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State Enforcement Authorities for Polluted Runoff

April 1998

Citation: 28 ELR 10181

Issue: 4

Author: James M. McElfish Jr.

Editors' Summary: Because the FWPCA's enforcement provisions focus on discharges from point sources, nonpoint source water pollution remains a significant problem. State and federal efforts to address nonpoint source pollution primarily include nonregulatory programs of planning, financial incentives, technical assistance, and voluntary measures. Yet, an array of enforceable mechanisms to control polluted runoff has emerged. Some have been on the books for years, while others have appeared more recently in response to particular problems. This Article recognizes that enforcement mechanisms vary significantly not only state by state, but also watershed by watershed, and activity by activity, and it identifies the wide array of enforceable state laws that are applicable to the control of nonpoint sources of water pollution.

This Article summarizes general discharge prohibitions and notes explicit limitations. It also looks at provisions found in states' fish and game laws, nuisance laws, sedimentation and erosion laws, forestry practices laws, and agricultural laws that can be applied to control nonpoint sources of water pollution. In addition, this Article examines the integration of best management practices into enforceable authorities as well as some geographically targeted enforcement authorities. This Article's comparison of different state approaches used to control nonpoint source pollution could assist state and federal decisionmakers in developing additional enforceable laws where water quality improvement is needed and voluntary programs are no longer sufficient.

James M. McElfish is a Senior Attorney at the Environmental Law Institute. This Article is based on research supported by U.S. Environmental Protection Agency (EPA) Assistance Agreement No. X-825472-01; no endorsement by EPA should be inferred. Thanks to Jay Austin, Mary Duffy Becker, Tobie Bernstein, Carl Bruch, Susan Casey-Lefkowitz, Andrew Galbreath, Laura Kosloff, Ken Rosenbaum, and Chris Semonsen for research. Portions of this Article are drawn from Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution (Environmental Law Institute 1997).

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