Water Quality and Water Quantity: New Considerations in the Land Development Equation  

May, 2007 -


In this article, the authors address state-level law on water use and its possible effect on land use decisions. They then examine how federal water-related laws are increasingly impacting land use. 

Land use regulation, particularly zoning, has traditionally been considered a matter to be handled not by state or federal government but by local government— towns and counties.



The federal government, in particular, avoided land use regulation.1 Of all the federal environmental laws that have been passed since 1969, notably missing is federal legislation on zoning or land use planning. Zoning has long been thought to be the province of local governments, and the federal government by tacit agreement kept hands off.2


 


Water supply management, too, has been a local matter. Though drinking water quality is regulated by the federal Safe Drinking Water Act, the federal government, at least in the East, and state governments viewed water supply management as a matter for town or county authorities.


 


Increasingly, though, land use regulation is accomplished, albeit indirectly, by federal environmental laws and by state law in addition to local. The Clean Air Act, for example, sets requirements for cars and trucks that affect where people live and drive. Air Act requirements for ‘‘stationary sources’’ like factories affect where industry can locate.3


 


This article will focus on water law. The federal Clean Water Act is one federal environmental law that turns out to be, in practice, a land use law as well.4 This is particularly true of the Clean Water Act program for imposing total maximum daily loads (‘‘TMDLs’’) on water pollutants. It is true also of the Section 404 program by which the U.S. Army Corps of Engineers issues permits for work in ‘‘waters of the United States,’’ including, importantly, the placing of fill in wetlands.


 


In today's regulatory climate, anyone planning to use or develop land will have to address two questions: First, will the land use increase water pollution? Second, where will the water come from to develop and then use the land? Neither question can be answered without resort to state and federal law. This article will first address state-level law on water use and its possible effect on land use decisions. We will use new Virginia regulations that require local governments in Virginia to prepare local or regional water supply plans as an example of how state water programs can affect land use.5 The article will then discuss how federal water-related laws are increasingly impacting land use.


 


State Water Law


Virginia Water Supply Plans


Although it is only a fledgling, there is now in the Commonwealth of Virginia a program for producing local, regional, and statewide water supply plans. Virginia experienced a drought between 1999 and 2002, which focused Virginia's efforts to establish a longterm statewide water supply plan. Besides forming a Governor's ‘‘Drought Task Force,’’ the General Assembly adopted a law in 2003 that directed the State Water Control Board to adopt regulations requiring local governments to prepare water supply plans. The statute requires that the regulations encourage regional water supply planning and identification of alternative water sources, including desalinization.


 


The regulations, which became effective November 2, 2005, require each local government to prepare a water supply plan addressing current water supply sources and demand and projecting demand for the next 30 to 50 years.6 If there will not be enough water to satisfy the predicted demand, localities must identify alternative water supply sources. They must also describe demand management measures they will use to conserve water.7 Depending on the population of the city, town, or county, the plans will be due from three to six years after the effective date of the regulation.8


 


On their face, the Virginia regulations present an outline for local governments to follow in developing water supply plans that seems straightforward. But water supply planning is wrapped up with land use, and the new water planning requirements will affect the development of land. Importantly, the local program must include ‘‘any revisions to comprehensive plans, water supply plans, water and sewer plans, and other local authorities’’ necessary to implement the new regulations.9 Ordinances and amendments that incorporate elements of the water supply planning program must be submitted to the Department of Environmental Quality (‘‘DEQ’’) along with the plans themselves.10


 


Moreover, requiring local governments to plan and gather information does not tell them how to resolve conflicts among users or allocate inadequate supplies of water. The same issues as before remain, though one hopes the plans will help to address those issues more systematically.


 


Implications of Water Planning for Land Use


The Virginia Code authorizes localities to adopt zoning ordinances one purpose of which is to facilitate the providing of adequate water.11 Subdivision ordinances must address the manner in which water and storm and sanitary sewer and other public utilities are to be installed.12


 


These traditional requirements, coupled with the more detailed new water supply planning regulations, may help localities control or direct growth by implementing the water supply plans, because the regulations appear to require localities to amend local comprehensive plans and ordinances to implement the water supply plans. To be precise, what the regulation says is that local governments ‘‘must adopt a local program … including any revisions to comprehensive plans, water supply plans, water and sewer plans, and other local authorities necessary to implement’’ the regulations.13


 


Failure to secure water supply in advance may stop a development in its tracks. The Supreme Court of Virginia recently upheld a county's denial of a subdivision application for failure to provide a letter from the appropriate agency stating that it could adequately serve the subdivision with water and sewage facilities.14 The Supreme Court upheld the denial despite a local court decision reversing it on the ground that the county and neighboring town, which supplied water to the county, had conspired to prevent water service to the proposed development.


 


Moreover, some localities have used their land use tools, such as public facilities plans, to address water quality and water supply requirements. Challenges to such plans on the grounds that planning for wastewater and drinking water facilities should not be used to direct land use have been unsuccessful to date.15


However, it is clear that as localities attempt to address increasing environmental requirements relating to water quality and water quantity, growth control will be one outcome.


 


The new water planning regulations call for the development of information and plans rather than imposing substantive requirements for water use. They do not re-prioritize various uses for allocation purposes or offer a means of resolving conflicts among competing water users. But the requirement has now changed the dynamic of water supply planning in Virginia, with the state becoming a participant in traditionally local decisions about the available supply.


 


The question, then, is how the newly required water supply plans will be used in the future, and how they might affect other laws already in place that regulate water supply. In Virginia these consist of a collection of laws that require reporting or issuing permits for withdrawals of water. In particular, a Virginia Water Protection Permit is issued for most surface water withdrawals.16


 


Virginia Water Protection Permits (‘‘VWPs’’)


A VWP permit is required for activities that require state certification under § 401 of the federal Clean Water Act, meaning anything that requires a federal license or permit to do anything that may result in a discharge of pollutants to the waters of the United States.17 A VWP permit is needed to excavate in a wetland.18


 


In particular, constructing a surface water intake structure typically requires a VWP permit (in addition to other state and federal permits). That permit may contain flow-related conditions designed to protect instream conditions and, where appropriate, downstream supplies.19 In other words, if a waterbody is impaired and a locality seeks to increase its water withdrawal to accommodate growth, requiring an adjustment to its intake structure, the state has the power to say no.


 


By law, a VWP permit ‘‘does not convey any property right…or any exclusive privileges.’’20 Possessing a valid VWP permit does not guarantee that the holder will be able to withdraw water in perpetuity and does not negate any previously existing water rights.


 


Other Virginia Water Laws


Several other laws also regulate the use of water in Virginia, mostly by requiring the (1) reporting or (2) permitting of water withdrawals.


 


Water Withdrawal Reporting. Certain water users are required to report their withdrawals to the State Water Control Board, which uses the reported data to formulate river basin plans and delineate surface water management areas.21


 


Restrictions on Impoundment of Surface Waters. Restrictions on the impoundment of surface waters are set forth in Va. Code § 62.1-104 et seq., a chapter that prescribes when and how landowners may capture and impound diffused surface waters, as well as flood waters. These statutory restrictions may serve to protect downstream landowners but not necessarily instream values.


 


Surface Water Management Area Permitting. Surface Water Management Areas (‘‘SWMAs’’) may be established by regulation in order to protect instream values against threats from unrestricted withdrawals. Once established, SWMAs are the basis for allocating surface water withdrawals among competing users through a permitting program. SWMA permits may include withdrawal restrictions during low flow conditions.22 The first and only proposed surface water management area23 has been mired in political controversy for years, creating a void in the Commonwealth's ability to allocate supplies among competing users with SWMAs.


 


Groundwater Management Area Permitting. Groundwater Management Areas (‘‘GWMAs’’) may be established by regulation in order to protect groundwater resources. Once established, GWMAs serve as the basis for allocating  groundwater withdrawals among competing users through a permitting program.24 Only two GWMAs have been established (in Eastern Virginia and on the Eastern Shore of Virginia), leaving groundwater withdrawals in most of the Commonwealth largely unregulated.


 


VMRC Regulation of Impacts to Subaqueous Beds. The Virginia Marine Resources Commission (‘‘VMRC’’) is charged with protecting state-owned bottom lands from encroachments or other impacts to those lands. Recently VMRC's jurisdiction was expanded to cover temporary surface water intake structures for agricultural uses that are not otherwise regulated by the VWP permitting program. Such structures may be subject to VMRC permitting requirements if they are found to cause adverse impacts to instream beneficial uses.25


 


Common Law and Riparian Rights


None of the above laws takes into account the common law property rights that may have existed before any of these regulatory programs were created. Owners of waterfront property have certain ill-defined rights to withdraw a reasonable amount of surface water, so long as the withdrawal does not unreasonably interfere with the water rights of other landowners on the waterbody.


 


How the more recent regulatory programs overlaid on this common law basis will affect how much water people can use is largely unresolved. The new water supply planning regulations provide that nothing in them will alter ‘‘any existing surface, ground water or common law water rights ... except as required by federal or state law.’’ But that rather begs the question.


 


Federal Environmental Law


As for federal law, regulatory programs under the Clean Water Act, in particular, increasingly encroach on land use planning, especially regarding waterfront property and wetlands and storm water runoff.


 


The TMDL (total maximum daily load) program is in a sense a nationwide zoning program for waterways, though it applies only where surface water is ‘‘impaired’’ by pollutants. The storm water program regulates land use by means such as requiring vegetated buffer zones and storm water holding ponds and by restricting impervious ground cover. The Corps of Engineers' 404 permit program has a profound effect on where construction takes place, in the interest of protecting wetlands and other ‘‘waters of the United States.’’ Indeed, ‘‘wetlands’’ are a good example of where water regulation and land regulation merge.26


 


Total Maximum Daily Loads Under the Clean Water Act


One land use provision of the Clean Water Act is Section 303, the part that requires TMDLs for impaired waters. The Water Act requires states to put  together a list of waters that are ‘‘impaired’’ because they do not meet state water quality standards.27 Typically, if a water is included on the list, a TMDL must be determined.28


 


The TMDL is the total amount of a pollutant that a waterbody can receive and still achieve compliance with water quality standards.29 Once the TMDL is determined, that total allowable pollutant amount is allocated among the dischargers and the nonpoint sources to the waterbody.30


 


Much of the pollution addressed by TMDLs is ‘‘nonpoint source’’ pollution, meaning rainfall runoff from cities, forestry, and farmers' fields.31 Controlling these diffuse sources of runoff requires land use measures like storm water retention ponds and vegetated buffer strips along streams. In the case of heat as a pollutant, one remedy is to plant trees along riverbanks to shade the water from the sun. A plan for the Tualatin River in Oregon, for example, calls for two wastewater plants to pay for planting trees that will cool tributaries by 1.5 degrees to protect salmon habitat.32


 


The use of TMDLs is controversial where nonpoint sources are concerned. The problem is that the Clean Water Act requires TMDLs to be enforced on point source dischargers but gives no authority to regulate nonpoint sources, which are often the main source of pollution. What authority exists to regulate runoff from fields and cities must be found in state law. (If the rainwater is channelized, though, it may become a ‘‘point source’’ that requires an NPDES permit under Section 402 of the federal act.) Pronsolino v. Nastri33 holds that a waterbody can be listed as impaired, requiring it to have a TMDL, even if the impairment is caused by nonpoint sources. But the court made clear that EPA has no direct authority to regulate state land use practices.


 


A further complication is that TMDLs are aimed at pollutants in water, not at the quantity of water itself. And yet the level of flow in the stream plays a significant role in the TMDL calculation. For one thing, flow affects water quality by affecting the concentration of pollutants. Although ‘‘dilution’’ is not allowed as a substitute for pollution control, ‘‘mixing zones’’ may be permitted where treated effluent is discharged from a point source.34 Flow also affects the temperature of a waterbody, as less water means water to absorb heat and less area for heat to dissipate. Because the Clean Water Act defines ‘‘heat’’ as a ‘‘pollutant,’’35 flow must often be considered when developing TMDLs for thermally impaired waterbodies. The physical action of water flow also affects water quality, and some people argue that this is the same legally as ‘‘discharging a pollutant.’’36


 


In EPA's latest guidance on preparing the lists of impaired waterbodies for TMDL purposes, the Agency says that flow, or lack of flow, is not a ‘‘pollutant,’’ as defined by the Clean Water Act.37 Assuming this is true, TMDLs should not be developed specifically to address flow. EPA explains further, though, that low flow can be an anthropogenic condition that fits the definition of ‘‘pollution.’’38 Therefore, it is possible that a waterbody could be listed as impaired due to ‘‘pollution’’ (anthropogenic conditions resulting in low flow), but a TMDL would not be required because there is no ‘‘pollutant’’ to address (low flow is not a pollutant).


 


However, the fact that a TMDL may not be required to address flow does not mean that TMDLs will not affect water supply planning. The trend in TMDLs where low flow contributes to impairment is to describe the impacts of water withdrawals and explain that, while those withdrawals cannot be addressed in the TMDL, the government authority charged with managing water withdrawals must consider the impacts. For example, in the Upper Chehalis River Basin  temperature TMDL, the Washington Department of Ecology stated that its load allocations were based on certain flow levels. The department warned that ‘‘[i]n-stream flow levels at critical low flows must remain the same. Any additional water withdrawals must not be allowed during critical low flow periods.’’39 The TMDL committed the state agency to consider flow when issuing new permits for surface and groundwater use:


The Washington Department of Ecology is responsible for issuing permits for surface and ground water withdrawal. Reduction in river flow and round water flow into the river would increase temperature problems in the river during critical flow conditions. [The Department of] Ecology will consider this TMDL analyses [sic] when evaluating new applications for surface and groundwater use that might reduce river flow during summer low flow conditions.40


Thus the Washington Department of Ecology has maneuvered around the fact that low flow is not a pollutant that can be regulated by a TMDL. Because the department both develops TMDLs and regulates water withdrawals, the TMDL analysis affects its decisions on water withdrawal permits.


 


Washington is not the only state to recognize that water quality is tied to water quantity. Other states have developed similar approaches to regulating water withdrawals so as to take into account TMDL analyses.41 In all these cases, the result is the same: water quality concerns often drive decisions regarding water supply. As the United States Supreme Court has pointed out, the difference between water quality and water quantity under the Clean Water Act may be an ‘‘artificial distinction’’:


In many cases, water quantity is closely related to water quality; a  sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i.e., diminishment of water quantity, can constitute water pollution.42


The ramifications of this approach remain unclear for a local government seeking to meet its water supply demand. What is a local government to do if a water source identified in its water supply plan is or becomes impaired due, at least in part, to flow modification? Can it rely upon this source of water if low flow contributes to the impairment? How will DEQ regulate the competing interests in the water? These questions remain open. What is certain is that, at some point, water supply needs and water quality concerns will intersect, and it is not clear which will have the right-of-way.


 


Source Water Protection Under the Safe Drinking Water Act


In 1996 the Safe Drinking Water Act was amended to include a requirement that states conduct a ‘‘source water assessment.’’43 Once the assessment is completed, states (and local governments and water providers) are encouraged to develop voluntary, incentivebased programs to protect water supplies.44 Federal funding is available to support such programs.


 


Efforts to protect source water are inextricably tied to land use. Many localities adopt buffer requirements for areas neighboring a water supply source. A recent EPA publication notes ‘‘[w]atershed hydrology suggests that three primary land use strategies can help to ensure adequate water resource protection: preserve large, continuous areas of absorbent open space; preserve critical ecological areas, such as wetlands, floodplains, and riparian corridors; and minimize overall land disturbance and impervious surface associated with development.’’45


 


There is also increasing recognition that ‘‘land protection’’ is linked to water protection.46 EPA recently agreed to join a collaborative effort to protect water supplies by demonstrating how states and localities can integrate source water protection into land use and regulatory water quality programs.47 In fact, a recent report by EPA's Office of the Inspector General advocates using tools available under the Clean Water Act to protect water supply sources.48


 


Thus, where localities have had difficulty regulating land to protect water resources under their traditional zoning authority, they now are armed with authority under the Safe Drinking Water Act and Clean Water Act to use land use to protect water supplies within their jurisdictions. Environmental groups are encouraging the connection between growth control and water resource protection. In California, environmental groups have urged regulatory agencies to withhold permit approvals until water quality studies have been completed or to impose environmentally friendly development standards on projects.49


 


Wetlands


Section 404 of the Clean Water Act, administered mostly by the Corps of Engineers, applies to ‘‘waters of the United States,’’ which include ‘‘wetlands.’’


Wetlands can look like pine forests or other dry land. Indeed, the Corps has classified dry gulches and arroyos in the desert as ‘‘waters of the United States’’ because occasionally they carry rainwater.


 


The problem is that the Clean Water Act applies to ‘‘navigable waters,’’ which are defined as waters that are navigable, non-navigable ‘‘tributaries’’ to such waters, and wetlands that are ‘‘adjacent to’’ other navigable waters. How close  ‘‘adjacent’’ is and how far upstream a ditch has to go to stop being a ‘‘tributary’’


are unresolved issues.50


 


Section 404 permits are required for virtually any construction project in water or wetlands. In one case, a 404 permit was even required for flushing sediment downstream by opening the control gates on a dam.51 Accordingly, these permits directly affect development decisions.


 


NPDES Permits for ‘‘Discharging a Pollutant’’


Like TMDLs, NPDES permits under the Clean Water Act are aimed at limiting pollutants added to water, not to the supply of water itself. But recent court decisions have suggested that merely moving water 52 from one waterbody to another may require a ‘‘pollutant discharge’’ permit.


 


The Supreme Court, borrowing a homely metaphor from the Second Circuit Court of Appeals, capsulized how the NPDES program regulates only the ‘‘addition’’ of water pollutants from a ‘‘point source’’:


[I]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘‘added’’ soup or anything else to the pot.53


The court's point was that an NPDES permit is not required when water is moved from one part of a waterbody to a different part of the same waterbody. The court's statement reminds us that Section 402 of the federal Clean Water Act regulates ‘‘additions’’ of pollutants to water. The Clean Water Act was designed in 1972 primarily to address pollutants in ‘‘discharges’’ from ‘‘point sources,’’ meaning mostly industrial plants and municipal sewage treatment facilities.


 


It could not have been foreseen when the statute was enacted 34 years ago that permits for ‘‘point source’’ discharges of pollutants would evolve to change how water is allocated and used. But the Supreme Court's Miccosukee decision54 that made the latest law on the issue involved a flood control project, and the pollutants in the water came from farmers' use of fertilizer. The NPDES permitting program has evolved a good deal from the days when it was thought to apply just to industrial dischargers.


 


Proposed Water Transfer Rule


In the aftermath of the Supreme Court's Miccosukee case and shortly before the Second Circuit's decision in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York,55 EPA published for comment a proposed regulation to exclude ‘‘water transfers’’ from regulation by NPDES permits. The rule56 would be included in 40 C.F.R. Part 122 and would define a ‘‘water transfer’’ as an activity that conveys waters of the United States to another water of the United States without subjecting the water to ‘‘intervening industrial, municipal, or commercial use.’’ Such a discharge would not require an NPDES permit. The proposed rule is designed to relieve from the permitting requirement people who merely move water that already contains pollutants. By its terms, it would not apply to (that is, a permit might still be required for) pollutants added by the water transfer activity itself to the water being transferred.


 


This proposed water transfer rule attracted a great deal of attention from industry, and from environmentalists as well, who would prefer that NPDES permits be required for many activities. According to the trade press, EPA received more than 1200 comments by the end of the comment period on August 7, 2006. About 44 environmental groups argued that the proposed rule is illegal. If EPA finalizes the proposed rule, it would not be surprising if environmental groups asked a court (probably the Court of Appeals for the Second Circuit) to overturn the rule.


 


Water Quality Criteria


One unresolved but looming question is whether water quality criteria, which prescribe the maximum level of a pollutant that a waterbody should have before it becomes ‘‘impaired,’’ can be used to regulate the flow of water itself.


 


Most if not all states have at least one water quality criterion of the ‘‘narrative’’ kind (such as ‘‘waters of the state shall be suitable for aquatic life’’), and this may be enough to authorize the state to regulate flow.57 For example, although Virginia's general criterion58 is limited to ‘‘substances’’ that interfere with water uses, Virginia does have a narrative criterion on flow:


9 VAC 25-260-40. Stream flow. Man-made alterations in stream flow shall not contravene designated uses including protection of the propagation and growth of aquatic life.


Some lawyers would argue that this sort of general criterion might allow the Virginia DEQ to include flow limits in § 401 certifications, if not in discharge permits. And conceivably this could limit a user's right to water in cases where the discharger of a pollutant is also a withdrawer of water.


 


Endangered Species Act


The federal Endangered Species Act can be an obstacle to land development,59 impacting development decisions on any land on which one of the plants or animals listed as ‘‘endangered’’ or ‘‘threatened’’ can be found. Section 7 of the Act imposes requirements when federal government action is involved, such as


where a federal agency has to issue a permit for a project. Section 10 prohibits private landowners from accomplishing a ‘‘take’’ of listed species, and this has been interpreted to include modifying habitat.


 


Another whole article, or even book, would be required to detail the intricacies of the Endangered Species Act program. For example, irrigation water for agriculture has been threatened when environmental groups challenged either allowing diversions of water by private parties to continue60 or applying an herbicide to irrigation canals to control weeds.61


 


It is enough to caution here that the presence of a listed plant or animal (such as several species of mussel) that use or live in a waterbody can create a whole different set of restrictions on use of the same water (or of the neighboring land) by humans.


 


Coastal Zone Management Act


 Another federal environmental law, this one more closely resembling classic ‘‘land use’’ laws, is the Coastal Zone Management Act.62 Under this statute coastal states prepare coastal zone management programs to control nonpoint source pollution to coastal waters. These state programs are to be coordinated


closely with state and local water quality plans and programs developed pursuant to the Clean Water Act.63 Federal actions that affect the coastal zone must be carried out to the maximum extent practicable to be consistent with the state plans.


 


Federal regulations64 require the state coastal zone management programs to incorporate changes made to laws and policies that affect consistency with the programs. In Virginia, for example, the Chesapeake Bay Preservation Act65 is a law designed to control polluted runoff from the land to the bay.66


 


Air Deposition


Increasingly, the pollution of waterbodies is seen as a problem of air pollution, which is to say ‘‘air deposition’’ of water pollutants. This is especially a concern for the pollutants mercury and nutrients (nitrogen in particular).67 Impairment of waterbodies by mercury is a widespread problem, and apparently related to mercury in air emissions from all over the globe.68 Oftentimes a waterbody will be found to be impaired by mercury when the source of mercury is 99 percent from the air, and much of that from China's coal-fired plants on the South African gold fields. Serious issues exist about whether there is legal authority, under either the Clean Water Act or the Clean Air Act, to impose requirements on sources of air pollution to address problems of water pollution.


 


International law plays a role here. In 2004, eight environmental groups petitioned the Secretariat of the Commission on Environmental Cooperation ‘‘CEC’’), established pursuant to the North American Free Trade Agreement, claiming that the United States was failing to effectively enforce the Clean Water Act as to mercury emissions from coal-fired power plants to both air and water.69 The CEC has recommended that a factual record be developed, in part to consider whether EPA is neglecting to account for airborne mercury when


implementing Clean Water Act provisions requiring the promulgation of TMDLs for mercury-impaired waterways. This recent action highlights the increasing intersection of water quality, energy, land use, and water supply programs.


 


Conclusion


Developing land is no longer a matter only for local authorities and local politics. Anyone who wants to develop land must deal with water pollution control law at both the state and federal level and with water supply withdrawal permits and planning requirements of state law. And the closer the land is to water, the more these water laws will have an effect.


 


A developer must ask herself, first, where the water to support the development will come from. Assuming a residential or commercial development is intended, with no need for large industrial uses of water, one must still ask whether the local water supplier has adequate capacity to serve the new residents. Does the local water supply plan contemplate this new use of water, considering all the other growth expected on the system? Will the developer have to demonstrate that enough water is available before the necessary building permits are granted?


 


If the development will draw its own water either from surface waterbodies or from wells, a host of permitting requirements will have to be faced. A surface water intake will need a 404 permit from the Corps of Engineers or perhaps a state permit like the Virginia Water Protection Permit. There may be a state permitting program for the withdrawal of water itself. In Virginia, permits will be required for large surface water withdrawals in a surface water management area (of which none is designated so far) or for groundwater use in a groundwater management area.


 


Moreover, the developer will have to consider whether there will be environmental objections to withdrawing water. Will the flow be needed downstream to serve the needs of a TMDL? Must a minimum instream flow be maintained to protect fish? Is this need the greater because there is, heaven forbid, an endangered species in the vicinity? The complex mix of environmental and water supply requirements is daunting. It will take a broad knowledge of the developing law, and almost endless patience, to cope.


 


Andrea W. Wortzel and James N. Christman


 


Andrea W. Wortzel is an associate in the Richmond, Virginia, office of Hunton & Williams LLP. Her practice focuses on regulatory counseling. James N. Christman is a partner in the firm's Richmond office. His practice focuses on environmental, energy and administrative law. The authors can be reached at [email protected] and ­[email protected], respectively.


 


 


1 See 5 F. Grad, Treatise on Environmental Law § 10.02[1] (2005) (‘‘the federal government has entered the field [of land use controls] only by indirection’’).


2 See Euclid v. Ambler, 272 U.S. 365 (1926). For a discussion of the new era of ‘‘local environmental law,’’ see J. Nolon, ed., New Ground: The Advent of Local Environmental  Law (1995).


3 For example, the building of new stationary sources of air pollution in ‘‘nonattainment areas’’ is severely restricted. Also, ‘‘transportation conformity,’’ required by 42 U.S.C.A § 7506(c), is intended to ensure that transportation activities (that is, air pollution from ‘‘mobile sources,’’ which is to say vehicles) do not contribute to air quality violations. See http:/ www.epa.gov/otaq/transp/ conform/general.htm, last visited February 26, 2006.


4 There is nothing new about this observation. See G. Vranesh, The Historic Relationship of Water Quantity and Water Quality, 1 Nat. Res. & Env. 3 (Winter 1986); J. Christman, Minimum In-Stream Flows: Using the Clean Water Act to Restrict Water Supply, Proceedings of the American Water Works Assoc. Annual Meeting, New York City, June 21, 1994. Many observers have noted, some with alarm, that clean water law threatens property rights. See, e.g., Go Broderick, The Shifting Sands of the Clean Water Act, http:// libertyunbound.com/archive/2005-07/broderick-water.html. The State of New Jersey Department of Environmental  Protection has a unit called the Land Use Management and Compliance Division whose task is reviewing applications for permits to build or develop on environmentally sensitive lands like freshwater wetlands, coastal areas, and flood plains. See http://www.state.nj.us/dep/ landuse/about.html.


5 See 9 Virginia Admin. Code (‘‘VAC’’) 25-780-10 through -190 (‘‘Local and Regional Water Supply Planning’’).


6 9 VAC 25-780-80 to -110.


7 9 VAC 25-780-120.


8 9 VAC 25-780-60.


9 9 VAC 25-780-50.A.


10 9 VAC 25-780-50.C.9.


11 Va. Code § 15.2-2283.


12 Va. Code § 15.2-2241.4.


13 9 VAC 25-780-50.A.C.9.


14 Board of Supervisors of Culpeper County v. Greengael, L.L.C., 271 Va. 266, 626 S.E.2d 357 (Va. 2006).


15 ‘‘Oregon Court Denies Developers' Petition Seeking Review of Zoning Board Ruling,’’ BNA Daily Environment Report, Feb. 28, 2006.


16 See http://www.deq.virginia.gov/wetlands/ swaterwith.html.


17 33 U.S.C.A. § 1341; Va. Code § 62.1-44.15:5.


18 Va. Code § 62.1-44.15:5.D.


19 33 U.S.C.A. § 1341; Va. Code § 62.1-44.15:5; 9 VAC 25-210-10 et seq.


20 9 VAC 25-210-70.


21 Va. Code § 62.1-44.38.C; 9 VAC 25-200-10 et seq.


22 Va. Code § 62.1-242 et seq.; 9 VAC 25-220-10 et seq.; http://www.deq.virginia.gov/waterresources/swater.html.


23 The Virginia Department of Environmental Quality drafted a regulation designating the James River upstream from the southeastern toe of the Interstate 95 bridge in Richmond to the southwestern toe of the U.S. Route 522 bridge in Powhatan County as a surface water management area. See DEQ, A Report to the Honorable Mark R. Warner, Governor, and the General Assembly of Virginia, Status of Virginia's Water Resources 12 (October 2003).


24 Va. Code § 62.1-254 et seq.; 9 VAC 25-610-10 et seq.; http://www.deq.virginia.gov/waterresources/gwater.html.


25 Also, dams are regulated under the Virginia Dam Safety Act, Va. Code 10.1-604 et seq., which contains a construction permit requirement.


26 See K. O'Brien & B. Markham, A Tale of Two Coasts: How Two States Link Water and Land Use Planning, 11 Nat. Res. & Env., No. 2, at 3 (Fall 1996).


27 Clean Water Act § 303(d), 33 U.S.C. § 1313(d).


28 Id.


29 EPA, Overview of Current Total Maximum Daily Load—TMDL—Program and Regulations, available at http://www.epa.gov/owow/tmdl/overviewfs.html (EPA's TMDL homepage).


30 Id.


31 Storm water that is channeled can become a ‘‘point source’’ pollution. EPA has an elaborate program for permitting storm water discharges, and its history is just as complicated. M. Beverly & J. Christman, Storm Water Permitting, 4 J. Env. Permitting (Winter 1994/95).


32 Inside EPA Weekly Report, vol. 24, no. 15, pg. 20, April 11, 2003.


33 291 F.3d 1123 (9th Cir. 2002).


34 See 9 VAC 25-260-20.B (State Water Control Board may use ‘‘mixing zone concepts’’).


35 Clean Water Act § 502(6), 33 U.S.C.A. § 1362(6).


36 A notice of intent to sue has been filed in California by a citizen group claiming that pumping water from one river to another requires a discharge permit because, among other things, increasing the flow in the second river is itself ‘‘discharging a pollutant.’’ See Inside EPA, Nov. 26, 2004 at 11-12.


37 EPA, Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act, July 29, 2005, pp. 56, 60, available at http://www.epa.gov/owow/tmdl/2006IRG/#documents.


38 Id.; Clean Water Act § 502(19); 33 U.S.C.A. § 1362(19) (defining ‘‘pollution’’ as ‘‘the man-made or maninduced alteration of the chemical, physical, biological, and radiological integrity of water’’).


39 Washington Department of Ecology, Upper Chehalis River Basin Temperature TMDL at 24 (July 2001).


40 Id. at 32.


41 See, e.g., Oregon Department of Environmental Quality, Upper Klamath Lake Drainage Total Maximum Daily Load (TMDL) and Water Quality Management Plan (WQMP) at i (May 2002); Idaho Department of Environmental Quality and Oregon Department of Environmental Quality, Snake River—Hells Canyon Total Maximum Daily Load (TMDL) at 405-07 (July 2003).


42 PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 719 (1994).


43 42 U.S.C.A. § 300j-13; see also EPA's ‘‘Source Water Protection’’ page, http://www.epa.gov/safewater/


protect.html, last visited February 26, 2006; http://www.epa.gov/safewater/protect/swap.html, last visited February 26, 2006.


44 Virginia has its own voluntary ‘‘Wellhead Protection’’ Program prompted by the Safe Drinking Water Act. See DEQ, Wellhead Protection Plan (April 15, 2005), available at  http://www.deq.virginia.gov/gwpsc/pdf/wellheadplan.pdf;see also http://www.epa.gov/ogwdw/whpnp.html.


45 ‘‘Protecting Water Resources with Higher Density Development,’’ EPA 231-R-06-001 at 4 (Jan. 2006).


46 ‘‘Protecting the Source: Land Conservation and the Future of America's Drinking Water,’’ published by the


Trust for Public Land and American Water Works Association, May 2004.


47 ‘‘Agreement on Source Water Protection Signed by EPA, Utilities, Other Groups,’’ BNA Daily Environment


Report, Feb. 21, 2006.


48 Id. See also ‘‘Inspector General Report Sees Weakness In Program to Protect Sources of Water,’’ BNA Daily Environment Report, Mar. 30, 2005.


49 ‘‘California's Santa Clara River ‘Most Endangered,’’’ American Rivers, http://www.americanrivers.org/site/


News2?abbr=AMRf_&page=NewsArticle&id=7205, last visited February 20, 2006.


50 There is no room here to explore the vexed issue, still developing, of how far upstream one must go before leaving ‘‘waters of the United States’’ subject to the Clean Water Act. See Rapanos v. U.S., 126 S. Ct. 2208 (U.S. 2006); Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006).


51 Greenfield Mills v. Mackland, 361 F.3d 934 (7th Cir. 2004).


52 To require a permit the water must contain a ‘‘pollutant,’’ but all water does. To date, courts have not had to grapple with the question of whether a permit is required when the water contains a pollutant but less of it than the receiving waterbody.


53 South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 109-110 (2004), reh'g denied, 124 S. Ct. 2198 (2004).


54 South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).


55 Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77 (2d Cir. 2006).


56 The rule is published at 71 Fed. Reg. 32,887 (June 7, 2006).


57 See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).


58 9 VAC 25-260-20.A.


59 For example, a recent editorial charged that the spotted owl controversy under the Endangered Species Act was about cutting timber, not about owls. J. Petersen, Owl Be Damned, Wall St. J. at A9 col. 3 (February 18-19, 2006) (asserting that protecting spotted owls was never the objective; saving old-growth forests from chainsaws was).


60 Western Watersheds Project v. U.S. Forest Service, 62 ERC 2009 (9th Cir. July 24, 2006).


61 Oregon Natural Resources Council v. Hallock, 2006 WL 1142223 (D. Or. 2006) (denial of motion to dismiss).


62 16 U.S.C.A. § 1451-65.


63 16 U.S.C.A. § 1455b(2).


64 15 C.F.R. § 923.84.


65 Va. Code § 10.1-2100 et seq.


66 See generally Virginia DEQ, Virginia Coastal Zone Management Program, Section 309 Needs Assessment & Strategy (Draft of March 1, 2006).


67 See, e.g., Atmospheric Deposition and Water Quality, http://www.epa.gov/owow/oceans/airdep/air1.html; ‘‘Which Atmospheric Deposition Pollutants Pose the Greatest Problems for Water Quality?,’’  http://www.epa.gov/owow/oceans/airdep/air2.html, last visited Feb. 28, 2006.


68 Id.


69 http://www.cec.org/citizen/submissions/details/index.cfm?varlan=english/&ID=2690, last visited Feb. 28, 2006.


 


 


 

MEMBER COMMENTS

WSG Member: Please login to add your comment.

dots