All states provide incentives to farmers for adopting management practices that reduce agricultural non-point source pollution. Common strategies include education programmes, technical assistance programmes and cost- sharing for implementation of prevention and control measures. These approaches are generally modelled after USDA’s programmes.
Recently, more states have been moving beyond a voluntary approach to address non-point source pollution towards mechanisms designed to enforce certain behaviour. These ‘enforceable mechanisms’ include regulation and liability provisions (ELI, 1997).
State laws using enforceable mechanisms for non-point source pollution vary widely in definitions, enforcement mechanisms, scope and procedures.
States are taking very dissimilar directions in enforceable non-point source pollution control policy, largely because of the absence of federal direction (ELI, 1997). Some of the catalysts moving states towards stronger measures include: immediate problems that have demanded attention (e.g. nitrate con- tamination of groundwater in Nebraska; animal waste problems in North Carolina; pesticide contamination of groundwater in California and Wisconsin); the use of TMDLs for identifying sources of water contaminants;
the requirements of the CZARA; and the improving technical ability of states to assess their waters (ELI, 1997).
State laws using enforceable mechanisms for non-point source pollution vary widely in definitions, enforcement mechanisms, scope and procedures (ELI, 1997). The mechanisms that states are using to make adoption of best manage- ment practices (BMPs) more enforceable can be grouped into five categories (ELI, 1997): (i) making BMPs directly enforceable in connection with required plans and permits; (ii) making BMPs enforceable if the operator is designated a ‘bad actor’; (iii) making compliance with BMPs a defence to a regulatory violation; (iv) making BMPs the basis for an exemption from a regulatory programme; and (v) making compliance with BMPs a defence to nuisance or liability actions.
All these mechanisms focus on BMPs (design-based) rather than water quality
136 M. Ribaudo
measures (performance-based) and this is a direct result of non-point source pol- lution discharges being unobservable. Policies are focusing on those factors in the pollution process that can be observed. Some states are trying to link BMPs more closely with observed problems by employing ‘triggers’ (measured environmental conditions). The types of BMPs required depend on the level of pollutants found in water through monitoring. In a few cases, where the relationship between pro- duction activities and water quality are better understood and can be monitored, policies have adopted management measures that are more performance-based.
Table 5.2 summarizes some of the foci of such mechanisms being used by states. While many states have provisions that deal with water quality as it relates to agricultural non-point source pollution, they often target only a subset of water quality problems. Few states deal with agricultural non-point source pollution in a comprehensive manner. Most target individual pollu- tants (e.g. sediment), resources (e.g. groundwater), regions (e.g. coastal zone), or type of operations (e.g. swine). Many of these laws have been enacted within the past 5 years and so the impacts of these policies on producers or on the environment have yet to be seen. The following are some examples of the approaches being taken by states.
Groundwater protection from pesticides – California
Pesticides in groundwater are a major concern in California. Intensive pro- duction of fruit, vegetables and other crops requires the application of a wide variety of pesticides. California’s groundwater is a major resource vital to the economic development of the state (Holden, 1986). California is using the Pesticide Contamination Prevention Act (Division 7, Chapter 2, Article 15, FAC) to protect groundwater from pesticide pollution. The state has created a groundwater protection list of pesticides subject to regulation. Inclusion on the list is determined by the physical characteristics of the chemical. The law requires the state to set numeric values for six chemical characteristics that define the chemical’s ability to leach into groundwater. During the registration process the manufacturer must submit information on these characteristics. If the value for one of the characteristics exceeds the prescribed numeric value, the chemical is placed on the groundwater protection list.
Pesticides on the list are regularly monitored in the environment. If the pesticide or potentially toxic degradates are found either in groundwater, or 8 ft (2.4 m) below the surface, or below the root zone, or below the zone of microbial activity, the pesticide is subject to restrictions in use or to cancella- tion. If it is determined that legal use of the chemical does not threaten to pollute groundwater anywhere in the state where it may be used, then use can continue without change. If current legal use is determined to pose a threat, use is allowed to continue if the label can be modified so that there is a high probability that groundwater contamination will not occur. This includes the establishment of pesticide management zones where the use of
Non-point Source Pollution Control 137
certain chemicals is restricted. If use cannot continue under alternative prac- tices, then the chemical can be banned. However, if it is determined that cancellation or modified use will cause a severe economic hardship to agricul- ture, and no substitute products or practices can be effectively used, then use can continue subject to meeting water quality standards that are believed to represent acceptable risks. If continued use is allowed under the above restric- tions, and groundwater contamination is found after 2 years, the chemical will be cancelled if it is carcinogenic, mutagenic, teratogenic or neurogenic.
California’s law is designed to minimize statewide economic hardships.
However, it is possible that farmers within pesticide management zones may face increased production costs and/or greater risk of pest losses, placing them at a competitive disadvantage to neighbouring producers. Also, it is
Table 5.2. Summary of foci of state enforceable mechanisms for controlling agri- cultural pollution.a
CAFOs/
State Fertilizer Pesticides Sediment animal waste Comprehensive
Arizona x x x
Arkansas x x
California x
Colorado x x
Connecticut x x
Florida x x x
Idaho x x
Illinois x
Indiana x
Iowa x x x
Kansas x x
Kentucky x
Maine x
Maryland x x x
Michigan x
Minnesota x
Montana x x
Nebraska x x
New York x
North Carolina x
Ohio x
Oregon x
Pennsylvania x x
South Dakota x
Virginia x
Washington x
West Virginia x
Wisconsin x x x
Wyoming x
a Mechanisms may apply only under certain conditions or in certain localities.
138 M. Ribaudo
possible for important chemicals to be banned if they continue to be found after 2 years and they pose health risks to humans.
Seven herbicides had verified detections in California groundwater in 1997: atrazine, bromacil, diuron, hexozinone, norflurazon, prometron and simazine. To protect groundwater from these pesticides, 92 pesticide manage- ment zones have been established in ten counties. Growers operating within these zones are denied access to the banned pesticides through the registra- tion process. The state has also developed a geographic information system (GIS) that enables the permit issuer to determine whether a grower’s field is within a pesticide management zone.
Groundwater protection from atrazine – Wisconsin
Another example is Wisconsin’s programmes for protecting groundwater from pesticides. The legal basis for these programmes is the Wisconsin Groundwater Law (1983) (Wisc. Stats., Chapter 160). The Groundwater Law requires the state to undertake remedial and preventive actions when concen- tration ‘triggers’ are reached in groundwater for substances of public health concern, including a number of pesticides. Two triggers are established for each chemical: an enforcement standard and prevention action limit (PAL).
The PAL is 10, 20 or 50% of the enforcement standard, depending on the toxicological characteristics of the substances. When a PAL is exceeded, a plan for preventing further degradation is prepared. When the enforcement standard is exceeded, the chemical is prohibited in that area overlaying the aquifer that is contaminated.
An example of how the law is implemented involves the herbicide atrazine. The enforcement standard for atrazine is 3.0 ppb, and the PAL is 0.35 ppb. Well monitoring found that atrazine concentrations in many areas of the state where it is used were above the PAL (Wolf and Nowak, 1996). In some areas concentrations were above the enforcement standard. Part of the plan for addressing the problem was the passage of the Atrazine Rule, which established maximum atrazine application rates and conditional use restric- tions for the state (Wisc. Admin. Code, Agri. Trade & Cons. Prot. Ag30). The Rule also established a series of zones where additional restrictions are imposed on top of the statewide rules. The result is a three-tiered manage- ment plan: statewide atrazine restriction; Atrazine Management Areas (AMA) where concentrations exceed the PAL; and Atrazine Prohibition Areas where concentrations are above the enforcement level.
Statewide atrazine restrictions consist of soil-based maximum application rates, restrictions on when atrazine can be applied and a prohibition on apply- ing through irrigation systems. Further restrictions are placed on application rates in the AMAs. In 1993, six atrazine management areas had been estab- lished, in response to detections of atrazine in groundwater at concentrations at or greater than 0.35 ppb (Wolf and Nowak, 1996). In addition, 14 atrazine
Non-point Source Pollution Control 139
prohibition areas had been established, in response to concentrations in groundwater greater than 3.0 ppb.
An assessment of the Atrazine Rule reported that producers in AMAs were not facing an agronomic disadvantage to counterparts in non-AMAs, as represented by comparisons of yield loss predictions and assessment of weed intensity (Wolf and Nowak, 1996). However, an assessment of compli- ance costs was not made.
Groundwater protection from nitrogen – Nebraska
Nitrate contamination of groundwater is a serious concern in Nebraska. For years, studies have shown nitrate concentrations at varying levels in ground- water throughout the state, often much higher than the USEPA standard of 10 mg l–1. Groundwater sources meet nearly all the needs of Nebraska’s rural residents and 84% of the state’s public water systems (Schneider, 1990).
Nebraska is divided into Natural Resources Districts (NRDs), which are local units of government charged with the responsibility of conservation, wise development and proper utilization of natural resources (Bishop, 1994).
In 1982 the Nebraska legislature passed the Ground Water Management and Protection Act which allowed NRDs to establish groundwater control areas to address groundwater quality concerns (Neb. Rev. Stat. sections 46-673.01–
46-674.20). In 1986 the legislature gave NRDs the ability to require best management practices and education programmes to protect water quality.
Best management practices are defined as those practices that prevent or reduce present and future contamination of groundwater, and include irrigation scheduling, proper timing of fertilizer and pesticide application, and other fertilizer and pesticide management programmes.
The Central Platte NRD used this authority to develop an aggressive groundwater protection programme for addressing a serious and growing nitrate problem in its area. Under the Central Platte regulations, areas within the management area are divided into three phases, based on current groundwater nitrate levels. A Phase I area is defined as having an average groundwater nitrate level of between 0 and 12.5 ppm; Phase II areas average between 12.6 and 20 ppm; and Phase III areas have concentrations averaging 20.1 ppm or greater.
Agricultural practices are restricted according to the level of contamina- tion. In a Phase I area, commercial fertilizer cannot be applied on sandy soils until after 1 March. Autumn and winter applications are prohibited.
Phase II regulations include the Phase I restrictions, plus the condition that commercial fertilizer is only permitted on heavy soils after 1 November if an approved nitrogen inhibitor is used. In addition, all farm operators using nitrogen fertilizer must be certified, irrigation water must be tested annually for nitrate concentration and the content included in fertilizer recommendations, and annual reports on nitrate applications and crop yields must be filed with the NRD.
140 M. Ribaudo
Phase III regulations combine the Phase II requirements with the requirements for split application (pre-plant and side-dress) and/or nitrogen inhibitors in the spring. In addition, deep soils analysis is required annually.
Groundwater monitoring in the Central Platte NRD, which had the greatest problem, has shown a decrease in groundwater nitrate, indicating that the programme is working (Bishop, 1994).
Protection of surface water from phosphorus – Florida
Florida is home to the Everglades, a vast wetland containing a multitude of unique wildlife species. These wetlands have been degraded over time by human activities, including drainage, development and agriculture.
Phosphorus loadings to the Everglades ecosystem upset the nutrient balance and promote the growth of undesirable plant species. A strategy has been developed for reducing phosphorus loadings to the Everglades. Much of the phosphorus is coming from the agricultural areas to the north of the Everglades.
Animal waste from dairy operations around Lake Okeechobee has been identified as a major source of phosphorus loadings. A series of three regula- tory policies was applied to the Lake Okeechobee basin to reduce these load- ings (Schmitz et al., 1995). The Dairy Rule technology standard required the collection, storage and treatment of wastewater from dairy operations (Florida Admin. Code 62-670.500). As an alternative to complying with the Dairy Rule, operators could choose to enrol in the dairy buy-out programme, under which operators were offered a one-time payment for moving their operations out of the basin and accepting an easement on the land. The third policy, known as the Works of the District Rule, imposed a maximum allow- able phosphorus concentration in runoff performance standards for dairies (Florida Admin. Code 62-670.500). Such an approach is possible because the extensive system of drainage ditches enables the monitoring of phosphorus discharges from individual sources.
The imposition of regulations resulted in direct cost, opportunity cost of the operator’s time, waiting cost and regulatory uncertainty cost (Schmitz et al., 1995). The implementation of the three regulatory programmes was estimated to have cost $41.4 million. About half the costs were incurred by the dairy industry, the rest by the government. The dairy buy-out programme reduced the region’s cow herd by 14,000 animals. For the dairies that remained in operation, the Dairy Rule and the Works of the District Rule increased average cost of production by $1.15 cwt–1. Annualized investment costs of compliance were estimated at $0.97 cwt–1. Annual operation and maintenance costs were estimated to range between $0.14 and $0.2 cwt–1 (1 cwt = 0.05 tonnes). The targeting of the regulations to a particular geographical area resulted in a shift in milk production to other regions of the state.
Non-point Source Pollution Control 141
A basin-wide incentive programme for the Everglades was initiated in the 1994 Everglades Forever Act to reduce phosphorus loadings from cropland – primarily vegetables and sugarcane (F.S. 373.4592). The law mandates a 25%
reduction in phosphorus loads discharging from the Everglades Agricultural Area (EAA) between Lake Okeechobee and the Everglades National Park. The Act requires farmers to prepare plans and to install BMPs by the beginning of 1995.
BMPs include soil testing, applying fertilizer directly to crop roots, providing for longer drainage retention, sediment controls and innovative crop location.
Associated with the Act is the Agricultural Privilege Tax, which is aimed at increasing the discharge reductions beyond 25%. A tax, starting at $24.89 per acre, was put on all crop acres in the EAA. The tax will increase every 4 years to a maximum of $35.00 per acre from 2006 through 2014, unless farmers in the EAA exceed an overall 25% basin-wide phosphorus reduction goal. Revenue from the tax is earmarked for the construction of Stormwater Treatment Areas – essentially constructed wetlands for removing phosphorus before it reaches the Everglades National Park.
Protection of estuary from nutrients – Maryland
Chesapeake Bay is a vital resource of the mid-Atlantic coast. It provides habitat for many species of animals and plants, including commercially valuable fish and shellfish. Over the years nutrient enrichment and other pollutants have degraded its condition, greatly decreasing the catch of fish and shellfish. Maryland, Virginia, Pennsylvania and the District of Columbia have promised to implement programmes reducing nutrient loads to the Bay by 40% and to reduce sediment and pesticides as well. Maryland has invoked several pollution control pro- grammes aimed at agriculture, primarily in response to concerns over the health of Chesapeake Bay. Maryland’s Chesapeake Bay Critical Area Program requires all agricultural land in the Critical Area (all land within 1000 ft – 304 m – of the Bay or a tributary) to have a Soil Conservation and Water Quality (SCWQ) plan (Md. Code Ann., Nat. Res., section 8-1801et seq.). An SCWQ plan is the standard conservation planning tool in Maryland and it addresses all agricultural non- point source pollution on farms. SCWQ plans call for the implementation of BMPs for sediment, nutrients and pesticides. The appropriate management prac- tices are determined on a farm-by-farm basis and are selected from the NRCS Field Office Technical Guide. As applied to the Critical Area Program, planning is done for the entire farm, not just for the parts of fields within the Critical Area.
Approximately 34% of the land in the coastal zone is covered by an SCWQ plan.
In 1998 Maryland passed its Water Quality Improvement Act. This is one of the most comprehensive farm nutrient control laws in the country. Under the law, most farming operations must have and implement a nitrogen- and phosphorus-based nutrient management plan. The plan covers all sources of nutrients, including animal waste and sewage sludge. Details of how the law will actually be implemented are still being worked out.
142 M. Ribaudo
Protection of surface waters from agricultural pollution – Vermont
An example of a comprehensive water quality law that includes requirements for general adoption of technology standards is Vermont’s Agricultural Nonpoint Source Pollution Reduction Program, which uses a three-level approach (Vermont Statutes Annotate Title 6, Chapter 215). The law requires all farmers to follow a set of ‘accepted agricultural practices’ (AAPs). The statewide restric- tions are designed to reduce non-point pollution through implementation of improved farming practices. The law requires that these practices be technically feasible as well as cost-effective for farmers to implement without financial assis- tance. AAPs cover the range of agricultural pollutants that can enter surface water and groundwater, including sediment, nutrients and agricultural chemicals. Some examples of AAPs include erosion and sediment control, animal waste management, fertilizer management and pesticide management.
Animal operations of greater than 950 animal units must use AAPs in order to obtain a permit. One practice that is mandatory for all fields bordering perma- nent waters is vegetative buffer strips. Under the law, all farmers in the state must follow AAPs as part of their normal operations. Implementation of AAPs creates a presumption of compliance with Vermont Water Quality Standards. Where the AAPs are insufficient to achieve water quality goals, voluntary installation of additional BMPs will be encouraged through financial assistance. If water qual- ity continues to be a problem, then BMPs will be required on specific farms. BMPs typically require the installation of structures such as manure storage systems.
Failure to use practices considered to be consistent with the AAP rules results in a warning of non-compliance. Continued failure to adopt recom- mended practices can result in cease-and-desist orders and administrative penalties. The law is a little vague on how compliance is determined, but it appears that a finding of non-compliance can arise from an inspection that does not result from a citizen complaint.
Seeking greater efficiency through trading – North Carolina
North Carolina has adopted a basin-oriented water quality protection strat- egy that includes trading between different sources of pollution. This was made possible by North Carolina turning to the total maximum daily load provisions of the Clean Water Act (USEPA, 1997d). According to the Clean Water Act, if the technology-based point source programme fails to achieve water quality standards, a second tier of regulations would be implemented.
These are based on the quality of the receiving waters and are known as the total maximum daily load (TMDL) provisions. Federal regulations and USEPA guidance for TMDL implementation describe a process where regulators establish wasteload allocations (WLA) for point sources and load allocations (LA) for non-point sources and natural sources (Bartfeld, 1993). Together,
Non-point Source Pollution Control 143