Prepared by:
Sandra S. Batie and Penelope L. Diebel
Department of
Agricultural Economics
Virginia Polytechnic Institute and State University
Published by: North Carolina Cooperative Extension Service
Publication Number: AG-441-2
Last Electronic Revision: March 1996 (JWM)
Despite scientific uneertainty and contradictory and complex government legislation, state governments have taken the lead in developing groundwater management policies. In designing these policies, states must address a common set of policy choices.
Groundwater pollution is one of a growing set of environmental quality issues characterized by both scientific uncertainty and by contradictory and complex governmental legislation. Gaps in scientific knowledge, scientific controversy and uncoordinated state and federal pollution statutes pose significant barriers to better management of groundwater resources. Despite these barriers, and in the absence of coordinated federal actions, state governments have taken the lead in developing groundwater management policies. Some states, such as Arizona, have developed comprehensive groundwater policies. Others, such as New York, rely on land use management for groundwater quality protection. Still others, such as Wisconsin, have implemented a system of groundwater quality standards.
In designing these policies, states must address - either explicitly or implicitly - a common set of key policy choices. The choices are at two levels: fundamental and operational. Fundamental choices are components of the age-old question: "Who has the right to do what to whom?" Operational choices address the pragmatie, technical, institutional and political realities of state groundwater management.
Fundamental policy choices with respect to groundwater management include the following:
Americans desire and are willing to pay to assure a clean and safe environment. They are particularly demanding of protection from involuntary risks, such as that of drinking contaminated water.
Yet, given our continuing ability to measure increasingly dilute chemical concentrations, zero degradation is probably impossible to achieve and would be most assuredly expensive if it were achievable. Thus the poliey questions "How clean is elean?" and "How safe is safe?" become paramount. The answers are complicated by scientific uncertainty.
There are those who argue that anyone who wishes to restrict agricultural chemical use must prove that the chemical is indeed dangerous. In contrast, others argue that those who stand to profit from use of the chemical should be required to prove its safety. This debate revolves around who has property rights to chemical use and to use of the environment.
This debate also frames public attitudes toward risks and tradeoffs. Many would argue that society should limit severely the possibility of allowing a chemical to be used under the supposition that it is not harmful to humans and wildlife - only to find that supposition proven wrong. Such a "risk-averse" strategy is not without cost, but it appears to be the one most readily adopted.
Because of scientifie uncertainty with respect to health risks of dilute chemical concentrations in drinking water, there is a tendency to equate detection with risk. Improved detection technologies bring demands for greater controls on chemical use. This trend inereases the possibility of unnecessarily banning a harmless chemical and foregoing its benefits. In light of such a resk-averse strategy, choices as to what constitutes accptable risk with respect to groundwater pollution are neither easy nor clear.
Adopting health standards to allow some level of pollution in drinking water avoids having to choose between unrestricted chemical use and banning chemicals. For example, Wisconsin has a unique two-tiered approach which uses two types of standards for each contaminant: an enforcement standard and a "preventive action limit." The preventive action limit is a designated fraction (10, 20 or 30 pereent) of the enforcement standard that triggers remedial action to prevent contamination from reaching the enforcement level.
However, the use of standards assumes knowledge of acute and chronic health impacts of chemical ingestion and of linkages between farm practiees and subsequent chemical concentrations. Such knowledge is, for the most part, absent. Thus, until health impacts are better known, society appears willing to err on the "safe side" by adopting a risk-averse strategy and relinquishing the benefits of chemical use, even when there is a chance that health or environmental quality risks will not be reduced.
Strong philosophical differences exist in perceptions about the appropriate role of the government in managing environmental issues.
The role of the private market or voluntary compliance to achieve proposed environmental protection goals is frequently championed. Best management practices are frequently advocated as cost-shared voluntary measures for groundwater protection. Similarly, one could argue that private market responses alone eould assure the level of environmental quality desired - at least where market goods such as food produets are concerned. H.J. Heinz and Company is one of several food processors who have notified producers to reduce chemical residues or find other buyers. Will consumer purchase decisions be adequate stimuli to provide a food supply that is deemed safe?
In many cases, however, the private or voluntary solution has been rejected in favor of a regulatory approach. In particular, the findings of Ezra Mishan and Talbot Page reject the idea that consumer decisions in a private market will lead to attainment of societal interests for many environmental issues because, they argue, consumer decisions are based on a foundation of ignorance: "...Indeed, the very pace of change today with respect to new models and new goods is such that it is not possible for the buying public to learn from its own experience to assess the relative merits of a large proportion of the goods coming into the market."
There is also the argument that benefits provided by society should be accompanied by responsibilities to society. It might seem only equitable, for example, that growers' rights to subsidized irrigation water or farm bill deficieney payments be contingent on good stewardship practices.
The trend appears to be for more "top-down," regulatory-type actions. When the federal government has failed to enact restrictive policies, the states have substituted their own. Increasingly, the state ageney assigned responsibility for managing natural resource quality has been an environmentally oriented agency - not a production or an economic development agency. These environmental agencies tend to emphasize a "polluter pays" orientation.
In addition to the debate about the regulatory nature of proposed public actions, another debate centers on whether state or federal govemments should take the lead. In groundwater protection, for example, one can marshal arguments to justify a federal role: the need for coordination; uniformity across state and regional boundaries; and the trans-state-boundary nature of many contamination problems. Nevertheless, many states are initiating their own programs, due to the diversity of state groundwater problems, the historical dominance of states in land use issues, and the vacuum produced by the lack of federal responses to early detection of eontaminated groundwater.
The answers to the first two questions -"What are the management goals?" and "What is the role of govemment?" - will determine, at least in part, who will bear the costs and who will reap the benefits of a groundwater policy. The issue of costs and benefits is a pivotal one in the polities of environmental legislation.
Some states' groundwater policies shift the burden of costs toward the grower. Connceticut has experimented with a policy of strict polluter liability - the grower is responsible for damages no matter how much care is exercised.
One result of a groundwater policy that emphasizes polluter liability is that it shifts much of the responsibility for enforcement and monitoring to private parties. On the other hand, little incentive exists under a polluter liability policy for any monitoring. Also, unless under duress of a lawsuit, private parties have little reason to conduct research on groundwater issues. No incentive exists for education or for preventive measures.
Furthermore, polluter liability requires degradation or the imminent threat of contamination before any remedial action is taken. Also, placing liability on the polluter and relying on private lawsuits for compensation involves the mechanies of the judicial system. A party must prove standing and injury, which may be difficult, expensive and time-consuming.
A theoretical alternative to strict polluter liability would be for states to refuse to assign liability. If, however. liability is not associated with the grower or the chemical company, then who will bear the cost? Generally, the injured party must either absorb the loss when liability is not assigned or go to court and rely on tort law for compensation.
Policy costs also include out-of-pocket administrative costs for implementation. While usually borne by the general taxpayer, some groundwater policies are adding user fees or taxes to assist in meeting these costs. Some states, such as Iowa, have fertilizer taxes, which are levied not so much to change farmers' use of fertilizer as to raise funds to research alternative agricultural strategies.
The question of who decides is determined at least in part through the process of participatory democracy. Generally, when a problem is defined, groups become interested in its resolution.
In environmental issues, at least at the federal level, a strong, relatively well-organized policy community attends to environmental issues. The environmental community uses both the legislative process and the court system to obtain its goals, believing that it represents society's interests and desires for a safe, high-quality environment. At both state and federal levels, environmentally oriented legislators and lobbyists are framing the debate with respect to groundwater quality protection, developing protection policies that are winning the accptance of the general public.
While fundamental policy choices are the essence of groundwater policy fommulation, these choices are frequently made within the context of operational choices. The major operational choices are:
State groundwater proteetion policies can follow three basic protection status strategies: nondegradation, limited degradation and differential proteetion. These three strategies differ as to 1) what constitutes "acceptable risk" and 2) who should bear the costs.
Nondegradation is the most restrictive policy, requiring the protection of groundwater at its existing quality. It is most often adopted in states with few current contamination problems or for a class of aquifer within a state whose quality is above drinking water standards.
In its most "pure" variation, nondegradation allows no contamination; that is, the "acceptable risk" of contamination is zero. The implication of a nondegradation policy is that water quality protcetion is more important than any negative economic impacts of such strict protection.
Many representatives of resource-extraction industries have historically been opponents of nondegradation strategies. Bruce Leavitt of the American Mining Congress notes: "...it is impossible to eonduct many essential human activities without adding contaminants to groundwater. Even nondegradation proponents admit that it is unachievable."
Iowa is one of the few states currently acting without exception under a true nondegradation policy, although the state may adopt "cleanup" standards late in this decade. With the current absence of health standards, Iowa's Ground Water Protection Act requires that any detectable synthetic organic compound found in groundwater mandates action to prevent further degradation and, if a nonpotable condition exists, the water must be recovered to a potable condition.
A more frequent state policy choice is that of limited degradation. Limited degradation allows degradation of groundwater up to a given health standard. This policy acknowledges the previous existence of contaminated aquifers and the potential for more contamination, and it denies the ability to keep all waters in nondegradated status.
The drinking water standards set by the U.S. Environmental Protection Agency (EPA) are often the standards used by states for limited degradation and therefore define "acceptable risk." Califomia and a few other states set their own standards, which are often stricter than those of EPA; however, many states are prohibited from doing so by state statute.
Differential protection is a use-oriented policy, which is combined with aquifer classification or land use zoning for the land overlaying a particular aquifer. The policy of differential protection recognizes that groundwater of a quality less than that of drinking water is usable for other purposes. The policy, therefore, establishes different definitions of acceptable risk for different purposes.
Although there are many proponents of a differential protection strategy, crities point to its assumption of knowledge. Senator Dave Durenberger, a leading proponent of federal groundwater protection legislation, argues that differential protection makes assumptions about contaminant fate and transport in soil and water, as well as about linkages between land managment activities and groundwater quality, that cannot be defended by current seientific knowledge.
Also, critics suggest that differential protection ignores the potential future need for more drinking water from groundwater sources. If an aquifer not currently used for drinking water is allowed to degrade, future use of that aquifer for drinking water may be economically or physically impossible.
Many policy choices involve the tools to be used to implement a state's groundwater protection program. State groundwater programs tend to have one or more varieties of common tools:
In defining these tools and their uses, state officials will necessarily grapple with fundamental policy choices. For example, in establishing state groundwater standards, officials can refer to only limited national standards or health risk guidelines and therefore must develop their own containment classification systems. For these states, the problems of managing toxic chemicals in groundwater requires answering such fundamental policy questions as:
Similarly, effective education programs will ultimately change polluter behavior. The final goal of ehanged behavior, however, is closely tied to decisions regarding the role of government. For example, if a behavior change is to be voluntary, the perceived benefits to polluters - profits, better health, land sustainability - must be such that action to prevent contamination is clearly in the polluters' own best interests.
The diversity of states' agricultural sectors, land use patterns, hydrology, geology, dependence on groundwater, and political elimate has resulted in several different approaches to managing groundwater. Initially, most states must contend with several ageneies having authority for management of pesticides and nitrate contamination. Usually, agriculture is the responsibility of a state department of agriculture, and water quality and safe drinking water are those of the health and environmental quality agencies or natural resource agencies. Thus, in the design of most states' groundwater policies, the issue of interageney coordination versus the creation of a single-agency approach is important. The issue is one of who decides.
There are many different coordination models. For example, the Colorado Department of Health developed a protection plan in which it serves as lead ageney of 14 ageneies. In 1985, all 14 ageneies signed a memorandum of agreement to enforce their laws. If the agencies encounter groundwater problems, they agree to follow the groundwater strategy.
The Wisconsin groundwater program, the 1983 Wisconsin Act 410, also embodies an interageney approach. Under Wisconsin Act 410:
In contrast to the interageney coordination approach, Arizona created a new state environmental agency, which in 1987 assumed responsibility for almost all of Arizona's environmental laws. The new agency, the Department of Environmental Quality, required 123 additional positions to implement the state's new Environmental Quality Act. While a single-agency approach may have appeal, the difficulties of coordination may be just as intense within a large agency made up of several departments as they are across agencies.
Ultimately, coordination between or within ageneies must grapple with the same three fundamental questions:
Similar comments apply when states are establishing relationships between state policy goals and local management jurisdictions with respect to those land and water uses which potentially impact groundwater quality.
The fundamental policy choice of "Who has the right to do what to whom?" is a pivotal issue of govemance. Over the last few decades, the answer to that pivotal question has become increasingly restrictive to those who own and use natural resources as inputs into production processes. Increasingly, the beneficiaries of new policy initiatives are those who desire higher protection of groundwater quality.
Also, with respect to groundwater management, policy design increasingly incorporates such diverse interests as agriculturalists, industrialists, homeowners, local govemment officials and state officials. Policy design is more complex because of this diversity - and because scientific uncertainty hampers informed policy design. Furthermore, no "umbrella" federal legislation is in place to manage groundwater. The EPA has been mainly advisory on groundwater issues.
While gaps in scientific knowledge, scientific controversy and uncoordinated state and federal pollution statutes pose significant barriers to better management of groundwater resources, the difficulties and responsibilities of protecting groundwater remain with the states. For the near future, at least, the states will continue to address key policy choices with respcet to groundwater quality management.
The unedited version of the paper on which this leaflet is based appears in the March-April 1990 issue (Volume 45, Number 2) of the Journal of Soil and Water Conservation.
"Emerging Rural Environmental Issues," in Inereasing Understanding of Public Problems and Policies 1988. Sandra S. Batie. 1988. Farm Foundation. Oak Brook, Illinois.
Managing Agricultural Contamination of Groundwater: State Strategies. Sandra S. Batie, William E. Cox and Penelope L. Diebel. 1989. Capital Resourees Policy Institute, National Govemors' Association, Washington, D.C.
Charles Abdalla, Penn State University
David Allee, Cornell University
Leon Danielson, North Carolina State University
Distributed in furtherance of the Acts of Congress of May 8 and June 30, 1914. Employment and program opportunities are offered to all people regardless of race, color, national origin, sex, age, or disability. North Carolina State University, North Carolina A&T State University, U.S. Department of Agriculture, and local governments cooperating.
AG 441-2