In late March 2016, North Carolina took front stage in national political news. The legislature convened  for a one-day special session to pass a bill preventing local governments from enacting anti-discrimination ordinances. Some of the news coverage, national and state, addressed the general issue of the legislature’s stripping power away from local governments in other areas, notably local government structure, taxing authority and infrastructure ownership.

Over the past five years, the North Carolina legislature has also stripped the state’s local governments of many of their powers to regulate environmental threats. This trend has not been widely reported. In this entry I will catalog some of the recent changes in local government’s environmental regulatory powers–all of them reductions in such powers.

These changes also should be viewed in a longer historical context, however. There has been dynamic ebb and flow between local governments, the State, and the federal government in power to regulate the environment ever since the passage in the 1970s and 1980s of the nation’s major federal environmental statutes. This entry will also go back to the start of the State of North Carolina and describe what I see as five major periods with different arrangements of local versus State environmental regulatory power:

1. A Preindustrial era of purely local control (1700s to 1900)
2. Early industrial era of State floors with local flexibility (1900 to 1970)
3. Late industrial era of federal mandates with potential State flexibility, limited in NC by the legislature (1970 to 1990)
4. Postindustrial era of federal and State “devolution” of power, yielding many localized or “place-based regulations” (1990s to 2010)
5. Great Recession and post-recession era clampdown on agency and local environmental discretion (2011 to present)

An important feature of all this ebb and flow is that new eras never completely wiped out the programs and laws created in early eras. The power swished around like water beneath coastal piers, but the old programs often remained, like barnacles, some alive and others just crusty hulks of their former living selves.  I will start with the recent era and work backwards in time. Some of the most interesting legal problems are presented by the persistence of those earliest barnacles.

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(Above: Change in extreme precipitation events in southeastern U.S., from National Climate Assessment 2014).

Whatever your take on projections of sea level rise and global temperature increases (I’m extremely worried: these things are happening and we are responding much like the 2014 UNC Tarheel football defensive unit responded to threats, which is to say, hardly at all), and whatever your beliefs about the likelihood of future droughts in the southeast (I don’t think the data support any confident predictions one way or the other), it’s hard to ignore the trend to increased extreme precipitation events (see banner image above). The graph shows percent changes in the annual amount of precipitation falling in very heavy events, defined as the heaviest 1% of all daily events from 1901 to 2012. The far right bar is for 2001-2012. In recent decades there have been increases nationally, with the largest increases in the Northeast, Great Plains, Midwest, and Southeast. Changes are compared to the 1901-1960 average. (Figure source: NOAA NCDC / CICS-NC).

This trend makes the law and policy of stormwater management more important than ever before in this country, region and state.

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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

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A part of the waste map that gets less public attention these days than in the 1980s and 1990s, hazardous and radioactive waste are primarily regulated at the federal and state levels of government. The relative lack of media attention to these wastestreams so far in the 2000s and 2010s should not obscure their importance to the structure of environmental law in the United States. The large body of federal and state laws that regulate hazardous waste management has been central in forming the general public understanding of how environmental law works as a “command and control” system. Ironically, the national and state successes in getting hazardous and radioactive waste problems off of the front page of the newspapers blogs and off of television news has, in my opinion, also contributed to the lack of awareness of how useful, important, and yes, efficient government regulation can be.

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This is the way the question often comes to me–who owns it?–as a way of asking either who controls water in NC (for beneficial purposes) or who is responsible for it when it does harm (e.g., flooding). Framing the question this way is an unsurprising reflection of the importance of property rights in American law. And property rights do matter for water law. But water, the great solvent, has a way of dissolving preconceptions about ownership of property and forcing anyone who really cares to reexamine their understanding of ownership itself. Things, like water, that are always moving, often in mysterious ways, and that are so vital to us that we can’t imagine life without them, just don’t fit well in simple definitions of “property.” To make matters especially complicated for water, the law has come to treat its ownership very differently as it moves through the eternal cycle in which it always moves: from ocean to sky, back to earth as rain (“stormwater”) or snow, then either infiltrating into the ground (groundwater) or into streams and lakes (surface water), and then passing through myriad human channels, including our own bodies, on its way back to the sea. In this post, I will outline the way NC law treats ownership of groundwater–probably our biggest and ultimately most important store of freshwater.

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Many people in the United States today like to speak of a thing called “free enterprise,” which in their minds is closely linked to “property rights,” with both of these things being represented by a time in American history before the rise of “big government“–back in colonial days, and for a period after Independence up to the industrial revolution.  It would surprise and perhaps disturb these people to find that the earliest North Carolina legislatures, filled with “founding fathers,” were quite willing to take away an individual’s property rights in the interest of environmental improvement.  As long as environmental protection was perceived to advance economic development, early American leaders readily restricted individual freedom by imposing state-sanctioned changes on property.  But before the rise of the state administrative agencies that now form much of the executive branch of government, the legislature turned to local government and the courts to impose these requirements on property owners.

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