New York Rural Water Association

In the past six years, I have received many inquiries from towns and villages in New York State in regard to protecting public water supplies from neighboring agricultural operations. Many of these inquiries have come in response to waste spreading from animal feeding operations. Can local municipalities pass local laws that protect their water supply sources from potential contamination arising from agricultural practices? The answer to that question is not an easy one, as I will explain.

LEGAL FRAMEWORK

Under the Municipal Home Rule Law, a county, city, town or village has the power to adopt and amend local laws relating to "the protection and enhancement of its physical and visual environment" and the "… safety, health and well-being of persons or property therein." However, under Section 305-a of the Agriculture and Markets Law, local governments "shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of this article unless it can be shown that the public heath or safety is threatened." So what does this apparent clash between the Municipal Home Rule Law and the Agriculture and Markets Law mean when it comes to protecting public water supplies? Clearly, protecting a public water supply is consistent with local powers afforded to local municipalities under the Municipal Home Rule Law. However, local municipalities must be very careful when restricting or regulating farm operations. A municipality contemplating passing a water supply protection law must consider three questions to assure compliance with the Agriculture and Markets Law:

Does the law affect farm operations within an agricultural district?Is the local law reasonable?
Is the public health or safety threatened by the regulated activity?

A farm operation is defined in the law as "…the land and on-farm buildings, equipment, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise." An agricultural district is a set of parcels of predominantly viable agricultural land. Figure 1 is a map of agricultural districts in New York. Agricultural districts are typically created by the county legislative body and are subject to review eight, twelve, or twenty years after the date of creation. If the area to be protected under a proposed local drinking water protection law does not encompass an agricultural district, the Agriculture and Markets Law does not apply.

Figure 1

However, if the area to be protected is within an agricultural district and contains farm operations, then the municipality must conform to the Agriculture and Markets Law that is enforced by the New York State Department of Agriculture and Markets. A municipality must carefully address the last two of the aforementioned questions.

Does the law, as proposed, unreasonably restrict farm structures or farm practices? For example, does the law adversely affect the farmer's ability to manage the farm operation effectively and efficiently? Does the law affect the economic viability of the farm? The Department of Agriculture and Markets consider these and other factors on a case-by-case basis.

However, it is very important to note that even if the Department of Agriculture and Markets determines that a local protection law is unreasonable, the local law may be acceptable if it is determined that the public health or safety is threatened by the regulated activity. Therefore, this is the key. Can a municipality be able to show that a certain activity, such as spreading manure within a well's critical recharge area, directly threatens public health?

RECOMMENDATIONS

In order to pass this final legal test regarding public health or safety, I believe that a local municipality should regulate only the most critical area surrounding a public water source and only restrict those practices that represent an acute public health hazard to the water supply. Acute effects are those that occur within hours or days of the time that someone consumes the contaminant. The contaminants with the greatest chance of reaching levels that cause acute health effects are microbes (bacteria, protozoa, viruses), nitrate and nitrite.

Prior to drafting a local protection law, the water supplier should develop a source water protection plan that identifies the water source's recharge or watershed area. This delineation should be based upon hydrogeologic information and include the area within a 60-day time of travel from the source. Sixty days travel time is generally considered as sufficient for protection from microbes. I suggest that a local protection law attempt to protect only this most critical 60-day travel time area or a 200-foot setback (whichever is greater). Practices that should be restricted here are those that would pose an acute health threat. These would principally include the spreading/storing of manure, septage, sewage, sludge, or other material that may be a source of microbes. If nitrate levels are at significant levels (values average at least 2-5 mg/L), the community may also want to restrict the use of commercial fertilizers within this travel time area.

It also would be a good idea to get a letter of support from your local health department for your protection. This support may be useful if the public health or safety rationale for the law is ever challenged.

FINAL WORD

The New York State Department of Agriculture and Markets encourages municipalities to contact them in advance of enacting a local law that may restrict farming in an agricultural district. The Department of Agriculture and Markets will presumably review the law and provide an informal, non-binding response. If anyone would like assistance with protecting their drinking water sources from agricultural or other potential contaminant sources, please feel free to give me a call at 1-888-NYRURAL or email me at Winkley@nyruralwater.org. I can help you develop a source water protection plan and draft local legislation.