The Clean Water Rule was the latest attempt by the Environmental Protection Agency and the Army Corps of Engineers to define “waters of the United States” under the Clean Water Act. While both politics and scholarship around this issue have typically centered on the jurisdictional status of rural waters, like ephemeral streams and vernal pools, the final Rule raised a less discussed issue of the jurisdictional status of urban waters. What was striking about the Rule’s exemption of “stormwater control features” was not that it introduced this urban issue, but that it highlighted the more general challenges of regulating stormwater runoff under the Clean Water Act, particularly the difficulty of incentivizing multibenefit land use management given the Act’s focus on pollution control. In this Note, I argue that urban stormwater runoff is more than a pollution-control problem. Its management also dramatically affects the intensity of urban water flow and floods, local groundwater recharge, and ecosystem health. In light of these impacts on communities and watersheds, I argue that the Clean Water Act, with its present limited pollution- control goal, is an inadequate regulatory driver to address multiple stormwater-management goals. I recommend advancing green infrastructure as a multibenefit solution and suggest that the best approach to accelerate its adoption is to develop decision-support tools for local government agencies to collaborate on green infrastructure projects.
Rained Out: Problems and Solutions for Managing Urban Stormwater Runoff
