Top 10 State and Local Environmental Solutions

8. Connect land use laws and clean water. State and local governments can use zoning and other land use tools to keep toxic urban run-off, agricultural wastes and fertilizer, and other pollutants out of lakes, streams, and groundwater supplies.

Why using land policies for clean water is a federalism issue:
Significance:
Stated most simply, land use matters for clean water because much of what is on the land will find its way into the water. Run-off from parking lots, roads, pesticide-sprayed lawns, fertilized fields, construction sites, and agricultural operations is the source of significant amounts of water pollution. To give just two examples, nitrogen from farms and urban areas causes large dead zones in the Chesapeake Bay, while the roofs and parking lots of megastores in Vermont carry sediments, toxics, oil, and garbage into Lake Champlain.

State and local role:
The Clean Water Act requires states to set water quality standards for their lakes and streams, determining how much of a particular pollutant a water body can tolerate without being degraded. These standards are known as TMDLs, or total maximum daily loads. Under the Clean Water Act, state and local governments have the responsibility for dealing with pollution that comes from diffuse, land-based sources of pollution, known as non-point sources (as opposed to point-source pollution that comes from, say, a pipe from industrial plant at the water's edge). Beginning in the 1990s, the EPA has required municipalities to ensure that the stormwater coming out of their drainage pipes and culverts does not damage local water bodies. Finally, beyond the requirements of the Clean Water Act, state and local governments must keep their natural drinking water supplies from aquifers clean and safe.

Rather than building more expensive wastewater treatment plants (which probably wouldn't capture runoff from rural areas anyway), or installing more drinking water treatment facilities, state and local governments can create land use rules that facilitate clean water. For example, Lewisboro, New York, has recently enacted zoning rules, available from the Gaining Ground database compiled by Pace University School of Law, that place a 150 foot buffer zone between any development and a body of water, and ban building on steep slopes (which causes increased run-off). The buffer zone slows down the rush of stormwater and gives natural vegetation a chance to trap pollutants before they reach the water. Prince George's County, Maryland, has a low-impact development plan that uses natural run-off filtering systems such as rain gardens and rooftop gardens, which also hold pollutants. Portland, Oregon has a "sustainable stormwater program" that uses a variety of land use approaches to clean up runoff.

Oklahoma has had success with a program to keep phosphates from farms out of waterways. New Jersey and Ohio have used federal clean water loan funds to purchase land so that it won't be developed, or to restore natural land filtering features like wetlands and forests. Both New Jersey and New York have been very aggressive in using acquisitions or conservation easements to limit development on land that sits over aquifers that provide drinking water for millions of people. These programs have the additional benefit of providing recreational areas and preserving open spaces.

Federal Role:
The federal government, through EPA, provides an enormous amount of technical support, best practice recommendations, and funding sources for state and local clean water efforts. The EPA also sets enforceable deadlines and standards for states, although at times EPA has been slow to do so, and has had to be forced into action by lawsuits. Most importantly, EPA has allowed states and localities to use clean water funds to buy land, thereby supporting land use as a clean water strategy. The Clean Water Network has a brief report on other innovative uses of federal clean water funds.

Critical resources:
There is a wealth of information online about how state and local governments can connect land use and clean water. An excellent starting point, which provided the sources for much of the information found here, is a report called Smart Growth for Clean Water, produced by the National Association of Local Environmental Professionals. A somewhat more technical, but also quite useful report that is very specific about linking land use to Clean Water Act requirements on TMDLs and stormwater management is Smart Growth and the Clean Water Act, available from the Northeast-Midwest Institute.

The Environmental Law Institute has several publications that compare and evaluate different state clean water laws and programs, including an examination of all of the laws in the US that deal with non-point discharges, in-depth comparative case studies of different states, and reports on how to handle runoff from large livestock and other animal feeding operations. Pace Law School's Gaining Ground database contains scores of local ordinances regarding stormwater and erosion and sediment control (too much sand and soil can have bad effects on water bodies).

The Chesapeake Bay Foundation has suggestions about how to limit agricultural runoff. Information on land use and stormwater clean up is available from the Natural Resources Defense Council and the Progressive Policy Institute. For local government officials involved in the technical details of stormater management, the Stormwater Center has extensive resources.

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If you know of other state and local governments pursuing similar policies, or different policies to reach the same goal, please let us know by sending an email to redefiningfederalism@communityrights.org.

To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com

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