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BEYOND WATER QUALITY: CAN THE CLEAN WATER ACT BE USED TO REDUCE THE QUANTITY OF STORMWATER RUNOFF?
Citation:
PRAHALAD, P., M. CLAGETT, AND T. HOAGLAND. BEYOND WATER QUALITY: CAN THE CLEAN WATER ACT BE USED TO REDUCE THE QUANTITY OF STORMWATER RUNOFF? Winter 2007, Urban Lawyer. American Bar Association, Chicago, IL, 39(1):85-109, (2007).
Description:
Improving water quality by targeting stormwater runoff and the pollutants it carries has become an increasingly important and discussed issue in both environmental policy and urban management literature. Although this is certainly an important concern in both realms of policy, limiting an analysis of the environmental impacts of stormwater runoff to only the pollutants carried by stormwater runoff is a mistake. The mere quantity of excess stormwater runoff, due in large measure to urbanization and increasing impervious surfaces, impacts the physical integrity of receiving streams and can affect the biology of the watershed. These impacts on the physical structure of a stream result from volume and velocity, as opposed to the presence of pollutants within the stormwater. Additionally, drainage and storage systems used to convey and control stormwater can result in less infiltration through the soil, reducing the stream base-flow and aquifer recharge. Elevated peak flows caused by stormwater runoff also exacerbate the sewer overflow problems. Thus, stormwater quantity, as well as quality, is an important environmental issue awaiting a solution that is practical and defensible, both legally and politically. Economic incentives, such as trading, have proven effective and politically acceptable in other environmental venues. A similar approach may also be both effective and acceptable in curbing the quantity of stormwater runoff.
At the U.S. EPA's National Risk Management Research Laboratory (NRMRL) in Cincinnati, OH, a multi-disciplinary team of researchers is studying the use of economic incentives to reduce the quantity of stormwater runoff from individual parcels of land. The study proposes the use of small best management practices (BMPs) e.g., rain gardens or rain barrels on individual properties distributed throughout a watershed, thus reducing stormwater runoff at the parcel level. The hypothesis is that stormwater runoff will be reduced in a cost-effective way, while approximating a more natural hydrologic profile and improving the ecological condition of the streambed and biota.
This article analyzes the potential role of the Clean Water Act in implementing such a program in urban or suburban areas with existing development. Part II connects stormwater quantity to stormwater quality from an environmental impact standpoint. Part III provides a background on the Clean Water Act and an analysis of the legal distinctions within the Act that affect its applicability to stormwater quantity. Part IV describes the Laboratory's proposed case study of an indirect application of the Clean Water Act to reduce stormwater quantity in the Shepherd Creek watershed in the Cincinnati, OH area. Part V concludes that the CWA may indeed be an indirect tool to reduce the environmental impacts of excess stormwater runoff.