Thursday, July 21, 2011
This might not have occurred to you. Even if you teach environmental law, and therefore are generally fascinated with environmental law questions, urban stormwater doesn’t exactly leap off the page. To me, until recently, it just seemed technical, dense, and a little obscure, and I didn’t understand it well at all. Then, about two years ago, I stumbled into the world of stormwater law and haven’t wanted (or been able; I just spent the morning in a meeting to discuss some innovative new stormwater regulatory initiatives) to leave. If you’re a professor, or a student looking for a research topic, or a professor helping a student find a research topic, I’d strongly encourage you to take the same step.
At their core, the environmental problems with stormwater are pretty simple. In undeveloped landscapes, most precipitation infiltrates into the ground, where it tends to stay cool and clean. It then flows slowly toward surface water bodies, which it then replenishes with a relatively steady supply of high quality water. Or, if it’s intercepted by wells, groundwater provides humans with a reliable and fairly clean water supply source. Either way, stormwater that enters the ground does good things for people and the environment. But when we develop, we build impervious surfaces—roads, roofs, and pavement—that prevent stormwater from infiltrating into the ground. Now, rather than providing valuable services, that stormwater becomes a problem. It flows rapidly into waterways, or, in many older cities, overtaxed wastewater treatment systems, picking up pollution along the way and causing all sorts of environmental degradation. And after storms subside, when people want to pump their wells and aquatic ecosystems need cool and clean recharge, not as much groundwater is available.
(both images are from the website of the city of Auckland, New Zealand)
These problems have a few features that ought to make them appealing to legal researchers. First, they’re all around us. Chances are very good that as you read this, you’re sitting in a watershed with a stream that doesn’t meet state water quality standards. Or you’re in a city with a wastewater treatment plant that gets overwhelmed and dumps raw sewage with every heavy rainstorm. Chances are also quite good that the building you’re sitting in, even if it’s your home, is contributing to that stormwater runoff problem, as is the parking lot or driveway where you parked your car, as are the roads you’ll drive on your way home, and as is the supermarket where you’ll stop to pick up groceries for your family. Our familiar, daily landscapes, in short, generally don’t work for stormwater. And chances are also quite good that someone in your town government is charged with spending a significant amount of time every day worrying about how to address these challenges. If you live in a city, it may be an entire department, and state and federal interest also can be intense.
The second reason why urban stormwater is legally interesting is that it’s hard to regulate. The legal landscape is complex, even by environmental law standards, with federal, state, and local governments all exercising significant authority. Their programs fit together awkwardly, and no one, as far as I can tell, thinks the current system is entirely coherent, let alone ideal. Figuring out how to reform that system is a challenge—stormwater is exactly the sort of dispersed, cumulative problem environmental law often struggles to solve—which is a headache for regulators but an opportunity for legal researchers. And the field is rapidly evolving, with new initiatives constantly emerging from EPA, some of the more environmentally progressive states, and at the municipal level (for just a few examples, see here, here, or here), so there are many interesting models to study.
You might think a subject this interesting would have drawn lots of legal attention. And there is some good stuff out there. Wendy Wagner has an incisive article about EPA’s stormwater regulatory program (9 Chapman Law Review 191 (2006); I couldn't find a link). Tony Arnold has written some excellent work (see here or here) about “wet growth,” a topic that includes and extends beyond stormwater management. In 2008, the National Science Foundation produced an encyclopedic study of urban stormwater management; the study incorporates and builds extensively upon the analysis in Wagner’s article. I’ve also tried my hand at the subject. But the amount of legal-academic coverage doesn’t match the level of attention regulators, planners, scientists, and engineers are devoting to urban stormwater, or the amount of money our society spends on stormwater management. And I’ve found that among the non-academics who work on stormwater management, there’s a real hunger for the kind of insight that legal-academic research can provide. I’m sure I’m not the only one who, upon completing an article, wonders if anyone will actually read it. With urban stormwater, I’ve learned, they will.
- Dave Owen
As a semi-related postscript, today’s New York Times has an interesting story about climate change adaptation and ecosystem restoration, with a little stormwater discussion thrown in. It’s worth a read.