Clean, Wet, and Smart, Part I

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting begins a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts to 3 articles that I have written on the subject: 

 

1) Craig Anthony (Tony) Arnold, "Clean-Water Land Use: Connecting Scale and Function," Pace Environmental Law Review, Vol. 23, No. 2, p. 291, 2006. Available at SSRN: http://ssrn.com/abstract=1024265 

 

Land use and land development adversely affect water quality in many substantial ways. The current land use regulatory system is blamed for its failure to plan and regulate to protect water quality and watershed health, and a frequent suggestion is to move authority for land use planning and regulation to larger ecologically-based scales, such as watersheds, or to regional, state, or national agencies that can act on a watershed scale.

Despite the allure of these proposals, careful study of the scales and functions of watersheds and the scales and functions of land use presents a nuanced picture of both watershed and land use dynamics, suggesting that watershed institutions might be best suited for watershed planning, technical assistance, facilitation of intergovernmental cooperation, and provision of resources and information, while local governments will continue to be best suited to engage in generalized planning, zoning, permit decisions, and other traditional regulatory functions.

This article discusses the impact of land use on water quality, and then explores the scale and function of both watersheds and land use. It offers lessons about the geographic, functional, problem, and temporal scales of watersheds, and the functional, political, resource, and temporal scales of land use, as well as lessons about the legal scale of freedom and boundaries. Attempting to connect both the scale and function of watershed with both the scale and function of land use, the article recommends a hybrid regional-local model of watershed-based planning and regulation of land use.

 

2) Craig Anthony (Tony) Arnold, "Is Wet Growth Smarter than Smart Growth?: The Fragmentation and Integration of Land Use and Water." Environmental Law Reporter, Vol. 35, No. 3, p. 10152, 2005. Available at SSRN: http://ssrn.com/abstract=1040821 

 

The authority and regimes for controlling land use, water quality, and water use are highly fragmented, both internally and from one another. However, a growing body of evidence demonstrates that this fragmentation comes at great cost to natural and human environments, with increasing impacts of land use practices, water quality conditions, and water uses on one another. This article introduces a concept of wet growth that attempts to achieve some level of integration among these three inter-related aspects of law and public policy.

The Wet Growth concept is distinguished from the popular, yet vague, concepts of Smart Growth, which has failed to give sufficient attention to the water-related impacts of land development and use. The article describes examples of emerging efforts to achieve integration of land use and water regulatory policies. It summarizes the ideas and research of several leading scholars in a book on Wet Growth. The article makes a case for policy diversity in the integration of land and water practices, rejecting the desirability of any single model. Finally, it analyzes the role that local land use planning and regulation can play in achieving aquatically and ecologically sustainable land use practices.

 

3) Craig Anthony (Tony) Arnold, "For the Sake of Water: Land Conservation and Watershed Protection," Sustain: A Journal of Environmental and Sustainability Vol. 14, No. 16, 2006 Available at SSRN: http://ssrn.com/abstract=1089026 

 

Land conservation serves a critical function of protecting watershed health and integrity, which are necessary for healthy natural environments, human life, economic activity, and society. This article describes the various impacts of land use on water quality and watersheds.

Having documented land development's growing degradation of watershed functions, the article examines four methods of protecting water quality through land conservation. These four methods are land use planning and regulation, public land management, private land conservation, and changes in land-use behaviors and values. Analysis of legal tools and limits is supported by a case study of the Anacostia River watershed, one of the most degraded watersheds in the U.S. yet recently the object of diverse and substantial efforts to restore its waterways and manage land development practices.

The article concludes that no single method of land conservation is adequate to protect watersheds. Instead, a policy of policy diversity -- a polycentric model of land conservation and watershed protection -- will maximize changes towards more environmentally responsible land use practices. While the article is likely to be of interest to specialists in land use, property, environmental, and natural resources law and public policy, it can serve as a useful means of introducing students, policy makers, or members of the public to the varieties of land conservation methods or to the relationship between land use and water quality.