress Avenue
Austin, Texas 78711
*(512) 475-2651
Texas Water Rights Commission
Joe Carter, Chairman""~
Bob Schneider, Executive Director
Tim Brown, Legal Counsel
Al D'Arrezo, Ken Jones, Jerry Boyd, Environmental
Specialists
Steven F. Austin State Office Building
Austin, Texas 78711
*(512) 475-2453
297
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UTAH
Department of Social Services
Lynn Thatcher, Director*
Calvin Sudweeks, Jay Pitkin, Bill Tate, and
Duke Hansen, staff
Bureau of Water Quality
Division of Health
Environmental Health Services Branch
72 East 4th Street
Salt Lake City, Utah 84113
*(801) 533-6146
Department of Natural Resources
Stanley Green, Assistant State Engineer*
Bob Morgan, staff
Division of Water Rights
442 State Capital
Salt Lake City, Utah 48114
*(801) 328-6071
WASHINGTON
Department of Environment
Dep
Joh
hn Spencer, Assistant Director of Office of Water
Programs and Director of Water Rights*
Glen Friedler, Director, Division of Water Quality
Management
Chuck Carelli, Water Quality Planning Section
Olympia/Lacey, Washington 98504
*(206) 753-2240
Washington State Conservation Commission
Wayne Reid, Executive Secretary
Olympia/Lacey, Washington 98504
Ralph Johnson
Professor and Attorney at Law
University of Washington
Seattle, Washington 98105
WYOMING
Department of Environmental Quality
William Garland, Chief
Water Quality Control Division
State Office Building
Cheyenne, Wyoming 820Q2
(307) 777-7781
State Engineers Office
George Christopulos, State Engineer
State Office Building
Cheyenne, Wyoming 82002
(307) 777-7354
Frank Trelease
Professor of Water Law
College of Law
University of Wyoming
Laramie, Wyoming 82050
298
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NATIONAL
Water Resources Congress
955 L1Enfant .Plaza, North
Washington, D.C. 20024
National Water Resources Association
955 L'Enfant Plaza, North
Suite 1202
Washington, D.C. 20024
REGIONAL/SPECIAL
Agualante Newsletter
Upper Colorado River Commission
355 South Fourth East Street
Salt Lake City, Utah 84111
EPA-LOG
Environmental Protection Agency
1860 Lincoln Street
Denver, Colorado 80203
APPENDIX C
WATER NEWSLETTERS AND ASSOCIATIONS
Westwater--Notes on Hater Research in Western
Canada
Westwater Research Centre
University of British Columbia
Vancouver V6T 1W5
Canada
Public Information Fact Sheet, Omaha District
Department of the Army
U.S. Army Engineer District, Omaha
Corps of Engineers
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Natural Resources Law Newsletter
Section of Natural Resources Law
American Bar Association
1155 East Sixtieth Street
Chicago, Illinois 60637
Rocky Mountain Mineral Law Newsletter
Rocky Mountain Mineral Law Foundation
Fleming Law Building
University of Colorado
Boulder, Colorado 80302
STATE NEWSLETTERS/USER ASSOCIATIONS
California—
METER
Metropolitan Water District of Southern California
Post Office Box 54153
Los Angeles, California 90054
Western Water
Association of California Water Agencies
1127-llth Street
Suite 305, Eleventh & L
Sacramento, California
Aqueduct
Metropolitan Water District of Southern California
•1111 Sunset Boulevard
Los Angeles, California
Colorado-
Colorado Water News
State Engineer
Division of Water Resources
1313 Sherman Street
Denver, Colorado 80203
Colorado River Association Newsletter
Colorado River Association
417 South Hill Street
Los Angeles, California 90013
Colorado Water Congress Newsletter
Colorado Water Congress
5600 South Syracuse Circle, #311
Englewood, Colorado 80110
Idaho--
Idaho Environmental Quarterly
Division of Environment
Idaho Department of Health & Welfare
Statehouse
Boise, Idaho 83720
IHAU Alert, The WELL Report and Newsletter
Idaho Water Users Association
4706 Fairview AVenue
Boise, Idaho 83704
Nebraska—
The DEC Newsletter
Nebraska Department of Environmental Control
Box 94653 State House Station
1424 "P" Street
Lincoln, Nebraska 68509
Oklahoma-
News from Oklahoma Water Resources Board
Oklahoma Water Resources Board
Fifth Floor Jim Thorpe Building
Oklahoma City, Oklahoma 73105
South "akota—
Earth Bound
South Dakota Department of Environmental Protection
Pierre, South Dakota 57501
Texas— •
The Cross Section
High Plains Underground Water Conservation
District No. 1
2930 Avenue Q
Lubbock, Texas 79405
Utah—
Utah Water User's Association
38 E. Fourth Street
Bountiful, Utah 84010
Utah Environmental News
Utah State Division of Health
Bureau of Environmental Health
44 Medical Drive
Salt Lake City, Utah 84113
Wyoming—
Wyoming Water Flow Newsletter
Wyoming Water Development Association, Inc.
1905 Spring Creek Drive
Laramie, Wyoming 82070
299
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TECHNICAL REPORT DATA
:Pk'asc read Inuructions on the reverse before completing}
1 REPORT NO.
EPA-600/2-78-184
3. RECIPIENT'S ACCESSION NO.
4. TITLE AND SUBTITLE
ACHIEVING IRRIGATION RETURN FLOW QUALITY CONTROL
THROUGH IMPROVED LEGAL SYSTEMS
5. REPORT DATE
December 1978
6. PERFORMING ORGANIZATION CODE
7 AUTHOR(S)
George E. Radosevich and Gaylord V. Skogerboe
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Resources Administration and Development, Inc.
Fort Collins, Colorado 80522
10. PROGRAM ELEMENT NO.
1HB61?
11. CONTRACT/GRANT NO.
Grant No. R-80^303
12. SPONSORING AGENCY NAME AND ADDRESS
Robert S. Kerr Environmental Research Laboratory-Ada, OK
Office of Research and Development
U.S. Environmental Protection Agency
Ada, Oklahoma 74820
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
EPA/600/15
15. SUPPLEMENTARY NOTES Re]ated study report:
FLOW by George E. Radosevich
WESTERN WATER LAWS AND IRRIGATION RETURN
16. ABSTRACT
The key to irrigated agricultural return flow quality control is proper utiliza-
tion and management of the resource itself, and an accepted tool in our society is the
law. This project is designed to develop legal alternatives that will facilitate
the implementation of improved water management technologies developed to reduce and
control salinity, sediment, nutrients, and other forms of water pollution emanating
from agricultural uses of water and other primary agricultural inputs for crop produc-
tion. Recommendations for Federal and state activities to achieve irrigation return
flow quality control include an action program termed the "influent control approach."
The basic and required components of such a program are outlined and discussed.
17.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS
COSATl Field/Group
Water quality, irrigation, water law,
irrigated land, water pollution, water
rights
Legal systems
Water law systems
17 western states
Water administration
State water quality
control agencies
68D
3. DISTRIBUTION STATEMENT
RELEASE TO PUBLIC
19. SECURITY CLASS (This Report)
Unclass i fied
21. NO. OF PAGES
312
20..SEC
.SECURITY.CLASS, (This page)
OnclassiTiea' ^*'
22. PRICE
EPA Form 2220-1 (9-73)
300
«U.S. GOVERNMENT fflniTINO OFFICE, 1979-657-060/1618
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