When Water Becomes Waste: A Call for a Practical Approach to Regulating Stormwater Discharges
Paul N. Singarella and Kelly E. Richardson
*Paul Singarella is a partner in the Orange County, California office of Latham & Watkins LLP.
*Kelly E. Richardson is an Adjunct Professor of Law at the University of San Diego School of Law and is an attorney in the San Diego office of Latham & Watkins.

Stormwater management, including the reduction or elimination of adverse impacts on water resources from stormwater and non-point source runoff, is a significant issue for developed areas throughout the country. Stormwater pollution occurs when precipitation intercepts pollutants from the air or on the ground before flowing to inland and coastal waters. This pollution is particularly difficult to address due to the diffuse and widespread nature of contributing sources. One study has suggested that polluted runoff is currently the most harmful water quality impact on marine systems. Plainly, there is substantial need to control these discharges. The question of how to appropriately regulate runoff has received much attention from regulators, dischargers, non-governmental organizations and the public.

California, routinely a bellwether for environmental protection, designated thirty-four coastal areas for special protection from potential water quality impacts. These areas, called Areas of Special Biological Significance (“ASBS”), comprise a significant fraction of the state’s coastline, including heavily populated municipalities, such as La Jolla, Malibu, Laguna Beach and Monterey, and rural areas, such as Redwoods National Park. The ASBS were created in the 1970s, when the focus of water quality regulation was on discharges of processed wastewater from industry and domestic sewage. Applicable statutes and regulations have long prohibited these wastes from being discharged to ASBS. Recently, however, the California State Water Resources Control Board (“SWRCB” or “State Board”) extended the stringent ASBS rules to highway runoff, and has been considering whether the rules should be extended to stormwater in general, regardless of its content. This could have the effect of classifying stormwater and related runoff as “waste” per se, similar to industrial wastewater and sewage.

Similar waste prohibitions appear frequently in other regulations and water quality control plans outside the context of ASBS. The consequences of uniformly applying these prohibitions to stormwater and related runoff are far-reaching. The logical consequences could include the possible ban of runoff from residential properties, parking lots, golf courses, public streets, and even pristine undeveloped land. Such restrictions would significantly impact individuals, municipalities, industry and others at staggering costs to taxpayers and society generally.

We argue that the California statutes, regulations and related authority do not mandate an approach to stormwater regulation that assumes stormwater is “waste” for all purposes. Rather these laws encourage regulation based on whether the discharge affects the water quality of the receiving ASBS. Because a regulatory regime based on classifying stormwater as “waste” for all purposes ignores important considerations, such as the natural role of stormwater in the aquatic and coastal environment, as well as economic and technical feasibility, and leads to pre-emptive enforcement by presuming all dischargers to be in violation, an alternative approach should be considered. We argue that instead of relying on a categorical approach, the State Board should collaborate with stakeholders to develop a comprehensive, pragmatic, and predictable program regulating stormwater discharges to ASBS. This framework could serve as a model for other coastal states that are struggling to develop workable solutions to stormwater pollution problems.

Florida on the Coast of Climate Change: Responding to Rising Seas
Kelley M. Jancaitis
*Deputy Public Defender, Yavapai County, Arizona. J.D., Florida
Coastal School of Law, 2007; B.S. Clemson University, 2004.

Global sea level rose almost seven inches in the past century as a result of the release of greenhouse gases into the atmosphere – a trend that is expected to continue well into the future. This increase in sea level could potentially affect all aspects of social and economic life by threatening agriculture, water supplies, and ecosystems, and displacing millions of people and structures in low-lying areas. Given its unique topography, proximity to water, and economic dependence on tourism and agriculture, the state of Florida is especially vulnerable to these potentially devastating effects. This Article discusses how legal measures can be used to avoid catastrophic sea level rise, lessen the unavoidable effects, and adjust to rising waters. Moreover, this Article advocates for a combination of all three methods – prevention, mitigation, and adaptation – to adequately address the extensive economic and ecological impacts projected to occur as sea levels continue rise.

Water is Security
Elizabeth Burleson
*LL.M. from the London School of Economics and Political Science and a J.D. from the University of Connecticut School of Law. She has also written reports for UNICEF and UNESCO and is a Assistant Professor at the University of South Dakota School of Law.

Floods, droughts, and other extreme water events affect security, livelihoods and sustainable development. Facilitating such clean technology transfer as solar powered drip irrigation can transition water use in a manner that will minimize hardship and maximize water efficiency. Rising costs of sourcing, supplying and treating drinking water have impacted people around the world, as has more expensive treatment and disposal of wastewater. Agricultural use of water can become more efficient with better irrigation methods. Similarly, residential and industrial use of water can become more efficient by investing in infrastructure that will address extensive leaks in the supply of water. Joint water management commissions and authorities enhance adaptable co-riparian cooperation. Clean technology transfer can facilitate informed decisions upon which egalitarian agreements can establish sustainable watershed management. The water decade provides an opportunity for coordinating efforts to expand access to water and sanitation. Broad public participation in environmental decision-making can help water measures remain sustainable and equitable. Reasonable and equitable use of transboundary water resources can help sustain international peace and security.

Sand or Concrete at the Beach? Private Property Rights on Eroding Oceanfront Land
Nathan Jacobsen
*Staff Counsel, State Water Resources Control Board. J.D., University of California, Davis School of Law.

Coastal communities often face difficult land use choices. In Solana Beach, a small city on the San Diego County coastline, private property rights compete with public beach access issues. The main issue is seawalls. The walls protect ocean bluff homes, but also lead to the loss of local beaches. This Article discusses the city’s regulatory options for managing seawalls and coastal development. The focus is on the takings clause. The Article analyzes owners’ potential takings claims if the city removes seawalls. It discusses physical takings claims and the two leading Supreme Court Cases on regulatory takings, Lucas v. South Carolina Coastal Council and Penn Central Transportation Company v. City of New York. The Article concludes that to better manage bluff areas and shoreline development the city should assert its legal right to pass regulations that limit or allow for the removal of seawalls. With valid defenses to takings claims, the city can negotiate with owners for a more balanced and permanent solution to the conflict.

Recent Developments

Bringing New Source Review Back: The Supreme Court’s Surprise (and Disguised) Attack on Grandfathering Old Coal Plants in Environmental Defense v. Duke Energy Corp.
Nicholas H. Rabinowitsh, J.D., UC Davis 2008

Navajo Nation v. United States Forest Service: Defining the scope of Native American Freedom of Religious Exercise on Public Lands
Sarah Brucker, 3L at UC Davis

Viva! International v. Adidas: Preemption in the Realm of Endangered Species Protection
Amanda Pearson, 3L at UC Davis