Back in the early days of the Coastal Area Management Act, North Carolina locked in a policy position regarding permitted uses of property next to water: the uses had to be “water dependent” or else they were not permitted.  This policy was based on some science that showed water pollution increased significantly the more there were commercial and industrial uses next to the water.  Some restaurateurs along the historic river walk in Wilmington chafed at that policy, and so in the mid-1990s I found myself walking beside the lower Cape Fear River with Joan Weld and Linda Rimer, then the two assistant secretaries for natural resources and environment in the State.  The capable division director of the Division of Coastal Management, Roger Shecter, presented the thinking underlying the policy.  But we agreed with the restaurant owners: it was better for the environment to get people back around the water, where they could enjoy the fruits of decades of regulatory efforts to clean up our rivers.

Our heads are round so thought can change direction.  ~Allen Ginsberg

Read More →

Few people understand how complicated the regulation of stormwater has become. It just sounds wrong that something as natural as rain and its runoff would lead to a byzantine system of regulations that range across all levels of government and that differ from place to place. In North Carolina, coastal stormwater rules are just one chapter in the development of this system, and they came about only after two hundred years of environmental legal efforts to manage stormwater. But they were critical to the development of the State’s regulatory system. In part 1 of this chapter, I outlined the early responses of State government to the problem of shellfish closures caused by coastal pollution, leading up to the inescapable realization in the mid-1980s, in North Carolina as elsewhere in the United States, that runoff from developed, impervious surfaces was the primary cause of high bacterial counts in coastal water, and thus of the loss of shellfish that were safe for human consumption. The byzantine bureaucracy behind stormwater regulation is a response to and an indicator of the huge public administration challenge presented by diffuse (nonpoint) sources of pollution.

Read More →

Environmental law has become very complicated over the past forty years, perhaps in no area more so than the control of stormwater. To anyone but an environmental professional, this must sound like nonsense. The word “stormwater” basically means rain, and what could be complicated about an entirely natural process like rain and what happens to it under the influence of gravity? The answers to this question tell us a lot about important tensions in environmental law generally: what level of government has what degree of control? How tailored should the regulations be to local conditions? How much responsibility is left to us as individuals, without governmental requirements or input–“the market” as it’s now often put? Who are the private actors that contribute to stormwater problems? In North Carolina’s attempts to minimize problems from rainwater runoff, viewed over time, we find divergent answers to all these questions. The net result of over two hundred years of attempts to handle rainwater—whether called drainage, diffused surface water, urban and agricultural runoff, erosion and sediment control, or stormwater regulation—is a chaotic bricolage of laws that defy most attempts at a comprehensive overview. In this entry, we will start in the midstream of this messy “system” and look at the responses to the state’s coastal stormwater problems in the 1970s and ‘80s.

Read More →