Best if printed in landscape.
landowners rid themselves of waste water?
with respect to waste water management began with nuisance; that is, your
discharge of waste water may not interfere with neighboring land.
- In the late 1800s,
federal law was enacted prohibiting/regulating what was placed in navigable
waterbodies to protect their navigability because waterways were an
important means of interstate transportation.
- In the late 1940s, and especially during the 1960s, the focus began shifting to broader environment considerations.
- Environmental regulation was considered to be primarily a state issue, but states were reluctant to be too aggressive in addressing environmental issues out of fear that extensive regulation would cause businesses to move to other states with less restrictive regulatory schemes. Accordingly, many environmental issues were not be effectively addressed. For example, the
Cuyahoga River (which flows into Lake Erie) was so polluted that it caught fire; yes, the river was on fire.
- It was in this setting that Congress developed a national environmental policy for the United States.
Environmental Policy Act of 1969
- "The Congress
... declares that it is the continuing policy of the Federal Government
... to use all practicable means and measures ... to create and
maintain conditions under which man and nature can exist in productive
harmony, and fulfill the social, economic, and other requirements
of present and future generations of Americans." 42
- This policy
(legislation) is the basis for much of the current environment policies.
- Objective of
the legislation is
Congress hereby declares it to be the national policy of the
United States that pollution should be prevented or reduced
at the source whenever feasible; pollution that cannot be prevented
should be recycled in an environmentally safe manner, whenever
feasible; pollution that cannot be prevented or recycled should
be treated in an environmentally safe manner whenever feasible;
and disposal or other release into the environment should be
employed only as a last resort and should be conducted in an
environmentally safe manner." 42
- The legislation
also requires federal agencies to prepare Environmental Impact Statement
(42 U.S.C. §4332(2)(C)); that is, a mandatory study of the environmental consequences
of federal projects as the project is developed.
- Environmental Protection
Agency (EPA) is the lead agency in implementing the nation's environmental
law, but other federal and state agencies are required to collaborate
with the EPA in fulfilling the mandate of protecting the nation's environment.
EPA now administers ten comprehensive environmental protection laws:
EPA's headquarters are in Washington, DC, and there are 10 EPA regions
throughout the United States.
key concept in achieving the nation's environmental goals is the interaction
between federal rules (e.g., EPA) and state implementation (e.g., N.D.
Department of Health)
of the interaction:
the 1990 Clean Air Act is a federal law covering the entire
country, the states do much of the work to carry out the Act.
For example, a state air pollution agency holds a hearing on
a permit application by a power or chemical plant or fines a
company for violating air pollution limits.
this law, EPA sets limits on how much of a pollutant can be
in the air anywhere in the United States. This ensures that
all Americans have the same basic health and environmental protections.
The law allows individual states to have stronger pollution
controls, but states are not allowed to have weaker pollution
controls than those set for the whole country.
law recognizes that it makes sense for states to take the lead
in carrying out the Clean Air Act, because pollution control
problems often require special understanding of local industries,
geography, housing patterns, etc.
have to develop state implementation plans (SIPs) that explain
how each state will do its job under the Clean Air Act. A state
implementation plan is a collection of the regulations a state
will use to clean up polluted areas. The states must involve
the public, through hearings and opportunities to comment, in
the development of each state implementation plan.
must approve each SIP, and if a SIP isn't acceptable, EPA can
take over enforcing the Clean Air Act in that state.
United States government, through EPA, assists the states by
providing scientific research, expert studies, engineering designs
and money to support clean air programs."
A common feature of U.S. environmental law is for Congress (our elected representatives in the federal government who set public policy) to establish minimum environmental standards, encourage (require?) state government to implement those standards, and allow state government to impose additional standards for the state if the state legislature so desires. Note that federal law prohibits states from setting standards that are less than the minimums imposed by federal law.
- A source of legal and political uncertainty is how the executive branch implements the legislative mandates (review Overview of U.S. Legal System). Has the EPA, for example, promulgated regulations consistent with the Congressional intent encompassed in the underlying statutory law, or has the EPA regulated issues that Congress did not want to address, or failed to address issues that Congress intended to be addressed? If these differences are not resolved, a lawsuit might be needed wherein the judge will interpret whether the regulation is consistent with the underlying statute. Of course, the other alternative is for the Congress to amend the underlying statute to clarify how it wants the executive branch to address the issue that has arisen.
With this framework in mind, the following sections introduce several federal environmental laws.
Water Act (1972)
of Clean Water Act
- Summary of Clean Water Act
- The Clean Water
Act defines point source water pollution and non-point source water
- A discharge
permit is required for point sources, whereas non-point sources
of water pollution are addressed by the individual states that were
required to develop and implement a water quality plan.
- Point source water
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. This term
does not include agricultural stormwater discharges and return flows
from irrigated agriculture. 33
a permit to discharge a "pollutant" into a waterbody [National
Pollutant Discharge Elimination System (NPDES)]
livestock operations are required to acquire a permit [Concentrated
Animal Feeding Operations (CAFO)]
and state agencies collaborate on enforcement; e.g., North
Dakota Department of Health
- Non-point source
basic terms, non-point source (NPS) pollution can be a variety of
contaminants (e.g., sediments, nutrients, etc.) that are delivered
to surface waters by way of runoff or leached downward into groundwater.
Some common sources of NPS pollution include urban streets and parking
lots, construction sites, and agricultural lands.
study the problem and develop a plan
pollution control efforts to maintain or improve the beneficial
uses of North Dakota's water resources are primarily accomplished
through the North Dakota NPS Pollution Management Program. The
state's NPS program was developed through three major components,
as required by Section 319 of the Clean Water Act. These components
are the NPS Pollution Assessment Report , the NPS
Pollution Management Program Plan, and the creation of
the NPS Pollution Task Force.
NPS Pollution Assessment Report, provided to EPA in December
1988, was written to identify the extent of NPS pollution problems
in the state. Submitted to EPA in January 1990, the NPS Pollution
Management Program Plan provides an overview of the state's program,
as well as a summary of NPS pollution management goals. This report
was most recently updated in August 1999 to define the NPS Program's
mission and to establish short- and long-term goals for program delivery,
coordination, and evaluation. The NPS Program's mission statement
and long-term goal is "to protect or restore the chemical, physical,
and biological integrity of the waters of the state by promoting locally
sponsored, incentive-based, voluntary programs where those waters
are threatened or impaired due to nonpoint sources of pollution." Taken from North Dakota Water Quality Assessment 1998-1999; North
Dakota Department of Health.
there much need for producers to be concerned about air pollution and
Air Act (1972)
- Federal government
has developed air quality standards for states to implement.
- Much of ag is exempt
from air quality standards.
- Some states address
odors in their air quality laws; sometimes state address odors through
zoning ordinances, rather than environmental regulation.
- Will EPA regulate agricultural dust, especially dust from livestock operations, as part of the Clean Air Act? This is a question in the early 2010s.
Control Act (1972)
producers rid themselves of hazardous waste?
- May not dispose
of hazardous waste in an unauthorized manner. Cannot simply dump or
bury a hazardous waste on your land.
- Definition of hazardous
substances; see 40 C.F.R. 302.4
- Exercise care in
using/managing land you own.
- Exercise care in
buying land so not to become the owner of land with an existing hazardous
waste problem, because the current landowner is responsible for cost of
clean-up even if the problem was created by a previous landowner.
- Land buyers are
hiring experts to assess whether there is a potential hazardous waste
problem; that is, land buyers are having experts conduct environmental audits.
- Some lenders are
not accepting mortgages on land that pose a risk of having a hazardous
waste problem; the reasoning is that if there is a problem, the borrower/owner
may default, the lender would likely foreclose the mortgage and become
the owner of the land -- and thereby becomes the current owner who is
liable for the clean-up cost. For this reason, some lenders secure their
loans with collateral other than real estate.
producers dispose of solid waste, especially manure?
management plans - EPA
confine large numbers of animals, and store wastewater and manure
in a contained area for extended periods of time. CAFOs constitute
a small share of all animal feeding operations (AFOs) in the livestock
and poultry industries. The majority of AFOs are not CAFOs and,
therefore, are not subject to the existing Federal regulations." -- taken from EPA fact sheet
Management -- NRCS, USDA
producers apply pesticides?
- Pesticide regulation
started with laws to protect the buyer/the farmer. Federal Insecticide
- Regulate the
labeling of insecticides to protect farmers from misbranded/mislabeled
Insecticide, Fungicide and Rodenticide Act (1947)
- Revised the 1910
law but did not alter its purpose
1970s, the purpose of the law has focused on protecting the environment
Liability for spray
drift (common law of torts) -- discussed in a previous section.
of chemicals considered to have environmental impacts
- Requires that
applicators be trained; EPA
- "The board,
in adopting rules under this chapter, shall prescribe standards
and requirements for the certification of applicators of pesticides.
These standards and requirements must relate to the use and handling
of pesticides." N.D.C.C. §4-35-06(2).
recently, the concern also was directed to protecting the people who
use or work near pesticides -- Worker Protection Act (1992).
for damaging the habitat of an endangered species??
landowners drain a wetland?
Dakota defines lake, pond, sheetwater, seasonal slough and temporary slough;
89-02-01-02. A permit from the state is required before these
waterbodies may be drained.
defines wetland as "land that-- (1) Has predominance of hydric soils;
(2) Is inundated or saturated by surface or groundwater at a frequency
and duration sufficient to support a prevalence of hydrophytic vegetation
typically adapted for life in saturated soil conditions; and (3) Under
normal circumstances does support a prevalence of such vegetation..."
to drain in North Dakota (first enacted in the 1960s)
purpose of state permit in ND is to protect neighbors; preserving wetlands
appears to be a secondary objective of the state law.
- A state
permit is needed for landowner to drain a watershed of more than 80
- Note that this North Dakota statute is not stating "an 80-acre wetland". The statute states "an 80-acre watershed." Therefore, a permit is needed in North Dakata to drain a 1-acre wetland in the middle of a 100-acre corn field that drains into the 1-acre low spot.
determining whether a permit will be granted, the primary consideration
is the impact the proposed drainage will have on neighbors (N.D.C.C. §61-32-03).
- North Dakota applies a theory of "reasonable use" if the area to be
drained is less than 80 acres (Martin v. Weckerly, 364 N.W.2d 93 (N.D. 1985)).
Net-loss Wetlands (1985 North Dakota -- repealed in 1995) -- Landowner
will not be granted permit to drain unless replacement wetlands are identified.
explained above, a Federal NDPES permit is required to discharge materials
into water; this requirement can be used to protect wetlands against filling,
but does it apply to draining a wetland if nothing (such as the moved
soil) is discharged into the waterbody? For many years, the interpretation
was that a NDPES permit is not required when draining a wetland, but this
interpretation is changing. See Drainage.
was enacted to protect wetlands from drainage, but swampbuster
does not prohibit wetland drainage, it declares farmers ineligible for
benefits of federal farm program if wetland is "converted"
16 USC §3821. Also see 7 CFR Part 12.
- More recently, Corps
and EPA stated that it regards ditching with equipment to result in
a discharge even if the dirt was deposited on dry land. They then defined
discharge as any activity that destroys an area of waters of the United
States. Likewise, they defined discharge as any inconsequential degrading
of an area of waters of the United States. By eliminating the
incidental fallback exception (not defined here) for ditching
and defining discharge to include any degradation of a wetland (regardless
of whether it was degraded by fill or drainage), the Corps and EPA brought
wetland drainage into the NDPES permitting process.
the federal Endangered Species law be used to block a landowner from draining a wetland??
landowners build a dike to protect their land from water they do not want?
- See N.D.C.C. §61-16.1-38.
- "[D]ikes ... capable of ... diverting more than fifty acre-feet [twenty-five acre-feet of water for a medium-hazard or high-hazard dam], may be
constructed" only if
- an application for the construction and complete plans have been submitted to the state engineer;
- the state engineer
has initially reviewed the application and forwarded the application, along with any changes, conditions, or modifications, to the water resource board of the district;
- the board considered, approved (with any suggested
changes, conditions, or modifications) and returned the application to the state engineer; and
state engineer gave final approval to the application.
- Criteria for approval by the state engineer includes safe and proper dike, does not interfere with the orderly control of water, and promotes the safety or protection of property.
- Also see
Article 89-08 -- Dams, Dikes, and Other Devices
- Is the earthen barrier immediately north of the North Dakota-Manitoba border a road or a dike? How are international disputes resolved? Is there a court system? What is the International Joint Commission?
Summary of Key Points
- Historically, individuals had minimal legal remedies when a neighbor adversely impacted the environment; perhaps a nuisance (tort) action could be brought against the polluting neighbor.
- Local government could use its police power to regulate activities on private land, including the allocation of water rights, but the scope of that legal authority is limited by the U.S. "taking" law. Local and state government also may hesitate to impose limitations that could "drive" businesses to other states.
- The U.S. federal government has addressed environmental issues primarily since 1970 when it was acknowledged that these issues needed to be addressed and that states were unlikely to do so.
- The U.S. federal government can readily direct the use of federal land but must strike a political, economic and legal (e.g., police power v. taking) balance when directing activities on private land.
- Congress has devised a system wherein states have an active role in administering federal environmental standards.
December 6, 2010