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82 U. Colo. L. Rev. 431 (2011)
Urbanization, Water Quality, and the Regulated Landscape

handle is hein.journals/ucollr82 and id is 435 raw text is: URBANIZATION, WATER QUALITY, AND THE REGULATED LANDSCAPE DAVE OWEN* Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent stud- ies conclude that even in lightly-developed watersheds, ur- banization often precludes attainment of water quality stan- dards. This Article considers legal responses to this pervasive problem. It explains why traditional legal mea- sures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States. These innovations are potentially applicable across the nation. Specifically, the innovations involve using impervious cover total maximum daily loads, residual designation authority, and collective permitting to expand, intensify, and modify regulatory control of urban stormwater. More generally, the innovations involve transferring regulatory focus from end- of-the-pipe to landscape-based controls. The Article con- cludes that these innovations, while raising some new prob- lems, represent a promising shift. It then discusses addi- tional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns. It also evaluates the federalism implications of this shift, and closes by considering some of the difficult pri- oritization questions raised by urban watershed restoration efforts. INTRODUCTION ........................................432 I. URBANIZATION, DEGRADATION, AND THE LIMITS OF TRADITIONAL REGULATION ................ .........439 A. Urban Stream Syndrome............. ......439 B. Traditional Legal Responses ..................445 * Associate Professor, University of Maine School of Law. I thank Tony Arnold, Colin Apse, Eric Biber, Curtis Bohlen, Karen Cappiella, Dan Esty, David Hart, Rita Heimes, Steve Hinchman, Bjorn Lake, Sarah Schindler, Jenny Wriggins, and participants at the Stanford-Yale Junior Faculty Workshop for comments on ear- lier drafts, and Peter Glaser, Meghan Ogren, Reeve Wood, Randa Capponi, and Shannon Carroll for excellent research assistance. Research for this article was supported by National Science Foundation award EPS-0904155 to Maine EPSCoR at the University of Maine and by the University of Maine School of Law. I also thank the staff members of the University of Colorado Law Review for their excel- lent work.

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