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Federal baselines are the only way to eliminate variance at the state and local level



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Federal baselines are the only way to eliminate variance at the state and local level


Williams 2002 - Saint Louis University School of Law
Douglas Williams 2002 “When Voluntary, Incentive-Based Controls Fail: Structuring a Regulatory Response to Agricultural Nonpoint Source Water Pollution” Washington University Journal of Law & Policy Volume 9 Sustainable Agriculture: Food for the Future
From the foregoing review of existing federal programs, it is apparent that an effective response to agricultural nonpoint source pollution requires a significant restructuring of existing federal authority. The major shortcomings of the existing amalgam of programs are: (1) the absence of an effective institutional structure to ensure consistent and defensible monitoring and assessment of water quality; (2) an over-reliance on “voluntary,” incentive-based programs to achieve needed pollution reductions; and relatedly (3) the absence of control measures on farms that can be enforced by federal authorities or by affected citizens. Some of these problems could be cured in part through significant, but not far-reaching, policy amendments. An effective overall policy for controlling agricultural nonpoint pollution will, however, require more sweeping reforms. In this section, I propose both.¶ The present system of water quality standards and monitoring and assessment of water bodies creates a number of problems. Inconsistencies from state to state can create confusion among affected populations and, in some cases, particularly in interstate waters, lead to serious inequities in the allocation of cleanup responsibilities. In addition, the absence of effective monitoring and assessment permits farmers and others to point fingers of blame at others for perceived water quality problems. A fairly straightforward remedy for these problems would be the enactment of pre-emptive, minimum federal water quality standards with monitoring and modeling protocols.473¶ For conventional water pollutants, the EPA could promulgate a menu of water quality criteria corresponding to various acceptable designated uses in various regions and in various types of water bodies. To some extent, the EPA’s existing criteria guidelines already provide a menu of this type.474 States would retain authority to designate uses, but would be required to adopt the EPA’s criteria. Similarly, the EPA could establish monitoring and assessment protocols that the states would be required to follow. States that fail to adopt appropriate water quality standards and monitoring and assessment protocols would face loss of federal funds. The EPA would be required to fill the gap with federal standards.¶ Minimum federal standards would ensure greater consistency among states, which is a pressing need, particularly in interstate waters.475 The need for consistency will likely increase as implementation of the TMDL program accelerates. Minimum federal standards would prevent the states from yielding to the temptation of adopt the least protective standards in an effort to avoid the regulatory and economic impacts of the TMDL program requirements. As Professor Adler argues, with federal standards, “all waters in the country would be measured against a uniform benchmark, and TMDLs would be required wherever statutory and regulatory minima were exceeded.”476

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