Best if printed in landscape.

Can landowners rid themselves of waste water?

Rules 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.

• National 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 U.S.C. §4331(a).
  • This policy (legislation) is the basis for much of the current environment policies.
  • Objective of the legislation is Pollution Prevention
    • "The 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 U.S.C. §13101(b).
  • 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.

  • "The mission of the [EPA] is to protect public health and to safeguard and improve the natural environment -- air, water, and land -- upon which human life depends." (excerpt from WWW site).

    See EPA homepage

  • "The Environmental Protection Agency (EPA) was created through the Reorganization Plan 3 of 1970. The plan was sent to Congress in July 1970 and the Agency began operation in December 1970. The EPA was formed by bringing together 15 components from 5 executive departments and independent agencies. Control programs such as air pollution, water pollution, solid waste management, radiation control, drinking water and pesticides were taken from other agencies and became the responsibility of the EPA.

• "The EPA now administers ten comprehensive environmental protection laws:
• Clean Air Act (CAA)
• Clean Water Act (CWA)
• Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
• Pollution Prevention Act (PPA)
• Resource Conservation and Recovery Act (RCRA)
• Safe Drinking Water Act (SDWA)
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)
• Toxic Substances Control Act (TSCA)
• Marine Protection, Research and Sanctuaries Act (MPRSA)
• Uranium Mill Tailings Radiation Control Act (UMTRCA)
• "The EPA's headquarters are in Washington, DC, and there are 10 EPA regions throughout the United States.

• A 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)
  • Example of the interaction:

    "Although 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.

    "Under 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.

    "The 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.

    "States 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.

    "EPA must approve each SIP, and if a SIP isn't acceptable, EPA can take over enforcing the Clean Air Act in that state.

    "The United States government, through EPA, assists the states by providing scientific research, expert studies, engineering designs and money to support clean air programs."

    excerpt from http://www.epa.gov/oar/oaqps/peg_caa/pegcaa02.html#topic2a

    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.

Clean Water Act (1972)

• History of Clean Water Act
• Summary of Clean Water Act
  • Introduction to Clean Water Act and The Clean Water Act:  An Overview by the National Ag Law Center
• The Clean Water Act defines point source water pollution and non-point source water pollution
  • 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 pollution
  • 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C. §1362
  • Need a permit to discharge a "pollutant" into a waterbody [National Pollutant Discharge Elimination System (NPDES)]
  • Certain livestock operations are required to acquire a permit [Concentrated Animal Feeding Operations (CAFO)]
    • 40 CFR 122.23
  • Federal and state agencies collaborate on enforcement; e.g., North Dakota Department of Health

• Non-point source water pollution
  • In 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.

    see http://www.health.state.nd.us/wq/sw/Z1_NPS/PDF_Files/319ProgramFactsheet.pdf

  • States need to study the problem and develop a plan

    "NPS 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.

• The 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.

• Production agriculture is a major source of nonpoint source water pollution.

Sediments, nutrients, pesticides, and livestock wastes are the most common NPS pollutants affecting the water quality of many North Dakota waterbodies. Excerpt from North Dakota Nonpoint Source Pollution Management Program, Cost-share Guidelines for Nonpoint Source Pollution Control Best Management Practices, March 2003 -- this link is no longer active.

• The distinction between point and non-point sources of water pollution is changing, especially with respect to livestock -- Animal Feeding Operations and Concentrated Animal Feeding Operations (CAFOs)
  • Introduction to Animal Feeding Operations and Animal Feeding Operations (AFOs): An Overview by the National Ag Law Center.
  • Animal Feeding Operations Program North Dakota Department of Health
  • Note the definition of AFO, CAFO, and the three size categories of CAFOs.
  • Also note the role of the states; for example, the North Dakota Department of Health regulations at N.D.A.C. Chapter 33-16-03.1.
  • "The department may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollutants to waters of the state." N.D.A.C. §33-16-03.1-04.

Is there much need for producers to be concerned about air pollution and noise?

Clean Air Act (1972)

• Summary
• 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.

Noise Control Act (1972)

Can 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.
  • Comprehensive Environmental Response Compensation and Liability Act (1980)
  • Current landowners and persons who owned or operated the land at the time hazardous waste was disposed of are responsible for hazardous wastes on their land (42 USC §9607).
  • Also known as Superfund -- federal program to clean up hazardous waste sites but will impose the financial burden on the current landowner, if possible.
• 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.

Can producers dispose of solid waste, especially manure?

• Manure management plans - EPA

  "CAFOs 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

• Nutrient Management -- NRCS, USDA

Can producers apply pesticides?

• Pesticide regulation started with laws to protect the buyer/the farmer. Federal Insecticide Act (1910)
  • Regulate the labeling of insecticides to protect farmers from misbranded/mislabeled products.

• Federal Insecticide, Fungicide and Rodenticide Act (1947)

• Revised the 1910 law but did not alter its purpose

 

• Since 1970s, the purpose of the law has focused on protecting the environment

• Registration and labeling of pesticides (EPA)
• Training and certification of applicators (ND Ag dept)

 

• Federal Environmental Pesticide Control Act (1972)

• Registration of chemicals considered to have environmental impacts
• Requires that applicators be trained; EPA web site
• N.D.C.C. 4-35
• "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).

 

• More recently, the concern also was directed to protecting the people who use or work near pesticides -- Worker Protection Act (1992).

• Workers must be protected from chemical applications
• EPA web site
• Basic Principles of the Worker Protection Standard

 

• Introduction to Regulating Pesticides and Pesticides - An Overview by the National Ag Law Center.

Liability for damaging the habitat of an endangered species??

Can landowners drain a wetland?

North Dakota defines lake, pond, sheetwater, seasonal slough and temporary slough; see N.D.A.C. 89-02-01-02.  A permit from the state is required before these waterbodies may be drained.

USDA 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..." 7 CFR 12.2

Permit to drain in North Dakota (first enacted in the 1960s)

• Primary 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 acres.
  • 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.
• In 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)).

No Net-loss Wetlands (1985 North Dakota -- repealed in 1995) -- Landowner will not be granted permit to drain unless replacement wetlands are identified.

As 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. 

• "Swampbuster" 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.

Can the federal Endangered Species law be used to block a landowner from draining a wetland??

Can 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
  • the 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 N.D.A.C. 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.

Last updated December 6, 2010

E-Mail agecinf@ndsuext.nodak.edu
Published by Agribusiness and Applied Economics
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