• How did stormwater control get so complicated? The coastal stormwater chapter, part 1

    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.

    Coastal stormwater problems — Why didn’t CAMA take care of that?

    The early 1970s in North Carolina brought the Coastal Area Management Act of 1974 (CAMA). This comprehensive program for planning and permitting in the coastal counties might well be suspected of being critically important to the evolution of coastal stormwater rules. The reason that it has not been so provides a fascinating glimpse into the evolution of environmental advocacy, politics and bureaucracy in the state.

    When CAMA was passed, the Division of Coastal Management and the Coastal Resources Commission (DCM and CRC), within the Department of Natural Resources and Community Development (predecessor organization to the Department of Environment and Natural Resources, or  “DENR”) were charged with implementing it. In the late 1970s and early 1980s, DCM and CRC worked with local government stakeholders (directly and through, for example, the Coastal Resources Advisory Commission) to identify the “big issues” that would be primary priorities for CAMA. The first big priority was “coastal hazards.” Out of the early work on coastal hazards came the ban on bulkheads, the policy against hardening the shoreline, ocean setbacks, policies for rebuilding on the ocean fringe, and other fundamental policies that continue to define and generate debates within CAMA today. DCM and the CRC were directly and deeply engaged in policy formation, including, for example, lobbying the Federal Emergency Management Agency on flood insurance policies. By 1981 DCM and the CRC had forged a widely accepted process for handling big issues such as coastal hazards, with buy-in from local governments and reasonably widespread acceptance, if not love, from coastal developers.

    DCM and CRC try to move beyond their initial priorities

    In the early 1980s, DCM and the CRC turned their attention to the next set of big issues. By 1983 coastal water quality had emerged as the next major priority. Water quality problems on the coast got attention because it was easy to see some consequences that directly affected humans and the economy, namely, the closure of shellfish beds due to bacterial (including fecal coliform) contamination. DCM and the CRC began an effort on coastal stormwater cleanup, proposing options that included expanding the seventy-five foot area of environmental concern for shorelines and expanding the buffer requirements on public trust waters. As with the earlier coastal hazards effort, there was a major stakeholder discussion, through the CRAC. There were efforts at the time to develop a multi-commission focus on water quality, as has happened to an extent in the early 2000s with coastal habitat protection plans. Back in the early 1980s, the Marine Fisheries Commission was interested in a joint effort on coastal water quality, due to concerns for fisheries habitat, but the Environmental Management Commission was not interested. The position of staff in the Division of Environmental Management (DEM, predecessor of the Division of Water Quality) was “you are talking about land use—we don’t do that, we are about ‘water quality.’” With DEM’s lack of interest, the CRC began rulemaking to expand the AECs and public trust buffers in order to improve coastal water quality.

    At the same time, the coastal developers and business community were growing increasingly concerned about restrictions on development—particularly the clout of section 404 of the federal Clean Water Act, the involvement of U.S. Fish and Wildlife, the success of CAMA’s coastal hazards work, and the increasingly energized efforts of environmental  groups such as the Coastal Federation. Coastal water quality was the first highly visible issue that the Coastal Federation took on. The Coastal Federation decided at some time in this era that it would work as a critic of DCM and the CRC, an adversarial stance that probably helped its long-term funding and organizational development, but that also helped seal the fate of DCM and the CRC as “not in the driver’s seat” on coastal stormwater issues. In response to the rise of the Coastal Federation and to some wetlands permitting decisions on the coast, the coastal business community formed an advocacy group, the Alliance for Balanced Coastal Management, and hired Ken Stewart, former (and first) director of the Division of Coastal Management as its director and Ken Kirkman as its counsel. Through the Alliance the business community began closely monitoring coastal water quality efforts.

    The Martin administration moves coastal stormwater responsibility in State government to the Division of Environmental Management and the ERC

    In 1984 Governor Jim Martin was elected, appointing Tommy Rhodes from Wilmington as Secretary of DENR and Dr. Ernie Carl, who had a second home at Wrightsville Beach, as Deputy Secretary. In Ernie Carl, the Alliance found a ready reception, a willingness to appoint environmental commissioners who were partisan, and then to lobby them individually and as a coalition of “Martin appointees.” By 1985 the Alliance and other coastal development interests succeeded in getting DENR to step in and take direct control of the coastal water quality efforts, removing DCM and the CRC from the process. After 1985, DCM and the CRC had very little role in policies about coastal stormwater rules; indeed, in 1988 DENR reorganized DCM, without the involvement of its director, eliminating the two positions in the division devoted to water quality and directing the division to be involved in processing permits, not writing rules and policies.

    Development of coastal stormwater rules passed first to an ad hoc group created at Governor Martin’s direction, including Stewart and Kirkman, some representatives from the environmental community, and staffers from the Division of Environmental Management. Henceforth, coastal stormwater rules in North Carolina would be under the direct purview of DEM (now DWQ DWR).

    US EPA’s tentative, halting early steps towards stormwater regulation: Section 208 of the Clean Water Act

    DEM had not worked much on stormwater prior to 1985. Its primary federal funder and overseer, the United States Environmental Protection Agency, had taken a pass on stormwater in the first round of water quality regulations following the Federal Water Pollution Control Act of 1972. EPA regulations in 1976 mentioned stormwater controls for point source discharges, but it took until 1987 (after action-forcing litigation and a reauthorized Clean Water Act) for EPA to seriously begin requiring stormwater controls for runoff in general. Stormwater was lumped with other things considered to be “nonpoint source pollution,” and the 1972 amendments to the federal Clean Water Act mainly provided for planning and study of these problems. Section 208 of that Act set up area wide planning in places that had substantial water quality problems. There was a great deal of concern on the part of states and localities about the degree to which Section 208 would require them to deal with stormwater. For example, the National Association of Regional Councils, in summarizing questions and answers about Section 208 in 1975, said:

    Will the 208 Planning Process Require Developing Programs to Deal with Non-point Source Pollution and Urban storm Runoff?

    Yes. Section 208 is the most positive statement on the need to identify, and if present, develop a program to solve non-point source pollution. This is a difficult problem and the solutions will not be obvious or easy to correct. This problem will probably require more innovative approaches than any other aspects of the act. While EPA will continue to do research and provide technical assistance to 208 planning agencies, it is recognized that the answer to non-point source problems must be tailored to the region. Each agency will have to define the parameters of the problem within its area, and using existing research decide what measures might be environmentally, financiall, technically and politically feasible.[1]

    Section 208 planning, the only national response to stormwater problems as of the early 1980s, was mostly limited to urban and industrial areas. One of the most serious efforts at 208 planning in North Carolina, the plan produced by Triangle J COG for the Triangle, noted the importance of the Sedimentation Pollution Control Act of 1973, but went on to call for comprehensive, post-construction stormwater control. “Fully developed stormwater management legislation with an allocation of state and local responsibility similar to that of the Sedimentation Pollution Control Act is needed. The program should address stormwater runoff quality and quantity and should be administered by the Sedimentation Control Commission and operated by local governments.”[2] The local governments of the Triangle 208 area (Orange County, Durham County, Wake County, Chatham County, Lee County, Johnston County, and the municipalities in those counties) thus at least formally endorsed comprehensive stormwater controls. But the 208 plans, in North Carolina and nationally, famously fell short on implementation.

    A push from NURP

    The national evidence that eventually pushed NC towards stormwater controls was U.S. EPA’s Nationwide Urban Runoff Program (NURP) (U.S. EPA 1983). There were study sites in Winston-Salem, NC; Myrtle Beach, S.C. and Long Island, NY; the S.C. and NY sites were particularly relevant to runoff impacts on shellfishing waters. NURP found median levels of fecal coliform in warm weather (organisms per 100 ml): in Winston-Salem, Central Business District (15,000); residential area (23,000); Myrtle Beach, residential (630); commercial (3,500); mixed use (630); Long Island residential (23,000); mixed use (11,000). The Median value for eleven NURP sites was 21,000. The standard is 14.

    DEM found similar high levels in sampling stormwater runoff in coastal NC in 1985. Long Island followed up with a study of the sources of coliform loading in Long Island bays and found over 90% of it was from separate stormwater runoff, particularly in densely developed Nassau County. A study was carried out in the 1980s in Myrtle Beach with similar results. The science was clear: the major source of coliforms in North Carolina (and other states’) coastal waters was accumulation on impervious surfaces on the land, and the main pathway for that pollution to get into the water and to shut off shellfish harvesting was stormwater. Here was a major challenge to environmental regulation as it stood then (and still stands now): we couldn’t effectively regulate pollution on the land separately from pollution in the water, because an important part of that pollution moved off the land and into the water whenever it rained.

    In part 2 of this entry, we’ll look at the early responses to this scientific understanding of stormwater’s critical role in shellfish contamination and closures.

     

    [1] National Association of Regional Councils, The Challenge and opportunity of Water Quality Management Planning: Questions and Answers about Section 208 of the Federal Water Pollution Control Act as Amended (Washington, D.C.: NARC, 1975) at 3

    [2] Triangle J Council of Governments, 208 Areawide Water Quality Management Plan (RTP, NC: Triangle J. Council of Governments, 1977).

    Richard Whisnant joined the School of Government (then the Institute of Government) in 1998. Prior to that, he was general counsel with the NC Department of Environment, Health & Natural Resources. He had previously practiced environmental law with Robinson, Bradshaw & Hinson, in Charlotte, North Carolina, and was a clerk for the Hon. Sam J. Ervin III on the US Court of Appeals for the Fourth Circuit. Whisnant earned a BA from the University of North Carolina at Chapel Hill and an MPP and JD from Harvard University.

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