&EPA
United States
Environmental Protection
Agency
Office of
Water & Waste Management
Washington DC, 20460
WH-554
November 1979
Institutional Bases for
Control of Nonpoint
Source Pollution
..»f M M
IT
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DISCLAIMER
This report has been prepared by the U.S. Deparbuent of Agriculture,
reviewed by the 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 comercial products constitute endorsment
or reconinendation for use.
This docijnent is available to the public through the National Technical Informa-
tion Service, Springfield, Virginia 22161.
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INSTITUTIONAL BASES FOR CONTROL OF NONPOINT
SOURCE POLLUTION UNDER THE CLEAN WATER ACT—WITH EMPHASIS ON
AGRICULTURAL NONPOINT SOURCES
By
Beatrice H. Holmes
U.S. Department of Agriculture
Economics, Statistics, & Cooperatives
Service
Natural Resource Economics Division
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Institutional Bases for Control of Nonpoint Source Pollution
Under the Clean Water Act——With Emphasis on Agricultural Nonpoint Sources
Contents
Nonpoint Source Control Law before 1972 1
FWPCA Emphasis on Point Source Control 2
Pollution from Land Use——Distinguishing Point Sources
from Nonpoint Sources . -. . . . . . . 3
Categories of Nonpoint Source Pollution .6
(a) Sediment 7
(b) Nutrients 8
(c) Mineral Pollutants 9
(d) Pesticides 9
(e) O çygen——Deinanuing Wastes 10
(f) Pathogens 10
The Function of the Planning Provisions of
Public Law 92—500 as Applied to Nonpoint Source
Pollution Control 11
(a) Outline of Section 208 ... 12
Delayed Inception in 208 Planning Program 18
(a) Natural Resources Defense Council v. Train . 21
The November 1975 Regulations—Consolidation and Integration
of State and Areawide Planning 23
Sources of Regulatory Authority for Implementation of
NonpointSourcePollutionContro]. 27
Federal Agency Participation in Planning and
Implementing Nonpoint Source Controls——Emphasis on USDA
Participation . 32
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(a) Contribution of USDA Action Agencies
to the 208 Planning Effort 36
(b) USDA Research Agency Contributions 45
current EPA Requirements for Implementation of Nonpoint
Source Pollution Controls 52
Conservation District NPS Control Powers under
Soil Conservation Laws 58
(a) Nonregulatory Powers——Capability of District to
Act as Management Agencies for “Other than Regulatory
Programs” 58
(b) Regulatory Powers in the Standard Act 61
(c) Regulatory Powers in State Conservation
District Laws 63
(d) District Use of Regulatory Powers ... 71
Lewis and Clark District Ordinance (Montana) . 74
Wisconsin Model Ordinance 78
Vernon County Ordinance (Wisconsin) . 8:0
Statewide Laws with Agricultural NPS Control Provisions 8.2
(a) Iowa • ... .•.•e•••ø 8i5
(b) The Model Act 92
(c) Pennsylvania 102
(d) Ohio 111
(e) New York ..... 119
(f) 1111.iiois 122
(g) South Dakota 129
(ii) Hawaii ....•.• 133
(i) gjfl Islands . 140
Backnotes 142
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Institutional Bases for Control of
Nonpoint Source Pollution Under The Clean Water
Act——With Emphasis on A ricu1tural Nonpoint Sources
Nonpoint Source Control Law Before 1972
Until the Federal Water Pollution Control Act (FWPCA) was completely
revised by Public Law 92—500 (the FWPCA amendments of 1972), 1 EPA’s program
for dealing with nonpoint source pollution was limited to research. Several
other Federal programs did have an indirect effect on nonpoint source (NPS)
pollution. These included soil conservation, soil survey, and watershed
protection programs administered by the Soil Conservation Service, the
Agricultural Stabilization and Conservation Service’s agricultural conserva-
tion program (ACP), the Federal—State extension service’s conservation
education program, and the pesticide registration and labeling program,
administered untIl 1971, by the Agricultural Research Service and since then
by the Environmental Protection Agency.
In addition, a few States had strip mine reclamation laws. A smaller
number of States and several local governments had regulatory programs dealing
with sediment control at construction sites. A handful of Western soil and
water conservation districts had adopted land use regulations requiring wind
erosion control practices. In 1971, Iowa passed a statute requiring soil
conservation districts to adopt soil loss limits for all land in the district
and providing that farmers may be required to install erosion control measures
when 75 percent cost—share assistance is made available. 2 An Ohio program,
intended to bring both agricultural discharges (including point source
pollution from feedlots) and urban sedimentary discharges into line with
State water quality standards, was also authorized by legislation in 1971
and l972.
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2
Furthermore, almost all the States had programs requiring the
registration and use—labeling of pesticides in intrastate coimnerce. Many
also restricted the use of certain pesticides dangerous to the environment.
And a few imposed a total ban on such pesticides as DDT and endrin.
FWPCA Emphasis on Point Source Controls
Public Law 92—500 also put its main emphasis on point source control.
It established a nationally coordinated permit program, the National Pollutant
Discharge Elimination System (NPDES), for all discharges from municipal
treatment plants, factories, mines, feedlots, and other discrete sources and
required that all permitted discharges be consistent with EPA effluent
4
limitation guidelines. The 1972 amendments also established time—phased,
progressively more stringent technological performance standards for all
point sources. All publicly owned treatment plants were required to provide
secondary sewage treatment and all industrial facilities “best practicable
control technology currently available” (BPT) by July 1, 1977. By 1983,
publicly owned treatment plants were required to provided “best practicable
waste treatment technology”, including “reclaiming and recycling of water and
confined disposal of pollutants” and all industries to install “best available
technology economically achievable” (BAT). 5
These deadlines have been extended somewhat by the Clean Water Act of
1977.6 In addition, the Clean Water Act has changed the second step performance
standards for industrial point sources, divided for this purpose into three
categories discharging (1) conventional, 7 (2) toxic, 8 or (3) nonconventional, 9
pollutants. But the 1977 amendments have not changed the principle of point
source permit requirements based on Federal performance standards spelled out
in Federal effluent limitations.
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3
There is no provision in the FWPCA for Federal regulation of
nonpoint source pollution. However, Public Law 92—500 declares that
the objective of the FWPCA is restoration and maintenance of the
chemical, physical, and biological integrity of the Nation’s waters ’°
and declares a national water quality goal of fishable, swimmable
waters, wherever attainable by 1983.11 To achieve these objectives,
it also enunciates a national policy that areawide waste treatment
management planning processes be developed and implemented to assure
adequate control of (all) sources of pollutants in each State.’ 2
It further provides In section 208’ 3 for Federal grants to areawide
waste treatment management planning processes that would provide
implementable plans. Section 208 specifies that the areawide plan
must Include identification of significant nonpoint sources of pollution
and procedures and methods to control the; in addition to systems of
coordinated point source treatment works. The 1972 amendments further
provide in section 303(e) 14 for the incorporation of all elements of the
areawide waste treatment management plans into the federally subsidized
State continuing planning processes for Implementation of State water
quality standards.
Pollution from Land Use——Distinguishing Point
Sources from Nonpoint Sources
Since the NPDES permit system for point sources is the great
innovation of Public Law 92—500 and the main means Congress chose to
restore the integrity of the Nation’s waters, the act provides a
definition of point sources as follows:
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The term ‘point source’ means any discernible, confined
and discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.” 15
Nonpoint source pollution was not defined by the statute but was
understood by process of exclusion to refer to pollution that is:
(1) generated by diffused land use activities, not identifiable
facilities,
(2) conveyed to waterways through natural processes such as storm
runoff or groundwater seepage, rather than by deliberate, controllable
discharge,
(3) not susceptible to “end of pipe” treatment, but controllable by
changes in land management or process practices. 16
However, EPA recognizes that some point sources of pollution, as defined
in Public Law 92—500, are similar to NPS in that they too are caused by land
use activities and can be best controlled by changes in land management
practices, instead of effluent treatment. In 1973, while EPA was beginning
to set up the NPDES by issuing permits to major municipal and industrial
sources and before the 208 planning effort had begun, EPA promulg9ted
regulations exempting certain categories of land—use—generated point sources
17
from the permit program. This was done on the ground that processing
these small but numerous sources would result in great administrative
difficulties.
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The 1973 regulations were opposed by environmental organizations who
argued that the plain language of Public Law 92-500 reguired effluent
limitations for all point sources and that the FWPCA gave EPA no other
18
methods except the permit program to implement such effluent limitations.
In March 1975 Judge Flannery ruled, in the first of two leading
cases entitled Natural Resources Defense Council (NRDC ) v. Train , that
Public Law 92—500 required EPA to find appropriate means to include all
(except trivial) point sources in the NPDES. 19 Consequently, in the spring
and summer of 1976, EPA promulgated regulations, including in the permit
program several types of point sources that had previously been excluded.
These were:
(1) Small feedlots discharging pollution through manmade conveyances
or directly into on—site waters. (Larger feedlots were already
included). 20
(2) Discrete conveyances or ditches from which “irrigation return flows”
(not merely storm runoff) is discharged. 21 -
(3) Separate storm sewers in urban areas, or, where special pollution
problems exist, rural areas. 22
(4) Facilities for four specific activities associated with silvicul—
tural enterprises: rock crushing, gravel washing, log sorting and log
storage. (EPA considered most silvicultural activities, including runoff
from nursery operations, site preparation, reforestation, thinning, prescribed
burning, pest and fire control, harvesting, surface drainage, and road
construction to be nonpoint source activities). 23
* The smallest feedlots remain exempt unless designated on a case by
case basis by the State permitting agency or EPA.
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It was recognized from the first that It was unnecessary and burden-
some to require all irrigators to prepare permit applications or to monitor,
inventory, sample, record and submit reports. Consequently, EPA ’s 1976
regulation stated that, except in a few cases of very serious pollution
problems, irrigators would not be required to apply for individual permits.
Instead, they would be issued general permits requiring them to conform to
pollution control methods that would be set forth in the areawide 208 plans,
once these were adopted. 24
But this did not placate the continuing opposition to any requirement
of a Federal permit for irrigated agriculture, with Its implication that
implementation of on—farm land management practices would be subject to
Federal enforcement procedures. Consequently, Congress overturned the
Flannery decision, so far as it applied to irrigation, when it passed
section 33 of the Clean Water Act of 1977. Section 33 25 states that irrigation
return flows are not to be considered point sources, are not to be Included
in the NPDES, and are to be dealt with, where appropriate, in the 208
planning process. In other respects, the Flannery decision and the 1976
regulations carrying it out are still in force.
Categories of Nonpoint Source Pollution
Nonpoint sources generally coincide with types of land use. Since
they are diffused and discharge pollutants to water via widely dispersed
pathways, they are generally significant sources of pollution only when they
involve large land areas. One way to classify NPS source pollution that
may be useful is as follows:
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Sediment
Sediments carried by soil erosion represent by far the greatest
volume of wastes entering surface waters. Although it is not possible
to keep all waters crystal clear,* excessive sediment loads raise water
treatment costs for municipalities. They cause aesthetic degradation,
damage to domestic and industrial water supplies and water recreation,
destruction of wildlife, and clogging of reservoirs and channels. In
addition, sediment has frequently been identified as the principal transport
mechanism for much of the plant nutrient wasteload that accelerates lake
eutrophication as well as pesticides, organic and inorganic wastes, and
26
pathogens. However some scientists have disputed that phosphorus adsorbed
to clay is an important cause of the eutrophication of all but very shallow
lakes. They have asserted that eutrophication of deep lakes results mainly
from dissolved phosphorus (which is released from municipal outfalls, septic
tanks, and runoff—borne animal wastes and fertilizers) not incorporated
in sediment. 27
Cropland is the chief source of sediment on a total mass basis; 50
percent or more of the sediment deposited in streams and lakes is credited
to agriculture. 28 The National Commission on Water Quality’s staff report
found high concentrations of suspended solids linked to cropland in the
Great Plains, Midwest, Southwest, and Central Valley of California. In
* This is because flowing waters have fixed minimum carrying capacities.
If control of discharges reduces suspended solids below these minimum levels,
the flowing waters will attempt to restore these minimum levels by scouring
the beds and banks of the watercourse.
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significant portions of those regions, the polluting effort of agricul-
tural activities is augmented by the natural high erodibility of the soils
of the drainage basins. 29
Construction and strip mining activities yield large quantities
of sediment in relatively small land areas. Sediment from these sources
can have a highly adverse impact on water quality. Construction generated
sediment of more than short term significance is often situated in urbanizing
areas where it becomes a threat to water supplies and public recreation.
Mining activities cause sediment problems in the Appalachian and Rocky
tountains 30
Well managed forests are exceptionally free of erosion and sediment
pollution, but harvested forests are erodible, highly so if timber harvest
is poorly managed. Forestry practices which disturb the land surface have
caused increased turbidity in streams of the Pacific Northwest and Appalachian
regions. 31
Nutrients
Nutrient elements, chiefly phosphorus and nitrogen, enter waters in
municipal discharges, urban storm runoff and combined storm and sanitary
sever overflows as well as in runoff, seepage and percolation from lands
*
managed for intensive production of livestock and crops. Because of the
contribution of phosphorus and nitrogen to lake eutrophication and nitrite
* Phosphatic detergents have been identified by some scientists as the
largest source of phosphates in municipal discharges. It should be noted
that, in areas where such detergents have not been banned, they are released
into ground and surface waters by sources not included in the NPDES (septic
tanks and fields) as well as municipal point sources.
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the potential pollution of groundwater drinking supplies by nitrates,
nutrients are sometimes considered a more serious pollution problem than
sediments per Se. They received a great deal of attention in the early
arid mid—1970’s because nutrients levels in many areas were continuing to
rise, whereas oxygen—demanding wastes, coliform bacteria, metals and
chemicals including pesticides, were declining. 32
Runoff from agricultural lands is a major contributor to nutrient
levels in the Southeast, Southern plains, Midwest and Central Valley of
California although in some areas nitrate pollution of groundwater occurs
33
naturally. A committee of the National Research Council has found that
relative losses of nitrogen from cropland vary significantly as a result
of such agricultural practices as timing and amounts of fertilizer
34
application.
Mineral pollutants
Most nonpoint source pollution from minerals other than nitrates and
phosphates results from mining activities. Mine drainage in addition to
degrading water quality by acids, salinity, and hardness of minerals carries
33
trace elements of toxic metals (lead, arsenic, zinc, cadmium, copper).
Toxic metals are also carried to water in urban runoff and in point source
effluents.
In agricultural production, the chief mineral pollutant from a nonpoint
source is salinity in the return flows. Both point source and nonpoint
source salinity pollution from irrigated lands is exacerbated by natural
saline conditions in the Colorado basin. 3
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Pesticides
Pesticides are widely used in agriculture and less extensively in
silviculture, construction, and urban land uses. They are transported
from soil to water directly in runoff and sediment and indirectly by
careless application and spray drift.
The chief damage to water quality from pesticides has resulted from
the persistence of some kind of pesticides in the aquatic environment where
they are accumulated by fish and other food chain organisms, causing damage
to wildlife high in the flood chain. Because persistent pesticides are no
longer in common use this damage is decreasing. However, pesticide con-
centrations exceeded suggested safe limits or were linked with fish kills
at 13 of 26 sites studied by the National Commission on Water Quality in
the early and middle 1970’s. The major pesticide source at 8 of the 13
35
problem sites was runoff from agricultural land.
Oxygen—Demanding Vast es
Organic wastes are transported to streams in sediment and runoff from
paved surfaces and have essentially the same adverse effects as the much
greater loadings of organic wastes from municipal and industrial point
sources and feedlots. Crop debris, livestock wastes, waste petroleum
products, forest litter and numerous solid waste materials are included in
36
this type of pollution.
Pathogens
Health hazards in the form of infectious pathogens are generally
assumed to be present when evidence of animal or human fecal matter, as
measured by noninfectious, fecal coliform bacteria, Is found in the water.
While these pathogens can be effectively controlled in drinking water
supplies by suitable treatment processes, their presence in surface waters
can make those waters unfit for contact recreation.
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By far the greatest part of the coliform bacteria in the Nation’s
waters emanates from point sources: municipal effluents and, to a lesser
degree, runoff from livestock feedlots. But other sources of bacterial
contamination include runoff from urban, range and cropland and contamination
of ground water from septic tank drain fields. 37
The Function of the Planning Provisions of Public Law 92—500
as Applied to Nonpoint Source Pollution Control
The FWPCA amendments of 1972 provided that both point source and non—
point source pollution control would be achieved on the basis of plans—a
concept that was much complicated by the statutory requirement that all
publicly owned treatment facilities install secondary treatment, and all
industrial point sources install BPT, by July 1977.
It has already been mentioned that the Act of 1972 declared a “national
policy that areawide waste treatment planning processes be developed and
implemented to assure adequate control of sources of pollutants in each
State.
This policy must be read into the three distinct planning processes
created by the Act.
(1) Facilities planning for construction grants to publicly—owned
treatment plants under section 201. Section 201(c) 39 requires facilities p1anning
to fit in with areawide waste treatment management providing control or
treatment of all point and nonpoint sources “to the extent practicable.”
(2) Areawide waste treatment management planning under section 208.40
The section 208 process is the principal section applying land use planning
to the problem of pollution control. It provides for siting and sizing
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of point source discharges on an areawide basis over a 20—year period as
well as residuals disposal and nonpoint source controls. This section is
the basis of the subject of this paper and will be outlined in detail, below.
(3) State planning for implementation of water quality standards
under section 303.41 This section is concerned with classification of and
provision of effluent limits and maximum daily loads for all the waters of
42
the State. It also provides, under Section 303(e), for a continuing
planning process incorporating all elements of any applicable areawide
waste management plans under section 208, adequate authority for intergovern-
mental cooperation, and pollution abatemeiit compliance schedules (including
by implication NPS compliance schedules) for all the waters of the State.
Outline of Section 208
The major provisions of the areawide waste management planning section
are the following.
Governors of States are directed to identify and designate areas which,
because of “urban—industrial concentration and other factors” have substantial
water quality problems. Governors are also directed to designate “a single
representative organization” including elected officials from local government.
The same procedure is available for interstate areas, in which case each
Governor must participate.
‘If the Governor does not designate and does make an affirmative
decision not to designate an area, the “chief elected officials of local
governments” may agree to designate an area and a planning agency for such
area. In interstate areas, Governors do not have a nondesignation option
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and local officials may designate the area and agency whenever the
Governors do not.
• All areas and agency designations must be approved by EPA.
• The State must act as the planning agency for all portions of the
State which have not been specifically designated.*
• Designated agencies must have a continuing planning process in
operation within one year of designation. Until the 1977 amendments, the
initial plan was required to be certified by the Governor and submitted to
EPA for approval within 2 years of the commencement of the operation of
such planning process. The 1977 amendments extended the planning period
an additional year.
• All plans must include the following:
All the elements needed for a coordinated point source control plan
for the next 20 years, annually updated and including analysis of alternative
systems. This would include treatment works, waste water collection and
storm sever systems and construction priorities and time schedules.
A comprehensive regulatory program to (1) implement point and nonpoint
source requirements and pretreatment requirements for industrial wastes
discharged into public sewage systems and (2) regulate the location,
u dification and construction of facilities resulting in new discharges.
The identification of those agencies needed to construct and operate
facilities required by the plan and to otherwise carry out the plan.
* This provision is section 208(a)(6). Most predominantly agricultural
areas with no substantial urban or industrial component fall into this
category.
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The identification of the measures needed to carry out the plan,
including financing, the period of time and costs of carrying out the
plan within such time——together with the economic, social and environmental
impact of such implementation.
A process to identify, if appropriate , procedures and methods to
control, to the extent feasible , (1) agricultural and silvicultural nonpoint
sources including (since the 1977 amendments) irrigation return flows,
(2) all mine related sources, and (3) construction related sources.
Control measures may specifically include “land use requirements.” If the
State determines for any of these sources that consistency with a State
regulatory program under section 303 so req 4res, the p ocess may be develqped
by the State and submitted to EPA for application to all areas in the State.*
A process to identify salt water intrusion into estuaries and up
rivers and to control such intrusion to the extent feasible, where consistent
with the overall plan.
A process to control the disposition of fresidual wastes in water.
A process to control the disposal of pollutants on land or in
subsurface excavations to protect water quality.
* The provision that the State can bypass areawide regulatory programs
and substitute a State regulatory program is section 208(b)(4). This
provision also applies to salt water intrusion, disposition of residuals
and disposal of pollutants on land or in underground excavations. The
areawide plan elements to which section 208(b)(4) is applicable are
specified in section 208(b) (2) (a—k).
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Areawide plans must be certified annually by the State(s) as
being consistent with applicable basin plans and approved annually by
EPA.
The Governor in each State, in consultation with the areawide
planning agency, must designate one or more waste management agencies.
EPA must accept such designation providing the agency or agencies have
adequate authority to carry out the plan.
Once a plan is accepted and the management agency designated, all
construction grants for projects within the area must be made to such
agency for works in conformity with the plan. All permits for point
source discharges within the area must also be in conformity with the plan.
Section 208 (as passed in 1972) also provided for Federal grants of
100 percent of the costs of the areawide waste treatment planning process
for fiscal years 1973—1975. Beginning in fiscal year 1976, grants were not
to exceed 75 percent of the planning costs. Section 208 also authorized
appropriations for planning grants of $50 million in fiscal year 1973,
$100 million in 1974 and $150 million in 1975.
In actuality, for reasons of point source control strategy, EPA was
not willing to begin 208 planning before getting a start on wasteload
allocation and river basin planning of major point sources under Section 303.
Although the statutory authorizations were fully funded by Congress, EPA
neither spent nor obligated any of its fiscal 1973 funds and only $13.7
million of its fiscal 1974 funds. But the full $150 million was spent in
43 .
fiscal 1975. Congress appropriated $53 million for fiscal 1976 and
$4 million for the transitional quarter, at the 75 percent funding level
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(since the period of 100 percent funding was expired) $ 15 million was
appropriated for fiscal year 1977, $69 million for fiscal 1978, and
$32 million for fiscal l979.
In May of 1976 the District of Columbia district court ruled, in
response to a lawsuit by the National Association of Regional Councils (NARC),
that EPA must release the unobligated $136.3 million of the 1973 and 1974
grant money. 45 This ruling was appealed by EPA and reversed in part in
September 1977 by Judge Tamm of the District of Columbia Circuit Court of
Appeals. The Court ruled that EPA had no authority to release the unobligated
1973 and 1974 funds after the budgetary authorization expired. Judge Tamm agreed
with the district court’s decision that the deadline for award of 100 percent
grants should be extended to implement Congressional intent that 100
percent funding of $150 million be made available for initial participation
in the 208 planning process. He remanded the case to the district court
to devise a formula for using funds appropriated for 1975 and subsequent
years to bring grants up to 100 percent, suggesting that It might be
consistent with congressional intent to limit such grants “to those parties
who took the necessary steps within the prescribed time periods following
November 28, l975.1 46
Section 31 of the Clean Water Act of 1977 made the decision in NARC
v. Costle immaterial by amending section 208 to provide that areawide
agencies designated after 1975 and State agencies acting as planning agencies
for all undesignated portions of the State have 3 years after receipt
of first grant to complete the initial plan. 47 This means that the planning
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agencies will not lose any of the funds they would have received if
the program had begun on time.
Section 31 also provides 100 percent funding for the 2 years following
the first grant in all cases where the first grant was made before October
1977. Third year grants and any subsequent 208 planning grants may not exceed
75 percent. 48
Section 35, the so—called Culver amendment of the Clean Water Act
(Section 208(j) of the FWPCA), 49 authorizes a program of assistance to land-
owners and operators for installing best management practices for NPS control
and authorizes appropriations to the Secretary of Agriculture for this program
of $200,000,000 in fiscal 1979 and $400,000,000 in fiscal 1980. The Culver
amendment authorizes the Secretary (acting through SCS and such other agencies
as he designates) to enter into 5 to 10 year contracts with landowners and
operators to provide cost sharing and technical assistance for carrying out BliPs
identified in the agricultural portion of the 208 plan and incorporated in soil
conservation district—approved plans. Such contracts would only be entered into
areas or States where section 208 plans have been certified by the Governor and
approved by EPA and where the designated management agency assures an adequate
level of participation by owners and operators controlling rural land. Priority
in providing assistance will be given to those areas and sources that have the
n st significant effect on water quality.
*This amaudment is the bases for the Rural Clean Water Program which will
be discussed later. $2.4 million was appropriated to prepare the administrative
basis for this program in 1978, but no 1979 or 1980 cost sharing funds have been
appropriated as of this writing.
** In addition to this authorization, USDA funds and technical services
are available for implementation of BMPs through the Agricultural Conservation
Program, the Great Plains Conservation Program, conservation operations technical
assistance and technical and educational extension.
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The amendment atthorizes the Secretary to provide cost sharing for those
BNPs for which he determines tbat cost sharing is appropriate and in the
public interest and which have been approved by the designated management
agency. Federal cost share would be limited to 50 percent of the cbst of
carrying out such practices (including labor) except where the Secretary deter-
mines that a higher cost share is justified. Such justification must be based
on his findings that (1) the main benefit from the practices relate to off—site
water quality, and (2) the matching share requirement would place a burden on
the landowner which would probably prevent him from participating in the program.
It authorizes the Secretary to make agreements where practicable with soil
conservation districts, State soil and vater.conservation agencies and State
water quality agencies to administer all or part of this program, under his
regulations. Where not practicable the Secretary Is authorized to administer
this program through the Agricultural Stabilization and Conservation Service.
Delayed Inception in 208 Planning Program
During the first years following the passage of Public Law 92—500, EPA
concentrated on issuance of permits to point source dischargers and awarding
construction grants to meet the 1977 technological performance standard. Since
section 208 provided for stat’ tory time—lags (1 year for designation of agencies,
followed by 2 years for prepar .tion of a plan) it could not be used for this
effort and was assigned a low priority. Instead, EPA emphasized State river
basin plans under section 303. The river basin plans, which were used in issu-
ing NPDES permits mainly consisted of analysis of water quality and allocation of
50
waste loads among point source discharges.
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EPA’s water strategists also felt that - either the agency nor the
State and local governments responsible for 208 planning had sufficient exper-
tise relating land use to water quality and that substantial study should
51
precede the requirement that this planning be done. Section 304(e) of the
act 52 directs EPA to issue information on identification and control of NPS
pollution to section 208 agencies, State pollution control and other concerned
public agencies. Acting under this authority, as well as general research
and information authorities, EPA began, in the spring of 1973, to 1et numerous
contracts and grants to Federal and State agencies and private organizations
to develop information concerning nonpoint source pollution control. It then
*53
promptly published and distributed the resulting reports.
Furthermore, EPA at first believed that waste management efforts in addition
to point source control would only be needed in a few highly populated areas
ith extremely large wasteloads. Although section 208(b)(6) required the State
to prepare areawide waste management plans for all undesignated portions of the
State, EPA, at first, interpreted this provision to mean that the State river
basin plans under section 303 would serve as areawide waste management planning
in most areas of the State. Such river basin plans could be expanded, if
deemed appropriate by the State, to include identification of nonpoint sources
54
and of procedures and methods to control it, as provi ed by section 208(b)(2)(F—K)
* EPA contract information concerning agricultural nonpoint source pollution
control methods has mainly been developed by agencies of the Department of
Agriculture, including the Agricultural Research Service, Economic Research
Service, Forest Service, and SCS and by private research organizations. Infor-
mation concerning State and local legislation related to agricultural nonpoint
source pollution has mainly been developed by the National Association of
Conservation Districts and by the private legal research organization. See note 53.
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During this period EPA deferred virtually all activities under section
208. Interim Grant Regulations and draft Guidelines for Areawide Waste
Treatment Management were not published until May l974.
By the Fall of 1973, however, as Wise and Associates point out, the
House and Senate Public Works Committee, environmentalists, and organizations
representing local and regional governments were all exerting pressure on EPA
to begin the section 208 program. 56 Furthermore the 1973 needs survey, authorized
by section 516 of the Act, 57 indicated that the costs of structural solutions
to both municipal treatment and urban runoff problems would be monumental.
Consequently, EPA officials began, at this time, to view 208 as a way to
achieve cost effective solutions in urban—industrial areas based on examination
of many alternatives——structural and otherwise——such as recycling, land
disposal, better land use, growth controls and user charges. 58
Next, the Agency began to release appropriated 208 grants funds and
funded a pilot project to the Raleigh—Durham regional agency to show how a
208 planning process should operate. 59 EPA ’s March 1974 Water Quality Strategy
paper stated that the Agency planned to designate 130 areas by the end of Fis-
cal. 1975. 60 (The March 1975 strategy paper was to raise this number to 148*61).
Designated areawide agency planning was not intended to affect decisions on
programs or source abatement during Phase I (until secondary treatment and BPT
were reached) but would be a basic structure for implementation of Phase 11.62
During the su er of 1974, two of EPA’s 208 policies came under fire and
were revised. First the restricting of 208 designation to urban—industrial
areas was abandoned in response to the request of the Governor of Maine for
* As of this writing there were 1976 designated areawide waste management
planning agencies.
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designation of the Southern Maine and Northern Maine regions, two rural
areas with substantial nonpoint source water quality problems. Next
the meaning of the term “substantial water quality problems”, originally
restricted to water quality limited areas, was liberalized to include clean
water areas such as Lake Tahoe and Rifle, Colorado, where water quality is
threatened by potential pollution from wastes of rapid residential or energy
development 63
This left still unanswered the question of what the States were required
to do, under section 208(a)(6), in their capacity of planning agencies for
the undesignated areas, which constituted about 95 percent of the Nation’s
land. In October 1974, in the second leading case entitled NRDC v. Train ,
the Natural Resources Defense Council and the Environmental Defense Fund
brought suit against EPA for a declaratory judgement that section 208(a) (6)
“requires a State to act as the section 208 planning agency for nondesignated
portions of the State in the same manner as planning organizations designated
by the Governor do and that waste treatment planning is required of a State
for nondesignated portions of the State.”
64
Natural Resources Defense Council, Inc. v. Train et. al .
In June 1975, Judge Smith of the District Court of the District of
Columbia issued a memorandum and order which upheld the views of the plaintiff
environmentalist organizations.
Judge Smith examined the act and its legislative history and found that
section 208 is the critical section of the statute for coordinating implemen-
tation and planning as well as point source and nonpoint source pollution
control. Furthermore section 208 is aimed at achieving the 1983 goal of
fishable, swinunable waters by preventing future pollution as well as by
cleaning up existing pollution.
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Judge Smith found that subsection (a)(6) is the “residual clause”
in section 208 that directs the State to achieve for the “leftover”
portions of the State, the same task that the area planning organizations,
designated according to previous subsections, are directed to achieve
for their areas. But this does not mean that subsection (a)(6) regulations
should call for rigorous planning where no pollution problems exist.
A State may certify large portions of its territory as pollution—free
aiid concentrate on measures for prevention. EPA regulations should
permit a multitude of planning approaches geared to the problem of each
area.
The court order directed EPA to begin the process of developing
section 208(a)( 6 ) regulations consistent with its decision, and declared
that funding for areawide waste treatment management planning under
section 208(f) should be made available to the States for section 208(a) (6)
planning.
In view of the fact that the 1976 statutory deadline for 208 plan
submission could no longer feasibly be met for State plans for nondesignated
areas, the court ordered both the plaintiffs and EPA to furnish it with
proposed timetables for the phased compliance of section 208(a)(6) planning
with the requirements of section 20 and the goals of the Act.
On July 26, 1975, Judge Smith issued his final order directing EPA
to revise its regulations to require final submission of complete section 208
plans for nondesignated areas of all States by November 1, 1978.65 Section 31
of the Clean Water Act of 1977 has since extended this deadline another
year. 66
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The November 1975 Regulations——Consolidation and Integration of State
and Areawide Planning
The Smith decision was expected to greatly increase the responsibilitIes
of the States for waste treatment management program planning in nondesig—
nated areas. EPA has interpreted it as also requiring the State to assure
that all the requirements of section 208 are achieved Statewide, in
designated as well as undesignated areas, and has redesignated the Act’s
planning regulations in order to achieve this.
On November 25, 1975, EPA published new final regulations for:
(1) Section 208 grants. 67 Part 35 sets forth procedural requirements
for grants to both State planning agencies and areawide planning agencies
for 208 planning. It requires that 208 plans be annually updated at
State expense, after the initial federally assisted plan is completed.
It strenghthens the States’ management role in areawide planning by providing
for State review of areawide agency grant applications, workplans, and interim
progress reports. It also provides for preadoption review of final plans.
(2) The State coRtinuing planning process. 68 Part 130 sets forth
requirements for the State continuing planning process under sections 303(e)
and 208 and the designated areawide agency’s continuing planning process
under section 208. It is also applicable to related State responsibilities
that are not discussed here, such as water quality standards, the Statewide
nondegradation policy, the annual State strategy for program implementation
under section 106 of the Act and the annual State report to EPA and Congress
under section 305(b).
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(3) Preparation of Water Quality Management Plans. 69 Part 131 sets
forth requirements for preparation of section 208 plans (by both State
and designated area agencies) and for establishment of regulatory
progr s to achieve the act’s 1983 water quality goal of fishable,
swimmable waters, whenever attainable.
The November 1976 regulations require that the States assume
responsibility for water quality management plans throughout the States.
This is to be done directly in State planning areas ( after consultation
with local officials) and indirectly in designated areas, through
coordination with areawide planning agencies. State planning areas may
cover the entire State outside of designated areas or may single out
specific areas. All initial State and areawide water quality management
plans must be completed, adopted by the State and submitted to the Regional
Minfiuistrator for approval no later than November 1, 1978.70
The level of detail and timing of plan preparation for State planning
areas is permitted to vary, according to the water quality problems
of the area, and is to be established, after public participation, by
agreement between the State and the EPA Regional Administrator.* 7 l
The State planning agency (to be designated by the Governor) may delegate
any portion of its planning responsibilities to other appropriate State,
local or Federal agencies. Delegation of planning responsibilities
to Federal agencies, who are willing and able to undertake the task,
is expressly encouraged. 72
* This means that the State— EPA agreement determines, among other things,
which categories of nonpoint sources require study.
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The State planning agency is responsible for seeing to it that
State and areawide water quality management plans are coordinated with
other State and local use plans. The State planning agency is also
responsible for coordination with all Federally sponsored or assisted
plans and programs in the State., involving resources development,
environmental protection, land use management, safe drinking water,
transportation, housing or community development activities. 73
The State is also responsible for making sure that there is
appropriate input from other elements of the State water pollution control
program, such as surface and ground water quality monitoring and
surveilance and municipal facilities planning. 74 In addition, the
State is responsible for providing the intergovernmental cooperation
needed to prepare and carry out the plans. As part of the responsibility,
a State policy advisory committee must be set up with majority representation
of local elected off icials* plus representation of affected Federal
agencies, other State agencies and representatives of the general public.
Alternatively one such committee may be set up for each State planning
area. 75 In designated areas, areawide policy advisory groups composed
of State, public and Federal representatives are required. By agreement
between EPA and the Department of Agriculture, the Army and Interior,
representatives of the latter three departments must be invited to partici-
pate in the areawide policy advisory groups. 76
Provision must also be made for public information and participation
at several key points in the planning process. 77
* Unless the Regional Administrator agrees to a lesser percentage
at the request of the State.
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The State is also responsible for resolving conflicts between
the designated agency’s plan’s recommendations f or implementation and
existing State and local law. 8 It is also responsible for determining
the adequacy of areawide plan reconmiedations concerning the management
agencies that the Governor is required to select to implement such
79
provision of the plan. In adopting a plan, the State must certify
that the plan is the official water quality management plan for the
area and that it will be implemented and used for establishing permit
conditions, schedules of compliance, priorities, for awarding construction
grants and nonpoint source controls. 8 °
The same basic plan contents concerning nonpoint source pollution are
required for both designated planning areas and State planning areas.
These are:
(1) An assessment and evaluation of nonpoint source problems
by category and waters affected, 81
(2) An identification and evaluation of measures needed to produce
the desired level of control——Including best management practices, proposed
regulatory programs, proposed management agencies, time needed, and estimated
costs by agency and activity in 5—year increments. 82
If nonpoint source control planning is done on a Statewide basis,
all requirements of State nonpoint source plans are required to be
incorporated into each affected areawide plan but the plan must set
forth whatever additional local actions and programs are needed to carry
83
it out in the area.
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Sources of Regulatory Authority for Implementation
of Nonpoint Source Pollution Control
The Smith decision and EPA’s Water Nanagement Planning regulations
have given the States the “backstop” responsibility for establishing
and implementing the land use control and land treatment aspects of the
Federal Water Pollution Control Act. In so doing, they have put the
responsibility at the level of government that is most unquestionably
capable of exercising it, on the basis of both legal powers and. political
*84
acceptability. The only grounds for uncertainty was whether the
* It can hardly be questioned that it is more politically acceptable
for the States than the Federal Government to develop programs to control
polluting land uses. But whether the political situation of the States will
permit them to exercise this responsibility stringently enough to clean up
pollution, when the livelihood of significant numbers of their pc ’ulation
is, or appears to be, threatened, is another question.
The history of the Federal water pollution control program shows that
Congress gave EPA authority to make and enforce point source effluent limi-
tations for factories because the States in which they were located were
unable to regulate factory discharges stringently enough to satisfy the
demands of the national public and, and in most cases, the State public as
well. In the case of agricultural pollution, the political problem of the
States is compounded by a market system that frequently makes it impossible
for farmers to raise prices to cover increased costs.
Consequently, as John E. Montgomery points out, some States may be tempted
to adopt minimal controls on agricultural pollutants to protect their farm
enterprises. And this, in turn, may lead other States to do the same thing
in order to avoid putting their own farmers at a competitive disadvantage.
See note 84.
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States or the Local governments were the appropriate level of government
to bear this responsibilIty, since the Federal Government does not have
any existing land use regulatory authorities and Public Law 92-500 does
not create any.
Let us suppose that the FWPCA was amended to give EPA a role in
creating and enforcing nonpoint source controls that was comparable to its
authority over point source pollution controls. Would such an amendment be
found constitutional? There is always the likelihood of a constitutional
challenge whenever Congress creates Federal regulatory authorities over a
new area of national concern. This is because Federal laws must be based—by
however long and tenuous a route——on the powers expressly given to Congress
by the U.S. Constitution.
Nonetheless, there is a strong likelihood that any Federal regulation
for the purpose of water pollution control, even direct nationwide regula-
tion of polluting land uses, would be held constitutional. This is because
a long line of Supreme Court decisions have extended Congress’ power to
regulate interstate coimnerce to Include almost any regulation that can be
construed as protecting or improving navigable waters. 85
However Congress c ‘es not exercise every power that It has. When
Public Law 92—500 was enacted, there was a strong feeling that nonpoint source
pollution is too highly dependent on local topographic, soil, and vegetation
conditions to be successfully regulated through national limitations. 86 Fur—
thermore, even If this were not the case, land use regulation has traditionally
been considered the province of the States and, especially, the local govern-
ments. This is the reason why Congress, for six successive recent years,
refused to pass the proposed Land Use and Resources Conservation Act 87 which
would have provided Federal grants to the States for multiple—purpose land use
planning and regulation.
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States governments derive their powers from their State constitutions
and the tenth amendment to the U.S. Constitution, which reserves to the
States all the traditional, common—law powers not expressly granted to the
Federal government. There is no question that the States have the power to
enact water pollution control and a variety of types of land use regulations.
This is the States’ “police power”, which permits them to regulate private
activities for the protection of public safety, health and welfare. But
the States’ power (and therefore its local subdivisions’ power) to regulate
land use is also limited by certain provisions of the 14th Amendment to the
Federal Constitution that protect private rights. These are (1) the provision
*88
that private property may not be “taken” for public use without just compensation
* Whether a given land use regulation is sufficiently stringent to consti-
tute a “taking” that requires compensation is a frequently litigated issue.
The courts in different States have used different lines of reasoning, which
has led to different rulings arising from similar regulations and fact situa-
tions. The most prevalent rule is that a land use regulation is considered
a taking if it results in extreme reduction of the economic value of the land.
Recent court opinions dealing with environmental—land use legislation of
the 1970’s, however, indicate that the courts are no longer interpreting the
taking clause to mean that elimination of commercial value by regulation
always amounts to a taking. Indications are that the courts are less likely
to invalidate a statute or ordinance if it is based on a considered judgment
of both the rights of the property owner and the costs to the public of
allowing the restricted land use to continue. The courts are also likely to
insist that a valid regulation mustbe carefully drafted to avoid restricting
activities that are not harmful. Furthermore, some commentators have noticed
a definite tendency of the courts in the 1970’s to approve land use regulations
that are Statewide or regional, rather than local. See backnote 88.
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and (2) the provision that all persons are entitled to equal protection
of the law.
In addition to their police power to regulate land use, the States
also have power to raise taxes and to condemn privately owned land for
legitimate governmental purposes (including NPS pollution control) on
payment of “just compensation”. The States have delegated many of these
powers to local governments of general jurisdiction, such as cities and
counties. The States have also created special purpose governments, such as
districts and regional authorities (both interstate and intrastate) and
endowed them with the governmental powers necessary to carry out their
89
functions.
It has been rare until lately for State legislatures to regulate land
use. Bistorically, most land use regulation has been at the local, not the
State level, and has been regulation of building (zoning ordinances, building
codes, subdivision regulations) not resources use.* 9 O 9 lAlthough local govern-
ments frequently do not have all the regulatory (or the taxing) powers of the
State, they are considered the appropriate level for deciding where residential,
conmiercial, industrial and public facility development shall take place.
This is because local governments are located in the neighborhood of the
activity to be regulated and are highly responsive to the views of the individual
citizens most directly affected by such regulations.
Since planning and regulating the location of new point sources of
pollution is required by section 208(b)(2)(c)(ii), it is expected that means
* A significant exception to this generalization is provided by the wind
erosion control regulations of eight western soil and water conservation
districts, six of them in Colorado. See note 91.
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will be found to make use of existing local, building—oriented, land use
regulations on an areawide basis. EPA ’s draft guidance materials for non—
point source regulation point out ways that this can be done. 92
However, it is agreed that the States are the ultimate repository of
land use regulatory powers. In many cases the States have already given the
local governments of general jurisdiction the basic authorities necessary
to impose nonpoint source pollution controls. In cases where they have not
already done so, the States can now give the local governments such authority
by State legislation or constitutional amendments. The States can also
create special local or regional governments and endow them with authority
to create and/or enforce nonpoint source controls. (The soil and water
conservation districts, which help the farmer prepare, but on the whole do
not enforce, farm soil erosion control plans, were created under State law).
In some cases the States can use existing State level regulatory programs to
accomplish the same purposes, or, if there are no such programs, enact legis-
lation creating them.
This is the reason why EPA’s Guidelines for State and Areawide Water
Quality Management Program Development point out that it is EPA policy that
“the type of regulation appropriate for each nonpoint source category should
be established by the State.” Designated 208 planning agencies may also propose
93
nonpoint source regulatory measures for approval by the State.
To carry out this policy, section 131.11(n) of the EPA regulations
provides that each areawide water quality management plan must contain a
description of the existing State—local regulatory program that will be
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used to implement it, including the statutory basis for the program,
its administration and funding. The description must also include an
identification of any additional State or local regulatory programs needed
to implement the plan, together with a description of the needed legislation.
Furthermore, in order to expedite implementation of water quality
management plans, section 131.11(n) also directs that 208 plan regulatory
programs shall take full advantage of existing legislative authorities
and administrative capabilities. Somewhat contradictorily, since existing
construction—oriented regulations are still mainly local, section 131.11(n)
also requires regulatory programs “to assure to the extent practicable
that point and nonpoint source management shall be on a Statewide or
areawide basis. 94
Federal Agency Participation in P1annin and Implementing
Nonpoint Source Controls——Emphasis on USDA Participation
Both Public Law 92—500 and the November 1976 regulations envisioned
that State and areawide local regulatory programs may be used to
implement NPS control measures in the 208 plans. But establishment
of such programs is dependent on State and local political processes.
Furthermore it takes more than legal regulations to make regulatc ry programs
effective. Consequently, the FWPCA (even before enactment of the Culver
amendment) and EPA policy provided for Federal agency participation in
both 208 planning and implementation.
Apart from EPA’s own role in funding, assisting, and approving the
208 planning process, federal participation will be provided by both EPA
and other Federal agencies under other Federal laws. Its purpose will be
to make available to the 208 planning effort whatever possibilities for
technical and financial assistance can be found in other Federal programs.
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Thus, section 304(j) of Public Law 92—500 95 provides for an
agreement between the Administrator of EPA and the Secretaries of
Agriculture, the Army, and the Interior to provide for maximum use of
the programs administered by the three departments to implement
Section 208 plans. The resulting agreement 96 provides that in
designated areawide planning areas, the planning agency must create
an advisory committee and invite the three departments to participate
in plan development by designating representatives. Each of the three
departments may decide whether or not to participate, as it deems
appropriate.
The interdepartmental agreement also provides, very pertinently,
that EPA will coordinate with each of the three Secretaries to make
sure that programs under the jurisdiction of the latter supplement
or complement the implementation of approved section 208 plans. The
agreement further provides that the three Secretaries may enter into
agreements to implement provisions of approved 208 plans with the
regional waste management agencies that will be designated to implement
such plans.
The interdepartmental agreement also provides that when the 208 plans
are approved, EPA may transfer funds appropriated for that purpose to the
three departments. The fund transfers will be used to pay for accelerations
and modifications in programs administered by the three departments that
will be used to implement the 208 plans.
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EPA’s planning guidelines and regulations call for representation
of “affected” Federal agencies on State policy advisory conunittees
and for coordination of 208 plans with other Federally assisted
planning programs.* 97 The guidelines also draw the attention of the
State planning agency to the capability of Federal agency advisors to
both technically assist the planning work and point out how their own
programs can be used to implement the plan. They instruct
the State planning agencies to obtain the advice of Federal land and
water management agencies in the States containing Federal lands,
and of the Forest Service, in States containing State or private forested
land as well. They also draw attention to the Army Corps of Engineers’
Urban Studies Program, which is concerned with wastewater management
(including land treatment of sewage and land disposal of residuals)
as well as stormwater management and treatment. In addition, the guide-
lines draw attention to the assistance available from several agencies
of the Department of Agriculture. They point out that the Soil Conserva-
tion Service (SCS) can provide technical assistance in assessment and
* EPA has developed a number of interagency agreements and memoranda
of understanding that integrate 208 planning efforts with other Federally
assisted planning programs, so as to save time and avoid duplication of
effort and expense. The other programs involved include EPA’s own air
quality maintenance area planning, HUD’s 701 planning, coastal zone
management programs, and the Corps of Engineers’ areawide wastewater management
planning. In addition, EPA regulations and guidance materials call for the
State planning agency to make sure that State planning under sections 208
and 303 is coordinated with a large number of planning programs, including
EPA’s own clean air, solid waste and drinking water programs. See note 97
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control of soil erosion as well as liaison with the soil and water conserva-
tion districts and methodology for involving those districts in water pol-
lution control activities. The Agricultural Stabilization and Conservation
Service (ASCS) is responsible f or administering the agricultural conservation
program, which can supply cost sharing assistance for many of the “best
management practices” that may be needed to control pollution from runoff
and sedimentation from farms. 98
EPA’s April 1977 draft Nonpoint—Source Strategy summarized the potential
contribution of USDA by stating that EPA will place heavy reliance on USDA
programs for:
(1) aid in identification and evaluation of agricultural nonpoint source
problems,
(2) technical guidance in solving such problems, and
(3) direct assistance to landowners, including technical information,
education and financial assistance. 99
In early 1976, the Assistant Secretary for Conservation, Research and
Education directed USDA to organize on the national and State levels under
SCS leadership to advise and coordinate USDA agency input in the 208 planning
effort. The Washington level 208 work group is . taired by SCS and includes
representatives of the Forest Service (FS); ASCS; SEA—Extension; Agricultural
Research; Cooperative Research (CR); and Farmers Home Administration (FmHA);
Economics, Statistics, and Cooperatives Service (ESCS); Cooperative Research;
and Rural Electrification Administration (REA). There is also a USDA 208
group in every State, all but two of them chaired by SCS, with membership
including at least, FS, ASCS, and SEA—Extension (through the Cooperative
Extension Service) in every State, and other agencies represented on the
national work group in many of them.
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In September 1977, the Secretary of Agriculture and’ AdminiE .trator
of EPA signed a memorandum of working relationship to develop a model
implementation plan (MIP). °°The ‘MIP effort is based on coordination and
acceleration of the programs of 8 USDA organizations: ASCS, SCS, ExtensIon,
Agricultural Research, Cooperative Research, FS, FmHA, and ESCS for
water quality purposes. Seven rural areas were chosen to demonstrate the
effectiva ess for 208 planning and implementation of field level programs
concerned with research; education; technical, financial, and credit
assistance and existing USDA cooperative arrangements with soil and water
conservation districts and State agencies. Provision has been made to use
ACP for cost sharing in the seven MIP project areas. In two of them, funding
is also available from EPA under section 314 of the FWPCA (clean lake program)
in one from SCS under the Great Plains Conservation Program and in some under
small watershed pro-ram) 01
Participation of USDA Action Agencies in the 208 Planning Effort
SCS has provided staff to almost 100 State and areawide 208 agencies
through intergovernmental personnel agreements (IPA’s). SCS and EPA
have also made arrangements for SCS technical field staff to be assigned to
every EPA regional office to work on 208 matters. 102 These matters includ”
designing BMPs to control sediment and polluted runoff from agricultural
activities (including animal concentrations and irrigation return flows),
construction activities, and mines. In addition, SCS is making available the
State technical guides it has developed for its regular conservation assistance
programs. These guides describe many sediment and other pollution control
practices that can be used as BMPs. 103
SCS is also making soil surveys and their accompanying interpretive
reports available (from the National Cooperative Soil Survey) for use in 208
planning efforts. These surveys, including land classification, maps,
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and interpretive reports, have been completed or are in process for
virtually all rural counties (although many require updating) and for a
growing number of urban areas. They can be used to show the location of
soils that cause sediment problems when used for construction or crop
culture, and pollution problem when used for feedlots, irrigated agricul-
ture, sewage lagoons, or septic tank absorption fields.’° 4
Other data resources that SCS can make available to 208 planning
efforts include (1) hydraulic, soil sedimentation, and flood hazard infor-
mation contained in water resource studies, (2) State conservation needs
inventories outlining sedimentation and flooding problems of and proposed
corrective treatment for lands that were cropland, pasture, or forestland
in 1967, (3) information on plants that can be used in controlling sedimentation
and (4) special reports on land use related pollution, such as saline
pollution from irrigated agriculture in the Colorado basin)° 5
Participation of the Forest Service (PS) in section 208 planning has
been formalized by a joint EPA—FS policy statement, which also provides
for coordination of 208 planning with FS’s own land use planning on
national forest system land. 106
The joint policy statement provides that State and areawide water quality
management agencies shall involve Region, Area, and Forest Offices of FS
in all stages of water quality management planning and implementation
for forested land. This shall be done directly, where National Forest
system lands are involved, and through the State Forester, where State
or private forests are involved. The joint policy statement further
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provides that State and areawide planning agencies shall be encouraged
to make cooperative agreements or more informal arrangements with
the Forest Service and that State Forestry agencies shall be encouraged
to make cooperative agreements with State planning agencies concerning
Forest Service and water quality management planning agency coordination.
These agreements are to provide for (1) water quality management
planning and implementation on National Forest lands as required by
Section 313 of Public Law 92_5O0 7 8’ 2) exchange of data, (3) FS
technical assistance to State and areawide agencies and State Foresters,
and (4) participation of FS officers on State and areavide advisory
groups.
In addition,FS offices agree to provide State and areawide planning
agencies with advisory and contractual technical assistance, Inter—
governmental Personnel Act transfers, and data. “-e data shall include
water quality monitoring data, research information , and information developed
for water resources studies.
The statement further states that it is Forest Service policy to pay
for and execute the pollution control requirements of section 208 on
National Forest system land through PS’s own land use planning process
and execution of specific projects. FS agrees to adjust its budget
* Section 313 originally required all agencies responsible for
management of Federal lands or facilities to conform to the substantive
requirements of Federal, State, interstate and local pollution control
law. It has been amended to require compliance with procedural requirements
as well. See note 107.
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priorities and incorporate 208 planning and implementation efforts on
National Forest Land into its own program planning and budgeting under
the Forest and Rangeland Renewable Resources Act of 1974.
Another agency that has established procedural guidelines for its
participation in the 208 program is the Agricultural Stabilization and
Conservation Service (ASCS). In April 1976, ASCS and EPA signed a memorandum
of guidance providing for cooperation and liaison on the State and local
levels between ASCS farmer assistance programs and the 208 planning and imple-
mentation effort. The memorandum also provided that ASCS would make its
county—level crop history, land use, aerial photography and cost—shared
conservation practice information available to the planning effort)O 9 *
ASCS assists farmer—elected ASC committees in about 3000 agricultural
counties in administering payments to farmers for commodity support and
voluntary production adjustments as well as installation of conservation
practices. ASCS conservation programs consist of (1) the nationwide agricul-
tural conservation program (ACP); (2) the forestry incentives program, consis-
ting of two cost—shared practices in counties designated by Forest Service
survey; and (3) the water bank program, providing payments for conservation
of wetlands in selected areas of waterfowl babitat. °
In the ACP, the county ASC committees select practices for cost sharing
from a comprehensive list that includes good farm management measures of
other kinds as well as water quality management practices. County ASC commit-
tees also select cost sharing rates for practices (generally between 50 and
75 percent). Cost sharing is available under annual or long—term agreements
of 3 to 10 years.
* Cooperation has since been expanded by a new memorandum of understanding
between ASCS and EPA signed July 1979, relating to the clean lakes program and
to water quality research and evaluation as well as the 208 program.
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Long term agreements are based on SCS developed conservation plans approved
ill
by the local soil and water conservation district.
In recent years, annual AC? appropriations legislation has conta’ined
a maximum cost—share limitation of $2,500 per farm, per year which has
112
been raised to $3,500 in the appropriations legislation for fiscal 1979.
This annual payment limitation is criticized as making ACP payments an
inadequate incentive for some expensive NPS management practices. For
example, constructing storage pits on dairy farms in northern States (to
remove the necessity of spreading manure on snow covered fields) may cost as
much as $25,000 per farm but has often been observed to be cost effective
in reducing NPS.
Before passage of the Culver Amendment, it was expected that ASCS
programs, especially the AC?, would be the principal means to provide the
public cost sharing needed by farmers to install the more expensive, “perma-
nent” agricultural BMP5. The Culver Amendment has changed this expectation
somewhat. In June 1978, the Secretary of Agriculture proposed regulations for
a new rural clean water program (RCWP), led by SCS, that would use soil
conservation districts, State soil and water conservation committees or State
water quality agencies to administer distribution of cost sharing funds) 13
The proposed regulations provide that arrangements will be made with ASCS
for ASC committees to administer RCWP projects when it is not practicable
to enter agreements with districts and State agencies to do so. The proposed
regulations do provide, however, that priorities for assistance to individual
landowners and operators will be determined jointly by the soil conservation
district of the project area and the county ASC committee.
However, no funds had been appropriated for RCWP, when this was written.
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The April 1976 ASCS—EPA agreement provided that ASCS would contribute
(1) current information from State and county ASCS offices to assist EPA in
evaluating best management practices (such as costs of alternative land
treatment measures), (2) and current information on rural and agricultural
pollution problems. In addition, ASCS would make data available from its
county offices. The data would include crop histories, conservation
practice cost assistance histories, and aerial photomaps.*li. 4
* Each ASCS county office or agriculture department service center has
a photo index of the county or counties it serves. The photomaps may then
be ordered from ASCS’s Aerial Photography Field Office (APFO). ASCS uses
them to check compliance with various farm programs, but they are also
available for purchase by other Federal agencies, State and local planning
agencies, and private developers. In cases where public agencies want special
photographs, such as pictures showing land conditions under different climatic
conditions, cooperative agreements are made to share the costs.
i PFO also has on file all relevant NASA satellite photo imagery. The
usefulness of satellite imagery was demonstrated in an EPA sponsored pilot
study of methodology for assessing rural nonpoint pollution sources by the
Ohio—Kentucky—Indiana (OKI) Regional Council of Governments. The OKI runoff
study used land—use map transparencies (derived from Landsat photos) overlayed
on SCS Soil Survey maps in developing a model to identify the nature and
severity of nonpoint pollution loads in rural watersheds. Although ASCS did
not participate in the OKI study, the Landsat data, which was interpreted by
the Cooperative Extension Service people, may have been obtained from AFPO.
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ASCS con lucted two pilot projects in 1976—77 to demonstrate use of
its inputs, particularly aerial photographs and crop histories in 208
planning at the field level. In the W,bile, Alabama designated area, ASCS
aerial photographs were used to substantiate information concerning urban,
industrial, and transportation development identify catchment basins for
water sampling; and find the location of agriculture, forestry, wetlands,
115
and drainage and sedimentation problems. In Northeast Illinois, ASCS
personnel coordinated development of a complete agricultural land use
inventory using aerial photographs and other county office information.
This inventory included erosion problem areas, conservation practlce.s on
the land, livestock concentrations and use of fertilizers and pesticides.
It was based on interpretation of the photographs, ASCS crop data, personal
116
information and information from other USDA agencies.
SEA—Extension (formerly the Extension Service) is participating in State
and areawide water quality management through its cooperative program with
the 50-State extension services. SEA—Extension does not usually work directly
with the farmers and other rural people who are its clientele but indirectly,
by providing funding and program leadership, to the State extension services,
also known, collective or individually, as cooperative extension. The
50 State extension services are administered by State land—grant colleges
and universities and financed by approximately 40 percent Federal, 30 percent
117
State, and 30 percent local funds.
Cooperative extension disspminates and demonstrates the practical appli-
cation of selected significant research findings of USDA, State land—grant
institutions, and other publicly supported research agencies concerning
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agriculture and natural resources, among other matters. Cooperative
extension educational programs include explanation to farmers and other
rural people of environmental regulations and their options in meeting
them. 8 These programs can be used, after 208 plans are adopted, to explain
to landowners and operators the purposes, advantages, and disadvantages of
various EMPs. They are being used in the planning stage of the 208 effort
to elicit the informed public participation required by section 101(e)
119
for all planning under Public Law 92—500.
Two areas in which USDA Extension has worked with the national level
Extension Committee on Organization and Policy (ECOP), regional ECOPs,
and State extension services are animal waste management and minimum tillage.
In the case of animal waste management, State extension services have been
engaged in demonstrations of various control methods since the mid—1960s
and in educating livestock men on State regulatory programs since about
1970. 120 They are therefore qualified to participate in the technical design
of whatever new regulations are required by Public Law 92—500 and to make
sure livestockmen and feedlot owners are aware of them. In the past
few years,. Washington—level Extension served on a UiliA interagec y committee
which advised EPA, on the development of feasible and practicable waste
121
management guidelines for feedlots in the permit program, In addition,
the State extension services of six Great Plains States have produced a
handbook outlining methods of waste management for all feedlots, whether
122
included in the permit program or not.
Cooperative extension work on minimum or no tillage, stuble mulch,
and similar tillage systems can be used to inform farmers of ways in which
they can conform to sediment control standards without economic loss. By
November 1976, 25 State extension services had reported the use of
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demonstrations, meetings, publications, and tours to educate farmers
in advantages and disadvantages involved in various minimum tillage
methods on soybeans, corn, wheat, and other crops. 123
Other areas related to agricultural NPS control in which
cooperative extension is currently conducting demonstrations or education
programs in cooperation with other USDA and State organizations include
land disposal of animal wastes and sewage sludge, septic tank problems,
solid waste problems, pesticide management, nutrient pollution of ground-
water, rates of fertilizer application, and agricultural and urban sediment
control problems 124
USDA’s lending agency, the Farmers Home Administration (FinHA) is
coordinating its numerous farmer, housing, and community programs with
the section 208 water quality management effort. FmIIA officials consider
that its present efforts assist control of rural point sources (through
water and waste disposal loans and grants, emergency livestock loans,
and irrigation loans) and nonagricultural nonpoint sources such as
septic tanks (through housing loans).
In addition it is expected that FznHA’s program of real estate
loans to individuals for soil and water conservation and deve1c pment,
and loans to associations and groups for irrigation, drainage and soil
conservation measures (such as terraces and shelterbelts) will be used
to help finance some nonpoint source BMPs required by water quality
management plans. 125
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USDA Research Agencies Contributions
Agricultural Research* of the Science and Education Administration
is USDA’s principal in—house scientific research organization. FR has an
program of Soil, Water, and Air Sciences Research (SWAS). SWAS is
primarily oriented toward development of cultural practices and cropping
systems that will provide efficient sustained use of natural resources.
But it is also applicable, in many cases to water quality management.
FR is currently undertaking to provide Section 208 agencies with applicable
data from this program and interpretation of such data and to develop and
test predictive models to assist planners in their nonpoint pollution
assessment function.’ 26
The principal AR contribution, as of this writing, to the Section 208
planning effort is Control of Water Pollution from Cropland , Vol. I, a
manual for use in local development of best management practices for
nonirrigated cropland. 127 Volume I breaks down the 48 contiguous United
States into 156 Land Resource Areas (LRAs). Using existing information,
it estimates potential direct runoff, erosion, and percolation as well as
major crops, and use of fertilizers, animal wastes, and pesticides on crops,
for each LRA. It also analyzes the advantages and disadvantages of
alternative cropping systems, tillage practices, and nutrient and pesticide
application systems that can be used to lessen sedimentation and pollutant
runoff.
* Until USDA was reorganized in early 1978, AR was a separate agency,
the Agricultural Research Service.
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In addition, the manual discusses economic considerations that
should be used in determining a desirable level of pollution control,
desirable types of control practices and a method of economic analyses
for final selection of BMPs. 128 (The economic aspects of the manual
were written by the Economics, Statistics, and Cooperatives Service).
The manual states that its most effective use will be as a guide
for local development of specific B 4Ps for specific areas. It recommends
that State planning agencies, soil conservation districts or other
agencies (such as areawide planning agencies) appoint mixed groups of
farmers and technical specialists, familiar with the area, to develop
the BMPs.’ 29
Section 208(b)(2)(F) requires each water quality management plan
to include (1) “A process to Identify” agriculturally related nonpoint
sources of pollution from cropland, and (2) procedures to control such
sources. The method of identifying pollution problems by land area
and crop and selecting suitable BMP for each local problem, which is outlined
in the manual, can be used to fulfill this statutory requirement. It is,
of course, only one of the methods that can be used for this purpose.
The second volume of the AR report, subtitled, “an overview”
mainly provides the background methodology from which the conclusions used
in the manual were reached, but it also provides additional detail for
use in applying the method to still more specific problem areas. 13 °
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The 1978 SWAS annual report shows that five out of 12 current
continuing research program areas are strongly related to the development
of agricultural and rural land management practices that lessen water
pollution. These are:
NRP 20730. Reduction of salt damage to crops, soils and waters) 31
NRP 20770. Reclamation and revegetation of land areas disturbed
by ma i. 132
NRP 20790. Preventing pollution of land and improving the quality
of soil, water and air. 133
NRP 20800. Control of water erosion, wind erosion and sedimentation.’ 34
NRP 20810. Conservation and management of agricultural water
resources 135
NRP 20790 and 20800 are particularly focussed on studies that can be
used in the assessment of nonpoint pollution and evaluation of alternative
management practices required for 208 planning. NRP 20790 includes studies
relating to pollution from agricultural chemicals, sedimentation, saline
return flows and land application of municipal sewage sludge or effluent
and other wastes. Past research in this area has developed guidelines for
effective management and use of animal wastes. NRP 20800 includes studies
adapting the universal soil loss equation for use in relation to specific
geographic areas, types of cro and topographic features and studies of
the effects of various conservation tillage systems on runoff and erosion.
NRP 20810 includes studies leading to development of procedures for
evaluating the impact of watershed and river basin management systems on
agricultural NPS pollution.
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Similar studies, on other aspects of the same problems are being
carried out at numerous State agricultural experiment stations. These
land grant college installations receive grants from Cooperative Research,
another unit of the Science and Education Administration, for approved
programs of research on agriculture—related subjects including agricultural
pollution. The State Agriculture Experiment Stations have also received
funding from EPA for numerous studies relating to agricultural nonpoint
sources. An important example is a Louisiana Tech University report
recommending methods for use in control of environmental problems associated
with production of animals on pasture or range. 136
The Forest Service is another USDA agency whose regular research
program, including both scientific and social scientific research, deals
with protection of water quality, among other matters. EPA has entered
two interagency agreements with FS, making funds available to FS to review,
analyze, and evaluate its research findings and operational experience for
use in the 208 planning effort. One is for use in preparing the 208
nonpoint pollution assessment for forested lands. 137 The other is for use
in selection of silvicultural BMPs)
Reports published under these agreements include:
(1) Nonpoint Water Quality, Modeling in Wildlife Managemend 39 This is a
two volume report that reviews forestry management activities that increase
NPS pollution and the effectiveness of demonstrated control techniques
to reduce this potential. It also evaluates the usefulness and reliability
of existing NPS loading models in planning effective forestland NPS controls
and evaluates the water quality data base available for model development
and testing.
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(2) Silvicultura]. Activities and Nonpoint Pollution Abatement: A
Cost—Effectiveness Analysis 140
In addition, a handbook providing the technical basis for formulating
silvicultural BMPs has been developed and will soon be published) 41
This handbook lists control practices and provides a methodology to select
mixtures of these controls to prevent and mitigate NPS pollution from
silvicultural activities. It does not attempt to analyze the economic,
social and political aspects of various controls.
PS has also completed a document assessing short—term and long—term
research needs for in—house use by EPA’s Office of Research and Development.
Research areas analyzed in this report include (1) on—site control technology,
(2) techniques for predicting pollutant transport, and (3) socio—economlc—
institutional aspects of implementing controls.’ 42
FS’s State and Private Forestry personnel have produced a report
containing a nationwide survey of laws, ordinances, and regulations applying
to streambed management zones on State and private land) 43
The Economics component* of the Economics, Statistics, and Cooperatives
Service (ESCS) is another USDA organization that performs research which
can be used in preparing management plans for agricultural nonpoint sources
(as well as other rural nonpoint sources and agricultural point sources).
Section 2O8(b)(2)(E) requires an assessment of the costs and economic
impact of carrying out areawide plans within the planned time frame. 144
In many areas, much of the local economic information needed for this
* Until 1978 this was a separate agency, the Economic Research Service.
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assessment can be made available from ESCS’s river basin planning assistance
program. This program is the Agency’s contribution to two types of compre-
hensive river basin plans (1) cooperative plans*(fotmerly known as Type IV)
and (2) level B plans. ESCS’s contribution consists of appraisals of trends of
water and land use; projections of agricultural production, employment, income
and rural population; and analysis of the economic impact of erosion and
sedimentation and other water and related land resources problems. ‘
* Cooperative studies are performed together with SCS and FS at the
request of and with the cooperation of the State or, in a few instances,
another Federal agency, and concern rural, but not necessarily small, areas.
Presently ERS is participating in about 35 cooperative plans and about 59
others have been completed, many of them fairly recently.
Level B studies are federally coordinated interagency, intergovern-
mental studies involving, in addition to SCS and FS, other Federal agencies,
such as the Corps of Engineers, EPA, Fish and Wildlife Service, Bureau of
Outdoor Recreation and others, and State agencies as well. Level B Studies
are for regions and river basins with complex, long—range water and related
land resource problems, including, in many cases complex pollution control
problems. Only a few of these studies are currently underway or have recently
been completed. See note 145.
However, Section 209 of Public Law 92—500 directs the President to complete
level B studies for all the rivers of the Nation by the end of 1979 and
specifies that priority be given to areas where section 208 planning is being
conducted by designated area planning agencies. See note 146. It seems
clear that the statutory date for completion of 209 .plans will not be met.
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In many instances economic information usuible in 208 plans can be
regarded as a by—product of ESCS river basin studies. However, in recent
and current studies, ESCS has been deliberately tailoring its work to be
useful to 208 planners. Thus, in the Iowa—Cedar River basin, a study
was made of the costs of reducing agriculturally caused sedimentation
to various selected levels by using various management practices. 147
ESCS is also studying the economics of controlling agricultural
nonpoint source pollution in the Corn Belt. These studies will show the
economic, environmental and institutional effects of imposing selected
regulations or adopting selective management practices that effectively
reduce the delivery of nonpoint source pollutants. Studies in California
will show the effects of controlling nitrogen and salinity levels from
irrigation return flows.
Other ESCS studies that can provide information required to be included
in areawide water quality management plans concern economic and institutional
aspects of land disposal of sewage effluents and sludges) - 48
Several studies applicable to 208 planning are being supported by
EPA. In New York State, ESCS is participating with the State College of
Agriculture and Life Sciences in two studies funded by EPA, in one case
through the New York Department of Environmental Conservation. One of these
studies concern development of BliPs for New York State. The other concerns
evaluation of soil and water conservation practices applicable to nonirrigated
agriculture in the Eastern States.
* ESCS representatives are participating in the second study as members of
an expert panel, which represents all the USDA agencies participating in the
208 working group and several State colleges of agriculture.
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The latter study will examine critically the assumption that erosion
has a direct effect on water quality. It will examine both the water
quality effects and the cost effectiveness for water quality of specific
soil and water conservation practices, including the trade—of fs between
them. For example, it will inquire whether more pesticides are needed
- . 149
when minimum tillage methods are used and with what consequences.
Current EPA Requirements for Implementation of
Nonpoint Source Pollution Controls
In September 1977, EPA issued a final program guidance memorandum
establishing implementation criteria for EPA approval of NPS elements of
water quality management plans) 50 This memorandum, SAM—3l, states that
NPS regulatory programs will be required whenever the 208 agency, in
consultation with the EPA Regional Administrator (RA), determines that a
regulatory program is “the only practicable method” to assure that NPS
controls are implemented. Such determination is required to be based on
economic, technical, social and environmental factors. 151 SAM—31,
does not go so far as to say that all 208 plans for areas with significant
NPS problems must contain NPS regulatory programs however.
SAM—31 states that the type of regulatory program and appropriate level
of government to administer it (State, local or regional) shall depend on
existing laws, programs, and intergovernmental relationships. In cases where
such existing institutions are not capable of providing effective NPS
controls, however, RAs are directed to condition EPA approval of 208 plans
on the development of appropriate changes in legislative authorities or
administrative capabilities.’ 52
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Fully approvable NPS regulatory programs are required to include
the following elements:
• Authority to control the activity, pollutant or geographical
area to be regulated.
• Authority to require application of BMP.
Monitoring and/or inspection authority.
• Authority to use the chosen control tools. (plans, permits,
licenses, contracts, notifications, and bonding are among the
examples given.)
• Enforcement authority.
• A designated management agency to implement the program (with
expertise in the subject matter area, adequate staff, adequate
153
funding and relevant legislative authorities).
Conditional approval of proposed NI’S regulatory programs may be granted
in cases where adequate legislative authority exists but administrative
machinery to implement it is lacking or inadequate or where adequate
legislation has been developed and is either introduced (but not enacted)
or scheduled for introduction. But conditional approval may only be granted
where an agreement is executed between the RA and the planning agency
specifying the conditions for full approval and a schedule for meeting
them. Such agreement must require periodic (at least annual) progress
reports, and RAs are directed to withdraw conditional approval if they
154
find the agreed to progress is not being made.
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SAN-31 also provides that RAs may grant approval of NPS control
programs without enforcement provisions or fully authorized management
agencies only where they are convinced that such nonregulatory programs will
result in sufficient implementation of NPS controls to achieve water quality
goals. Approvable “other than regulatory” NPS control programs are required to
include the following elements:
• Identification of BMP.
• Effective educational program.
• Adequate technical and financial assistance.
• Schedule of milestones for resource commitment, implementation
measures, monitoring, and progress evaluation.
• Progress reporting (at least annual). 155
Nonregulatory programs that merely continue existing programs that
have not been successful in the past, without substantial changes, are not
approvable. Moreover, approval of nonregulatory programs shall be withdrawn
if progress reports do not show continuing and substantial improveinents.1 56
EPA criteria for approval of NPS control programs thus show very
clearly that the Agency is aware that the multilevel political struggle
required to make changes in regional land use management will be difficult
and will take a long time. The memorandum directs RAs to provide necessary
technical assistance to State and local planning agencies to assure that
effective programs are developed and implemented. It also directs them to
work closely with both legislative and executive decision—makers at the
State and local levels to develop regulatory programs where required. 157
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RAs are directed to assure that development of regulatory programs
is part of the continuing 208 planning process* by writing schedules of
milestones into the 208 grant agreements and/or work plans. The actual
milestones should be negotiated between the BA and the planning agency
to resolve any potential EPA objections to the proposed program in advance
of development. But the following list of specific program milestones
is suggested.
(a) Completion of phases in water quality assessment of NPS
pollution impacts.
(b) Identification of NPS problems.
(c) Identification of needs for legislation.
(d) Certification from State attorney general or local legal
agency that adequate legal authority exists.
(e) Proposal of legislation.
(f) Enactment of legislation.
(g) Proposal of new or upgraded rules and regulations.
(h) Promulgation of rules and regulations.
(1) EstablIshment or identification of insitutions necessary to
administer the program.
(j) Establishment of Interagency and intergovernmental coordination
mechanisms.
(k) Establishment of monitoring, inspection and enforcement procedures.
* We have noted that Section 208(b) (1) provides for a continuing planning
process as well as an initial areawide plan. EPA grant applications for
initial plans require that the plans be updated annually and become financially
self—sustaining once they are approved by EPA and adopted by the State.
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(1) Provisions of funds, personnel, facilities and equipment for
regulatory objectives.
(m) Development and implementation of educational programs in support
of regulatory objectives.
(n) Development of public participation programs.
158
(o) Assessment of adequacy of Best Management Practices.
SAM—31 also states that the RA shall have authority under grant agreements
to withhold funds if milestones are not being met) 59
SAX—31 thus agrees with EPA’ s planning regulations, guidelines, and
criteria for approval of nonpoint source programs that 208 planning agencies
should use existing laws and programs to implement 208 plans “to the
extent practicable” and avoid the difficult task of designing and establishing
new ones. We have already discussed Federal programs that can be used in
planning and implementing agricultura’ NPS control programs. The remainder
of this report will analyze the capability for agricultural NPS control
implementation of existing State and local laws and programs.l 6 O l 6 l 62 *
* In preparing the remainder of this report I have begun with information
contained in two studies conducted by the National Association of Conserva-
tion Districts (NAcD) concerning the potential contribution of conservation
districts to 208 planning and implementation. One Study, the NACD 208 Water
Quality Project, (see note 160) includes copies and analyses of all State—
level sediment control laws, including those that do not apply to agricultural
operations. It also includes copies and analyses of actual and proposed
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Conservation District NPS Control Authorities
Under Soil Conservation District Laws
All of the 50 States, the Virgin Islands and Puerto Rico have statutes
enabling the creation of special—purpose local governments called “soil
conservation districts”, “soil and water conservation districts” or simply
“conservation districts.” All the statutes resemble each other. They were
originally passed in the late 1930’s or early 1940’s in response to the serious
wind and water erosion problems of that time. They were all based on a 1936
Standard State Soil Conservation District Law developed and proposed to the
States by USDA to provide the responsible State and local cooperation required
164,165
by SCS s new program of soil conservation improvements on private land.
Some of these laws were subsequently amended to emphasize other soil erosion
related concerns such as flood prevention and land use planning.’ 66
(footnote continued)
conservation district sediment control ordinances, intergovernmental and
interagency agreements providing for conservation district participation in
the 208 planning processes, and charts showing the potential capabilities
of conservation districts for various levels of NPS controls planning and
implementation. A guidebook for district participation in the 208 planning
and implementation processes has also been developed, as part of this pro-
ject. See note 161.
The other NACD study, the Sediment Control and Manpower Project consists
of in—depth analyses of legal and administrative capabilities of the sediment
control programs of six States and some of their potential subdivisions.
See note 162.
An unpublished 1971 manuscript by W.D. Anderson is the starting point
of my research into State conservation district enabling laws. See note 163.
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Nonregulatory Powers—Capability of Districts to Act as Management Agencies
for “Other than Regulatory Programs ”
Some State enabling statutes delegate regulatory powers to the districts;
some do not. The nonregulatory powers delegated to districts by State
167
statutes are very similar. Virtually all State statutes authorize districts
to study resources needs and problems, develop conservation plans for soil
resources of the district, educate land occupiers about the plans and offer
land occupiers technical advice and services, financial assistance, and other
assistance (including machinery, equipment, fertilizers and seeds) for the
installatLon of conservation practices on private land. Statutes authorize
districts to conduct demonstration projects and carry out soil and water
protecting “preventive and control measures” on private land. Such measures
are defined to include engineering operations, growing of vegetation, methods
of cultivation and changes in land use.
State conservation district laws permit districts to require land occupiers
(as a condition of receiving benefits and services from districts) to enter
and perform agreements to carry out conservation practices or farm conserva-
tion plans. Rut State laws provide no penalties for failure of land operators
to carry Out such “cooperative agreements.” Although it is probable: that
districts could obtain court orders for specific performance of such agreements
as contracts, districts have not sought to do so because of their emphasis
on the voluntary nature of their programs.
State district laws also authorize districts to own land and interests
in land and carry out preventive and control measures on their own land, or
land owned by the State or its subdivisions. District laws authorize districts
to receive financial and other assistance from Federal, State, and local
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governments and to take over any Federal, State, or local government
conservation or erosion control project by purchase, lease, or otherwise,
and manage any such projects.
Procedurally, assistance is provided to districts by Federal and
State agencies, and district programs are coordinated with programs of other
levels of government through “memoranda of understanding” and other similar
documents. An umbrella memoranda of understanding is executed between each
district and USDA, outlining the assistance to be provided and the conditions
that must be met to receive it. Supplemental memoranda are developed between
each district and each USDA agency cooperating with the district. 168
Every district has a memorandum with SCS, the only USDA agency that
receives appropriations earmarked for direct assistance to districts.
Under these memoranda, SCS generally agrees to furnish each district with
the services of a professional conservationist specially assigned to the
district, other personnel qualified to carry out resource planning, conser—
169
vation and development activities, and facilities for their use.
Most districts also have a memorandum with the county ASC committee.
Under these memoranda county committees generally agree to take district
long—range objectives and annual work plans into consideration in developing
county ASC programs, inform district cooperators of the availability of ACP
cost sharing for installing practices that may be included in their conser-
vation plans, and give priority to providing cost sharing for installing
practices required for specified district priority programs. In addition
districts generally agree to participate in the development of county AGP
programs. Memoranda of understanding between districts and county committees
frequently specify that cost sharing priority be given to land in RC&D and
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watershed projects. 17 ° There is no apparent reason why similar arrangements
could not be made giving cost sharing priority to lands found to be causing
NPS problems in areawide water quality management studies.
A new set of memoranda of understanding is likely to be drawn up as a
result of the Culver amendment 171 which provides that the Secretary of
Agriculture shall make arrangements with districts (where practicable) to
administer programs of long term contracts to install and maintain agricul-
tural BMPs included in approved 208 plans. The Secretary has proposed regula—
172
tions for a rural clean water program (RCWP) to carry out the Culver Amendment
which delegates to SCS responsibility to make arrangements with districts to
administer such contracts. SCS has published a RCWP procedural manual to
provide specific guidance about the RCWP. Other types of arrangements with
relevance to agricultural NPS control can be made between districts and AR,
FmHA, State extension services, ESCS and other Federal and State agencies. 173
It thus appears that conservation districts have ample authority to act
as management agencies for “other than regulatory” NPS control programs featur-
ing identification of BMP, educational programs, and technical and financial
assistance on the basis of their own powers and their authority to receive
assistance from other government entities.
Regulatory Powers in the Standard Act
The nonregulatory powers discussed above are all included in the 1936
Standard State Conservation District Act and were adopted in nearly identical
form in nearly all State statutes. But the Standard Act also gave districts
the power to promulgate land use regulations in the form of enforceable con-
servation ordinances. This power is now included in only 26 States’ enabling
statutes (usually in restricted form) and has been very seldom used.h 74
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Section 9 of the Standard Act authorizes district supervisors to
formulate proposed ordinances (with the assistance of public meetings,
if they choose) and submit such proposed ordinances to a referendum of
the land occupiers of the district. Copies of the proposed ordinance
or adequate notice of its contents must be made available to eligible voters
prior to the referendum. All occupiers of land within the district (whether
or not they have cooperative agreements with the district) are eligible
V
voters. If a majority of the votes cast is for approval, the supervisors
2.
are authorized to enact the ordinance, but are not required to do so.
C
Section 9 also provides that an ordinance can be amended or repealed by
the same procedure used for adoption, but that referenda on adoption, amendment,
or repeal of land use ordinances can not be held n re often than once every
6 months.
Section 9 provides that land use regulations in district ordinances must
be uniform throughout ,the district, except when land is classified on the basis
of “soil type, degree of slope, degree of erosion treatment, or existing cropping
and tillage practices in use, and other relevant factors.” In such case land
use regulations must be uniform for each class of land.
The suggested regulatory provisions are:
(1) Provisions requiring the carrying out of necessary engineering opera-
tions, including the construction of terraces, terrace outlets, check dams,
dikes, ponds, ditches, and other necessary structures;
(2) Provisions requiring observance of particular methods of cultivation
including contour cultivating, contour furrowing, lister furrowing, sowing,
planting, strip cropping, seeding, and planting of lands to water—conserving
and erosion—preventing plants, trees and grasses, forestation, and reforestation;
(3) Specifications of cropping programs and tillage practices to be
observed;
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(4) Provisions requiring the retirement from cultivation of highly erosive
areas or of areas on which erosion may not be adequately controlled if culti-
vation is carried on;
(5) Provisions for such other means, measures, operations, and programs as
may assist conservation of soil resources and prevent or control soil erosion in
the district.
There is no provision in the Standard Act that the land occupier’s obliga-
tion to install conservation practices conforming to land use ordinances is
conditioned on the availability of cost—share assistance, from any source, or
adequate technical assistance from the district. (This has been considered to
be a reason why few districts have adopted land use regulations) 75 ) But there
is no reason why individual district ordinances cannot contain such conditions.
Standard Act enforcement procedures authorize the supervisors to enter
any land in the district, on their own initiative, to determine whether the
land—use regulations in ordinances are being observed. Violators can be
prosecuted for a misdemeanor and fined by the court. In addition, land—use
ordinances can be drawn up to provide that any land occupier who is damaged
by violation of an ordinance can sue to recover damages from the violator) 76
In a separate section, the supervisors are given standing to ask the
State court of original jurisdiction for what amounts to a mandatory injunction
that the violator perform the work required by the regulations in the ordinance.
This section provides that the supervisors may petition the court, setting
forth their case against the violator and requesting that he perform the work,
operations or avoidances required by the regulations within a reasonable time.
The petition shall also ask that the court order specify that if the defendant
fails to obey the court order, the supervisors may enter the land, perform the
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work, or otherwise bring the land into compliance and recover tne costs and
expenses of changes. This can be done, if necessary, by making the supervisors
bill for costs and expenses a judgment against the land, to be collected
in the same manner as general real estate taxes. (If the land occupier
is not a landowner, the owner can be joined as a party defendant to
bring the land under the jurisdiction of the court 177 ).
It is important to note that this section authorizes, but does not
require, the court to compel performance of its order by ordering that
the district go on the land and do the workiL 78 rhis means that section
11 does not deprive the court of its inherent power to enforce its
court order against a recalcitrant defendant by putting him in jail
for contempt of court until he agrees to comply.
The Standard Act also provides for a board of adjustment (appointed
by the State soil conservation agency, with the approval of the supervisors)
in order to prevent hardship. Any land occupier can petition for a
variance from the regulations on the grounds of unnecessary hardship or
great practical difficulty. The petition shall be the subject of a hearing
at which the supervisors and the State soil conservation agency can appear
and be heard, and land occupiers objecting to the variance can intervene
and become parties. Judicial review is available from orders of the
179
board of adjustment granting or denying the relief sought.
Regulatory powers in State conservation district laws
Currently 26 State statutes give districts the authority to adopt
land use ordinances. ’ 80 All of these, except the New Jersey statute,* 181
* The New Jersey statute authorizes supervisors to draft and post
regulations which become law unless the owners of 25 percent of the land
acreage in the district file objections within 60 days of the posting.
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require a referendum prior to adoption of an ordinance. But a
majority do not follow the provisions of the Standard Act concerning
eligibility to vote in the referendum. In the Standard Act, land
occupiers, whether owners or nonowners, were eligible to vote. Eight
States follow this provision, 182 but in 17 of the other 18 States only
landowners may vote. 183 In Wyoming both the land occupier and absentee
owner may vote.
Some observers have suggested that a major obstacle to enactment of
regulations is the high percentage of supporting votes required by
various State atatutes.1 84 * The range is from 50 percent plus one vote
to 90 percent of those voting) 85 **Thls means that in Maryland, where land
occupiers are eligible to vote in the referendum and a simple majority is
required, a district ordinance mandating agricultural sediment control
practices could be put on the general election ballot in Noveiiber and
* A different problem is posed by the fact that adoption of land
use ordinances is conditioned on the percentage of supporting votes
actually cast, not of eligible voters. This means that especially in
landowner States (where the district would have to arrange and publicize
special elections restricted to landowners), that referenda could be passed
and ordinances enacted on the basis of very few votes.
** In six States the supporting votes must also represent the ownership
of a specified proportion of the acreage in the district. This proportion
is i re than 50 percent in Oregon and Veri nt and two—thirds in Mississippi.
In Wyoming the required 75 percent of favorable votes cast must also
represent 75 percent of the acreage. The case of New Jersey is discussed
in a previous footnote.
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would not be more difficult to pass than a school bond (providing that
the local public was as convinced such practices were necessary).
But in Kentucky, where only land owners may vote and the required 90
percent supporting vote must represent the ownership of 80 percent of
the acreage of the district, passage of such an ordinance would be
impossible in almost any circumstance.
Eighteen States provide for the establishment of a board of
adjustment.1 86 Of these, four specify that landowners may petition for a
variance 187 but 14 provide, as did the Standard Act, that land occupiers
may petition) 88
The enforcement provisions in the State statutes appear to be somewhat
weaker than the Standard Act. Only one State, Utah, still makes violation
189 190*
of land use ordinances a misdemeanor ‘ Another, Wisconsin, provides
that the county shall prescribe “administrative procedures t ’ for enforcement
of regulations, which may include fines.’ 9 ’ (The penalty specified in
Section 10 of the Standard Act for the misdemeanor of violating the
ordinance is a fine.) Only 11 provide that district ordinances may provide
for civil liability of the violator to neighbors who are damaged by his
* Anderson found, as recently as 1970, that five States had this
provision. It seems likely that the States that repealed the provision
for criminal liability did so on bases similar to the reasoning of
the Colorado Supreme Court in the Olinger case, which will be discussed
later. See note 190.
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violation 92*
On the other hand, all 26 State statutes permit the supervisors
to enter on the land and inspect for violations on their own initia-
tive. All except one, Nebraska, authorize the supervisors to petition
for an order to compel performances of practices mandated by district
ordinance. All but two, Nebraska and Vermont, authorize the supervisors
to include in the petition for a court order a provision for the
district Itself to perform the practices and recover its costs and
exp ises if the land occupier refuses to obey the court order.** To this
* Since the State statutes follow the Standard Act in providing that
district ordinances “shall have the force and effect of law in said district,”
it seema likely that in many of the States a neighbor who suffers sediment
d age as a result of his neighbors violation of such an ordinance can
sue him and recover on the grounds of negligence per se, although authorities
are divided. However, neighbors are probably more likely to sue their
neighbors for neglect of erosion control practices when their right to do
so i spelled out in the district ordinance.
** The Standard Act authorizes the supervisors to enter the land to
perform “avoidances” as well as “work” and “operations” ordered by the
court and the 26 State laws have similar provisions. But the backup
authority of the supervisors is probably more useful in cases where sediment
control requires construction of devices, such as terraces and diversions
or planting of grasses and trees, than in cases where it could be adequately
achieved by adopting a conservation tillage system, for example. In the
latter case, the courth power to Imprison a defendant who refuses to comply
with its order for contempt of court could be used to enforce compliance,
if necessary.
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the Virginia Statute adds the qualification that the land occupier must
be financially able to pay and that “if it would be a burden opon him”
the “costs and expenses shall be borne by the party performing the work
or be paid from funds received from some other source or sources.” 193
Although Virginia is the only State that has this provision in the
statute, it is difficult to believe that conservation districts composed
of farmers in any State would require farmers to install expensive erosion
control measures unless public funds were made available to pay at least
some of the cost. The only exceptions that come readily to mind are
dust bowl—like situations (where farmers who fail to prevent soil erosion
are causing serious damage to their neighbors lands) or cases where neglect
of NPS pollution control is causing a public health menance or other very
serious problems in the locality.
What is the signficance of the regulatory provisions in State
conservation district laws for establishing the agricultural NPS regulatory
programs expected to be required (for at least some areas) by 208 planning
agencies? It appears that in 25 of the 26 States that have such
provisions, conservation districts not only have expertise and subject
matter jurisdiction to deal with at least sediment—borne NPS pollution
problems, but authority to establish enforcement programs,*] 94 providing
* Nebraska is the only one of the 26 States whose district enabling law
gives districts authority to pass land use regulations that cannot be
enforced with respect to private lands. It provides that land use ordinances
shall have the force and effect of law on State, county, and other publicly
owned lands and be binding on public agencies only. It also gives the
supervisors authority to go on public land, without court order, and bring
the land into compliance. See note 194.
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they are willing to do so. The only respect in which conservation
districts may be unable to meet EPA criteria for management agencies of
sediment control regulatory programs is their funding. Funding for cost sharing
expensive agricultural BMPs is expected to be provided from USDA and,
in a few cases, State cost sharing programs.* 195 The actual drawing up
of farm conservation plans incorporating BMPs can be done by SCS personnel
as part of SCS’s regular program of conservation assistance to districts.
But provision will be needed for the additional funds and (especially)
staff required for the standards setting, inspection, hearing, and notices
involved in a regulatory program. NACD has prepared a manpower planning
procedure and a national estimate of the State agency and conservation
district manpower that would be needed if all States enacted legislation
for controlling sediment and related nonpoint pollution. 196
The Standard Act and most State acts give the districts themselves
no money—raising authorities, because the Standard Act contemplated that all
district operators would be funded from State appropriations for districts
and Federal contributions (chiefly through the Soil Conservation Service) 97
NACD estimates that current appropriations for district operating expenses
from State and local sources amount to about $116 million a year. 198
It is not known how much of this is State and how much local funding.
Click, when he was General Council of NACD in 1967, complained that State
appropriations for district operations were usually limited to funds for
administrative housekeeping and were usually inadequate at that. 199 However,
* When this was written only four States——Iowa, Minnesota, Nebraska
and Wisconsin——had appropriated any funds for such cost sharing. Iowa is
the only one of these States that has a statewide regulatory program.
See note 195.
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a number of the States that adopted the Statewide sediment control
programs that will be discussed later. in this paper have made larger
appropriations to the districts and/or the State conservation agencies
to enable them to hire staff to carry out the programs. 20 °
A few State district enabling acts give the districts authority to
recommend an assessment on lands within the district to the county board
of supervisors or a designated court. 20 ’ Others give the districts
authority to determine the assessment themselves and have the counties
carry it out as part of the county taxing process. 202 A few have authorized
the districts to issue bonds or otherwise borrow money. 203
No search has been made in the county laws of the 50 States for
provisions authorizing counties to finance district operations. But
examination of the financial resources available to known State and district
NPS control programs show that county supervisors are authorized to ari.d do
appropriate money for district operations in New York (which will be discus-
sed later) and Wisconsin. 204 It seems reasonable to believe this must
also be the case in at least some other States.
Assuming that adequate funding is made available for both district
management agency operations and cost sharing for installing pollution
control measures on private lands, there are two major drawbacks to using
conservation district ordinances for regulation of agricultural NPS pollution.
One is that, although EPA regulations have made the State responsible for
most NPS control planning for rural areas, decisions to use district
ordinances to establish NPS regulatory programs cannot be made at the
State level. In each individual case they must be made at the district
level by at least a majority (in most States a larger proportion than
that) of those whose activities are to be regulated.
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Some decisions can be made at the State level that might result
in use of conservation district ordinances for agricultural NPS control.
One would be for the State legislature to appropriate funds for district
NPS regulatory program operations or for cost—sharing for agricultural
NPS control measures. Another would be for the legislature to amend the
State conservation district law to make district ordinances useful instruments
for dealing with a variety of types of agricultural NPS problems (which
leads us to the second drawback of district ordinances as regulatory
instrn nts).
The second drawback to use of district regulations for agricultural
NPS control is that the Standard Act and the State acts do not give the
districts clear authority to make regulations requiring performance of
BlIP not directly related to soil erosion control, such as winter storage
of manure, timing of fertilizer application, and restraint in pesticide
use. In areas where pollution from runoff rather than sediment is the
problem, the declaration of policy in State acts would have to be changed
to provide a legal basis for regulating agricultural pollution from
nonpoint sources other than soil erosion. It would also be advisable ta
amend the majority of State act regulatory provisions that include a
list of suggested regulations. Regulations dealing with animal wastes,
fertilizers and pesticides should be added to this list.
Neither State appropriations for conservation district NPS regulatory
programe nor State legislation broadening the scope of district regulatory
powers would give State planning agencies as much control over agricultural
NPS problems as the enactment of broad scope Statewide regulatory programs.
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But it might be easier, in some cases, to attract the political support
required to make these lesser changes in State agricultural and land use
programs.
Moreover, regulatory programs initiated by district supervisors and
approved by referendum may be more acceptable to farmers in the district
and may be pursued with more dedication by district officials than State
initiated programs. This latter point is significant because all existing
and proposed Statewide regulatory programs rely on the districts to
administer them or at least to identify pollution problems, prescribe
P and identify violations thereof.
District use of regulatory powers . Since the decision to use existing
district regulatory powers is made at the district level, it is difficult
to find information on how many districts have current conservation
ordinances. Glick, in 1967, believed that only eight districts still had
such ordinances, 205 (there had been more during the dust bowl years. 206 )
Six of the district ordinances still in effect in 1967 were in Colorado,
one was in North Dakota and one in Oregon. All the ordinances related to
wind erosion control practices and all were enacted in the l930 and 1940 ’s. 207
Colorado, a State in which only landowners may vote in district
referenda, is the only State that has had substantial experience with
district ordinances. It is also the only State in which the courts and
legislature have addressed the question of the constitutionality of such
ordinances.
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The 1959 Colorado Supreme Court case of Olinger v. People 208
involved the violation of a dust bowl era ordinance (reenacted in 1945)
prohibiting the breaking of virgin sod for cultivation. Olinger appealed
on the ground that the land use ordinance was not legally adopted.
The Colorado Supreme Court ruled that the land use regulatory sections
of the State conservation district law were an unconstitutional delegation
of legislative authority when considered together with the provision making
violation of district regulations a misdemeanor, because “the general
assembly cannot delegate to any other person or body authority to declare
‘I *
what acts shall constitute a crime.
As a result of the Olinger case the Colorado soil conservation
district law was changed in 1961 in two respects: 209
* The Olinger case was one of those “hard cases” that, we are told,
“make bad law.” The Colorado Supreme Court noted that even if the State
assembly itself had enacted a regulation amounting to a prohibition of
any cultivation of appellant’s land, it would be subject to constitutional
challenge (presumably on the ground that it constituted a “taking”, or a
violation of substantive due process, or of equal protection of the law).
Furthermore, the Colorado statute did not follow the Standard Act
provisions giving the supervisors discretion not to adopt an ordinance even
if the ordin*t ce received a favorable referendum. The court indicated it was
scandalized that an ordinance backed by criminal sanctions had been passed
by a referendum in which only 63 Out of more than 300 eligible landowners
participated. Forty—six of the 63 had voted by proxy.
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(1) Henceforth, the violator of a district ordinance was not guilty
of a misdemeanor. Instead, the enforcement section of the statute provided
that violators may be enjoined (in a civil action brought by the supervisors)
“from failing or refusing to do that which may be required or from doing
that which is prohibited.” Violation of injunctions entered by the court
would be deemed contempt of court.
(2) A provision was added that district land use ordinances should
be construed prima facie to be “reasonably required for the protection
of public peace, health, safety, or welfare,” although this construction
would be open to contest on a case—by—case basis.
Although the constitutionality of district ordinances under the
Colorado conservation district act has not been ruled on since the 1961
amendments, there is good reason to believe that, such ordinances (assuming
that they did not have other constitutional defects) could now survive the
challenge of unconstitutional delegation of power.* 2 ° The provision that
* In the 1967 case of Asphalt Paving Co . v. Board of County Commissioners ,
plaintiff appealed denial of a declaratory judgment that the Board’s
authority to prohibit truck traffic in a residential neighborhood under the
Colorado commercial traffic law was unconstitutional. The Colorado Supreme
Court ruled that statutes granting local authorities “police powers” to
make reasonable local regulations “for the protection of public morals,
health, safety or welfare” were not unconstitutional delegations of legislative
authority.
Although the Court did not overrule Olinger , it also decided that, since
the statute made violation of local regulations a misdemeanor, the rule of
the local authority did not “define a crime or make a law” but merely
“determines the state of facts upon which the statute shall operate.”
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violation of an ordinance is grounds for a civil action for injunction
is redundant. The Colorado statute (like the Standard Act and all of
the State acts that Include land use regulatory powers, except Nebraska)
has always also authorized the supervisors to apply for a court order to
compel the landowner to perform the work or avoidances needed to bring
the land into compliance with the ordinance.* 2 1 This authority is
essentially the same as standing to seek an injunction.
Lewis and Clark District Ordinance (Montana) . Recently, EPA and
some States have become interested in using conservation district regulatory
powers as a means of implementing NPS pollution control plans. Consequently,
in 1975, EPA made a grant to several agencies of the State of Montana
to obtain information needed to build a successful program of sediment
and related NPS pollution control. The principal State agencies responsible
for this project are the Department of Natural Resources (which includes
the Division of Conservation Districts) and the Department of Health and
* Indeed, the Colorado Statute goes further than the Standard Act in
providing that the district supervisors can enter the land, perform the
work or avoidances, and recover their costs and expenses, with or without
a court order. If they prefer to procede without court order, all that
is required is notice by registered mail to the owner, agent or occupant.
A principal advantage of petitioning to the court to compel performance
by the violator is that the court can elect not to order the supervisors
to perform the work, if the violator is recalcitrant, but to enforce
its order by contempt process.
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Environmental Sciences. An important part of this study has been a pilot
project conducted by the Lewis and Clark County Conservation District,
under the direction of the Division of Conservation Districts, •to develop
a locally administered sediment control program based on BMPs that could
be adapted to other areas with similar problems. As part of this project
an effort was to be made to institute land use regulations under the Montana
Conservation Districts Law (originally passed in 1939) to test their
capability for enforcing locally developed BMPs. 212
As a result, Lewis and Clark County Conservation District enacted
an ordinance which became effective on August 1, 1977.213 The ordinance
requires that agricultural, forestry, and “construction/subdlvision”
activities conform to best management practices (previously adopted by
the supervisors and incorporated into the ordinance by reference) where
needed to prevent “accelerated erosion and sediment damage. * 2 l 4
Land occupiers conducting agricultural activities are deemed in
compliance with the ordinance if their land is managed according to a
district approved conservation plan. But they need not have such a plan
if their land management practices meet or exceed the BMPs adopted by the
supervisors or If their practices are not, in fact, producing erosion
problems 215
Timber harvesting activities are also deemed in compliance if in
accord with a district conservation plan. If not, they require notice to
the supervisors who may assist on a special “erosion and sediment control
plan” that conforms to district BNPs. 216 Construction/subdivision
* Accelerated erosion is defined to mean erosion that is more rapid
than normal as a result of human activities.
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activities, apart from minor exceptions, always require prior district
approval of an erosion and sediment control plan. 217
Enforcement begins with a complaint (which may be filed by other
land occupiers, supervisors, or State or county water quality management
officials) alleging that accelerated erosion or sediment damage has
occurred or is occurring. The district then notifies the alleged violator
and gives him the opportunity to be present when the investigation is
conducted. (The investigation may include a cost—benefit analysis of
private as opposed to public benefits of application of BMPs.)
If the investigation verifies that a violation has occurred, the
supervisors will discuss alternative solutions with the land occupier,
offer him technical assistance and information regarding financial
assistance, and specify a time for voluntary compliance. If the land
occupier disagrees with the supervisors decision, he may discuss it with
them at their next monthly meeting. But if the supervisors do not reverse
their decision at such meeting, they shall notify the land occupier of
their final decision and the prescribed procedure to correct the violation.
They shall also notify him that he has 20 days to Initiate corrective
measures.
If, at this point, the land occupier does not demonstrate intent
to correct the violation, the supervisors may petition the district court
to compel performance of compliance with the ordinance as provided by the
State law. 218 (The Montana Conservation District Act follows the Standard
Act in authorizing the supervisors to petition for both specific performance
and backup authority to perform the work themselves and recover the costs
and expenses. 219
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The Lewis and Clark District ordinance also provides for establishment
of a board of adjustment, as provided by the Montana conservation district
law. Any person against whom a complaint has been filed may, within
60 days, appeal to the board for a variance on the grounds of practical
difficulties or unnecessary hardship. If the variance is granted, the
supervisors in turn may appeal to the district court. 22 °
In a separate section, the Lewis and Clark District ordinance also
provides that the supervisors shall have power “to initiate a court order
to cease and desist against any person disturbing the land which results
in accelerated erosion and sediment damage.” 221 0n the first reading, this
section appears to throw a wild card into the deck. If this remedy were
applied to agricultural activities, it could be used to eliminate the
emphasis on voluntary compliance and the delays involved in the complaint
procedure, and remove access to the board of adjustment. However, the
legislative history of the ordinance indicates that the cease and desist
order provision was intended to be used to stop construction/subdivision
activities that are not in accord with an approved erosion and sediment
control plan.* 222 Although agricultural activities causing accelerated
sediment damage are obviously land-disturbing activities by the “plain
meaning” of the language, it is unlikely that the supervisors will attempt to
use this section in dealing with them.
* In an earlier version of this ordinance, land—disturbing activities
were defined to mean construction/subdivision activities and the section
discussing requirements for such activities was headed “Land-Disturbing
Activities”. This phraseology was eliminated from the definitions section
and the construction/subdivision activities section of the ordinance, as
passed. Failure to eliminate it from the cease and desist order section was
probably inadvertant.
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In a very important section on financial assistance, the supervisors
are authorized to assist the land occupier to apply B) by obtaining
cost—share funds from Federal, State, public or private sources. If
the supervisors decide that public cost—sharing should be made available
for correction of a violation, they are authorized to permit the land
occupier to delay corrective measures until cost share funds are made
available. Lack of such funds may be considered a “practical difficulty”
and may justify a variance from the time set by the supervisors. 223
NACD’s case study of the Lewis and Clark district program predicts
that the district will be designated as a nonpoint source management agency
under Section 208 and observes that a request will be made of the State
legislature for a special appropriation to pay the operational cost of
the program. The NACD case study anticipates that cost sharing for instal-
lation of many BMPs will be available under ASCS’s Agricultural Conservation
Program (at a 50 to 70 percent level) and perhaps also under a potential
State program. The Montana Renewable Resource Act of 1975 provides for
accumulation of severance taxes on coal in a fund to provide grants and low
interest loans for conservation of renewable resources. 224 Other suggested
sources of funds for installation of BMPs are low cost loans from the Farmers
Home Administration and Small Business Administration. 225
Wisconsin Model Ordinance . A somewhat different erosion and sediment
control ordinance is now being proposed as a model ordinance for Wisconsin
districts. The Wisconsin Soil and Water Conservation District Act differs
from most other district enabling laws in establishing districts that are
more like county agencies than independent special—purpose local governments.
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In Wisconsin, the county boards themselves create districts that are
geographically coextensive with counties, appoint some of the district
supervisors, and must ratify any exercise of district land use regulatory
powers. 226
The Wisconsin statute authorizes district supervisors to formulate
land use regulations for land outside incorporated cities and villages,
which then require, for adoption, both a successful referendum and enactment
as county ordinances by the county board. 227
The Wisconsin district law authorizes the district supervisors to
inspect the land for violation of ordinances, petition the court to compel
performance, and perform the work themselves and recover the costs if the
defendent does not obey the court order.. 228 However, the district is not
authorized to impose fines. Instead, the Wisconsin district law provides
that the county ordinance shall prescribe county administrative procedures
forenforcementof land use regulations, which may include fines. The county
is also authorized to petition for injunctions to halt violations. 229
In 1973 a model sediment control ordinance was developed for use by
Wisconsin soil and water conservation districts. 230 In June 1977, the Vernon
county Board of Supervisors adopted an ordinance for the town of Stering
that was partly based on the model ordinance. Mary Garner, NACD water quality
law consultant subsequently reported that similar ordinances were under
consideration in other Wisconsin counties. 23 ’
The Wisconsin model ordinance seeks to regulate much the same categories
of land uses as the Lewis and Clark ordinance but makes no reference
to BMPS or other standards for such uses. Agricultural land uses
are in compliance with the ordinance when the land occupier has a
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cooperative agreement with the district, setting forth a conservation
plan that is being implemented and maintained. But the requirement that
the plan be implemented is contingent on the availability of technical
assistance from the district for both structural and nonstructural
measures and cost sharing assistance for the installation of structural
232
measures on private land.
If agricultural land uses are not under a district conservation plan,
they are not in compliance with the ordinance unless the land user has
obtained a permit from the County Zoning Administrator. Such permit must
be approved by the district as complying with SCS technical guides. 233
Since application for such a permit requires prior preparation of a
complicated soil survey and topographic plan, 234 it is unlikely that any
farmer will choose a permit rather than a cooperative agreement to accept
an SCS prepared conservation plan.
Vernon County Ordinance (Wisconsin) . The Vernon County ordinance for the
Town of Stering differs from the Wisconsin model ordinance in eliminating
need fora permit for both agriculture and construction activities.
Construction activities require a special erosion control plan instead
of a permit. 235 The ordinance also gives the administrative and enforcement
functions that the uxdel ordinance gives to the County Zoning Administrator
to the district. 236
The Vernon County ordinance offers farmers who feel no need to enter
a cooperative agreement with the district a re usable alternative.
Agricultural lands are deemed in compliance with the ordinance where
they are in contour strips, being managed in a conservation system accept-
able to the district or being managed to meet SCS technical guide
standards. 237 (Lands of less than six percent slope or in parcels of less
than 1 acre are not subject to the ordinance •238)
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There is still some advantage to the farmer in having a cooperative
agreement with the district, however. Where lands are under district
conservation plans, implementation of the plan is not required for
compliance with the ordinance unless technical and cost—sharing assistance
is available, 239 just as under the Wisconsin u del ordinance.
The proposed Vernon County ordinance authorizes the district or its
designated agent to enter and inspect for violations, and to notify the
land user to stop or correct the violation on pain of legal prosecution.
If the land user fails to comply, the district or its agent shall file a
complaint with the county district attorney who shall expeditiously
commence any legal proceedings necessary for enforcement. 24 °
Complaince may be enforced by a suit for injunction, brought either
by the county or one or more real estate owners in the area affected by
the regulations, and/or prosecution for a criminal fine of not less than
$10 or more than $200 for each day of refusal to comply. 24 l In addition,
the district itself may petition the court to compel performance and authorize
the district to perform the work itself, if the land occupier fails to
comply with the court order, as provided in the Wisconsin district
242
enabling law.
The Vernon County ordinance also provides a larger role for the board
of adjustment than provided by the Wisconsin district law and the Standard
Act. The board of adjustment is authorized not only to hear and decide
appeals for variance from the terms of the ordinances on the grounds of
unnecessary hardships, but to hear and decide appeals from district error
in the exercise of its administrative and regulatory powers under either this
ordinance or the Wisconsin district law. 243
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Statewide Laws with Agricultural
NPS Control Provisions
Beginning in the mid—1950’s, some general—purpose local governments
in rapidly urbanizing areas participated in conservation district—sponsored
floodwater retention projects (under Public Law 566) to control the
increased runoff from newly paved surfaces. The purpose of the projects
was flood control, but the increased runoff was causing combined sewer
overflow and destablilization of streambanks with resulting water pollution
and sediment damage to adjoining lands.
In the process, some of the same local governments became concerned
about the water pollution and damage to wildlife, recreation areas, and
public water supplies caused by sedimentation from the land clearing
and grading activities of suburban builders. In the late 1960’s, having
learned that the conservation districts (and the SCS technicians assigned
to them) were experts in sediment control, a number of these local governments
adopted ordinances requiring district approval of sediment control plans
before issuance of builders’ permits. (The Maryland and Virginia suburbs
of Washington, D.C. in the muddy Potomac Basin were pioneers in this
effort) 244
In 1970, Maryland passed the first statewide sediment control law. 245 1t
exempted agricultural activities but conditioned the granting of grading and
building permits to developers on approval by the soil conservation district
of a sediment control plan. Since that time a model State erosion and
sediment control statute drafted by representatives of NACD, EPA, USDA
and State governments has been approved by the Council of State Governments
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and recommended to State iegisiatures.2 46 Eleven additional States and
the Virgin Islands enacted some type of statewide sediment control law
247
during the l97O . In addition, Montana enacted a streainbed protection
law, which provides that conservation districts must approve all “projects”
physically affecting natural streams and the lands immediately adjacent
to them. 248 Also in this period, the Pennsylvania Environmental Quality
Board adopted rules and regulations for sediment control under its existing
Clean Streams Law, 249 which provided for abatement of water pollution from
nonpoint as well as point sources (under rules and regulations issued by
the Board).
Most of the new Statewide sediment control programs are either
amendments to the State conservation districts enabling law or are included
in the same title of the State code, as the next chapter. But even in those
cases where the State sediment control programs have been placed in some
* Georgia, Eawaii, Illinois, Iowa, Michigan, New Jersey, New York,
North Carolina, Ohio, South Carolina, South Dakota.
** Montana Department of Natural Resources and Conservation rules list
nonagricultural types of developments in streams and on banks that must be
considered projects. In addition, the rules state that districts may elect
to consider as projects farming operations, such as (1) brush removal,
by mechanical means, spraying or otherwise, and (2) grazing and tree
cutting on erosive sites. See note 248.
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*
other category, they make use of conservation districts in their
implementation.
Four States (Georgia, Maryland, North Carolina, and South Carolina)
exempt agricultural activities. 250 Virginia and Michigan exempt tilling,
planting, and harvesting of agricultural crops but make some provisions for
controlling sedimentation from other agricultural activities. ** 2 SlThe other
eight states and the model state sediment control act all make some kind of
provision for controlling agricultural sedimentation.
* The Montana Natural Streambed and Land Preservation Act is in the
Fish and Game title of the State Code. The Pennsylvania Act is in the Health
and Safety title . The Maryland Statewide Sediment Control Act is in the Water
Resources title. The North Carolina Sedimentation Pollution Control Act is
in Pollution Control and the Environment . The South Carolina County Sediment
Control Programs Act is in the same title as the South Carolina conservation
districts law, Environmental Protection and Conservation , but the former is
chapter 12 and the latter is chapter 9. The Virgin Islanes Environment Shore
Erosion and Sediment Control Law is in Conservation , whereas the soil conserva-
tion district law is in Agriculture .
**The Virginia law specifically requires that grading, excavating and filling
on agricultural lands be subject to the same requirement of compliance with
district programs or county ordinances applicable to construction—related,
land—disturbing activities. The Michigan act provides that farmers may enter
into agreements with soil conservation districts to carry Out “earth change”
activities (other than those specifically exempted) under State rules. On
formal agreement with the district, such activities are exempted from requirements
for site plans, land use plans or permits under the act but will become subj ect
to the act’s enforcement provisions after January 1, 1979.
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Iowa
The first of the Statewide sediment control statutes to regulate
agriculture was the 1971 Iowa statute 252 that amended the Iowa soil conserva-
tion districts law to require that all conservation districts set and
253
implement soil loss limits and also created (in an adjoining chapter
of the code) six new conservancy districts responsible for building and
254
operating “internal improvements” that were to be protected from siltation.
The Iowa law set up an agricultural sediment control program that differs
significantly from the programs included in other sediment control laws
discussed in this article. (Many subsequently passed laws were more or
less based on the Council of State Government’s Model Act). However Iowa
is the only state that has an agricultural sediment control program in
operation long enough to provide experience.
The Iowa law made it the duty of owners of real property in the State
to establish and maintain erosion control practices or, in the case of
agricultural land, soil and water conservation practices required by the
regulations of the commissioners of the respective soil conservation
districts. 255 Soil erosion resulting in sediment damage to the property of
others is made a nuisance which may be e subject of an action to abate
by injunction by the damaged property owner, the conservancy district whose
internal improvements are silted up, or the soil conservation district
within which the erosion is occurring. However, it is an adequate defense
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that an agricultural defendant was conforming to soil and water
conservation practices approved by the conservation district or had
submitted an application for public cost—sharing funds for the purpose
256
of doing so.
The Iowa law directs the conservation districts (with the approval
of and within time limits set by administrative order of the State Soil
Conservation Committee) to adopt reasonable regulations to establish
and implement soil loss limits.* The district commissioner may:
(1) Classify land in the district on the basis of topography,
soil characteristics, current use, and other factors affecting soil
erosion.
(2) Establish different soil loss limits for different classes of
land, subject to approval by the State Conservation Committee. (It is
the stated intent of the statute that no agricultural land be assigned a
soil loss limit that cannot be reasonably attained with reasonable soil
conservation practices.)
* “Soil loss limit” is defined to mean the maximum amount of
soil loss due to erosion that the district commissioners determine Is
acceptable to meet the statute’s erosion control and water quality goals.
It is expressed in terms of tons per acre per year. See note 258.
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(3) Require the owners of agricultural land to employ soil and
257 258*
water conservation practices. ‘
However, the commissioners may not specify that particular
practices must be used, so long as the owners voluntarily comply with the
soil loss limits applicable to their land. In no case may the commissioners
require that the owner or operator of agricultural land refrain from fall
plowing of land on which he intends to raise a crop during the next
succeeding growing season. 259
Regulations proposed to be adopted by conservation district commissioners
must be approved by the State Soil Conservation Committee (which may amend
the regulations) and must also be the subject of a public hearing, at which
any landowners and occupiers who would be affected by such regulations may
testify. 260
* The statute specifies that the soil and water conservation practices
that commissioners may designate as acceptable to protect soil loss limits
are of two kinds:
a. “Permanent soil and water conservation practices” means planting of
perennial grasses, legumes, shrubs, or trees, establishment of grassed
waterways, and construction of terraces, or other permanent soil and water
practices approved by the State Soil Conservation Committee.
b. “Temporary soil and water conservation practices” means planting of
annual or biennial crops, use of strip—cropping, contour planting, minimum
or mulch tillage, and any other cultural practices approved by the State
Soil Conservation Committee. See note 258.
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The Iowa law provides that the commissioners of any soil conservation
district must inspect any land in the district upon the receipt of a
written and signed complaint, from an owner or occupant of land damaged
by sediment, that soil erosion in excess of the limits established by the
district’s regulations is occurring. If the commissioners find that
excessive soil erosion is occurring on the land inspected, they are required
to issue an adinfr istrative order to the landowner(s) and occupier(s) and
deliver it to each of these persons by personal service or restricted
certified mail. The administrative order must state as nearly as possible
the extent to which soil erosion exceeds the district’s soil loss regulations.
In the case of farm land, the administrative order shall require that work
needed to establish or maintain the necessary soil and water conservation
practices be begun at a time not more than 6 months after service of
notice of the order and completed at a time not more than 1 year after
261
such service.
However, before legal action can be taken against the owner or occupant
of agricultural land, it must be determined that cost sharing assistance
is available (and has been specifically approved for such land). Such
cost sharing assistance must cover at least 75 percent of the cost of
installing any permanent soil and water conservation practices or an amount
specified by the State Soil Conservation Committee for temporary practices.
Evidence that the owner or occupant has made application for cost sharing
funds, from a source having authority to pay a portion of the cost, is
considered the commencement of work required by the administrative order.
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Once the district is informed that the owner or occupant’s
application for cost sharing has been approved, the district issues and
provides notice of a supplemental administrative order. The supplemental
administrative order advises the owner and occupant that they must now
begin the necessary work on a date not more than 6 months after approval
of the application for cost sharing and complete It at a time not more
than 1 year thereafter. 262
If the work is not initiated or completed as required, or the land-
owner or occupant advises the district that he does not intend to do the
work, the district must petition the district court for a court order to
require imin diate compliance with the district’s administrative order. 263
The burden of proof is then on the district to show that soil erosion
is in fact occurring in excess of the applicable soil limits and that the
defendent has not established or maintained soil and water conservation
practices in compliance with the district’s regulations. 264 ’ 265 The
court may Issue an order that modifies the district’s administrative
order. But if the defendant fails to carry out the court order he is
deemed in contempt of court and may be punished accordingly. 266 (Iowa law
provides that a district court may imprison a person whose contempt consists
of refusal to perform an act he is able to perform until he agrees to
perform it. The district court may also punish contempt of court by a
fine of up to $500 or imprisonment up to 6 months or both. 267)
* The district may enter and inspect defendants land on 10 days
notice by restricted certified mail. See note 265.
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After the passage of the sediment control law, Iowa became the
first State to appropriate funds for cost sharing conservation practices.
The appropriations statutes specify that appropriated funds only be used
to cost share permanent practices. They provide that only 5 percent of
appropriated funds may be used to provide 75 percent funding to abate
nuisances under the sediment control law. Another 5 percent of the total
funding is earmarked for voluntary installation of permanent practices in
watersheds above a number of State—owned lakes that have been identified
by the Iowa Conservation Commission (the State fish and game agency) as
suffering from serious sediment ama* 268
The remaining 90 percent of appropriated cost share funds is to be
used to provide 50 percent funding for voluntary installation of permanent
soil erosion and sediment control practices throughout the State, with
priority given to owner—operated and family—operated farms.
This money has been allocated among the districts by the State Soil
Conservation Coninittee, largely on the basis of priorities identified in
the Iowa Conservation Needs Inventory. 269
The Iowa General Assembly appropriated $12 million annually for cost-
sharing conservation practices in fiscal years 1973, 1974 and 1975.
* William Criener, Director of the Iowa Soil Conservation Committee
until the end of 1977, reports that it has been difficult to induce enough
cooperation to spend the earmarked 5 percent in these “critical” watersheds
because cost sharing is limited to 50 percent. It is likely that more
cooperation will be forthcoming if Culver amendments funds can be used to
provide a larger public cost share. See note 270.
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It appropriated $2.5 million for 1976, $4 million for fiscal 1977, and
$4.3 million for fiscal 1978.270
In 1975, the Iowa Conservation Commission (the State fish and game
agency) filed 116 complaints, mostly against farmers, on the basis of
sediment damage contributing to silting up and eutrophication of State—owned
lakes created by water i mpoundments. 271 Theoretically the State has suffi-
cient ownership rights in at least some natural lakes and streams to
file complaints concerning sediment damage to them under the Iowa sediment
control law.* 272 In fact, it has not attempted to do so.
The 1975 complaints were dismissed as defective because they were filed
against every landowner in the watershed above the eutrophying lakes without
reference to whether individual landowners were or were not complying with
district—prescribed soil conservation practices and without identifying
the particular lands that were exceeding soil loss limits. 273
More recently the Iowa Conservation Commission has filed four or five
valid complaints. However Griener believes it will cost about $100,000
on one farm alone to meet soil loss limits and that (unless funds appropriated
to USDA under the Culver Amendment can be obligated to pay all or part of
the 75 percent public cost share for abatement of individual nuisances)
most of this must come from State funds. 274
* Iowa law is that the beds of navigable and meandered lakes and
streams belong to the State. (The riparian owner takes only to the highwater
mark.) In addition, although there has been no case in point, Iowa courts
(like courts in other riparian rights State) have said that the State holds
a trust interest in all navigable and meandered waters for the public, to
protect its rights to navigation, recreation, and fish and wildlife.
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Although the Federal agricultural conservation trogram also provides
cost sharing for many permanent sediment control practices, Iowa has
never attempted to use ACP funds to pay any part of the required 75 percent
public cost share. This is because disbursement of ACP funds is decided
on by county ASC committees on the basis of their own county programs which
typically have a variety of objectives, whereas the Iowa sediment control
law requires that 75 percent cost sharing funds be definitely obligated
and made available to carry Out every district administrative order requiring
installation of permanent practices. However, since ACP funds are frequently
available for many of the same kinds of permanent practices that are
eligible for 50 percent State cost sharing as voluntary soil erosion
control practices, the volunteer farmer may apply for Federal or State
cost shar ag at his own option.
Since there is no dollar limit on State funds similar to the $2,500
per farm limit for ACP funds, farmers sometimes apply to both the county
ASC committee and the district, for the purpose of obtaining 50 percent
funding up to the $3,500 limit from the ACP and 50 percent funding of the
rest of the project from the State. But it is against current Iowa
executive branch and General Assembly policy to award State cost share
funds for the purpose of increasing the total public cost share for
voluntary installation of practices over 50 percent. 275
The Model Act
Following analysis of the Iowa statute, it seems appropriate to examine
the Council of State Governments’ 1973 Mode]. State Act for Soil Erosion
and Sediment Control for two reasons. One is that i st of the sediment
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control laws amending State conservation district laws, passed since
the Iowa statute, appear to based, at least partly, on the Model Act.*
The other reason is that NACD has recently published and circulated a set
of “alternative provisions” to the Model Act, 276 in part for the purpose of
making the Model Act into a more adequate legal basis for an
agricultural NPS regulatory program satisfactory to EPA. 277 The alternative
provisions have not been incorporated into any State laws as of this writing.
The Model Act (followed by most of the State sediment control laws
based on it) requires the State Soil and Water Conservation Commission
to prepare a State program to control soil erosion and sediment damage
from “land—disturbing” activities, including guidelines for development
of regulatory programs by the districts.
Land—disturbing activities are defined to mean any land change which
may result in movement of sediment into waters or onto land, including
tilling, clearing, grading, excavating, transporting, and filling of land
(other than Federal land) except for minor activities such as home gardens,
landscaping, repair and maintenance. 278
The Model Act gives the State Commission responsibility for developing
a comprehensive sediment control program, in cooperation with the State
water quality agency, other appropriate State and Federal agencies and
an advisory board representing housing, financing, industry, agriculture,
recreation, and local government agencies. 279
* This category includes the New Jersey and Virginia statutes which
resemble the regulatory scheme set forth in the Model Act for nonagricultural
land—disturbing activities, but exempt major agricultural activities.
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As a part of this program, the Commission is required to adopt
guidelines for carrying out the program by a date specified in the
individual State law. The Commission is required to conduct public
hearings after giving due notice (as defined in the State conservation
district law) before adopting or revising the guidelines. The Model Act
states that the guidelines must:
(1) Be based upon relevant physical and developmental
information concerning the watersheds and drainage basins of the
State, including, but not limited to, data relating to land use,
soils, hydrology, geology, size of land area being disturbed,
proximate water bodies and their characteristics, transportation,
and public facilities and services;
(2) Include such survey of lands and waters as may be deemed
appropriate by the Commission or required by any applicable law
to identify areas, including multijurisdictional and watershed
areas, with critical erosion and sediment problems; and
(3) Contain conservation standards for various types of soils
and land uses, which standards shall include criteria, techniques,
and methods for the control of erosion and sediment resulting from
land—disturbing activities •280
Every district in the State is required to develop and adopt its
own sediment control program, consistent with the State program and
guidelines, within a time period after adoption of the State guidelines
to be specified in the individual State law. The district is to be
assisted in developing its program by an advisory committee (representing
the same interests represented on the State advisory board) and is
entitled to assistance from the State Commission, on request.
Upon adoption of its program, the district is required to submit the
program to the Commission for review and approval. If the district
fails to submit the program within the statutory time period, the Commission
is required (after appropriate hearings or consultations with local
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interests) to develop and adopt an appropriate program (by implication
including standards) to be carried out by the district. 28 ] * In this
respect the Model Act appears stronger than the Iowa law, which does not
provide that the Iowa Soil Conservation Committee may draw up a district
program if the district commissioners fail to do so.
After the program has been approved by the Commission, the district
is given a time period (to be set by the State statute) in which to adopt
conservation standards for various soil types and land uses.** These
standards are required to include “criteria, guidelines, techniques,
and methods for control of erosion and sediment resulting from land—dis-
turbing activities.” Before adopting any conservation standards or changes
in existing standards, the district is required to give “due notice” and
conduct a public hearing on the proposed standards or changes. Although
the Model Act requires district standards to be consistent with State
guidelines concerning conservation standards, the Act makes no provision
* Section 4 of the Model Act also provides that in areas where there
is no conservation district (almost certainly nonagricultural areas), the
Commission must designate a general—purpose local government to develop,
adopt and implement a local sediment control program.
** The “program’,’ which must first be approved by the State Commission,
is understood to include goals, organization, time frame, manpower and
other administrative detail . The “standards” mean technical performance
standards and may include, among other things, soil loss limits and
BNP. See note 273.
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for Commission review and approval of district standards.* Both
program and standards must be made available for public inspection at
the principal office of the district. 2
The Model Act provides different mechanisms for controlling prohibited
land—disturbing activities” of different classes of land users. Owners,
occupiers, or operators of private agricultural and forest land who have
district—approved farm or ranch conservation plans for normal agricultural and
forestry activities and are maintaining such plans, or whose normal agricultural
and forestry activities comply with district conservation standards, are
entitled to cost sharing and technical assiStance to help avoid violating
the act. Such persons are not deemed to be engaged in prohibited land—dis-
turbing activities unless at least 50 percent cost sharing assistance
or adequate technical assistance is made available for installation of
the erosion and sediment control measures required for compliance with their
* The Model Act’s failure to require that district standards be approved
by the State Càmmission appears to give the Commission less control over the
stringency of such standards than the Iowa sediment control law, which requires
State agency approval of all district regulations and even permits the State
agency to amend such regulations. See note 257. It does not necessarily
follow that districts will be able to “get away with” less stringent
standards in States that follow the Model Act, however, because the Commission
or other State or Federal agency responsible for disbursing cost sharing funds
may refuse to allot any to districts whose standards are inconsistent with
State guidelines.
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approved farm or ranch conservation plans or district conservation standards? 83
The Model Act authorizes the district on its own initiative to make
on—site inspections to determine whether the resident owner, operator or
occupier is complying with his approved farm conservation plan or conforming
*
with district conservation standards. The district is required to give
the resident owner, operator, or occupier notice that the inspection will
be made and an opportunity to accompany the inspector. If the inspection
reveals that the land occupier is not complying with the approved farm plan
or the districts standards, he must be notified by registered mail of the
measures needed for compliance. The notice shall require commencement of
such measures within 6 months from the date of the notice. If the land
occupier fails to comply with the notice he will be deemed in violation of
the act and subject to its penalties. 284
But the decision of the district that a violation exists is subject to
judicial review, provided an appeal is filed within 30 days. (Judicial
review is available on the same terms from all other decisions of the
district and the Coimnission. 285 )
Assuming no appeal is taken, violators of the act may be prosecuted
for a misdemeanor and subject to a fine of up to $500 or up to 1 year impri-
sonment for each violation. Every day the violation continues shall
constitute a separate offence. 286
* The Model Act appears to give the districts more control over enforcing
the use of agriculturalBMPs than the Iowa law, which does not permit districts
to inspect until a written complaint is filed by the owner or occupier of
lands damaged by excessive sediment.
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In addition, the district, the Commission, or “any aggrieved person
who suffers damage or is likely to suffer damage because of a violation t* may
apply to the court for injunctive relief. The county attorney shall take
whatever legal action is needed to enforce the act, on request of the
district, and the State Attorney General, on request of the Commission. 287
In early 1978, NACD published a set of alternative provisions for use with
the Model Act, by States considering the adoption of sediment control laws
or amendment of existing sediment control laws to meet the needs of the
section 208 planning effort. These alternative provisions were developed in
response to suggestions made at State seminars on the Model Act, conducted by
NACD in over 40 States. 288
The i ain thrust of the alternative provisions is to put more emphasis
on the pollution control aspects of erosion and sediment control and to
extend the coverage of State and district programs under the Model Act to
pollutants other than sediment.
* The damage that an “aggrieved person” may seek to enjoin is not limited
to property damage resulting from siltation (as in the Iowa law). Since
section 2 of the Model Act defines “persons” to include individuals, business
firms, utilities, State and local government bodies and agencies, public
and private institutions and associations of all sorts, the Model Act
unquestionably confers standing to sue for injunction on government agencies
with environmental responsibilities, local citizens associations and public
Interest groups.
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NACD alternative provisions embodying this main thrust include the
following amendments to the Model Act.
(1) Addition of the phrases “to reduce damage from stormwater runoff”
and “to retard nonpoint pollution from sediment and related pollutants”
to section 1, the act s declaration of policy. 289
(2) Redefinition of “land—disturbing activities” to include those resulting
in movement into waters and lands of “sediment related pollutants.” 290
(3) Redefinition of “erosion and sediment control plan” to include a
plan for control of sediment related pollutants, stormwater runoff, or
accelerated erosion not related to a new land-disturbing activity. 291
(4) Addition of the following definition to section 2.
“Sediment related pollutants” means substances such as nutrients
pesticides, pathogens, and organic materials which are transmitted with
or in association with sediment. It also means salts in irrigation
return flows and animal wastes. 292
(5) Addition of the requirement that the State Commission’s guidelines
include standards for sediment related pollutants. 293
(6) Addition of the requirement that district standards (which are the
equivalent of enforceable BliPs) include criteria, guidelines, techniques,
and methods for control of sediment related pollutants. 294
By adding reduction of damage from stormwater runoff and regulation of
sediment related pollutants (defined to mean any kind of agricultural Ni ’S
pollutants whether carried by sediment or not), the Model Act appears able to
cope with any agricultural NPS pollution problem in any section of the
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country. Indeed, with these additions, plus an amendment including
control of irrigation return flows, the Model Act can serve as a
fully acceptable basis for a Statewide section 208(b)(4) regulatory
program for agricultural NPS pollution in any section of the country.
The districts and State Commission (given adequate funding) can be approved
as designated management agencies.
Another of the NACD alternative provisions clears up the Model Act’s
perceived ambiguity concerning conservation measures that cannot be compelled
without 50 percent cost sharing assistance. Section 5(c) of the Model Act
states that land operators are not to be deemed engaged in prohibited acts
unless “50 percent cost sharing assistance or adequate technical assistance
for the installation of erosion and sediment control measures”, required by
their farm conservation plans or the district standards, are made available
t them. This could conceivably be interpreted to mean that land operators
cannot be required to install practices that require little or no extra
expenditures, such as conservation tillage, unless such operations are given
50 percent public cost—sharing.
Consequently, the NACD alternative provisions delete section 5(c)
and insert new language into alternative section 6(a) which removes the
possibility of this interpretation. This states that the assistance
which must be made available to land operators before they are deemed in
violation of the act is “50 percent cost sharing assistance or technical
assistance for the installation of enduring measures.” (Enduring measures
are defined in an alternative provision added to section 2 as “those
conservation practices which have a useful life of at least ten years and
which have substantial public benefits.” 295 )
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Alternative section 6(a) also adds the provision that the Coumiission,
in the case where the Commission develops a district sediment control
program on failure of the district to submit one, has the same authority
as the district to make on—site inspections. It adds the further provision
that the district and, in the appropriate case, the Commission may make
on—site inspections in response to a filed complaint.
A related provision, alternative section 10, authorizes “any person
claiming damage” to file a written complaint with the district or, in an
appropriate case, the Commission without prejudice to the right of such a
person to apply for a court injunction under revised section 12, the alter-
native penalties section, or to make use of any other legal remedy. Since
alternative section 6(a) does not require the district to respond to a field
complaint with an on—site inspection but merely authorizes it to do so,
this provision does not appear to confer a new right on the damaged person,
who was always entitled to complain to the district in any event. But it
does perhaps have the effect of encouraging districts to take the point of
view of local citizens associations and environmentalists more seriously
and of encouraging the latter to work cooperatively with the districts.
Still another alternative provision, section 9(b), specifically authorizes
the Commission to make grants of funds to districts to carry out the
purposes of this Act.
* The Iowa law does require the district to so respond. But in Iowa, only
a person who alleges that his land has been damaged by the violation may
file a complaint.
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Pennsylvania
Pennsylvania is now setting up another type of agricultural NPS
control program that can probably meet EPA’ s SAN—31 requirements as well as
the Model Act. The Pennsylvania sediment control program is under the
State’s Clean Stream Law 296 rather than the State’s soil conservation
districts law. However, the State is making use of the services of the
conservation districts to administer this program. This process is
facilitated by the transfer (in 1971) of the State Conservation Commission
and the conservation districts from the State Department of Agriculture
to the Department of Environmental Resources (DER) which is responsible for
all aspects of resource conservation and pollution control. 297 Whereas the
State Conservation Commission continues to set policy for the State role in
conservation district affairs and approves and coordinates district programs,
DEl’s Bureau of Soil and Water Conservation provides assistance to districts
and administers the funding they receive from the States. 298 Three DER
bureaus (Water Quality Management, Soil and Water Conservation, and
Litigation and Enforcement) have jointly developed an operating procedure
by which the sediment control portion of the Clean Stream Law shall be
administered by the Bureau of Soil and Water Conservation and the 66
conservation districts. Inspection and enforcement activities are handled
by the Bureau of Litigation and Enforcement, but the operating procedure
provides that DER may delegate inspection responsibilities to the districts,
at their request. 299
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The sediment control program is governed by erosion control regulations
developed by DER’s Environmental Quality Board (EQB) (under sections 5 300
and 402 30 -of the Clean Streams Law) and the provisions of section 316 302
of the Clean Streams Law. Section 316 was intended and has mainly been
used to control pollution from mining but is clearly applicable to and will
be used to control agricultural NPS pollution. 303 The terms of these
sections of the statute grant authority to the Sanitary Water Board of the
Department of Health, which has been abolished. Authority to make regulations
*3 4
have now been delegated to EQB, U and authorities (of both the Sanitary
Water Board and the Department of Health) to administer and enforce the
Clean Streams Law have been delegated to DER. 305
Section 5 states that EQB has the power and duty to promulgate rules,
regulations and orders necessary to implement the provisions of the act, to
establish policies for effective water quality control and management, and
to be responsible for development and implementation of waste management
and other water quality plans. 306
* EQB is DER’s top level policy—making body. Its membership includes the
Secretary of Environmental Resources (the chairman) and the Secretaries of
Transportation, Health, Commerce, Agriculture, Labor and Industry, and Community
Affairs and the heads of the State Fish and Game Commission, the State
Planning Board, the Public Utility Commission and the Historical and Museum
Commission. It also includes four members of the General Assembly and five
members of a Citizens’ Advisory Board.
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Section 5 gives DER the power and duty to administer all permit
systems established under the law, issue orders needed to implement the
provisions of the law or the rules and regulations of the EQB, and receive
and act on complaints. DER is further authorized to inspect public or
private property for compliance with provisions of the law and rules,
regulations, orders, or permits issued pursuant to the law, and to perform
other duties at the direction of EQB. 307
Section 402, entitled “Potential Pollution”, provides that EQB may
issue a regulatory order whenever it finds that “any activity, not otherwise
requiring a permit under this act” creates a danger of water pollution or
requires regulation to avoid water pollution. 308 Section 402 provides
that the regulations may require that such activity be required to conform
with permit conditions 309
Section 316 is entitled “Responsibilities of landowners and occupiers.” 31 °
It states that whenever DER finds that pollution or a danger of pollution
is resulting from a “condition which exists on land”, the DER may order* 3 ll
the landowner or occupier to correct the condition or to allow an agen y of
the State access to the land to take such action. In the latter case, DER
may assess the cost of correcting such conditions on land against the violator
in the same manner as a civil penalty under Section 605 of the act.
* All orders of DER may be appealed to an Environmental Hearing Board,
composed of three lawyers appointed by the Governor, whose decision in turn
is subject to judicial review on the same basis as other administrative
agency decisions. See note 311.
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Section 316 states that if the pollution or danger of pollution results
from sediment from land for which a complete conservation plan has been
developed by the local conservation district and SCS, and the plan has
been fully implemented and maintained, the landowner is excluded from the
penalties.
It may turn out to be of some significance that Section 316 unquestionably
gives DER authority to order abatement of agricultural NPS conditions (such
as winter spreading of manure) that result in pollution caused by runoff
rather than sedimentation. However, DER officials do not consider that
such problems occur as frequently in Pennsylvania as in other States. 312
Neither section 402 nor section 316 provide that any violation is exempt
from the penalties in the act if public cost- sharing is not available for
needed correction measures. Afton Schadel of the Pennsylvania Soil
Conservation Commission expects that Culver Amendment cost—sharing funds
will be allotted to the installation of structural practices recommended
in 208 plans for the critical areas which have the most severe sedimentation
problems and require the most expensive remedial work. He also hopes that
the Culver Amendment can be interpreted to provide for sharing the cost
of retiring from production marginally productive but highly erosive lands
in such critical areas. 313
Elsewhere in the State no public cost—sharing funds are expected to
be available for installation of conservation practices except for those funds
county ASC committees may make available under the ACP. Schadel believes
Pennsylvania agriculture will be able to conform with the requirements of
the Clean Streams Law without a Statewide cost—sharing program. When
asked to explain why Pennsylvania can clean up agricultural pollution without
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Statewide cost sharing whereas Iowa cannot, Schadel points out, not only
that Iowa soils are more erosive, but that the Clean Streams Law does not
require the districts to set soil loss limits applicable to every field
in the district as the Iowa law does. Instead DER is aiming for farm
conservation plans that set soil loss limits for every farm operation as a
wl ole. 314
.
Section 602 is the criminal penalties provision of the Pennsylvania
Clean Streams Law. It provides criminal penalties for violations of the
rules, regulations and orders of DER and of any condition of any permit
under the act and is equally applicable to public or private point source
or nonpoint source violators.
Section 602 provides that any such violation is a srnnm ry offense and,
on conviction, the violator is subject to a fine of from $100 to $1000 for
each separate offense or, if he refuses to pay, 60 days imprisonment. 3 - 5
Each day of continued violation constitutes a separate offense. 3 6
Section 602 further provides that if the violation is either wilful or
negligent, the violator is guilty of a misdemeanor of the third degree and
is subject to a fine of from $2,500 to $25,000 for each separate offense,
or imprisonment for 1 year or both. 317 If within 2 years of conviction
for such misdemeanor the polluter commits another violation he is guilty
of a second degree misdemeanor. In such case he is subject, on conviction,
to a fine of from $2,500 to $50,000 for each separate offense, or to
imprisonment for up to 2 years or both. 318
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The criminal penalties provision of the Clean Streams Law was made
a good deal more severe by October 1976 amendments intended to bring its
maximum penalties into line with Pub. L. 92-500, so that Pennsylvania
could satisfy EPA’s requirements for administration of the point source
NPDES within its borders. 319 Before the 1976 amendment, section 602
provided that a first violation of the Clean Streams Law was always a
summary offense and that a violation was a misdemeanor only if it occurred
within 2 years of a conviction for a summary offense. Furthermore, under
the old section 602, the misdemeanor could only be penalized by a fine of
from $100 to $2,500 for each separate offense, or up to 1 year in jail
(on default of paynlent). 32 °
The greatly increased criminal penalties make it extremely unlikely
that DER will choose to use Section 602 against such comparatively minor
polluters as individual farmers who violate EQB’s erosion and sediment
control regulations. But Pennsylvania officials believe that the fact that
such farmers can be prosecuted under section 602 and fined $25,000 or
considerably more*may make them more willing to spend the smaller sums
needed to correct “a condition on land” under section 316.321
Section 605 of the Clean Streams Law provides civil penalties for
violations of the act, DER regulations, orders and permit conditions. The
civil penalties are declared to be in addition to any other remedy at law or
equity. Section 605 provides that DER may, after hearing, assess a penalty
* A violation of the act pr its regulations that is neither willful
nor negligent is merely a summary offense, subject to penalty of as little
as $100. But the terms of EQB’s regulations and the actions DER and the
districts have taken to implement them (both of which will be discussed)
make it unlikely that farmer violators of the regulations can reasonably
claim to be neither willful nor negligent.
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on such a violator* 322 of up to to $10,000 per day for each violation.
In determining the amount of such penalty, DER must consider the willfulness
of the violation, the extent of damage to waters and uses of waters, the
cost of restoration, and other relevant factors. 323
In September 1972, DER’s Environmental Quality Board promulgated
regulations under sections 5 and 402,324 whose stated purpose was to control
“accelerated erosion ** 32 Sand resulting sedimentation for the purpose of
preventing water pollution from sediment and fertilizers, pesticides and
other polluting substances carried by sediment. 326 The 1972 erosion control
regulations required all persons engaged in “earth moving activities” to
adopt and maintain an effective erosion and sediment control plan. In
addition they required permits for all earth moving activities on areas of
25 acres or larger “other than plowing and tilling for agricultural purposes.”
Erosion and sediment control plans are required for all earth moving activities,
including agricultural activities. Such plans must be prepared by a person
trained and experienced in erosion and sediment control***and must include
the following:
(1) the topographic features of the project area;
(2) the types, depths, slope, and areal extent of the soils;
* Other legislation has delegated this authority to the same independent
Environmental Hearing Board that is authorized to hear appeals from DER
decisions. See note 322.
** This is defined to mean soil erosion caused by human activities in excess
of what would occur from natural processes alone. See note 325.
*** As will be explained, this requirement has been modified for low erosion
risk agricultural operations.
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(3) the proposed alteration to the area;
(4) the amount of runoff from the project area and the upstream
watershed area;
(5) the staging of earthmoving activities;
(6) temporary control measures and facilities for use during
ear thmoving;
(7) permanent control measures and facilities for long term protection
and;
(8) a maintenance program for the control facilities including disposal
of materials removed from the control facilities or project area. 327
Because construction for urban and industrial development was considered
a greater and more immediate threat to Pennsylvania waters and because
DER developed a construction permit approvals procedure that made priority
use of conservation district resources in 1973—74, 328 the regulations
provided that implementation of the provision requiring erosion and
sedimentation control plans for agricultural activities be postponed until
* 329
July 1, 1977.
However DER began to inform farmers soon after the act was passed that
they too would. need conservation plans. A widely circulated DER brochure
entitled “Farmers and the Clean Stream Law” recommends that farmers become
cooperators in their local conservation districts so that the districts
can assign SCS technicians to investigate their erosion problems, propose
alternative solutions and ideas to help implement them, and provide all
* This provision has been interpreted to mean that farmers are in violation
unless they either have a plan or have requested planning assistance from their
conservation district by that date. Preparation of plans under district
auspices was not completed in the spring of 1978 when this was written.
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technical assistance needed to prepare their plans (including aerial
photographs and soil maps) without charge. The brochure also states
that some conservation measures may be eligible for cost sharing from ASCS.
DER also circulated four alternative agreements prepared by its agricultural
advisory committee concerning division of responsibility for implementing
plans between landowners and tenant rme 33 °
In addition, DER published its Soil Erosion and Sedimentation Control
Manual for Agriculture in August 1974. The January 1975 edition of this
manual explains that DER will select priority areas on a Statewide basis
for conservation areas, prime agricultural land, and critical areas and that
county conservation districts will select priority areas within their
boundaries for 4imn diate planning attention and continued land use
monitoring. 331 The manual explains what is required of farmers in terms
of plan contents,implementation schedule, and vulnerability to plan review,
revision and site inspections. 332
The manual explains that a minimal conservation plan is sufficient for
low erosion hazard sites. This may consist of a statement that erosion
risks or extent of agricultural land disturbance is minimal or that existing
conservation treatment is adequate. The farmer may request the conservation
district to review his existing conservation treatment program and provide
him with a letter indicating its approval. 333
The manual explains that a conservation plan for a medium—to—high erosion
hazard site must be prepared by a person trained and experienced in erosion
control and must meet the standards forplan content set forth in the manua1 34
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including soil data conservation plan map and narrative of applied or
planned erosion control measures for each field or group of fields of the
same land use. 335 A plan that meets such standards and shows measures to
keep soil losses within acceptable limits and prevent off—site damages
can be prepared by a landowner or consultant. 336 However, if the landowner
becomes a district cooperator, the district will arrange for SCS to give
him free technical assistance to prepare his plan. Conservation plans are
presented for district cooperators in order of priorities set by the district.
The landowner himself is responsible for their implementation. 337
Ohio
The first State after Iowa to attempt to institute an agricultural
as well as a construction related sediment control program was Ohio.
The former Ohio law was enacted in two amendments to the State’s conserva-
tion districts law in late 1971 and 1972.338 It went farther than the
Iowa law in encompassing agricultural pollutants other than sediment, but
it had no enforcement provisions.
SB 305, the 1971 Ohio amendment, authorized the Division of Soil and
Water Districts,* subject to approval of the Director of Natural Resources,
to recommend methods and management practices to meet air and water quality
* The Ohio Department of Natural Resources consists of ten divisions,
of which one is the Division of Soil and Water Districts. Apart from its
duties concerning NPS pollution abatement, the Division is responsible for
providing leadership to the soil and water conservation districts in
planning, budgeting, staffing and administering district programs; training
district supervisors and personnel; and assisting the State watershed
development and coordinating programs between districts and other agencies
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standards relating to “agricultural pollutants and sediment pollutants
resulting from residential, industrial and other urban developments.” 339
SB 305 further directed the Division to name two advisory groups to make
recommendations of methods and management practices for meeting such air
and water quality standards, one for agricultural pollutants and the other
for urban sediment pollutants. The agricultural advisory board was to
include from 7 to 11 members representing agricultural agencies,
industry, and organizations. At least two members were required to be
conservation district supervisors 340
SB 305 also required the Ohio Soil and Water Conservation Commission to
recommend to the Director of Natural Resources a procedure for coordinating
a program of agricultural pollution abatement, as well as a program of
urban sediment pollution control. Implementation of the agricultural
program was to be based on air and water quality standards set by the two
State agencies then responsible for air and water quality. 342 The Division of
(footnote continued from p. 112)
of local, State and Federal Government. Ohio has a Soil. and Water Conservation
Commission, a seven member board that relies on the Division for staffing.
Apart from its duties concerning NPS pollution abatement, the Commission
performs much the same functions as the Standard Act’s State Committee with
respect to creating districts, regulating their elections, facilitating the
exchange of information between districts, seeking Federal and State agency
assistance for its programs and deciding on the distribution of State funds
appropriated for district operations. In other matters involving assisting,
coordinating and funding district programs the Commission functions as an
advisory board to the Director of NaturalResource.
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Soil and Water Districts was to coordinate the efforts of State and local
government agencies to meet the State air and water quality standards
relating to agricultural pollution. 343
In addition, SB 305 authorized, but did not require, soil and water
conservation districts “to enter into agreements or contracts with the
Ohio Department of Natural Resources for the determination, implementation,
inspection, and funding of agricultural pollution abatement and urban
sediment pollution abatement measures whereby landowners, operators, [ and
several categories of urban users] may meet adopted State standards.” 344
SB 305 also authorized districts to enter on lands in the district in the
necessary discharge of their duties, 345 but it did not impose any duty on
landowners and operators to install such pollution abatement measures,
nor create any penalty for failure to do so.
A few months later, in 1972, SB 397 added a few provisions to SB 305
for the purpose of making the new Ohio Environmental Protection Agency (OEPA)
the agency responsible for settingair and water quality standards for
agricultural pollutants and urban sediment pollutants and giving OEPA
responsibility for implementation. It directed OEPA to use the Department
of Natural Resources, the Division of Soil and Water Districts, and the local
soil and water conservation districts “in encouraging abatement of
agricultural pollution. 346 In addition, SB 397 added a provision intended to
ensure that all areas of the State had agricultural pollution control
programs. This provision was that failure of the district to make an
agreement with the Department to determine, implement, inspect and fund
* Ohio is not a State in which conservation districts are authorized
to enact land use ordinances that could impose such duties and create such
penalties.
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agricultural pollution measures requires the Department to authorize
the Division of Soil and Water Districts to implement the required program. 347
When SB 397 was enacted it appeared that Ohio law provided for statewide
district—level agricultural NPS control programs that lacked enforcement
provisions but could easily meet EPA requirements for “other than regulatory”
programs, providing that State or Federal cost sharing would be made
available for those management practices that would require such incentives.
This did not turn out to be the case. The two advisory boards were
appointed 1i inediately and began work on development of “methods and
management practices.” However, there was no attempt to relate these
practices to air and water quality standards which OEPA could enforce,
because OEPA never developed any air or water quality standards for
agricultural (or for that matter, urban sediment) pollutants. OEPA and the
Department of Natural Resources were in agreement that receiving water
quality standards for diffused land use activities, whose relative pollutant
loads depended on weather events, made no sense. 348
Consequently, no districts entered into agreements with the Department
to set up agricultural pollution abatement programs. However the agricul—
tural advisory board developed its methods and management practices in
the form of “proposed pollution abatement standards and regulations” that
would be applicable if district abatement programs were established. The
Division of Soil and Water Districts sent the advisory standards to the
districts for guidance 349 The proposed standards were for sediment
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pollution and animal waste pollution.* The advisory board found that
fertilizer pollution was not presently a serious problem in Ohio and that
pesticide pollution was being adequately dealt with under Federal and
State pesticide control law. It recommended that Ohio rely (for the time
being) on sediment control to control pollution from the latter two
350
sources.
Recommended “minimum conservation standards” for sediment control were
based on SCS—developed soil loss tolerance factors. The advisory committee
recommended also that these factors be phased in over a 10—year period
to alleviate economic hardship due to the need for different tillage
equipement. 351 - Recommended standards for animal waste control were based on
elimination of discharges in excess of State Water Quality Standards by
352 353**
containment and land application. ‘
The advisory board also recommended 75 percent cost sharing from
combined Federal and State sources for installation of eligible practices
when approved by the district. It recommended that the State pay whatever was
needed to bring the total public cost share up to 75 percent, subject to
* Ohio is a state in which almost all animal waste problems are being
treated as nonpoint problems since fewer than 10 of the State’s feedlots
are big enough to be included in the NPDES. See note 348.
** Shortly after this time a USDA—State multiagency committee developed
and published the Ohio Livestock Waste Management Guide , which goes into more
detail concerning BMPs for attaining this end. See note 353.
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a limit of $5,000 per person for animal waste containment and management
facilities. However, the list of eligible practices was restricted to
six sediment control practices and animal waste control practices dealing
with existing pollution. New or expanding animal waste facilities were
expected to prevent pollution, without financial assistance, through
proper construction. 354
Soon after the two advisory committees developed advisory standards and
regulations for agricultural and urban sediment (which OEPA lacked juris-
diction to implement or enforce), legislation was proposed that would authorize
the Division of Soil and Water Districts to implement the standards and
regulations and enforce compliance with them. 355 The legislation was introduced
in the 1975—76 legislative session 356 and failed to pass. It was reintroduced
in the 1977—78 session and amended so as to remove enforcement provisions for
agricultural pollutants other than animal wastes. 357 The new Ohio act was
passed September 1978 and will become effective in January 1979.358
The new Ohio act defines agricultural pollution to mean failure to use
management practices in farming or silviculture to abate soil erosion or
water pollution by animal wastes or sediment, including substances attached
thereto. 359 It directs the Division of Soil and Water Districts to adopt
rules for abatement of agricultural pollution and urban sediment pollution,*
* The Division’s urban sediment control rules are not enforceable. They
are not applicable within municipal corporations (which may have enforceable
sediment control ordinances) or within those counties that exercise their
authority to adopt sediment control rules by referendum, which may contain
specified enforcement provisions.
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subject to the approval of the Soil and Water Commission 360 and in
consultation with agricultural and urban sediment advisory boards identical
to the ones created by the preexisting law. 36 ’
With respect to agricultural pollution abatement, the new act directs
the Division to establish te -ihnically feasible and economically reasonable
management and conservation standards plus criteria for practices to abate
soil erosion and water degrading sediment, including substances attached
to sediment. These rules would require time—phased achievement (over a
period of years) of perinissable soil loss limits established by USDA.
Howeve; after the initial phase, no more stringent phase could be applied
before Division study of its economic impact and at least one public
hearing on such study in each conservation district. 362 It also-directs the
division to establish (1) technically feasible and economically reasonable
standards to achieve a level of management of concentrated animal feeding
operations on farms which will abate water degradation, and (2) criteria for
determining the acceptability of such management practices. 363
The new act directs the Division to establish procedures for administra-
tion of rules for agricultural and urban sediment pollution abatement and
for enforcement of the rules for animal waste management. 364
The act directs the Division to specify the particular agricultural
pollution abatement practices (including both sediment control and animal
waste management practices) eligible for State cost sharing *and determine
* No urban sediment control practices can be eligible for cost sharing.
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limits on co t sharing such practices, conditions for eligibility,
construction standards and maintenance requirements. But the specified
practices must be enduring improvements requiring capital expenditures
likely to exceed economic returns resulting from their instaUation. 363
The *ct also directs the Division to cost share with landowners on
specified practices when moneys are appropriated and available f or such
purposes 366
The act Luther directs the Division to enter into cooperative agreements
with any conservation district to carry out its agricultural pollution and
urban sed{’ en -t abate”ent rules and orders. The Soil and Water Conservation
Commission must approve the terms of the agreement. 367
Although earlier versions of the bill that became the new act had
enforcement provisions- for violations of all agricultural pollution abatement
rules, the act, as passed, irovides for inspection (by agreement or under
court warrant) 368 and issuance of compliance orders 369 for violations of rules
related to an 4 m 1 waste management only. Ohio officials believe the bill
was amended partly because the legislators believe EPA will not insist
that Ohio’s 208 plans contain regulatory programs for agricultural pollutants
other than an{m l wastes. 37 °
The act forbids issuance of an order requiring an eligible practice
to abate an(m ] . waste pollution existing at the time of the adoption of
the standards unless public cost sharing money is available at the rate of
75 percent of the cost, but not more than $5,000 per persou. 37 1
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AU persons who fail to comply with a final compliance order are
guilty of a minor misdemeanor (each day of noncompliance constituting a
separate offense) 372 and will be prosecuted for such violation if requested
by the Division. 373 However, any person claiming to be deprived of a
right or legal protection by a compliance order (or other order of the
division except an order adopting a rule) may appeal to the Court of
Common Pleas. The court may affirm, modify, or vacate the Division’s order.
Its decision is final, unless appealed to a higher court and reversed,
vacated or modified on appeal. 374
New York
New York’s 1975 amendment to its Soil and Water Conservation District
Act is the only one of the new State statutes that deals exclusively with
agricultural NPS pollution and specifically addresses itself to all possible
sources of such pollution. The New York statute provides that the State’s
soil and water conservation districts must (by January 1980) provide a soil
and water conservation plan for (1) every landholding of more than 25 acres
used for raising any agricultural or forestry products and (2) “concentrated
animal operations” of less than 25 acres. 375 , 376 *
* The statutory definition of a concentrated animal operation is “any
form of agricultural operation, including feedlots and poultry operations,
which produces, because of its confined nature, large amounts of animal and
related wastes in a limited area, as defined by the State Soil and Water
Conservation Committee.” See note 376.
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The plans that the districts are required to prepare must provide
“an orderly method” for landowners and occupiers to follow to reduce
not only soil erosion, but “the amount of pollutants entering into the
waters or on the lands of the State.” 377
All land owners or occupiers are required to apply by the same date,
January 1, 1980, to the appropriate district for the plan for the land
under their ownership or control. 378 All plans are to be reviewed at least
once every 5 years and district directors are responsible for establishing
priorities for development and review of plans. 379
The New York statute thus provides that the State’s conservation districts
must reorient their mission from only soil erosion prevention to agricultural
pollution control and gives the districts 5 years to develop individual
BHPs for every farm in the State. In 1976, the State’s Department of
Agriculture and Markets, which had never previously contributed any money
to the districts, budgeted and contributed $80,000 to the districts for
this purpose from its own general purpose funds. In 1977, the Department’s
contribution was raised to $160,000 and, in 1978, to $l80,000.*380
* New York is a State in which the legislature generally appropriates
no funds for conservation district operations, although the New York Soil
and Water Conservation District law authorizes the districts to receive
money from the State. The New York law resembles the Wisconsin law in
that it authorizes the counties to create the districts and appoint the
district governing body. Section 223 of the New York County Law authorizes
the counties to appropriate money for district operations and they have
recently been doing so at an annual rate of about $1.3 million.
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Although the New York statute provides that the district board must
review the plans every 5 years, it makes absolutely no provision f or
enforcement——not even provision for inspection. But Willard Croney
the Executive Secretary of the State’s Soil and Water Conservation
Committee expects that New York pollution control—oriented plans will be
used as the basis of locally initiated land use regulations containing
such provisions in areas where the people of the locality are convinced
that such ordinances are necessary. 381
New York’s Soil and Water Conservation Districts Law makes no provision
for adoption of land use ordinances by either the district or the county.
But since New York is the strongest of home rule States, there is no question
that some level of local government has the power to enact such ordinances.
The only question is whether this can only be done by the town (the
smallest unit of local government in rural areas and the one responsible
for land use planning and zoning) or whether it can or should be done by
the county.
The county is the unit of local government responsible for (1) creation
383
and funding of soil conservation”°’and small watershed districts, and
(2) funding the county extension service and other agriculture—oriented
activities. 384 The county is also responsible for establishing sewer,
drainage and refuse districts 385 and may participate in regional water
resources p1anning 86 but it has no land use regulation authority.
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There is no question that towns have authority to enact zoning
ordinances to require agricultural lands and concentrated animal
387
operations to comply with district pollution control plans, provide
funding for administration 88 provide access of landownersand occupiers
to a board of appeal for variances, 389 and provide enforcement procedures
including prosecution for a misdemeanor and action for a restraining
order by town officials or (if town officials refuse to act) taxpayers. 39 °
Illinois
Illinois is another State that recently amended its Soil and Water
Conservation District Law to initiate a Statewide pollution control—oriented
planning program. The Illinois lav, 39 lwhich took effect January 1, 1978,
is not concerned with agricultural pollution (unlike the New York law),
but with erosion and sedimentation damage from “land—disturbing activities,”
including both development—related and agricultural activities. Like the
New York law it does not attempt to provide an enforceable regulatory
program meeting EPA’s SAN—3]. requirements. But it goes further than the
New York law in providing for application of publicity—generated pressure
on landowners and occupiers to obtain voluntary compliances.
So far as construction—oriented activities are concerned, the Illinois
statute resembles the New York Law in providing for preparation of BMPs,
that, although not enforceable by the State, can be enforced by local land
use regulations. (Indeed, the statute explicity states that “this Act
shall encourage the establishment of sediment and erosion control ordinances
at the municipal and county levels.” 392)
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However, although Illinois is one of the States whose district
enabling law authorizes the districts to adopt land use ordinances, it
is extremely unlikely that this authority will be used to enforce BliPs
for agricultural activities. Enactment of a district land use ordinance
requires a favorable vote of 75 percent of those voting in a referendum
restricted to landowners 393 (the persons to be regulated). Furtherii re,
in Illinois, unlike New York, general—purpose local governments can not
regulate agricultural uses. Both the Illinois County Zoning Law 394 and
Township Zoning Law 395 specify that they may not be used to regulate
agricultural land use and the Illinois Municipal Code states that its
authority is restricted to lands within corporate limits and contiguous
territory no i re than 1 1/2 miles outside such limits. 96
The Illinois statute closely resembles the original Model State
Erosion and Sediment Control Act (without its enforcement provisions) but
makes provision to avoid interfering with local regulatory authority.
It authorizes a comprehensive State program and district programs and
standards consistent with it to deal with erosion and sedimentation from
“land—disturbing activities.” Land disturbing activities are defined in the
same language as the Model Act, except that exemptions include not only minor
activities, such as home gardens and landscaping, repairs, and maintenance, but
“any plot or subdivision approved by municipal or county units of government.” 397
No other land uses subject to regulation by general—purpose local governments
are exempt from inclusion in district programs, if the land is within
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the district. Rowever, for a period of 2 years, any incorporated
or unincorporated city or village can remove all or part of its land
from the district. 398
The Illinois statute directs the State’s Department of Agriculture*
to develop and coordinate a comprehensive State erosion and sediment
control program, including guidelines to be used by the districts In
implementing the program. The Department may seek the assistance of the
districts and also local, State and Federal agencies in developing the
State program. 399 The State program is required to include a means of
adequately financing the increased district and Departmental work load
needed for Its Imple mentatio n. 4 0 °
Before adopting the guidelines required in the State program, the
Department is required to give 30 days notice to the district and other
interested persons and hold public hearings. 401 In language that follows
the Model Act very closely, the guidelines are required to be based on
relevant physical and developmental Information concerning the watersheds
and drainage basins of the State including land use, soils, hydrology,
geology, size of land area being disturbed, transportation, public
facilities and services. 402 The guidelines are also required to include
any survey of Lands and waters that the Department considers appropriate
or that Is required by “any applicable
* In Illinois the State organization responsible for coordinating and
assisting conservation district activities is the Department of Agriculture’s
Bureau of Soil and Water Conservation. -
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law” to identify areas with erosion and sedimentation problenls.* 4 03,404
In addition, the guidelines are required to include criteria, techniques
and methods for controlling sedimentation from various types of soils and
land use. 405
The Statute provides no deadline for development and adoption of the
State program, but it requires every conservation district in the State to
develop and adopt its own program and standards within 2 years of adoption
of the State program and submit them for approval to the Department. 406
As in the Model Act, the Department has backup authority to adopt a program
and standards if the district does not. 407 The Department also has
authority to adopt standards (which the land disturber may elect instead
of district standards) for activities on State lands by State agencies or
on lands in more than one district. 408
As in the Model Act, the districts are required to name and consult
with advisory committees representing various land—use interests in
developing their programs and standards. They are also entitled to receive
assistance from the Department if they request it. 409
* Both the physical and developmental data and the surveys of land and
waters required by the State program are also required for approval of
the State’s 208 plan. It is expected that the Department’s Bureau of Soil
and Water Conservation and the State 208 agency’s subcommittee on erosion
and sedimentation will use the same data to meet their respective responsi-
bilities. This will mostly consist of existing data compiled by SCS as
part of its Conservation Needs Inventory, River Basin Investigations and
Soil Survey. See note 404.
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District programs are required to include “conservation standardst * 4
for various types of soils and land uses as well as criteria, guidelines,
techniques and methods for various types of land—disturbing activities. 4
Both programs and standards must be technically feasible, economically
reasonable, and consistent with the State program and guidelines. 412
Conservation standards may not be adopted or revised without due notice
and a public hearing. 413
The Illinois statute (unlike the New York law) makes no provision that
persons engaged in land—disturbing activities must apply to the district
for a plan for their lands or activities. But district programs and
standards must be made available for public inspection and provided to any
person on request. 414
Once standards are adopted, the district !!shall encourage” all persons
engaging in land—disturbing activities (other than permitted surface
mining) to comply with them to do so. 415 In addition, the statute says
that each district’s program “shall provide for the sharing by the district
of part of the cost of enduring**erosion and sediment control devices,
structures and practices.” (This rule also applies to the Department in
cases where activities are performed on land in more than one district. 416 )
* The term “conservation standards” is really not defined in the
Illinois Act, but the standards are expected to be soil loss limits.
** Enduring means designed to control erosion and pollution for a
period of more than 1 year.
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When a land—disturbing activity does not comply with standards, the
district (or Department) shall suggest such modifications, terms, and
conditions as will enable the person engaged in the land—disturbing
activity to comply with the standards. 417
The Illinois statute also provid a procedure for processing “complaints
for sediment and erosion damages.” 418 The statute does not specify who
may file such a complaint, but states that all complaints shall be filed
with the district (or if appropriate the Department). The District shall
notify the landowner and occupier and seek consultation with such person
or persons to determine whether the standards are being observed. If the
district determines that the landowner and occupier are in violation of the
standards, it shall notify them and seek voluntary compliance. 4 19
If a schedule for compliance has not been entered into within 1 year
of notice of violation, the district board shall hold a formal hearing to
determine the reason for noncompliance. The district board shall publish
its findings and make them available to the Department. The Department shall
review the complaint and the district board’s findings and may, if in its
opinion a violation exists, hold a formal hearing to determine why standards
are not being observed. The Department shall publish and make available its
findings. 420 Both the distr±cd and Department’s final decision is subject
to judicial review. 421
The Illinois statute’s cost sharing provisions are a little difficult to
interpret. The statutory language is mandatory. It does not say that
district programs”ma but that they “shall” provide for district cost sharing
of enduring practices. However, it does not say that districts shall provide
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cost sharing for all enduring practices. Neither does it distinguish
between cost sharing for farmers and cost sharing for developers of
shopping plazas.
Joseph Berta, Chief of the Department’s Bureau of Soil and Water
Conservation, reports that the statutory language was deliberately left
ambiguous by the legislators who felt they did not know enough about the
content of the State and district programs to make strict laws on cost
sharing for their implementation. However, Berta believes that the language
will be interpreted to mean that all district programs will include cost
sharing for some enduring practices and that selection of practices and
percent levels of assistance for cost sharing will be decided on the
basis of local conditions. Berta believes that cost sharing will be mainly
for farmers. He thinks it is improbable that any cost sharing funds will
be made available to commercial builders, in part because the practices
district programs would require of builders would mainly be temporary
practices to control erosion during the construction period. But he would
not rule out the possibility that some cost sharing funds might be made
available to persons other than farmers.
Berta expects the Department will ask for a State appropriation for cost
sharing after the State program (which was in process when this was written)
is prepared. Like other State officials charged with responsibility for
Statewide programs concerned with soil conservation as well as pollution contro],
he expresses concern about coordinating this program with the section 208 pro-
gram. Federal cost sharing funds, which are required by law to be used only
as recommended in approved 208 plans, will be used only in areas where
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agricultural NPS pollution has been identified as a significant part
of the total water pollution problem. State cost sharing funds, when
appropriated, will be used to check soil erosion and water pollution
throughout the State.
South Dakota
In South Dakota a regulatory program similar to the program outlined
in the original Model State Act for Soil Erosion and Sediment Control*is
scheduled to reach the phase of adoption of enforceable conservation
standards by all conservation districts in early 1979.
This program is authorized by a July 1976 enactment. 422 The enactment
also repealed the sections of the State’s 1937 Soil Conservation District
Law that had authorized the districts to adopt and enforce land use
ordinances. 423 These sections (based on sections 9 through 12 of the Standard
State Soil Conservation District Law) were repealed because South Dakota
officials and legislators disliked the burdensomeness of the referendum
method of adopting an ordinance. (Adoption of an ordinance under section 9
* The South Dakota “act to regulate land disturbing activities” and
other State laws based on the Model Act, such as Illinois, South Dakota,
and Hawaii, purport only to control soil erosion and sediment pollution.
The NACD alternative provisions (discussed supra pp. 99—102) would extend the
Model Act’s coverage to polluting substances transmitted or associated
with sediment (such as nutrients, pesticides and p thogens) plus salt in
irrigation return flows and animal wastes. No new State NPS control laws
have been enacted since the alternative provisions were proposed.
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had required a favorable vote of at least two-thirds of those voting
in the referendum representing two-thirds of the acreage in the district.)
Officials and legislators also disliked the cumbersomeness of the board
of adjustment procedures •424
The South Dakota Act requires the State Conservation Commission to
develop comprehensive guidelines within 12 months of the enactment “with
full opportunity for citizen participation.” 425 The guidelines are to
consist of recoimnended soil loss limits and suggested conservation
standards. 426 They are required to be formulated on the same three bases
required by the Model Act and the Illinois law: (1) relevant physical
and development information regarding watershed and drainage basins,
(2) existing surveys of lands and waters identifying areas with erosion
and sedimentation problems, and (3) conservation standards (including both
soil loss limits and suggested practices) for various types of soils and
land uses. 427 (The guidelines adoption process was completed in July of 1977.)
The South Dakota Act requires conservation districts to develop
proposed conservation standards within 12 months of adoption of the
State guidelines (by July of 1978), unless the Commission grants a district
a variance to allow it additional time. 428 Districts must develop proposed
standards in cooperation with affected local governments and give due notice
and conduct a public hearing on the proposed standards before adopting
them. 429
Proposed standards must also be transmitted to the Commission for
review and coient. All districts are required to adopt conservation
standards in cooperation with other local government units within 3 months
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of the Commission s review. But the districts are not required to
accept the Commission’s recommendations and there is no provision that
the Commission can adopt standards for the district if the district fails
to do so.
Revision of the conservation standards may be proposed by a petition
signed by 10 percent of the district’s voters who voted in the last
election for supervisor. Revision shall take effect, after a hearing,
on approval by the supervisors. 432 There is no provision that revisions
must be reviewed by the Commission.
The South Dakota Act does not provide for preparation of erosion and
sediment control plans or issuance of permits for construction—related or
other nonagricultural land—disturbing activities. 433 However, it does
require that all local government units within the district normally
responsible for granting or issuing zoning or building permits include
provisions in their permit procedures to ensure compliance with district
conservation standards. 434 It gives these “permit—issuing authorities”
the same enforcement responsibilities and authorities respecting their
permittees that It gives the districts respecting agricultural land
disturbers
Plans are not required for agricultural activities or minor land
disturbing activitie; such as home gardening,unless the conservation
district determines that a particular land disturber is violating adopted
conservation standards. 436 In such case the land disturber is required to
prepare an erosion and sediment control plan approvable by the district
within 6 months and to implement such plan within 6 months of approval. 431 -
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The district may grant the land disturber a variance to allow more time
for either plan preparation or implementation. 438
Any person adversely affected by land disturbing activities (defined
by the act to include public agencies and citizens associations 439 )
may file a petition alleging a violation with the district. If a petition
is filed, the district must investigate its validity, take appropriate
action, and advise the petitioner of the disposition of his petition
within 2 months. 440
The district Is authorized to enforce its orders by bringing an’ action
for an injunction “or other appropriate relief” either on its own initiative
or on petition. There is no provision for criminal liability or civil
liability to adjourning landowners. 44 -
The South Dakota Act thus differs from the Model Act not only in making
the districts more independent of the Commission but in providing less
detail and fewer powers for district administration and enforcement. Thus,
the South Dakota Act omits the Model Act provision giving the district
authority to make on—site inspections to determine whether farm conservation
plans are being followed. 442 This appears to be a significant omission
that would be supported if challenged in the courts because the repealed
provisions for district land use ordinances, which the South Dakota Act
replaced, also provided for district on—site inspection of violations. 443 A.
Crlf fiths, Executive Secretary of the South Dakota Conservation Commission,
says that State officials are not sure how this omission will affect the
program in practice.
Griffiths says that South Dakota officials have discussed the possibility
of a State cost—sharing program but that proposals for such a program will
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not be made until review of the completed district standards permit a
better look at the nature and magnitude of the problem. Griffiths
expects South Dakota to use Culver Amendment cost share funds to implement
district conservation standards in areas where 208 plans indicate that
agriculture—caused sediment is a major water pollution problem. But he
points out that the primary function of the South Dakota law is soil
conservation on a statewide basis.
Hawaii
In Hawaii, the Department of Health (the State department responsible
for environmental quality) is leading an effort to control sedimentation
under a combination of two State laws: (1) Act 249, a Soil Erosion and
Sediment Control Act, 444 partly based on the Model Act, and (2) the water
quality standards and water pollution enforcement provisions of the
445
State s Environmental Quality Act.
Act 249 was enacted in 1974 in response to the legislature’s perception
that sediment from urban and highway construction and unprotected agricul-
tural land was causing damage to fish and wildlife, recreation, and
navigation throughout the State. The legislature was aware that all Hawaiian
counties had adopted or were preparing sediment control ordinances and
that the City and County of Honolulu already required State Department
of Health approval of all grading work. The Act was intended to assure
that county ordinances provide consistent conservation standards and coverage
of activities and that all State agencies comply with county ordinances. 446
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Act 249 directs the State’s four counties to enact erosion and
sediment control ordinances, within 1 year of its own enactment, in
cooperation with soil and water conservation districts and other
appropriate State and Federal agencies. 447
The county ordinances are required to contain at least four elements,
three of which are identical to the Model Act’s three requirements for
State guidelines for district programs:
(1) Be based on relevant physical and developmental information
concerning the watersheds and drainage basins of the county and/or
State including but not limited to data relating to land use,
soil, hydrology and geology, size of land area being disturbed,
approximate water bodies and their characteristics, transportation,
and public facilities and services. 448
(2) Include such survey of land and waters as may be deemed
appropriate by the county or required by any applicable law to
identify areas including multi—jurisdictional and watershed areas
with critical erosion and sediment problems. 449
(3) Contain standards for various types of soil and land uses,
which standards shall include criteria, techniques, and methods for
the control of erosion and sediment resulting from land—disturbing
activities 45O
The fourth required element is:
Include a provision whereby standards shall be deemed met if it
can be shown that the land is being managed in accordance with soil
conservation practices acceptable to the applicable soil and water
conservation district directors, and that a comprehensive conservation
program is being actively pursued. 451
Hawaiian officials refer to requirement (4) as the “agricultural
exclusion clause,” although it is not specifically restricted to agricultural
lands. 452 Apart from the agricultural exclusion clause, Act 249 gives the
county governments complete discretion to adopt whatever institutional
machinery they consider appropriate to implement conservation standards *453
* In practice all four county ordinances have similar permit systems
for nonagricultural activities with similar enforcement provisions.
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Act 249 directs the Department of Health to adopt conservation
standards (one element of the Model Act’s State guidelines) within 90
days of enactment. 454 Unlike the Model Act, the Hawaiian Act does not
specify that local regulatory programs must be consistent with State
standards. In fact,however, all the county ordinances are drawn up to
administer and enforce county standards based on the Department’s
conservation standards. 455 Act 249 also provides that if any counties
fail to enact erosion and sediment control ordinances within the statutory
period, the Department of Health has backup authority to promulgate
effective rules and regulations for such counties within 180 days there—
456
after.
The Department promulgated State conservation standards in the form
of Public Health Regulations Chapter 37—B in September 1974. Chapter 37—B
sets forth a basic principle to be applied to all land—disturbing
activities. This is that the stringency of conservation technology shall
be based on a severity rating number representing the potential erosion
and sediment problem caused by the particular land—disturbing activity.
When the severity rating number for a particular activity indicates
average environmental hazard, best practicable technology (BPT) is required.
But when the number indicates an above average hazard, a higher degree of
control may be required, including in some cases drastic scaling down or
even avoidance of the activity. The Director of Health may reduce such
higher requirements to BPT, however, if he determines that State waters
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will be minimally affected by the additional sedimentation.
Chapter 37—B instructs each county to develop its own severity
rating number system according to guidelines proposed by the Hawaii
Environmental Simulation Laboratory. The basis for severity rating
numbers shall be (1) the soil loss calculated from a Hawaiian modified
version of the universal soil loss equation, and (2) the effect of resulting
sedimentation on the channel and flood plain and the water quality in the
stream and the coastal waters into which it drains. Water quality effects
are to be judged on the basis of the State water quality standards and
other pertinent State and Federal law. 458
Both Act 249 and Chapter 37—B define land—disturbing activities in
the language of the Model Act as including but not limited to “tilling,
clearing, grading, excavating, transporting and filling of land.” 459
However, the four very similar county ordinances provide permit system
regulation for three specific activities: 460
(1) Grading (defined to mean excavation or fill or any combination
thereof).
(2) Grubbing (uprooting or clearing vegetation). This includes not
only uprooting vegetation to prepare sites for crop cultivation, as in
mainland agriculture, but the most prevalent method of harvesting sugar
cane.
(3) Stockpiling (defined to mean temporary open storage of earth
materials).
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Although the wording of the ordinances does not appear to provide
for permit regulation of ordinary planting, tilling and harvesting,
Hawaiian officials say that they regard as grading all harvesting that
opens the soil to erosion until the next crop is well established. 46 ’
Neither the Hawaiian Department of Health nor the counties expect
to implement conservation standards for agriculture through permit
procedures set up by the ordinance, however. 462 All the county ordinances
have their own agricultural exclusion clauses as required by Act 249.
These provisions state that conservation standards shall be deemed met if
agricultural (and in some counties other) lands 46 3 are managed according
to conservation district—approved practices under a comprehensive
conservation program. The four county agricultural exclusion clauses add
the provision that operations under conservation plans will still require
a grading permit if they alter the drainage pattern of abutting properties. 464
The 15 Hawaiian Soil and Water Conservation Districts have agreed that
comprehensive conservation programs ‘will include a combination of approved
conservation practices that can also serve as BNPs for the agricultural
NPS element of the State’s water quality management plan. 465 But, unless
the courts are willing to agree that harvesting can be considered grading,
the county ordinances cannot be used to enforce implementation of district—
approved BMPs for all types of agricultural activities. They clearly do
provide means that can be used, if necessary, to enforce BMPs for sugar
cane operations. District conservation programs are now promoting a
gradual changeover from furrow to drip irrigation to make possible a change
to flat harvesting (cutting cane and leaving protective stubble) instead
of the highly erosive practice of harvesting by grubbing. 466
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Another possible means of enforcing compliance with district conserva-
tion programs is provided by Section 342 of the Hawaiian Environmental
Quality Act. This section authorizes the Director of Health to promulgate
regulations establishing water quality standards 467 ”to receive and initiate
complaints of water pollution,” hold hearings in connection with water
pollution, and institute administrative and legal proceedings in the name
of the State for the prevention, control, or abatement of water pollution. 468
Public Health Regulations chapter 37—A establishes water quality
standards pursuant to this authority. The standards for sediment in all
State water areas are as follows:
Substances and conditions or combinations thereof in concen-
trations which produce undesirable aquatic life.
All waters shall also be free from soil particles, resulting
from erosion on land involved in earthwork, such as the construction
of public works; highways; subdivisions; recreational, commercial,
or industrial developments; or the cultivation and management of
agricultural lands. This standard shall be deemed met if it can
be shown that the land on which the erosion occured or is occurring
is being managed in accordance with soil conservation practices
acceptable to the Director, and that a comprehensive conservation
program is being actively pursued, or that the discharge has received
the best degree of treatment or control practicable under existing
technology. The determination of compliance with the standard shall
be made to the Director, consistent with the Hawaii Administrative
Procedure Act and the Rules of Practice and Procedure of the Depart-
ment of Health. 469
When read together with Act 249, chapter 37-B, and the county ordinances,
this water quality standard means that all persons responsible for land use
operations resulting in sedimentation into State waters, who are not
operating in compliance with county permits or soil and water conservation
district programs, may be subject to Department of Health Administrative
procedures and court actions against water quality standards violators.
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In such case they must sustain the burden of proof that their operations
are not causing eutrophication of such waters.
Because Hawaii’s rivers are short, preservation of Hawaii’s beaches
and coastal ecology was the principal reason for passage of Act 249.
Hawaiian agriculturalists are inclined to agree with urban interests that
water pollution is as important a problem as soil erosion, and Hawaiian
officials do not think (as officials in some other States do) that there
is an inconsistency between the purposes of the Statewide erosion control
program and special sediment control programs for critical areas identified
by the 208 program. 47 °
Jacqueline Parnell, Department of Health 208 Project Directo; says
that environmentalist public opinion is so strong in Hawaii that it will
probably not be necessary to use legal penalties to compel compliance with
conservation district programs expected to serve as BMPs for section 208
management programs. She adds that much of Hawaiian agriculture is
corporate agriculture and that the same companies that own pineapple and
sugar cane plantations often own hotels on vulnerable beaches.
Parnell says the availability of public cost sharing is not expected
to be an important factor in achieving compliance with BMPs because Hawaii’s
mainly large—scale growers are accustomed to absorbing the costs of complying
with environmental regulations. Hawaiian growers have never made much use
of the ACP because that program’s recent grant limit of $2,500 per farm
per year lessened its utility to large—scale operations.
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Section 35 of the Clean Water Act of 1977 contains no individual
grant limit, however, and Hawaiian officials have recommended that cost
sharing be made available to both large—scale and small—scale operations
for implementing 208 plan BMPs. 471 The Rural Clean Water Program (RCWP)
regulations promulgated by the Secretary of Agriculture in November 1978
does set a cost share limit, but, since it is higher than the ACP limit,
it should provide some incentive to large scale operators. The RCWP
limit on total payments to one land operator over the entire 5 to 10 year
contract period is $50,000. Additional payments can only be provided when
the main benefits of the cost shared practices are essential to achievement
472
of the RCWP project area’s water quality objectives.
No proposal is now being made for a State cost sharing program. But
the State’s nonpoint source technical advisory committee has recommended
that the State legislature make a substantial addition to its very modest
current appropriations to the conservation districts. The purpose of the
additional appropriation would be to enable the conservation districts to
hire sufficient technical field staff and office staff to operate as effective
208 management agencies. 473 Currently all technical assistance for conservation
plan development and review is performed by Federal personnel from the State ‘s
seven SCS district offices and the administrative work is largely performed
by the unpaid conservation district directors. 474
Virgin Islands
Another jurisdiction that is carrying out an erosion/sediment control
program, more for the purpose of protecting coastal waters than soil fertility,
is the Virgin Islands. The 1971 Virgin Islands Environmental Protection,
Soil and Shore Erosion Control law exempts “cultivation of land for
agricultural purposes under approved soil and water conservation
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practices” from the requirement of obtaining an Earth Change Permit*
before commencing any land—disturbing activity. 475 This means that farms
without conservation plans are in violation of the law with regard to
earth—disturbing agricultural practices and are theoretically subject
to its requirements and penalties.
In fact, all agricultural lands are in conservation plans. (There
are fewer than a hundred agricultural operations on the islands, most
of them involving pasture and range, and only 500 acres of cultivated land.)
The SCS conservationist assigned to the Virgin Islands Soil and Water
Conservation Districts reports that the few cases where operators
were not maintaining their conservation plans have been successfully
negotiated. Although there is no provision in the Virgin Island statute
for district inspection of compliance with conservation plans, land operators
have allowed such inspection on a voluntary basis. 476
* This permit is based on an Earth Change Plan approved by the Virgin
Islands Soil and Water Conservation District.
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1. 91 Stat. 1566, 33 U.S. §1251 (Supp. V 1975).
2. Iowa Code Ann. )467A.’42—53 (1977—78 Cum. Supp.).
3. Ctiio Rev. Code Ann. § 1515.Ol—15l5.30 (Page Supp. 1976).
14. Sec. 1t02, Federal Water Pollution Control Act Anendrrents of 1972.
33 U.S.C. §13142 (Supp. V 1975). (Hereinafter all citations to this
statute win consist of a section of the Federal Water Pollution
Control Act except where given in the text, and the corresponding
section of the U.S. Code).
5. Sec. 301(b)(l)(2), 33 U.S.C. §1311(l)(2).
6. Sec. 145, Pub. L. 95—217, 91 Stat. 1516, 1585 (1977), 301(1) Federal
Water Pollution Control Act as an nded. (Hereinafter citations to
this statute will consist of a section of Pub. L. 95—217, except
where given in the text, and the corresponding section of the Federal
Water Pollution Control Act).
7. Sec. 142(a), §30l(b)(2)(E).
8. Sec. 142(a), §30l(b)(2)(C)(D).
9. Sec. 142(a), §301(b)(2)(F).
10. Sec. 101(a), §33 U.S.C. 1251.
U. Sec. 101(a)(2), §33 U.S.C. 1251(a)(2).
12. Sec. 101(a)(5), §33U.S.C. 1251(a)(5).
13. 33 U.S.C. 288.
114. 33 U.S.C. .3l3(e).
15. Sec. 502(114), 33 U.S.C. §1362(114).
16. See criteria used by EPA in distinguishing silvicultural point
ft’oinnonpoint sources, 141(119) Fed. Reg. 214709, 214710 (1976).
17. 38 Fed. Reg. 18000 (1973).
18. See National Resources Defense Council v. Train , 396 F. Supp. 1393,
7 E.R.C. 1BS1 (D.D.C. 1975).
19. Id.
20. 141(514) Fed. Reg. 111458 (1976), 140 C.F.R. § 12il 25 (1977).
21. 141(1314) Fed. Beg. 281493 (1976).
22. 141(514) Fed. Beg. ll303 (1976), 40 C.F.R. § 1214—25 (1977).
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1143
23. 41(119) Fed. Reg. 214709 (1976), 140 C.F.R. § 124—25 (1977).
214. 41(13’4) Fed. Reg. 281493, 281495 (1976).
25. Secs. 208(b)(2)(F), 1402, 502(114).
26. Staff Report to the National Coninission on Water Quality IV—22 (1976);
Midwest Research Institute and Hittiran Associates, Inc., Methods for
Identifying and Evaluating the Nature and Extent of Nonpoint Sources
of Pollutants 240 (EPA— 2 43019—75 —0114, 1973).
27. K. Porter et al. (New York State College of Agriculture and Life
Sciences), Nitrogen and Phospherus, Food Production, Waste, and the
Environment 15—16, 82—8 4, 210—13 (1975).
28. Midwest Research Institute, et aL, supra note 26, at 1.
29. Staff Report, supra note 26, at IV—22, IV—30.
30. Id. at IV—30.
31. Id. See also U.S. Department of Agriculture Planning Staff, North
Coastal area of California and Portions of Southern Or’eg n—Mein Report
on Sediment Yield and Land Treatment 65—69 (1972).
32. U.S. Environmental Protection Agency, National Water Quality Inventory
3 (1975); U.S. Council on Environmental Quality, Environmental Quality
19714, at 284—87 (19714).
33. Midwest Research Institute et al., supra note 26, at VII.
314. Staff Report, supra note 26 at IV—l9, IV—38.
35. Id. at IV, 214 to 25.
36. Midwest Research Institute et al., supra note 26 at VIII.
37. EPA, supra note 32 at 8.
38. Sec. l0l(a)(5), 33 U.S.C. §l251(a)(5).
39. 33 U.S.C. §1281(c).
140. 33 U.S.C. §1288.
41. 33 U.S.C. §1313.
142. 33 U.S.C. §1313(e).
143. H.F. Wise and Associates, Institutional Assessment of the Planning
Requirements of the Water Pollution Control Act Amendment of 1972 at
111—33 (NTIS PB 21414 907, 1975).
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14 14
1414• 1976—79 funding figures contributed by members of the Water Planning
Division Office of Water and Hazardous Tv .terials, EPA.
145. National Association of Re onal Councils v. Train et al. , 8 E.R.C. 2025
(D.D.C. 1977).
146. National Association of Re onal Councils v. Costle et al. , 10 E . R. C.
1633 (D.D.C. 1977).
147. Sec. 208(b)(1)(B)(a).
148. Sec. 208(b)(1)(B)(b)
149. Sec. 35, §208( i).
50. Wise and Associates, supra note 143 at 111—1 to 6, 111—12 to 15.
51. Id. at III i 4 to 15.
52. 33 U.S.C. §131 1 4(e).
53. These EPA contract studies are too numerous to list here. However, a
nunber of them are listed in the bibliography appended to U.S.
Dwironrrental Protection, Agency Guidelines for State and Areawide
Water Quality Management Program Development (1976) at 16-20.
514. Wise and Associates, supra note 143, at 111—29 to 31.
55. U.S. Enviror nta1 Protection Agency, (1) Areawide Waste Treatment
Managen nt Planning Agencies, Interim Grant Regulations, 39 Fed. Reg.
17202 (19714); (2) Draft Guidelines for Areawide Waste Treatment
Management (19714).
56. Wise and Associates, supra note 143, at 111—19.
57. 33 U.S.C. §13714; the needs inventory can be found in U.S. Enviror ntal
Protection Agency, The Economics of Clean Water—1973, at 23 (1973).
58. U.S. Council on Envirorui ntal Quality, &wirorunental Quality—19714,
at 1148 (19714); Wise and Associates, supra note 143, at 111—19 to 20.
59. Id. at 111—19.
60. U.S. &-ivironmental Protection Agency, Water Quality Strategy Paper 8
(second edition 19714).
61. U.S. Envircunental Protection Agency, Water Quality Strategy Paper 15
(third edition 1975).
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114 5
62. Id. at 20—21.
63. Wise and Associates, supra note 113, at 111—28 to 29.
611. 396 F. Supp. 1386, 7 E.R.C. 2066 (D.D.C. 1975).
65. Natural Resources Defense Council, Inc. et al . V. Thain , Civil Action
No. 711—11185 (D.D.C. 1975).
66. Sec. 208(b)(l)(B).
67. LID C.F.R. §35 (1977).
68. 40 C.F.R. §130 (1977).
69. 140 C.F.R. §131 (1977).
70. 140 C.F.R. § 13o, 131 (1977).
71. 140 C.F.R. §130.11 (1977).
72. Id. at .111.
73. Id. at .314.
714. Id. at .30—.3l.
75. Id. at .16(c).
76. Id. at .16(d).
77. LID C.F.R. § 35, 130, 131 (1977).
78. 140 C.F.R. §131.20(f)(iii) (1977).
79. Id. at .20(f)(i)(iv).
80. Id. at 20(h).
81. Id. at .11(d).
82. Id. at .11(j).
83. 110 C.F.R. §35.230 (1977).
811. 13. Holmes, A History of Feder 1 Water Resources Programs and Policy,
1961—1970, at ch. 8 (unpublished uBnuscript, to be published in USDA
Misc. Pub. series 1979); J. Montgomery 1976(2), Univ. Ill. Law Forun
539—110.
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1)46
85. See N.W. Hines, Public Regulation of Water Quality in the United
States )457—58 (I 1I’IS 208 309, 1971) and the cases cited therein.
The mast pertinent case is United States v. Standard Oil Co. ,
38)4 U.S. 22)4 (1966), in which the Supreme Court ruled, that pollution
of navi ble waters could be regulated whether the pollution had any
effect on navi Mlity or not.
86. J. ? bntgomery, supra note 8)4.
87. SeeH.R. 3510, 9)4th Cong., 1st Sess. (1975).
88. See F. Bosselmen, D. Callies, J. Banta, The Thking Issue (Council on
Environmental Quality 1973).
89. De1e tion of relevant State governmental powers to local governments
is discussed in J. Aronoff and V. Scliikert, Draft Regulatory Guidance
Harx book for Nonpoint Source Pollution Control under Section 208 of
the Federal Water Poflution Control Act Amendments of 1972, at 33—36
(EPA 1976).
90. A. Reitze, Envirorui ntal Planning 18—21 (1971).
91. See P. Glick, The Caning Transfors .tion of the Soil Conservation
District, Journal Soil and Water Conservation )47, n3 (1967).
92. Aronoff and Schukert, supra note 88, at 35—36.
93. U.S. Environmental Protection Agency, Guidelines for State and Areawide
Water Quality ? nagement Program Development 7—9 (1976).
9 I. kO C.F.R. 13l.U(n)(l977).
95. 33 U.S.C. l311l(j).
96. 38 Fed. Reg. 32288 (1973).
97. Guidelines, supra note 93, at 2—16 to2—23 1 40 C.F.R. §130.3)4(c), (1977).
98. Guidelines, supra note 93 at 2—21 to 2—22.
99. at 32—33.
100. ?. n randum of Working Relationship between the Environmental Protection
Agency and the Department of Agriculture for Development and Implementa-
tion of a !‘ bdel Inpl ntat Ion Program for Water Quality Management,
si ed by D. Costle, Administrator, EPA, on July 21, 1977 and
B. Bergland, Secretary, USDA, on Sept. 16, 1977.
101. Interview with W. Sallee, ASCS member, 208 work group.
102. Interview with G. Welsh, SCS nerrber, 208 work group.
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14 7
io3. U.S. Soil Conservation Service, SCS and 208—Water Pollution Control
(1976).
104. i4.; U .S. Department of Agriculture, Agriculture Inf. Bull. No. 345;
Assistance available from the Soil Conservation Service 8 (1970).
105. SCS, supra note 103.
106. ivironmenta1 Protection Agency—Forest Service, Coordination between
the U.S. Forest Service and State and Regional Water Quality Management
Programs (1976).
107. 33 U.S.C. §1323.
io8. Sec. 61(a), §313(a).
109. U.S. Agricultural Stabilization and Conservation Service, Notice EQ 41,
Manxrandum of Guidance between ASCS and EPA (1976).
ItO. For additional detail on ASCS conservation programs and .4SC committee
responsibilities see U.S. Agricultural Stabilization and Conservation
Service: (1) BI No. 6, Farmer Con!nittee Administration of Agricultural
Programs (1975); (2) BI No. 12 Agricultural Conservation Program (1975);
(3) BI No. 15, The Water Bank Program (1976); (4) Forestry Incentives
Program for the Forest landowner (1978).
111. 7 C.F.R. §701(1978).
112. The 1979 payment limitation is at Act of Oct. 11, 1918, Pub. L. 95 1448,
Ttt. 11, 92 Stat. 1087 (1978).
113. 43 Fed. Reg. 26730 (1978).
114. ASCS, supra note 108; for a description of the aerial photography
program see U.S. Agricultural Stabilization and Conservation Service,
How Aerial Photos Can Help You (1976); see also Ohio-Kentucky—Indiana
Regional Council of Governments, A Mathod for Assessing Rural Nonpoint
Sources 4—8, 13 (EPA 1975).
115. ASCS intraoffice menoranda (1976); Florida State J\SCS office, FL Notice
EQ 26, ASCS Resources for EPA’ s 208 Program Planning (1977).
116. Id.
117. U.S. Extension Service, Cooperative Ext. Serv. Programs 7—9 (1976)
118. Extension Contriittee on Or nization and Policy, The Cooperative Extension
Service 4 (1974).
-------
14 8
U9. 33 U.S.C. § 1251(e).
120. Interview with H. G. Geyer, Extension rrEuber, USDA 208 working group.
121. U.S. DepartnEnt of Agriculture, Budget Explanatory Notes 2 42 (1978).
122. Great Plains Cooperative Extension Service, Great Plains Beef
Cattle Feeding Handbook § 7000 to 7803.6 (Oklahoma State Univ. 1975).
123. H. Owens, Background of Minimum Tillage paper presented at Minimum
¶I 11age Conference, Univ. of Portland (1976). (U.S. Extension Service
Reprint 1977).
12 1. G. Welsh, Conservation Tv morandum .Sect1on 208—State Responses to
USDA Work Group (SCS 1976); USDA, supra note 120.
125. Interview with C. Rose, F HA.
126. Interview with J. Ij. nin, FR n rnber, 208 Work Group.
127. U.S. Agricultural Research Service, P 1 BS—H-5-l or EPA—600/2-75—026a,
I Control of Water Pollution from Cropland (1975).
128. Id. at 91—95, 105—107, ill.
129. Id. at 3.
130. U.S. Agricultural Research Service, ARS—H—5—2 or E?A—600/2—75.-026b,
II Control of Water Pollution from Cropland (1976).
131. U.S. Federal Research Service, Soil, Water, Air, Sciences Research
Arinial Report at 9—13 (1978).
132. Id. at 82—1o .
133. Id. at 131—175.
1314. Id. at 176—202.
135. Id. at 203—225.
136. 3. Robbins, EPA—600/278-0 1 46, Envirorirr nta1 Irrpact Resulting frc n Un—
confined Anin l Production (1978).
137. Interagency Agreement between Forest Service, USDA, and U.S. Environmental
Protection Agency, EPA—1A6—D5—0660 (1975).
138. Interagency Agreement between Forest Service, USDA, and U.S. Environi nta1
Protection Agency, EPA—lA6—D6—0660 (1976).
139. EPA—600/3—77—036 (1977).
-------
1149
i14o. EPA—600/8—77—018 (1977).
1141. Interview with F. Maloney, FS.
1142. Id.
1143. U.S. Forest Service, Streamside Management Zone Statutes and Ordinances
(1978).
114 )4. 33 U.S.C. §1288(b)(2)(E).
145. Inforiration from Economic Research Service intraa,gency neiiorandum.
1146. 33 U.S.C. §1289.
1147. U.S. Economic Research Service, Research Results for F ’! 1976 arid Plans
for F’! 1977 and FY 1978 at 14 (1976).
1148. Id. at 43—1414.
149. Discussion by R. Loehr and D. Haith (Cornell University) at EPA
National Conference on 208 Planning and Implementation, Reston, VA.
(1977).
150. Acting Deputy Assistant Administrator for Water Planning and Standards,
SAM-31, Regulatory Nonpoint Source Control (1977).
151. Id. at 2.
152. Id. at 3-14.
153. Id. at 115.
1514. Id. at 6.
155. Id. at 7-8.
156. Id. at 8.
157. Id. at 9.
158. Id. at 10.
159. Id. at 10.-li.
160. National Association of Conservation Districts, NACD-208, Infonr ation
Letters No. 1—13 (May 1976 to Sept. 1977).
161. W. t vey, Conservation Districts and 208 Water Quality Management (Water
Planning Div., EPA, 1977).
-------
1 5
162. National Association of Conservation Districts, Erosion and Sediment
Control Programs—Six Case Studies (1977).
163. W.D. Anderson, The Role of State Regulatory Power in the Iriplemantation
of National Natural Resources Policy (1971, unpublished manuscript in files
of Natural Resource Economics Division, ESCS).
i6 3. Id. at 2—5; t vey, supra note 160 at 5—6.
165. A Standard State Soil Conservation Districts Law (USDA/SCS 1936).
(Hereinafter cited as Standard Act).
166. A good exanpie of this is the Wisconsin Soil and Water Conservation
District Law, Wis. Stat. Ann., ch. 92. Originally enacted 1937,
it was amanded in 1955 to give the State soil conservation agency
and the districts authDrity to sponsor SCS—assisted small watershed
projects. It was airended in 1972 to require that district conservation
plans in counties included in regional planning conTnission jurisdictions
be consistent with planning cormrLssion plans. See pocket part for 1977
§92.08.
167. Standard Act §8; Davey, supra note 161 at 6.
168. Davey, supra note 161 at 214, 20 4—11.
169. Id. at 2 4, 20 4—06.
170. Id. at 2 4, 206—09.
171. Sec. 35, §208(j).
172. 43 Fed. Reg. 267140 (1978).
173. Davey, supra note 161, at 214, 212—218.
17 4. Ala. Code Tit. 2, § 6614 (1958); Ark. Stat. Ann. §9—910 (1976); Cob.
Rev. Stat. Ann. §128—1—9 (1973), Fla. Stat. Ann. §582.21 (1962);
Ga. Code §5—2101 (1975); Ill. Ann. Stat. ch. 5, §128 (Smith Hurd
1975); Ky. Rev. Stat. §262.350 (1970); La. Rev. Stat. Ann. §3.1209
(1973); ‘k1. Agric. Code Ann. §8—307(19714); Miss. Code Ann. §69—27—37
(1972); T bnt. Rev. Code Ann. §76—109 (1966); Neb. Rev. Stat. §2—15314
(19714); Nev. Rev. Stat. 5148.1410 (1973); N.J. Stat. Ann. §4: 214_23 (West
1973); N.C. Gen. Stat. §139—9 (19714); N.D. Cent. Code § 14_22_27 (1975);
Or. Rev. Stat. §568.630 (1975); S.C. Code Ann. tit. 2, §148—9—1510
(1976); Tenn. Code Ann. §143 1519 (1964); Tex. Rev. Civil Stat. Ann.
art 165a—5, §8 (1969); Utah Code Ann. §62—1—9 (1968); Vt. Stat. Ann.
tit. 10 §7214 (1973); VA. Code §21—66 (1975); W. VA. Code §19—21A—9
(1977); WIs. Stat. Ann. §92.09 (1972); Wyo. Stat. 11—2146 (1957
& C ern. Supp. 1975).
175. P. Glick, The Ccming Transfonintlon of the Soil Conservation District,
22 Jour. Soil & Water Conservation 45, 147 (Mar—Apr. 1976).
176. Standard Act, §10.
-------
151
177. Id. §11
178. Id.
179. Id. §12.
180. Supra note 1714.
181. N.J. Rev. Stat. §14: 214 23 (West 1973).
182. Maryland, Montana, Nevada, North Carolina, North Dakota, Utah,
Virginia, Wisconsin.
183. Alabana, Arkansas, Colorado, Florida, Georgia, Illinois, Kentucky,
Louisiana, Mississippi, Nebraska, Oregon, South Carolina, Tennessee
Texas, Vernont, West Virginia.
i8 1i. Glick, supra note 175, at 141.
185. Alabama (80), Arkansas (75), Colorado (50+), Florida (50+),
Georgia (50+), Illinois (75), Kentucky (90), Louisiana (66 2/3),
Maryland (50+) Mississippi (66 2/3), Montana (50+), Nebraska (60),
Nevada (50+), North Carolina (66 2/3), North Dakota (75), Oregon
(66 2/3), South Carolina (66 2/3), Tennessee (66 2/3), Texas (90),
Utah (50+), Veniont (50+), Virginia (66 2/3), West Virginia (60),
Wisconsin (50+), Wyoming (75).
i86. Colorado, Florida, Kentucky, Louisiana, Mississippi, Montana,
Nevada, North Dakota, New Jersey, Oregn, South Carolina, Texas,
Utah, VernDnt, Virginia, West Virginia, Wisconsin, Wyoming.
187. Cob. Rev. Stat. Ann. § 35—70—1l0 (1973); La. Rev. Stat. §3.1212
(1973); N.J. Stat. Ann. §14: 214 32 (West 1973); Vt. Stat. Ann. tit.
10 §732 (1973).
188. Fla. Stat. Ann. §582.26 (1962); Ky. Rev. Stat. §262.1490 (1970).
Miss. Code Ann. §69—27—147 (1972); Mont. Rev. Code Ann. §76—ill (1975);
Nev. Rev. Stat. §5148.505 (1973); N.D. Cent. Code §14 22—37 (1975);
Or. Rev. Stat. §568.770 (1975); S.C. Code §148—9—18140 (1976);
Tex. Rev. Civ. Stat. Ann. art. b65a— 1 4 §10 (Vernon 1969); Utah Code
Ann. §62—1—12 (1968 and Supp. 1975); Va. Code 21—100 (1975); W. Va.
Code §l9—21A—ll (1977); Wis. Stat. Ann. §92.12 (West 1972); Wyo.
Stat. §11—2149 (1957 and Cum. Supp.).
189. Utah Code Ann. §62—1—10 (1968).
190. Anderson, supra note 163, at 16.
191. Wis. Stat. Ann. §92.10 (West Cum. Supp. 1977—78).
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152
192. Ala. Code tit. 2 §665(1958); Ill. Ann. Stat. ch. 5, §129 (1975);
Ky. Rev. Stat. §262.1420 (1970); M . Agric. Code Ann. §8—309 (1974);
Miss. Code Ann. §69—27—39 (1972); Nev. Rev. Stat. §5148.400 (1973);
N.J. Stat. Ann. §4.24—27 (West 1973); N.C. Gen. Stat. §139—10 (1974);
Tern. Code Ann. §143—1520 (1964); Utah Code Ann. §62—1—10 (1968);
Wyo. Stat. §U—248 (1957).
193. Va. Code §21—83 (1975).
1914. Neb. Rev. Stat. §2—1342 (1974).
195. See National Association of Conservation Districts, Nonpoint Note
No. 15, in series Nonpoint Notes on 208 Inplementation (1978).
196. National Association of Conservation Districts, SCAMP Information
Circular No. 15, ? npower Planning for Erosion and Sedinent Control
Program (1977).
197. M. White, ?‘ nrmrx1um appended to Standard Act, supra note 161 1, at 35
198. Davey, supra note 161, at iv.
199. Glick, supra note 175 at 49.
200. See NACD, supra note 162 for discussion of State, district and
general-purpose local goverrinent ir npower currently enployed in
carrying out five such programs and additional rre.npower needed if a
sixth should be enacted. Several of the directors of State conservation
agencies Interviewed for the discussion of Statewide sedlmsnt control
pro ams in this paper also said that State appropriations to their
agencies and for the districts had been Increased to pay for the
programs or that such increases were anticipated.
20].. Cal. Pub. Res. Code §9506 (West Cuni. Supp. 1977); Kan. Stat. Ann.
§2—l907b(Cuni. Supp. 1976); Ark. Stat. Ann. §9—930 (1976); Ky. Rev.
Stat. §262.200 (Curn. Supp. 1976).
202. Cob. Rev. Stat. §2—190Th (Cum.Supp. 1976); Mont. Rev. Codes Ann.
§ 76—lo8A (11 1), 76—209 (Cum. Supp. 1975).
203. Issue bonds and borrow noney: Ark. Stat. Ann. §9—932 (1976);
Mont. Rev. Codes § 76 —l08A(l2), 76—220, 76—223 (Cum. Supp. 1975).
Borrow noney: Cob. Rev. Stat. §35—70—108(h); Fla. Stat. Ann.
§582.20(10) (West Supp. 197fl; Iki. Agric. Code Ann. §8—306(a)(16)
(Supp. 1976); Neb. Rev. Stat. §2_3228(5)(l9714). N.J. Stat. Aim.
§4: 2 1 1—22(m) (1973); short term notes only, Tex. Rev. C lv. Stat. Ann.
art. l65a— 1 487(U) (Vernon 1969); Utah Code Ann. §62—1—8(10) (1953).
204. WIs. Stat. Ann. §59.872 (Cüm. Supp. 1977-.j8).
205. Glick, supra note 175, at 47, n. 3.
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153
206. Anderson, supra note 163, at 22—23, citing S. Voelker, Great
Plains Council Pub. No. 5, Land Use Ordi.nances of Soil Conservation
Districts in Colorado 145 (Cob. Agric. Exp. Stat. Tech. Bull. 1952).
207. Id.
208. 0lin er v. People of the State of Colorado , 1 40 Cob. 397, 31414 P. 2d
689 (1959).
209. Soil Conservation Districts Act ArrerldrrEnts, ch. 233, 1961 Cob.
Seas. Laws.
210. Asphalt Paving Co . v. Board of County Coirrnissioners , 162 Cob. 2514,
1425 P. 2d 289 (1967).
211. Cob. Rev. Stat. §35—70—112 (1973).
212. NACD, supra note 162, at 73—74.
213. NACD, supra note 1 Q, Information Letter No. 12.
21 4. Lewis and Clark County District Sediri nt Control Qrdinance No. 77—01,
as authorized in rvbntana Conservation District Law, §76-109 Mont.
Rev. Code Ann. (1966). (Hereinafter cited as Lewis and Clark District
Ordinance).
215. Id. §6,7.
216. Id. §8.
217. Id. §9.
218. Id. §12.
219. Mont. Rev. Code Ann. § 76—1b0 (1966).
220. Lewis and Clark District Ordinance, §13.
221. Id. §15.
222. See proposed Lewis and Clark County Ordinance attached to NACD,
supra note 159, Information Letter No. 4.
223. Lewis and Clark District Ordinance, §17.
22 4. Ch. 633, Mont. Sess. Laws (1975).
225. NACD, supra note i60, Information Letter No. 9.
226. Wis. Stat. Ann., Sec. 92 (West 1972 and Supp. 1977—78).
227. Id. §92.09.
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514
228. Id. §92.11.
229. Id. §92.10.
230. A ? bde1 Ordinance for Wisconsin Soil and Water Conservation Districts
adopting land Use Regulations for Sedin nt Control, attached to
NACD, supra note 160, Infornation Letter No. It, Supp. 1. (Hereinafter
cited as MDdel Ordinance).
231. Vernon County, Wis., Soil and Water Conservation District Land
Use Regulation Ordinance for Town of Stering (June 21, 1977).
Can be found in NACD, supra note 1 Q, Information
Letter No. Lj Supp. 1). (Hereinafter cited as Vernon County Ordinance).
232. ?bdel Ordinance §302(c).
233. Id. §3.02(b).
234. Id. §4.01.
235. Vernon County Ordinance § 302(b), 4.0.
236. Id. 6.0.
237. Id. 3.0l(b)(1)(2).
238. Id. 3.01(a).
239. Id. 3.0l(b)(3)
240. Id. 6 .02(c), 6.03, 6.04.
241. Id. 7.01, 7.02.
242. Id. 7.03.
243. Id. 8.0.
2114. League of Wonen Voters Educational Fund, The Big Water Fi it 81-90
(1960); S. Finley, Serving Suburban Interests In Watershed Developn nt
(Fifteenth National Watershed Congress, 1967). NACt supra note 161
at 1, 7, 33.
245. !kI. Nat. Res. Code Ann. tit. 8, subtit. 11 (1974 & Cum. Supp. 1976).
246. MDdel State Act for Soil Erosion and SedinEnt Control in 1973
Suggested State Legislation, Vol. XXJCEI, Council of State GoveninEnts,
Lexington, KY at 11—19. [ Hereinafter cited as ! bde1 Act].
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155
2147. Ga. Code Ann. Sees. 5—23—la through 5—2313a (1975 Rev. & Curn.
Supp. 1977); Hawaii Rev. Stat., Ch. 180—C (1968, Rev. Supp. 1975)
Ill. Ann. Stat. ch. 5 § l06—138 (Cuin. Supp. 1978); Iowa Code Ann.,
§ 1 467A.1—’167.A.53 (Curn. Supp. 1971, 1977); Mich. Stat. Ann. § 13—1820(1)
through 13—1820(17) (1973 & Cum. Supp. 1977); N.J. Rev. Stat. Ann.
§ 4—24—39 through 14 24 55 (West Supp. 1977); N.Y. Soil & Water Conser—
vatiori Dist. Law § 3, 7—a (McKinney Curn. Supp. 1977—78); N.C. Gen.
Stat. § 1l3A—5o through 113A—66 (1975, Supp. 1975); Ohio Rev. Code
Ann. § l5l5.01 through 1515.30; 1501.20 (Page 19614, Supp. 1975);
S.C. Code § 63.195.l01 through 63.195.106 (1962, Cum. Supp. 1975);
S.D. Con i1ed Laws Ann. § 38—8A—1 through 38—8A—2l (Supp. 1976) VI
Code Ann. tit. 12, § 531—538 (Curn. Supp. 1976); Va. Code § 2l—89.l
through 21.89.15 (Cum. Supp. 1975).
248. MDrlt. Rev. Code Ann. § 26—1505 to 26—1523 (Cum. Supp. 1977); NACD,
supra note 173 at 914_95.
2)49. 25 Pa. Code §102 (1972); under 35 Pa. Stat. Ann. §691 (Purdon 1977).
250. Ga. Code Ann. §5—2303a (1975, Cum. Supp. 1977); lU. Nat. Res. Code
Ann. §8—1102 (19714); N.C. Gen. Stat. §113A—52 (1975); S.C. Code
§148 13 30 (1962, Cum. Supp. 1975).
251. Va. Code §21—89.3 (Cum. Supp. 1975); Mich. Stat. Ann. §13.1820(10)(16)
(1973 & Cum. Supp. 1977).
252. Iowa Code Ann. § l467A.I42 through 1 467A.53, § 467D.l through 1468.9
(Cum. Supp. 1977—78).
253. Id. §1467A. 1 4 1 4.
2514. Id. ch. 1 467D.
255. Id. § 1 467A. 1 43.
256. td. §1467D.23.
257. Id. §1467A.4Lt.
258. Id. §467A.42.
259. Id. §1467A.44.
260. Id. §467A.45.
261. Id. §467A.47.
262. Id. §467A. )48.
263. Id. §1467A. 1 49.
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156
2614. Id. §‘467A.50.
265. Id. §1467A.51.
266. id. §1467A.50.
267. Iowa Code Ann. §665.14 (Cuin. Supp. 1977—78).
268. W. Grierier, Cost Sharing with State Thinds on Soil Conservation
Practices 3, Paper presented at 1978 NACD convention at .Antheim,
Ca. (reprinted by Iowa Dept. of Soil Conservation 1978).
269. Id. at 14-.5.
270. Interview with W. Griener.
271. W. Griener, Am. Soc. of Agric. Engin. Paper No. 75—2565, 1 ndatory
Sedii nt Control—the Iowa Story 15, (1975).
272. MoConley v. Saiin:,n , 2314 Iowa 1020, 1022, 114 N.W. 2d 715, 716 (191414);
Wltke v. State Conservation Conri. , 2 4 4 Iowa 261, 266, 56 N.W. 2d 582,
585 (1953); See also Fishing and Recreation Rights in Iowa Lakes
and Streams, Iowa L.R. 1322 (1968).
273. Interview with W. Griener.
2714. Id.
275. Id.; W. Griener, supra note 268, at 14.
276. Alternative Provisions for Use with the Mxlel State Act for Soil
Erosion and Sed1n nt Control in National Association of Conservation
Districts, Nonpoint Notes on 208 Inplen ntation, Number 14, (1978).
[ Hereinafter referred to as Alternative Provisions].
277. Interview with TI. Garner, NACD consultant on water quality laws.
278. Model Act, §2(a).
279. Id. §3.
280. Id.
281. Id. §14(a).
282. Id. § 1 4(b).
283. Id. §5(e).
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157
2814. Id. §7(c).
285. Id. §10.
286. Id. §11(a).
287. Id. §11(c).
288. Supra notes 276, 277.
289. Id. §1, Alternative Provisions.
290. Id. §2(a).
291. Id. §2(a).
292. Id. §2(h).
293. Id. §3(3).
2914. Id. § 1 4(b).
295. Id. §2(i).
296. 35 Pa. Stat. Ann. §691 (Purdon 1977).
297. NACD, supra note 162 at 106.
298. Interview with A. Scbadel, Pennsylvania State Conservation Corrinission.
299. NACD, supra note 162 at 107.
300. 35 Pa. Stat. Pnn. §691.5 (Purdon 1977).
301. Id. §691.1402.
302. Id. §691.316.
303. Supra note 298.
3014. 71 Pa. Stat. Ann. §510—20 (Purdon Cum. Supp. 1977—78).
305. 71 Pa. Stat. Ann. §510—1(20)(22) (Purdon Curn. Supp. 1977—78).
306. 35 Pa. Stat. Ann. §691.5(a)(b)(Purdon 1977).
307. Id. §691.5(c)(d).
308. Id. §691.)402(a).
309. Id. §691.1402(b).
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158
310. Id. §691.316.
3U. Appeal to &iviror nta1 Hearing Board authorized by 71 Pa. Stat.
finn. §510—21 (Purdon Cum. Supp. 1977—78).
312. Supra note 298.
313. Id.
314. Id.
315. 35 Pa. Stat. Ann. §691.602(a)(Purdon 1977).
316. Id. §691.602(d).
317. Id. §691.602(b).
318. Id. §691.602(c).
319. See Id. §691.602(e).
320. See historical note following §691.602.
321. Supra note 298.
322. 71 Pa. Stat. Ann. §510.21(b)(Purdon Cum. Supp. 1977—78).
323. 35 Pa. Stat. Ann. §691.605 (Purdon 1977).
324. 25 Pa. Code 102 (1976).
325. Id. 102.13.
326. Id. 102.10.
327. Id. at 102.15.
328. W. Peethat a, the Pennsylvania Experience in Sediment: Proceedings
of the 1974 Fall Maeting on Sediment arid Erosion Control in the States
of the PotciTac River Basin 16-17 (Interstate Conn. on the Potonac
zin 1975).
329. 25 Pa. Code 102.61.
330. Peechatka, supra note 328, at 17.
331. Perinysivania t partn it of ivircnmenta1 Resources, Soil Erosion and
Sedimentation Control Manual for Agriculture 4 (1975).
-------
159
332. Id.
333. Id. at 5.
3314. Id. at 5.
335. Id. at 6—7.
336. Id. at 5, 8—u.
337. Id. at 5.
338. NACD, supra note 162 at 1514.
339. Ohio Rev. Code Ann. §1515.30(E) (Page Supp. 1976).
3110. Id. §1515.30(E)(1 )(2).
3141. Id. §1501.20.
3142. Sec. 1501.201, 1971—72 Ohio Laws 519.
3143. Ohio Rev. Code Ann. 1515.30(D) (Page Supp. 1976).
31414. Id. §1515.08(L).
3145. Id. §1515.08(K).
3 46. Id. §1501.20.
3117. . §1515.08.
3148. R. L. Goetten e11er, Managemsnt/Institutional Problems (Nonpoint Sources
Seminar 1976), reprinted by Ohio Div. Soil and Water Districts,
(1977) Interview with F. Heft, Chief, Ohio Div. of Soil and Water
Districts.
3119. NACD, supra note 16 at 171—182.
350. NACD, supra note 162 at 172, 1714.
351. Id. atl7l, 177—78; supra note 3148.
352. Id. at 172, 178; supra note 3148 at 5.
353. Bulletin 6014, CooperatIve Extension Service— Ohio State University
(1975).
3514. NACD, supra note 162 at 180—82.
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16 0
355. Interviews with F. Heft, Chief, and R.L. Goetten elier, Pollution
Coordinator, Ohio Div. of Soil and Water Districts.
356. H.B. No. 1011, Ui G. A. (1975—1976).
357. See Sub. H.B. No. 513 and Am. Sub. H.B. No. 513, 112 G.JL(1977—78).
358. Am. Sub. H.B. 513112 0A. (1977—78) passed Sept. 114, 1978 approved
Oct. 13, 1978. Effective date Jan. 12, 1978 (pertinent sections
will be codified in Ohio Rev. Code § l515.01, 1515.30, 1515.31,
1515.32, 1515.33 and 1515.99. Hereinafter all citations to this
Act will be to the section nun-bers of the code).
359. §1515.01(F).
360. §1515.30(E).
361. §1515.30(F).
362. §1515.30(E)(1).
363. §1515.30(E)(14).
3614. §1515.30(E) (5).
365. §1515.30(E)(6).
366. §1515.30(6).
367. §1515.31.
368. Id.
369. § 1515.30(H), 1515.32.
370. See zx,te 355.
371. §1515.30(I).
372. §1515.99.
373. §1515.32.
3714. §1515.33.
375. N.Y. Soil & Water Conservation Dist. Law §9(7—a) (McKinney Cuin. Supp.
1977—78).
376. Id. §3(11).
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161
377. Id. §3(12).
378. Id. §9(7—a).
379. Id.
380. Interview with W. Croney, Exec. Sec., New York Soil and Water Conser-.
vatlon Cortinittee.
381. Id.
382. N.Y. County Law §223 (McKinney 1972 and Cuin. Supp. 1977—78).
383. Id. §299.
3814. Id. §22)4(8).
385. Id. Art. 5—a.
386. N.Y. Envir. Coriserv. Law §15—1103 to 1113 (McKinney 1973).
387. N.Y. Town Law §261 (McKinney 1965).
388. Id.
389. Id. §267.
390. Id. §268.
391. EA. 89—159 (1977), III. Pnn. Stat. ch. 5, § 106—138.lo (Smith
Hurd Cum. Supp. 1978).
392. Id. §108.12.
393. Id. §128 (SmIth Hurd 1975).
3914. Id. ch. 314, §3151 (Smith Hurd (Jun. Supp. 1978).
395. Id. ch. 139, §3014 (Smith Hurd Cuin. Supp. 1978).
396. Id. ch. 214, §11—13—1 (Smith Hurd (Jun. Supp. 1978).
397. Id. ch. 5, §108.12 (Smith Hurd (Jun. Supp. 1975).
398. Id. §138.7.
399. Id. §111(8).
1400. . §138.14.
1401. . §138.3.
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162
402. Id.
403. Id. §138.14.
4014. Interview with J. Berta, Chief, Bureau of Soil and Water Conservation.
1405. Id. §138.3.
1406. Id.
1407. Id. §138.5.
408. Id. §138.6.
1409. Id. §138.5.
1410. Supra note 14014; see also Ill. Ann. Stat. ch. , §108.15 (Smith Hurd
Gum. Supp. 1978).
411. Id. §138.5.
1412. Id.
1413. Id.
14114. Id.
1415. Id. §138.6.
416. Id.
1417. Id. §138.8.
1418. Id.
1419. Id.
1420. Id.
1421. Id. §138.9.
1422. 1976 S.D. Sess. Laws oh. 2142, S.D. Cczrpiled Laws Ann. §S38—8A—1 to
38—8A-21 (1977).
1423. 1937 S.D. Sess. Laws Gb. 19, § 9, 10, 11, 12.
4214. Interview with A. Griffiths, Executive Director, South Dakota
Conservaticri Cciinission.
1425. S.D. Gonpiled laws Ann. §38—8A—3.
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163
1426. Id. §38—8A—14.
427. Id. §38—8A—5.
428. Id. §38—8A—7.
429. Id. § 38—8A—6, 38—8A- .8.
143°. Id. §38—8A—9.
43l. Id. §38—8A—u.
1432. Id. §38—8A—8, 38—8A—12.
1433. Id. §38—8A—15.
14314. Id. § 38—8A—l6, 38—8A—l.
1435. Id. § 38—8A—19 through 38—8A—21.
1436. Id. §38—8A—17.
1137. Id. §38—8A—18.
1438. Id. §38—8A—19.
1439. Id. §38—8A—1.
14140. Id. §38—8A—20.
l ILa. Id. §38—8A—21.
14 42. Model Act, §7(c).
14143. 1937 S.D. Sess. Laws ch. 19, §10.
141414• Haw. Rev. Stat., § i8oc—i to 180C—14 (1976).
14145 Raw. Rev. Stat. §3)42—32(1)(9) (1976).
14146. 19714 Raw. Seas. Laws, ch. 2149, §1 (Purpose and findings section).
14147. Raw. Rev. Stat., §180C—2(a) (1976).
14148. Id. §l8oc—2(b)(1).
14149. Id. §18oc—2(b)(2).
1450. Id. §1800—2(b)(3).
1451. Id. §180c—2(b)( 1 4).
1452. Interview with J. Parnell, Department of Health.
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164
1 (53. Haw. Rev. Stat. §1800—2 (1976); see Revised Ordinances of Honolulu,
Chapter 23 (1976); Hawaii Ordinance No. 168 (Nov. 5, 1975); Kauai
Ordinance No. 29 4 (Oct. 21, 1976); ui Ordinance No. 8i6 (June
13, 1975).
1(514 Haw. Rev. Stat. §1800-14 (1976).
1455. See county ordinances supra note 453.
1456. Haw. Rev. Stat. §1800-14(1976).
1457. Chapter 37—B can be found at E vir. Rep. (BNA) 756:0617 (1976).
458. Id. §2.
1459. Id. §1.
1460. See county ordinances supra note 14514.
1461. Supra note 452.
1462.
1463.
Id.
Revised Ordinances of Honolulu, §23—1.5(D); Hawaii Ordinance No. 168,
§1.14(5); Maui Ordinance No. 816, §214 l.3.
14614. Revised Ordinances of Honolulu, §23—1.5(D); HawaIi Ordinance No. 168,
§1. 1 4(5)(a); Kauai Ordinance No. 2914, §1.7(E).
1465. 208 TechnIcal CoiTinittee on Nonpoint Source Pollution, Nonpoint
Source Pollution in Hawaii: Assessn ents and Reconrrendatlons Iii
(Hawaiian Dept. of Health 1978).
Supra note 1452.
Haw. Rev. Stat. §3142 32(l) (1976).
Id. § 3142—8, 3142—32(9).
Can be found at (1976) Envir. Rep. (BNA) 756:05114.
Supra note 1452.
Id.
143 Fed. Reg. 5O8 45, Nov. 1, 1978 (to be codified in 7 C.F.R. §6314.27).
Supra note 1465, at 8.
Ed. at Iii, supra note 1452.
1466.
1467.
1468.
1469.
1470.
471.
1472.
1473.
4714.
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165
75. VI Code Ann. tit. 12, ch. 13, §531—38 (Cum. Supp. 1977).
1476. Interview dth W. Saa1n n, SOS district conservationist.
U. S. GOVERN ‘i PRINTING OFFICE S 1979 3]1-I32/i 6
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