USA – Responses to Case 2011
Brian McNamara J.D. Chicago-Kent College of Law, 2011
A. Dan Tarlock Distinguished Professor of Law Chicago-Kent College of Law
1. What are the main legal mechanisms for regulating the physical state of surface bodies (e.g., lakes, rivers and watercourses).
1.1 Does any physical alteration of surface water bodies need a permit and if so who is the relevant authority?
The regulation of the use and development of watercourses (which includes lakes and rivers) is shared among all three levels of government. However, the state and federal governments are the primary regulators. Most states require a permit to withdraw water, but there are a few a few states that do not. All states require a permit to alter the physical nature of a watercourse. The federal government also regulates physical alterations in navigable waters. If a public or private individual plans to fill or otherwise alter a navigable watercourse, it must obtain a permit from the United States Army Corps of Engineers. There are separate programs for the alteration of a watercourse and for the deposit of dredge material into a watercourse. Dredge deposit requires a “404″ permit. The permit is issued by the U.S. Army corps of Engineers after a public interest review, but the permits are reviewed by the federal Environmental Protection Agency which may veto a Corps permit. Federal jurisdiction, however, is limited. The question is what is a navigable watercourse is controversial and has been litigated several times before the United States Supreme Court. Historically, navigable waters were rivers or lakes capable of sustaining commercial navigation, but the definition was extended by Congress in the 1972 Clean water Act. The contested areas are intermittent streams and wetlands. In brief, wetlands and other intermittent streams must have a nexus to flowing navigable stream. If the watercourse is not subject to federal jurisdiction, a state permit is required.
1.2. To what extent may the physical alteration of surface water bodies be regulated in a land use plan?
Local governments may regulate development on banks and in the beds of a river, but their authority can be preempted by state and federal law. For example, one of the criteria for a federal “404″ permit is that the proposed activity- development- be water dependent. A development authorized by a local government could be prohibited by the federal government.
1.3 How is the maintenance of rivers, etc regulated and what is the level of authority?
The traditional answer to this question is the federal government. Maintenance has traditionally meant the navigable capacity of a river. The United States Army Corps is responsible for keeping rivers navigable. Thus, they dredge, clear impediments and maintain locks and dams. If maintenance is defined as the quality of the stream, no specific agency is responsible. Point source discharges must comply with the Clean Water Act.
1.4 What are the mechanisms to insure coordination between upstream and downstream authorities?
The United States has on the whole rejected the idea of river basin authorities outside of the Tennessee Valley Authority. On many rivers one or more federal agencies operate flood control dams. Federal agencies coordinate between themselves over issues such as release schedules. These schedules are disclosed to downstream local governments. Municipalities use this information to prepare flood plans such as temporary barrier installation and evacuation plans.
2. What Are the main legal mechanisms for flood prevention due to heavy rainfalls?
2.1 To what extent are legal mechanisms linked to land use plans, e.g., local development plans?
There are two basic ways to prevent flood damages. First, flood waters can be stored in reservoirs or prevented from reaching vulnerable areas by levees and dykes. Second, development can be prohibited in flood prone areas or building constructed to minimize damage. The federal and state governments have traditionally constructed flood control reservoirs. All levels of government have built dykes and levees. The responsibility for defecting development from flood probe areas has traditionally been a local government function. Courts have upheld the use of the police power to do this against takings challenges. But, the extent of the police power has yet to be tested. Climate change will require more aggressive land use regulation is areas prone to flooding. Supreme Court decision in Dolan v. City of Tigard, 512 U.S. 374 (1994), limited state power to use exacations and dedications to maintain development-free flood plains. The Court upheld the power of a city to limit development in flood plains, but held that a city cannot require the dedication of a land for a public greenway unless it demonstrates that the exaction is necessary to offset the extent to which the development adds to an existing problem such as flood flows.
This said, there has been too much development in flood prone areas and flood damages continue to increase. See American Rivers, Weathering Change: Policy Reforms to Save Money and Make Communities Safer 4-7 (2011). In 1968, the federal government supplemented its traditional dams and levee policy with the federal Flood Insurance program. In brief, the Act requires that mapping of areas subject to 100 year floods. Climate change has challenged this assumption and the federal government is revising flood maps and local communities are planning for more frequent floods. However, most maps are considered out of date and underestimate an area’s risks. Cities may elect to participate in the insurance program by enacting regulations for these areas consistent with federal standards. For example, all new construction in 100 year flood plains must be elevated above the base flood level. Once the community has a federally approved flood plan, subsidized insurance is available to all existing and new structures. However, it is not mandatory, although it is difficult to obtain financing in flood prone areas without insurance. In addition, as local governments anticipate more climate change-induced flood events, they are developing more comprehensive flood damage mitigation plans. This includes new levees, new green flood corridors, more stringent construction standards and the purchase of property in high risk areas.
The Federal Flood Insurance program has been severely criticized. In brief, the government has lowered premiums to encourage participation but this creates a moral hazard problem, otherwise encouraged too much development in at risk areas and has been slow to factor climate change into its maps and flood incident formulas. The subsidized insurance creates incentives for individuals to take risks knowing that insurance will cover loses. As of August 2011, the dysfunctional United States Congress has not been able to agree on flood insurance reform.
2.1 Is It possible to set up requirements for on-site stormwater runnoff in local/development plans with binding effect on individual homeowners, e.g., planning provisions on green roofs, land cover a.o mechanisms a.o.?
In the United States, the United States Environmental Protection Agency (“EPA”) regulates stormwater discharges through the National Pollutant Discharge Elimination System (“NPDES”) Stormwater Program pursuant to the Clean Water Act (“CWA”).1 The EPA regulates stormwater discharges from three potential sources: municipal separate storm sewer systems, industrial activities, and construction activities. Where stormwater discharges are considered point sources of pollution, the operators of these discharges may be required to obtain a NPDES permit before they can discharge. The NPDES permit is designed to prevent stormwater discharges from contributing harmful pollutants to surface waters such as streams, rivers, lakes and coastal waters. Under the NPDES Stormwater Program, regulated entities obtain a NPDES permit and implement Stormwater Pollution Prevention Plans (“SWPPPs”) or Stormwater Management Programs (“SMPs”).2 The SWPPPs and SMPs must adopt best management practices (BMPs) to implement effective erosion controls, sediment controls and pollution prevention measures to reduce or prevent the discharge of pollutants into local surface waters. Examples of BMPs for construction sites to reduce or prevent stormwater discharge include: silt fences, sedimentation ponds, check dams, sediment traps, erosion-control stockpile covers, and temporary or permanent seeding.3 In addition, the SWPPPs are required to have permanent erosion controls for stabilizing the construction site upon the completion of construction activities.
In 2003, new rules were applied to construction sites under the NPDES Permit Program Phase II Construction Rule (“Phase II Rule”).4 Under the Phase II Rule, all operators of construction site activities that result in a land disturbance between 1 and 5 acres require NPDES permits for stormwater discharges.5 In addition, construction site activities disturbing less than 1 acre may also be regulated if they are part of a larger common plan of development or sale with a planned disturbance of equal to or greater than 1 acre and less than 5 acres, or if they are designated by the NPDES permitting authority. “The NPDES permitting authority or EPA Region may designate construction activities disturbing less than 1 acre based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to waters of the United States.”6
In addition to the current NPDES Stormwater Program, the EPA has initiated a national rulemaking to establish a program to reduce stormwater discharges from newly developed and redeveloped sites and make other regulatory improvements to strengthen its stormwater program. The EPA plans to propose a rule in September 2011 and to take final action by November 2012.7
In the United States, it is possible to set up requirements for on-site stormwater runoff in local/development plans with binding effect on individual landowners. Under the NPDES Stormwater Program, which is implemented through the EPA and authorized states, operators of construction site activities that result in a land disturbance between 1 and 5 acres require NPDES permits for stormwater discharges. In certain cases, construction site activities disturbing less than 1 acre may also be regulated if they are part of a larger common plan of development or sale with a planned disturbance of equal to or greater than 1 acre and less than 5 acres, or if they are designated by the NPDES permitting authority.
In order for an operator of construction activities to acquire a NPDES permit, the operator must implement Stormwater Pollution Prevention Plans (“SWPPPs”) or Stormwater Management Programs (“SMPs”). The SWPPPs and SMPs use best management practices (BMPs) to implement effective erosion controls, sediment controls and pollution prevention measures to reduce or prevent the discharge of pollutants into local surface waters. This plans can include mandatory green water measures such as the dedication of sufficient open space to retain flood waters- swales- and retard excess runoff. Cities also regulate the modification of retention areas to ensure their continued functionality.
There are an increasing number of green roofs in the United States, but we have not followed the example of Copenhagen and made them mandatory. At the present time, local governments rely on incentives rather than mandatory requirements. In Chicago, Illinois, Chicago green roofs are required on city-owned properties, and there are financial incentive of up to $5 per square foot for existing buildings. Toronto, Canada adopted a mandatory green roof ordinance in 2009 which requires percentage coverage in new developments. The ordinance covers n multi-unit residential dwellings over six storeys, schools, non-profit housing, commercial and industrial buildings.
2.3 To what extent may (sewage) water charges be reduced as a result of onsite stormwater runoff initiatives?
Sewage charges are usually based on the volume of water consumed, and thus there are generally no discounts. The city of Delray Beach in Florida does discount stormwater collection fees. A separate fee is collected for stormwater runoff infrastructure. Property owners in developments with approved swales and other retention areas receive a 25% discount from the standard fee.
Footnotes:
1. 33 U.S.C. §1342; 40 C.F.R. §122; http://cfpub.epa.gov/npdes/stormwater/swbasicinfo.cfm (last updated 12.02.08).
2. http://cfpub.epa.gov/npdes/faqs.cfm?program_id=6 (last updated 10.18.07).
3. Developing Your Stormwater Pollution Prevention Plan – A Guide for Construction Sites, U.S. E.P.A., May 2007; Stormwater Phase II Final Rule – Small Construction Program Overview, U.S. E.P.A., January 2000 (revised December 2005), p. 4.
4. Stormwater Phase II Final Rule – Small Construction Program Overview, U.S. E.P.A., January 2000 (revised December 2005), p. 1.
5. Id. at p. 2.
6. Id.
7. http://cfpub.epa.gov/npdes/stormwater/rulemaking.cfm (last updated 07.11.11).
E.J. (Edward) Sullivan
The Platform of Experts in Planning Law describes the state of planning law in the United States on its website as follows:
Because of the federal system, the federal government exercises a strong but inconsistent and often indirect influence on land use. The control of land use rests primarily with local governments. There is great variation among the 50 federal states on issues which range from state control to the substantive law.
The statement is not entirely true in the urban water context, insofar as there are broad powers under Article I, Section 8 of the federal constitution, commonly referred to as the “Commerce Clause,1 ” which allows the federal government to regulate the use of water, as well as regulation of navigable waters. Indeed, state legislative provisions prohibiting export of water may be subject to invalidation under the “dormant commerce clause,” as being too restrictive on interstate commerce.2Similarly, the use of interstate rivers and the harbors of the country have long been the subject of federal interest and regulation.3 This constitutional power has also been used to deal with water quality as well.4 The federal government provides a flood plain insurance program, which requires that state or local governments prohibit future residential construction in flood plains in return for the availability of subsidized flood insurance in that jurisdiction.5 These regulations and programs are generally accepted federal interventions into this area, which is otherwise largely within state or local control.6 State or local governments are required to map flood plain areas and prevent construction within the 100 year flood plan, i.e., those areas in which there will be a 1% chance of a flood.7Turning to the questions posed for this conference, the responses from the United States will not be uniform, as the federal government allows for differing regulatory practices and states have differing political, economic and social cultures. Following are the questions posed and the responses that reflect these varying approaches.
1. What are the main legal mechanisms for regulating the physical state of surface water bodies (e.g. lakes, rivers and watercourses)
1.1 Does any physical alteration of surface water bodies need a permit and if so who is the relevant authority?
As with the response to many of these questions, the answer will depend on the individual state.8The appropriation of water from the ground or from rivers and streams is often a state matter and the subject of different legal traditions. In much of the United States, the “riparian” doctrine applies, which allows reasonable use of waters.9 However, in the western United States, the “prior appropriation” doctrine emphasizes registration of rights to the use of water.10 Most water right delineations are undertaken by state agencies or the courts.11 Local governments do not usually participate in these allocation decisions.
1.2 To what extent may the physical alteration of surface water bodies be regulated in a land use plan?
As noted above, local governments often undertake regulations to enforce restrictions on construction of dwellings, as part of land use or zoning regulations for those areas likely to be occupied by humans, if located within flood plains. In those cases, the regulations become even more diverse and intrusive, but are generally upheld.12 However, not all local governments have land use plans (as opposed to zoning regulations) or give credence to such plans.13 Nevertheless, those regulations are generally enforceable.
1.3 How is the maintenance of rivers etc. regulated and what is the relevant level of authority?
As noted above, there are federal regulations, administered by state agencies, which deal with water quality matters.14 With respect to water appropriations, these are normally state decisions, made by state agencies or the courts.15
1.4 Are there any mechanisms to ensure co-ordination between upstream and downstream authorities?
With respect to the quality of water, state agencies, acting under federal law, administer water quality regulations and coordinate local land use actions as part of their functions.16
With respect to the quantity of water, such mechanisms exist, at least in theory, either through the use of a strong state planning system where the authority to coordinate state agencies and local governments exists, such as in Oregon,17 or through the use of Interstate Compacts that allow for planning.18
2. What are the main legal mechanisms for flood prevention due to heavy rainfalls?
2.1 To what extent are the legal mechanisms linked to land use plans, e.g. local /development plans?
Aside from the water quality issues discussed above19, local governments are tasked with providing flood prevention, most often with the use of retention and detention ponds or basins.20 These facilities hold water or disperse the same slowly over a period of time to prevent flooding. The facilities are normally required as a condition of development approvals and may reflect a coordinated approach to address flooding by planning the nature, types and adequacy of facilities as part of an engineering or land use plan administered under local land use regulations.21
2.2 Is it possible to set up requirements for on-site stormwater runoff in local/development plans with binding effect on individual landowners, e.g. planning provisions on “green roofs”, land cover a.o. mechanisms?
As indicated immediately above, these requirements may be imposed by local governments through local plans and zoning regulations. They are normally not requirements imposed by the federal governments or state agencies.
2.3 To what extent may (sewage) water charges be reduced as a result of on-site stormwater runoff initiatives?
This question seems to be oriented towards engineering and public administration and this respondent can only use his own experience, i.e., that of Portland, Oregon. The constellation of the federal Clean Water Act, Safe Drinking Water Act, Endangered Species Act, and the renewal of its Water Pollution Control Facilities Permit moved Portland to undertake a massive project to separate storm water from sewage as a result of federal clean water requirements.22 The legal authority to adjust charges as a result of the imposition of on-site storm water facility requirements is present in the United States. A reduction in sewer charges may not be realized for many years, if ever, but the “tools” for adjusting community benefits and burdens exist. Nevertheless, the program is mandated by federal law and the avoided costs of pollution may make the effort worthwhile.
Conclusion
Legal tools exist to respond to the programs to provide ample clean water to urban areas. All that is lacking is the political will to use these tools. Planning law experts can assist the public and their decision-makers that these tools are valid and available.
Footnotes:
1. United States Constitution, Article I, Section 8 provides as follows: The Congress shall have power To . . . regulate Commerce with foreign nations, and among the several States and with the Indian Tribes.”
2. D. Grant, Commerce Clause Limits on State Regulation of Interstate Water Export, http://www.ucowr.org/updates/pdf/V105_A3.pdf .
3. This interest has been recognized fairly early in the days of the new republic. See Gibbons v. Ogden, 22 U.S. 1 (1824), relating to state attempts to regulate steamboat traffic between New York and New Jersey, which were struck down as violating the Commerce Clause. The Supreme Court concluded at 22 U.S. 3: The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with “commerce with foreign nations, or among the several States.”
4. For example, the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, prohibited the discharge of refuse into federal waterways without a permit and was the basis for water quality regulation until replaced by the Clean Water Act Amendments of 1972, 33 U.S.C. §1251 et seq. See especially §404 of that act (33 U.S.C. 1344), relating to water quality. Moreover, water quality is affected by storm water that washes across streets and fields and into water systems. The Federal Government has developed a system to deal with these discharges as well. Seehttp://cfpub.epa.gov/npdes/home.cfm?program_id=6.
5. 42 U.S.C., Ch. 50. The Federal Emergency Management Agency, under the direction of the Department of Homeland Security, manages the program. Further details are found at http://www.fema.gov/business/nfip/.
6. There is an association of flood plain management personnel at the state and local level that work in this area. Seehttp://www.floodplain.org/index.php.
7. http://www.fema.gov/plan/prevent/floodplain/index.shtm. See also Oregon Department of Land Conservation and Development publication, Natural Hazards: Floods Local Governments athttp://www.oregon.gov/LCD/HAZ/localgov.shtml.
8. The federal government has the power to regulate the dredging or filling of land that is within navigable waters, or affects navigable waters. There are, however, limits on such authority. See Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). In some states, a state regulatory system exists along side the federal system.
9. That doctrine is described as follows: [O]wnership of land along a body of water (riparian ownership) is essential to the existence of a right to that water; and each riparian owner has an equal right to make use of the water in its natural state (no storage), no matter when use of the water was initiated; thus, shortages are shared. U.S. Fish and Wildlife Service, Mountain-Prairie Region – Water Resources Division, “Water Rights Definitions” athttp://www.fws.gov/mountain-prairie/wtr/water_rights_def.htm#RIPARIAN.
10. See Bureau of Land Management publication, Water Appropriation Systemshttp://www.blm.gov/nstc/WaterLaws/appsystems.html.
11. For most states using the riparian rights approach, the courts undertake dispute resolution. United States Fish and Wildlife Service, 403 FW 2, Authorities and Definitions, §2(j). In western states, the courts are frequently used for water right adjudications, but state agencies are often participants. See State Adjudications inhttp://www.judges.org/dividingthewaters/adjudications.html.
12. See paper by J. A. Kusler, for the Association of Flood Plain Managers, About Flood Plain Regulations in the Courts (2004), http://www.floods.org/NoAdverseImpact/FLOODPLAIN_REG_IN_COURTS_050604.pdf and paper by J. A. Kusler and E. A. Thomas for the same organization, entitled No Adverse Impacts and the Courts: Protecting the Property Rights of All (2007), http://www.floods.org/PDF/ASFPM_NAI_Legal_Paper_1107.pdf .
13. E. Sullivan, Answered Prayers: The Dilemma of Binding Plans, Planning Reform in the New Century, Mandelker, ed., Planner’s Press, 2005, Ramapo Plus Thirty: The Changing Role of the Plan in Land Use Regulation, 35 Urban Lawyer 1, Winter 2003, and Sullivan and Kressel, Twenty Years After – Renewed Significance of the Comprehensive Plan Requirement, 9 Urban Law Annual 33, 1975.
14. See C. Copeland, Clean Water Act: A Summary of the Law, Congressional Research Service athttp://www.cnie.org/nle/crsreports/10May/RL30030.pdf.
15. See Response to Question 1.1, above.
16. See notes 3-5 and associated text, supra.
17. OR. REV. STATS. Ch. 197.
18. See, e.g., Columbia River Gorge National Scenic Act, 16 U.S.C. §§ 544–544p.
19. Many American cities, especially those with high amounts of rainfall, separate storm water from sewage in order not to violate state and federal water quality standards. Some cities, such as Portland, Oregon, have gone to some lengths to assure water quality. http://www.portlandonline.com/bes/index.cfm?c=34598
20. See, e.g., Laramie County Conservation District, Best Management Practices for Stormwater Runoff: Ponds at http://www.lccdnet.org/wp-content/uploads/2011/04/Ponds.pdf. The federal government may also fund and build dams for flood control and other purposes. See http://www.fema.gov/hazard/damfailure/benefits.shtm.
21. World Meteorological Association, The Role of Land-Use Planning in Flood Management, (2007) http://www.apfm.info/pdf/ifm_tools/Tools_The_Role_of_Land_Use_Planning_in_FM.pdf and U.S. Environmental Protection Agency, Dry Detention Ponds, http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm?action=browse&Rbutton=detail&bmp=67
22. The City of Portland estimated that its Combined Sewage Overflow (“CSO”) program will cost more than $1.6 billion.