“9b

  

.- kw ur-rt "V" ‘ XVI-V"

\n-wh 00"

'Q"A~.-.o..‘.

 

.-.-oo~-.-.c.-.

'l-ov

 

 

 

 

 

 
 
 
 

 

 

 

 
 
 
 
 
   
 
 
 
 
 
 

 
 

 
 
 
 

 
 
 
 
 

 

 
 
 
 

 

 

 

 

 

 
 
  
 
 
 

  

 
 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

~-

 

 

 

 

LIBRARY
Michigan State
University

 

 

 

PLACE IN RETURN BOX to remove this checkout from your record.
To AVOID FINES retU'n on or before date due.
MAY BE RECALLED with earlier due date if requested.

 

DATE DUE

DATE DUE

DATE DUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2/5 mlmamouejmms

 

 

FACTORS FOR CONSIDERATION IN PROTECTING WATER AND LAND RESOURCES

by

Kevin Andrew Johnson

A Pian B Paper

Submitted to:
Michigan State University

in partia] fulfiliment of the
requirements for the degree of:

MASTER IN URBAN PLANNING

Coiiege of Social Science
Urban Planning Program

August 20, 1993

TABLE OF CONTENTS

Page
Introduction .................................. ... ......... 1
The Hydrologic Cycle ...................................... 4
The Impact of Land Uses on the Hydrologic Cycle ........ ... 11

Public Sector Involvement in Protecting the Environment ... 16

Water and Land Resource Management Techniques ...... 11..... 26

,-/

Effectiveness of Resource Protection Alternatives ......... 41

Institutional Considerations ...................... . ....... 47

Conclusions ............................................... 51

Introduction

There has been growing public awareness about the quality
of the natural environment.‘ Over the past two decades, a host
of environmental issues has emerged, ranging from air and water
quality to energy conservation and the preservation of the ozone
layer.2 Concern with environmental degradation is manifested
in the heightened public dialogue and legislative action
pertaining to the quality of the environment that has transpired
since the late 19608.3 Furthermore, national environmental
policy has played a more significant role during recent
presidential elections.‘ While environmental dialogue is
desirable at the national level, it is essential that many of
these environmental considerations be addressed at local and
regional levels. Local land use decisions provide a basic
building block, and can have far reaching implications with
respect to environmental integrity. Moreover, decision makers
at the local and regional levels should be better able to
identify indigenous social and physical conditions. While

individuals have made land use decisions for centuries, these

 

‘ Gale E. Newell, et al., "The Effect of Michigan’s
Environmental Regulations (including PA 307) on Accounting and
Auditing," lug Michigan CPA 44 (Fall 1992): 8-10.

2 Forbes, "Meeting the Challenge of Sustainable
Development," Forbes (May 25, 1992) 118-133.

aRoy M. Adams, Charles 0. Fox, and Sheldon A. Zabel,
"Liability' for Environmental Hazards: The Saga. Continues,"

Trusts é Estates (January 1993): 30-39.

‘ Steven V. Roberts, Dorian Friedman, and Susan Pastrick,
"Election 1992: The Issues," U.S. News and World Report
(August 31 - September 7, 1992) 43.

Ti!

2
decisions have lacked a systematic means for evaluating
potential environmental encumbrances that a particular land use

5 When evaluating land use proposals, planners and

may incur.
developers should evaluate the relationship between indigenous
social and physical processes. The relationship of natural and
cultural systems and elements across a landscape is referred to
as an ecosystem. Tansley, who introduced the term the 19303,
described an ecosystem as a set of interrelated biotic and
abiotic elements. Ecosystems are structured, open systems that

° If people are cognizant

exchange mass, energy and information.
and respectful of this interrelationship, they can
simultaneously protect natural processes and make nature work
for them. Renowned landscape planner Ian McHarg suggested that
a holistic environmental approach be taken when appraising the
suitability of land for a given use. An ecological
interconnectedness would be manifested when a proposed use was
evaluated against a litany of eight factors: climate, geology,
hydrology, physiography, soil, vegetation, wildlife, and
existing land use. This examination would help to determine the
land’s critical and limiting factors, such as wetlands,
floodplains, and faultlines. Societal values, which may be

ascertained by citizen input, would also need to be factored

into the equation in some manner, such as by degree of perceived

 

5 Leonard Ortolano, Environmental Plgming and Decision
Making (New York: John Wiley & Sons, Inc., 1984), 3.

° A.P.A. Vink, Landscape Ecology and Land Use (New York:
Longman, Inc., 1983), 16-23.

3
importance. The interconnectedness of all these data would lead
to the ranking of land uses, suggesting an optimal use for a
given zone.7 While McHarg’s analysis is preferable, not all
communities have the time or economic resources to commit to
preparing a detailed analysis for each parcel of land.
Nevertheless, the community should attempt to understand the
implications of decisions, and how certain decisions could lead
to unintended results, due 11) the interconnectedness of the
various aspects of the environment.

Throughout this paper, I will expand upon one key
environmental issue - the preservation of water resources and
the land and property affected by water - and will point out how
these elements are interrelated. More specifically, I will
address the reasons why a community should formulate a water
resources plan, and I will illustrate how a community can
effectively protect its water, land and property resources by
means of various techniques, particularly growth management
techniques. The primary focus of the analysis will be on urban
and urbanizing areas.

When embarking upon a local water resources plan, it is
important that planners and other decision makers understand the
interconnectedness between land and water. Furthermore, there
are many factors that influence local water resource planning:

hydrologic issues, government intervention, land use decisions,

 

7 Ian L. McHarg, Design_with Nature (New York: John Wiley
& Sons, Inc., 1992).

4
economic influences, structural and non-st ructural improvements,
and institutional considerations. While this list may not be
all encompassing, it should provide a point of departure for

creating a local water resources plan.

The Hydrologic Cycle
The Occurrence of Water

In order to appreciate the dynamics of water supply, it is
important to have an understanding of the hydrologic cycle.
"The hydrologic cycle is the continuous, unsteady circulation of
the water resource from the atmosphere to and under the land
surface, and, by various processes, back to the atmosphere."°
Furthermore, "of importance to water resources planning is the
fact that as water is transferred among hydrologic cycle
components, its quality is changed."9 The components of the
hydrologic:cycle.are: precipitation, infiltration, evaporation,
transpiration, surface runoff, and groundwater flow.
Precipitation takes place in the form of rain, snow, sleet and
hail. Infiltration is the process whereby precipitation
percolates into the ground. The rate at which precipitation

infiltrates plays a key role in urban surface water

management.‘° The evaporation and transpiration processes,

 

° Stuart G. Whlesh, Urban Surface Water Management (New
York: John Wiley & Sons, Inc., 1989), 53.

9 Andrew .A. Dzurik, Water Resources Planning (Savage,
Maryland: Rowman & Littlefield, 1990), 14.

‘° Walesh, 55.

5
(referred to as evapotranspiration) is the osmotic movement of
water from soil to vegetation that is subsequently released to
the atmosphere. "Evapotranspiration has a major impact on the
amount of precipitation that remains available for use as a

water resource."11

The surface runoff and groundwater flow
components of the hydrologic process are of paramount interest
to the quantity and quality of water resources.

Overland flow, or surface runoff, is the flow along the
soil surface of excess precipitation that has not been absorbed
into the ground by means of the process of infiltration, or lost
to the atmosphere by means of the process of

evapotranspiration.12

Generally, water flows over the surface
when the ground is saturated, such as the period during or
immediately following rain storms. This water flows over the
soil surface, and is eventually deposited in a channel, which
then flows into progressively larger streams of water. Except
for cases when overland flow is detained due to factors such as
a rough surface, overland flow is the second fastest streamflow
component, next to direct channel precipitation.13

Interflow, often classified as part of surface runoff, is

water that infiltrates into the soil, but due to the presence of

an impermeable layer, is forced to move laterally through the

 

" Dzurik, 15.
‘2 Ibid., 15.
u Kenneth N. Brooks et al., Hydrology and the Management

of Watersheds (Ames, Iowa: Iowa State University Press, 1991),
75.

6
upper levels of soil. The water continues to move laterally
until it reaches a stream channel. The soil itself transports
most of the water that is moved during this process{“ When
compared to surface runoff, water travelling as interflow is
slower, due to the presence of less permeable material.‘5

Water that infiltrates downward until it reaches the water
table is known as groundwater.‘o Groundwater accumulates and
moves within parameters defined by the given geological setting.
Eventually, groundwater may enter the stream bed, at the point
where the channel intersects the water table. This type of
water movement, also known as baseflow, moves slowly, but also
provides a fairly constant supply of water to the stream, even

during dry periods.17

Watershed Physical Factors

Comprehensive water planning involves analyzing water
contributions on a watershed level. “A watershed is the land

over which the water drains to a particular point in a

"18

stream. Furthermore, watersheds "define the system within

 

“ William M. Marsh, Landscape Planning: Environmental
Applications (New York: John Wiley & Sons, Inc., 1991), 146.

‘5 Ray K. Linsley, Jr., Max A. Kohler, and Joseph L. H.
Paulhus, Hydrolgsy for Engineers. (New York: McGraw Hill), 205.

‘° Ibid.
‘7 Marsh, 146.

‘° Dzurik, 184.

7
which the hydrologic cycle functions."19 Hence, it is paramount
that planners and engineers are aware of physical factors that
affect the watershed. These factors, which may be unique to a
specific region, include: area, slope, soil characteristics,
geology, vegetation, and meteorological considerations.

The total area of the catchment determines the total amount
of precipitation that is caught within the confines of the
catchment.20 "The larger the watershed, the greater the volume
and peak of streamflow for rainfall or snowmelt events.
Watershed shape affects how quickly surface and subsurface flow
reaches the outlet of a watershed."21 Additionally, the height
of the catchment can affect total runoff, by way of its
orographic influence.22

The slope of the catchment area affects the degree of
infiltration that occurs, and the speed that water moves over

the surface.23

Generally, flood peaks increase with a greater
channel slope. (marrespondingly, in channels with slight slopes,
precipitation takes longer to reach the channel, and therefore

takes a longer time to peak.“’ Sdope direction also plays a

 

‘9 Wal esh , 460.

20R.C. Ward, Principles of Hydrology (London: McGraw Hill,
1967), 325.

21Brooks et al., 78.
22 Ward, 325.
23 Ibid, 331-332.

2“H.C. Riggs, Streamflow Chagacteristics (Amsterdam:
Elsevier Science Publishers, 1985), 22.

8
significant role, particularly with the presence of snow.
Slopes facing the south tend to promote quicker snow melt, and
therefore quicker dispersion of water. Meanwhile, on slopes
facing to the north, snow may remain accumulated for a longer
period of time. Upon a change in the season, snow melt may
occur all at once, leading to peak runoff times.25

Soil, along with other surface matter, is the determining
factor in the quantity and the rate at which precipitation
infiltrates, and consequently in the proportion of precipitation
that becomes overland flow.2° Sandy soils typically have
relatively high infiltration capacities, while compact clay
soils tend to have lower infiltration capacities.27
Additionally, soil type can influence the lateral movement of
subsurface water that was previously described. This movement
can affect the water table, and therefore, the groundwater
contribution to streamflow.2°

The geology of a catchment area is denoted by rock type as

29

well as the area’s structural features. "The character of the

rocks determines how the water moves underground and at what

«30

rates. There is also a relationship between the subsurface

 

2’ Ward, 333.

2" Riggs, 16.

27 Ward, 336-337.
2' Ibid.

2’ Ibid, 333.

3° Riggs, 16.

9
rocks and soils.“ This relationship helps to determine the
form of streamflow contribution. And finally, "structure is
largely important as a factor guiding the movement of
groundwater towards the streams."32

Vegetative cover within a catchment area also can affect
the level of runoff. Some types of vegetation can hold a
greater amount of water than others. The process of
evapotranspiration would play a greater role in these cases.
Some types of vegetation are more effective than others at
slowing down the rate of overland flow. Vegetation may even
have an influence on the type of soils that are present below
them. Moreover, vegetation levels can fluctuate as a result of
seasonal changes.33 All of these factors may have a
considerable impact on the form of streamflow contribution.

Meteorological factors that can affect runoff include
precipitation, temperature, humidity, wind, and sunshine,
however the most significant of these is precipitation and
temperature, in regions that have similar topography and
geology.&‘ Temperature, combined with other climatic factors,

controls the process of evapotranspiration, and the form of

precipitation.35

 

3‘ Ward, 333-334.
32 Ibid, 334.
33 Ibid, 337—339.
3‘ Riggs, 5.

3’ Ibid.

10

The type of precipitation that occurs can play a
significant role in the contribution to streamflow.
Precipitation may range from rain and hail to sleet and snow.
While the surface runoff of rain may occur rather quickly, it
may take a considerable amount of time before snow melt occurs.
When the snow does melt, it may have a significant impact on the
flow of water to a channel.3'

The intensity and duration of rainfall are key elements in
determining the type of contribution to streamflow. The
intensity of rainfall plays a key role in determining whether
the precipitation is infiltrated into the ground for possible
interflow and groundwater flow, or whether the precipitation
will be transported via surface runoff. Therefore, in periods
of intense precipitation, there may be a high level of surface
runoff, if precipitation is in excess of the soil infiltration
capacity.37Similarly, precipitation of a long duration, though
not necessarily high intensity, can impact the infiltration
capacity, and therefore the type: of contribution to
streamflow.38

When performing a study of the local watershed, planners
need to collect applicable hydrologic data in order to ascertain
the local situation. This informathmi will be useful when

developing community objectives at a later stage. Furthermore,

 

3‘ Ward, 326.
37 Ibid, 327.

3' Ibid, 328.

., .-‘

11
by recognizing the interconnectedness between land and water,
planners will be able to identify the effects that proposed land

uses will have on the hydrologic cycle.

The Impact of Land Uses on the Hydrologic Cycle

As previously illustrated, the hydrologic cycle depicts the
interconnectedness between land and watery Decision makers must
be cognizant of the consequences that certain land use decisions
might bring. As a watershed becomes urbanized, many of its
natural elements such as vegetation and porous soils are
eradicated or altered. The implications of removing vegetative
cover can affect the hydrologic cycle. In addition to the
obvious effects tuxni the evapotranspiration process, Goodman
points out that the removal of vegetation promotes:

(1) the rate and quantity of runoff increases, while

infiltration decreases because the soil loses
its capacity to absorb water;

(2) erosion of the bare soil increases, producing

sediment which becomes a burden in waterways and
may diminish water quality, or which becomes
trapped in reservoirs and reduces their storage
capacity (erosion not only strips away topsoil,
but also deteriorates the beds and banks of
watercourses); and

(3) any function performed by the ‘vegetation of
filtering pollutants from runoff is lost.3°

Often, the vegetative cover. is replaced with impervious
surfaces, which are impenetrable structures such as parking lots

or roofs. Although the replacement of vegetative cover with

 

3’ Alvin S. Goodman, Principles of Water Resources Planning,
(Englewood Cliffs, N.J.: Prentice Hall, 1984), 135.

“D

12
impervious surfaces helps to reduce erosion, negative
implications include further increases in surface runoff with
accompanying decreases in infiltration.‘°

With an increased level of surface runoff, the risk of
floods heightens during high level activities such as heavy rain
storms and snow melt occurrences. Furthermore, since a larger
portion of the rainfall leaves the area in the form of surface
runoff during these peak periods, less water is available to
infiltrate into the ground. Additionally, the
evapot ranspiration process in locally vegetated urban places can
be increased by the presence of urban vegetation that is exposed
to heat from surrounding surfaces. This concept, known as
advectively-assisted evapotranspiration, may promote an
increased rate of evapotranspiration, particularly during dry
seasons. Water that had not been transferred via surface
runoff, and would otherwise have been infiltrated to the
groundwater supply, would instead be lost to the atmosphere.‘1
All of these factors promote a decline of water flow during non-
peak events and dry seasons, threatening the level of water
supply.‘2

As a watershed makes its transition from its natural state

 

4° Ibid.

“ Bruce K. Ferguson and Philip W. Suckling, "Changing
Rainfall-Runoff Relationships in the Urbanizing Peachtree Creek
Watershed, Atlanta, Georgia," Water Resources Bulletin 26
(April 1990).

‘“ Ferguson and Suckling.

13
to an urbanized one, there most likely will be an increased
level of pollutants found in the water supply. Pollutants can
be generated from a‘wide range of land uses, from commercial and
industrial to residential and recreation, and likewise can be
deposited in the water supply in a number of different ways. As
described previously, with urbanization, there is an increased
level of surface runoff. Offending pollutants "that have been
deposited on the land surface are leached from the ground and
may be washed downstream.”3 Additionally, contaminants, such
as those found in landfills or storage tanks, could percolate to
the groundwater, or enter surface water supplies as base flow.“
Typically, pollutants are categorized as being either point
source or nonpoint source. Point source pollutants are those
that can easily be traced to a specific point, such as a
municipal sewerage system’s outlet to a river, or an industrial
facility’s direct discharge of effluent to a river. Meanwhile,
point source pollution is contrasted with nonpoint pollution,
which is pollution generated from a much broader area, making
the task of identifying the source of pollutants more difficult.
For example, chemical contaminants that enter the water supply
via urban runoff may be considered as nonpoint pollution, if the

point where they attached to the water is not readily apparent.‘5

 

‘3 Goodman, 135.
“ Ibid.
“’Timothy R. Lazaro, Urban Hydrologyi A Multidisciplinary

Perspective rev. ed. (Lancaster, PA: Technomic Publishing Co.,
Inc., 1990), 44.

14
In sparsely populated areas, natural elements can easily
absorb and assimilate various contaminants. However, as
population densities become greater in urban and urbanizing
areas, the earth can lose some of its natural ability to dispose
of these pollutants. .Areas that are particularly susceptible to
the impacts of development are fragile or sensitive lands such
as wetlands, floodplains, and shorelands. Wetlands, for
instance, are located at the intersection between upland areas
and aquatic systems.‘6 Although there are many conflicting
definitions, wetlands could be defined by the presence of
certain types of water-loving vegetation, organic soils, and
water, although water need not be present throughout the entire
year.“7 Wetlands often serve as an important ecological habitat
for wildlife and aquatic species. Furthermore, wetlands play a
principal role in the hydrologic cycle, where they can serve as
a buffer against hydrologic fluctuations, by reducing flood
peaks during storm events, and releasing water during droughts.
Wetlands may also provide a number of other benefits, from the
decreasing of erosion and sedimentation for points downstream,
to the recharge of groundwater.48
Finally, it is essential to reiterate that decision makers
must be aware of the physical relationship between land and

water. Land use patterns can significantly impact water supply

 

“3 Goodman, 135.
47Marsh, 280.

4‘ Goodman , 135 .

15
and quality. Likewise, the availability or lack of a quality
water supply can impact an individual’s decision to locate in a
particular locality. For example, an industry may not locate in
a particular area if a sufficient supply of water is not
available; or, existing or new residential development may be
negatively affected if an adequate amount of clean water is
unavailable. Therefore, it is paramount that a community
protect its water resources. Government has assumed the
leadership role in the quest for protecting water supply and
quality; Many programs have been implemented at the federal and
state levels of government, and to some extent the local levels.
Many of these traditional programs have dealt primarily with
point source pollution, such as programs that regulate the
discharge of contaminants from sewage treatment facilities.“9
However, there is also a need to address the growing problem of
nonpoint pollutants” Most nonpoint pollution strategies must be
addressed at the individual watershed level, due to the unique
character of each watershed. Therefore, it is paramount that
local communities assume a more significant role in the
protection of their water and land resources. These strategies

inevitably affect land use patterns.

 

‘9 Ibid., 136.

16

Public Sector Involvement in Protecting the Environment

Bases for Public Sector Involvement

The public sector has assumed leadership in the quest to
protect water resources and property. Many planning efforts
have been performed at the national level, with varying degrees
of success. The success of some of these larger-scale programs
may have depended upon the acceptance by the local community and
affected industries. The repercussions from the mixed outcomes
of federal programs have resulted iri a renewed interest in
watershed level planning, due to each watershed’s unique
physical and social attributes. Before embarking upon possible
watershed level strategies, it is important to first review the
reasons for the public sector’s involvement in the preservation
of natural resources.

All levels of government have had input in establishing
controls that address the protection of water resources. The
difficulty arises in defining the level of government that
should assume the dominant position. Interestingly, the United
States Constitution does not explicitly delegate the authority
to manage water resources to the federal government. As stated
in the United States Constitution, any power not explicitly
delegated to the federal government has been reserved for the
states. However, the federal government has deemed water
resource issues as being paramount to both national and public
interests, and has assumed the dominant position in protecting

the nation’s water resources. "Actions of the federal

17
government have been confirmed tn! the courts through
interpretations of the constitutional provisions relating to
commerce, public lands, general welfare, and war."5°
Consequently, Congress has passed several major federal statutes
pertaining to natural resources during the past couple of
decades, some of which include: the Clean Water Act, the
Resource Conservation and Recovery Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act.51
These statutes have addressed a wide range of issues, including
ground and surface water quality, remediation of contaminated
property, and flood control. Meanwhile, the states have tried
to facilitate compliance with federal regulations, as well as
enact legislation in areas where federal regulation may have
fallen short.

The states’ basis for regulating the actions of private
individuals and their property has been attributed to its
responsibility to protect the interest of the public.
Typically, the states have exercised actions pertaining to the
environment under their inherent authority, termed police power.
Police power, which requires that government protect the

public’s health, safety, and welfare, is a power reserved by the

 

5° Ibid., 507.

M George R. Zuber and Charles G. Berry. "Assessing
Environmental Risk," Journal of Accountancy 173 (March 1992):
43.

18
states.52 Traditionally, the states have delegated this
responsibility to local governments by means of state enabling
legislation.53

Historically, local governments have used this delegated
authority in addressing a broad range of issues concerning
control of private property for the purpose of protecting the
interests of the public. However, due to the enduring tradition
in the United States of the sanctity of an individual’s property
rights, there has been a perennial struggle between public and
private sectors in the pursuit of balance between the ideal of
public interest and EH1 individual’s property rights, An
individual’s property rights are explicitly protected in the
United States Constitution. The Fifth Amendment prohibits the
taking of private property for a public purpose, unless just
compensation is awarded to the property owner. Additionally,
the Fourteenth Amendment requires that an individual not be
deprived of property without the due process of the law.
Furthermore, the Fourth Amendment guarantees individuals’
security in their homes without unreasonable searches and
seizures, protecting individuals against government’s taking of

property for trivial purposes.5‘ Hence, if government takes

 

52Mike E. Miles, at al. Real Estate Development Principlea
and Process (Washington, D.C.: ULI - The Urban Land Institute,
1991), 208.

531nm.

"John M. Levy, Contemporary Urban Planning. 2d ed.
(Englewood Cliffs, N.J.: Prentice Hall, 1991), 65.

19
individual property, the taking must be for a legitimate public
purpose, with reasonable compensation, within the confines of
the due process of the lawn However, the courts’
interpretations.of'these property rights provisions have evolved
over time to allow for reasonable restrictions on the use of
property in order to protect the public interest. At the
beginning of the twentieth century, the Supreme Court ruled in
two court cases, Welch v. Swasey, 214 U.S. 91 (1909) and
Hadachek v. Sebastian, 239 U.S. 394 (1915), that local
government had the right to regulate development under its
police power provisions. In a later case, Village of Euclid,
Ohio v. Ambler Realty 00., 272 U.S. 365 (1926), the Court ruled
that zoning was a legitimate form of police power regulation.55
However, a governmental regulation must not be so restrictive in
nature that all practical use of private property is lost. A
regulation that is determined by the courts to be too
restrictive can be considered as a taking, even though a
physical taking has not occurred. With these issues in mind, a
closer look at the underlying reasons for the public sector’s
intervention to guide land use decisions with respect to
environmental quality is obligatory.

Local communities may have a multitude of goals related to

the combination of water and land issues that benefit the

general public. Most likely, these goals can be categorized as

 

55 Miles, 2023-209.

20
public health, safety, or general welfare issues, although in
practice community objectives are probably a combination of all
three of these extensive goals. In many cases, the government
has had to assume the leadership role in setting guidelines for
these public interest issues, primarily due to the combination
of two reasons: the private sector had been unable or unwilling
to do so, and the situation was such that if it remained
unregulated, the public’s interest would be compromised. Health
and safety objectives would probably address such issues as
water quality and flooding. These objectives‘may point to
looking at alternatives such as wellhead protection, floodplain
restrictions, and the prohibition of potentially dangerous land
uses in sensitive areas (such as the locating of chemical
companies near municipal drinking water supplies). Meanwhile,
objectives pertaining to the general welfare of the public could
be comprised of a wide range of issues, including aesthetics and
externalities. These issues are often less apparent then the
health and safety issues, and require further review.

As has been demonstrated throughout this paper, water and
land resources are interconnected. An action by a landowner
could be beneficial for his own holdings, but could prove
detrimental for others. The wide-scale removal of vegetative
cover and replacement with impervious surfaces in the upland
part of a watershed could increase the risk of flooding in
downstream areas, within or outside of the community where the

offending action transpired. The release of dangerous

21
pollutants by an industry could contaminate the ground or
surface water. In addition to the health and safety concerns
with these issues, there are also economic concerns. These
actions may, for example, impact other landowners by decreasing
their holdings’ property values, by degrading the aesthetic
qualities of public space, or by threatening a community’s water
recreation industry. These types of situations give rise to the
issue of externalities.

An activity is said to generate a beneficial or
detrimental externality if that activity causes
incidental benefits or damages to others, and no
corresponding compensation is provided to or paid by
those who generate the externality.56
An externality, whether beneficial or detrimental, can be
considered as a failure in the capitalistic market system on
which the United States’ economy is based. Many economists have
approached the environmental degradation issue in terms of the
concept of externalities. In this way, government interaction

has been justified in order to protect the public’s general

welfare.

Approaches for Envirormental Protection

Government’s response in addressing water problems has
involved both structural and nonstructural measures. Generally,
these measures, can be divided into two categories: control

techniques and market-driven techniques. Traditionally,

 

Er"’William J. Baumol and Alan S. Blinder, Economics:
Principles and Policy, 2nd ed. (New York: Harcourt Brace
Jovanovich, Inc., 1982), 536.

97‘

22
government has incorporated various control measures iniorder to
address water issues. For instance, many of the regulations
enacted by the federal government, such as the Clean Water Act,
have involved a control mechanism with specific industry-wide
standards.57 Proponents of continued federal control techniques
have argued that these types of regulations should be performed
in uniformity, across all regions. They have argued that unless
uniform standards are set in place, offending parties would
simply relocate their company to a less restrictive region, not
only injuring the economy where they were previously located,
but also damaging the environment at the new location. However,
opponents of federal controls have argued that these standards
have been developed at ainacro—level, and have not been flexible
enough to recognize individual circumstances. McConnell and
Schwab, in their review of the motor vehicle industry’s location
decisions, concluded:

Optimal environmental policy requires us to apply
the same principle in every region: continue to reduce
pollution up to the point that marginal abatement cost
equals marginal social damage. Differences in
meteorology, topography, industry mix, and land-use
patterns strongly suggest, however, that we should not
set the same standards everywhere. We have been
reluctant, however, to incorporate regional
differences in national policy in deference to what
Pashigian has called ’the locational competition
hypothesis’; that firms will shop among regions based
on the differences in environmental regulations. Our

evidence for this industry suggests that regional
differences iri environmental policy 'hi the 19703

 

’7 Richard B. Stewart, "Models for Environmental Regulation:
Central Planning Versus Market-Based Approaches," Boston
College Environmental Affairs Law Review 19 (Spring 1992): 551.

at

23

discouraged firms from choosing only the handful of
most polluted cities. In summary, it appears that
environmental policymakers may have given too amch
weight to concerns over regional equity and that, as
a consequence, efforts to ’level the playing field’
have probably resulted in costly uniform national
standards."58

Furthermore, these rigid controls could hinder the development
of more efficient technological advancements.“’ Consequently,
"while some of these regulatory controls have been initially
effective in limiting environmental degradation, they have also
proved to be costly and less effective over the longer term."°°
Market-driven approaches to environmental protection have
gained popularity as an alternative to traditional control
techniques. As described previously, many pollution problems
can be defined as negative externalities, or imperfections in
the private market system. By focusing (n1 the forces that
influence market decisions, these externalities can be
eliminated.
Revising the market’s system of pricing or consumer
demand to include environmental considerations can
turn the indefatigable creativity' of diverse and
flexible responses by market actors to environmental
advantage. It reduces overall social costs because
those who can prevent degradation most cheaply are
encouraged to do so most. Finally, it advances

environmental protection as the incentives spur
innovation in environmentally benign technologies and

 

58Virginia 0. McConnell and Robert M. Schwab, “The Impact
of Environmental Regulation on Industry Location Decisions: 'The
Motor Vehicle Industry," Land Economics 66 (February 1990): 79-
80.

59 Stewart, 551 —552.

°° Ibid., 551.

24

processes “
One scenario would involve charging polluters with taxes or
fees. Theoretically, organizations would be encouraged to
reduce emissions to satisfactory levels, providing that the cost
of doing so did not exceed the amount of tax or fine. In a
second scenario, the concept of tradeable allowances, the
government would establish a maximum amount of emissions that
could be released. Each company would hold rights to discharge
a specified level of emissions. Those companies that emitted an
amount in excess of the rights that they held would be heavily
fined or taxed. Those companies that were able to find more
efficient ways to dispel of their emissions would be free to
sell their rights on the open market, presumably for a profit.
The total cost to take a product to market would be less
expensive for these emission-efficient companies. Over time,
those companies that did not devise efficiencies to reduce
emissions would be eliminated by these market-driven forces."2
There are.several other market-driven techniques that could
be employed. ‘While their scenarios may differ, they are similar
in that they embrace flexibility in approach, financial
incentive, and environmental protection in a more cost effective
manner than traditional control techniques.63 However, there

are imperfections with this approach. The tax or fee scenario

 

°‘Ibid, 552.
62Ibid., 552—554.

°3Ibid., 553.

n

25
would have to be based upon a rational, systematic approach for
valuing the amount of damage. While a benefit-cost analysis
could be performed, at the present time, it is extremely
difficult to ascertain the exact value of damages caused by an
offending land use. Additionally, the tradeable allowances
scenario could encounter similar problems, with government
placing the level of emissions too high or low. Furthermore,
given the current level of technology, it may be not be feasible
for government to obtain all of the information that would be
required 1x) gauge all involved companies.°‘ Nevertheless, a
market-driven approach promises new opportunities to move away
from traditional control techniques.

Similar to the federal government, local governments have
relied upon a control based system to address their water and
land issues. Arguably, the use of a control mechanism at the
local level may be more appropriate than at the federal level,
particularly when the unique characteristics of each watershed
are considered when designing the control. However, local
governments’ control mechanisms can also experience limitations
over the long term, similar to federal control limitations,
primarily due to inflexibility.85 If cognizant of the market

forces affecting land development, local governments can

 

5‘ Ibid. , 554—555.

°5Jerold S. Kayden, "Market-Based Regulatory Approaches:
A Comparative Discussion of Environmental and Land Use
Techniques in the United States," Boston College Environmental
AffairsgLaw Review 19 (Spring 1992): 567.

26
effectively address their water resource objectives. However,
in order to provide further flexibility in land use decisions,
local governments have employed alternatives to traditional land
use controls, utilizing market-driven techniques. In fact, this
market-driven approach promises new opportunities for
communities in guiding their land use decisions. Initially, as
local governments began to explore alternatives to traditional
zoning, they allowed more permissive uses of land, utilizing
techniques such as conditional zoning. Subsequent, market-based
approaches to zoning have included techniques such as
transferable development rights.°° By working with market
mechanisms, as opposed to using static controls, a local unit of
government can better manage its growth. Accordingly, these
growth management techniques can play an important role in a

community’s water resources plan.

Water and Land Resource Management Techniques

Carmunity Review of Objectives md Alternatives

A community will need to determine its objectives before
formulating its water resources plan. Inevitably, these
objectives will focus on quality and safety issues, as well as
resource sustainability for future generations. The issue of
sustainability of water resources has far-reaching implications.
Current water supplies could be lost to utilization exceeding

replenishment, or to contamination. Communities must consider

 

°° Ibid., 568.

27
alternatives for future water needs. One community in Colorado
requires that new developments have a 300 year water supply.

The regulations are an attempt to equate the

availabilities of nonrenewable and renewable water

supplies, and to balance the competing needs for
economic development with the desire to avoid an
expensive water bailout by future generations.°7
Although they appear to be water rich, even the Great Lakes
states need to devise plans for future water needs and threats.
A community will need to review a number of scenarios,
determining the extent to iNhich plans are feasible, given
current constraints.

As with other planning endeavors, when addressing water
related objectives, several alternatives will have to evaluated
in order to determine the most appropriate for the situation.
These alternatives. may involve structural or nonstructural
measures, or a combination of the two. Structural measures tend
tot be large-scale public: works projects involving specific
engineering and construction standards, a multitude of
governmental units, and a large financial commitment. Examples
include dams, channel modifications, and floodwalls. Most of
the structural measures require involvement from the federal
government, due to the magnitude of the given project.

Meanwhile, nonstructural alternatives usually involve little in

terms of construction, and may include public awareness programs

 

67Alan, L. Mayo, "A 300-Year Water Supply Requirement,"
Journal of the American Planning Association 56 (Spring 1990):
197.

a)

28

or land use controls.°°

Furthermore, nonstructural measures may
not be considered as practical alternatives once a watershed
becomes fully urbanized.

In general, structural measures tend to be more
applicable to already developed areas and
nonstructural measures tend to be more applicable to
undeveloped areas. Stated differently, structural
measures tend to be more remedial, whereas
nonstructural measures tend to be preventative.69

Whether a community needs to employ structural or nonstructural
methods in order to protect the public’s health, safety, and
general welfare has been a subject of considerable debate. The
employment of nonstructural measures prior to urbanization may
reduce the need for structural measures once~aiwatershed becomes
urbanized.7° Furthermore, the reliance (Mi the natural
environment to purify and replenish water supplies would most
likely be preferable to constructed means, for various reasons,
including quality, public attitude, and economic. In fact, when
evaluating any alternative, there should be a complete economic
analysis with respect to benefits and costs. This analysis

should include not only financial elements, but also social

welfare aspects.

 

5" Walesh, 392.
‘9 Ibid., 392.

70It is important to note that in many cases there are
sound engineering reasons for utilizing built structures. In
many of these cases, nonstructural measures alone cannot be
substituted for the engineering necessity of a dam, levee, or
other constructed unit. However, this paper is concerned with
those cases where a community has an option to use nonstructural
measures exclusively, or some combination of structural or
nonstructural measures.

a»)

‘4’

29

If communities can protect their watersheds by
nonstructural means, a considerable amount of financial
resources will most likely be saved over the long run. As
suggested throughout this paper, local government can play a
pivotal role in protecting its community’s water resources. As
contrasted with federal and state governmental units, a more
local unit of government is better able to address a community’s
unique characteristics, due to its understanding of its natural
resource base, its institutional framework, and local
perceptions of water related problems. Land uses and their
related pollution can vary extensively in their potential to
pollute water. As discussed in the portion of this paper
discussing the hydrologic cycle, susceptibility of a specific
location to water contamination also depends upon its soil
capacity and subsurface structure. A number of other
hydrological elements that are unique to the community will also
affect surface runoff, evapotranspiration, and infiltration.
While federal and state regulations can provide general
guidelines, it is preferable that the local government become
involved with establishing a water resource protection program.
In creating such a program, the local unit of government can
employ a variety of regulatory and non—regulatory techniques

that address the specific needs of the community.71

 

7‘ Douglas A. Yanggen and Stephen M. Born, ”Protecting
Groundwater Quality by Managing Local Land Use," Journal of
Soil and Water Conservation 45 (March-April 1990).

30

Growth Mangement Alternatives

Local units of government may have a wide range of growth
management alternatives at their disposal, including land use
controls, land acquisition techniques, tax and fee systems, and
the provision of public facilities. Land use controls include
zoning and subdivision regulations. There is an abundance of
land acquisition techniques, ranging 'fnmn fee simple
acquisitions to transferable development rights. Innovative tax
and fee systems may include provisions for use value taxes and
impact fees.’2 Furthermore, some local units of government may
have the authority to impose extraterritorial controls.73
However, local units of government should be cognizant of
federal and state mandates, and should design programs that
complement the actions of these higher units of government.

Zoning techniques have traditionally served as a means to
control land use 'Hi urban settings, by forbidding certain
undesirable uses, in the interest of the health, safety, and
general welfare of the public.

Zoning divides the community into districts (zones)

and imposes different land use controls on each

district, specifying the allowed uses of land and

buildings, the intensity and density'of such uses, and
the bulk of buildings on the land.74

 

72 Mark A. Wyckoff, “Growth Management Techniques,"
Planning 6 Zoning News, August, 1989: 12-14.

73Yanggen and Born.
“’Frank S. 80 and Judith Getzels, ed. The Practice of Local

Government Planning, 2nd ed. (Washington D.C.: International
City Management Association, 1988), 251.

 

1a)

£3"

31

Mills states:

zoning assigns property rights concerning land use in

a community. It circumscribes the private rights of

landowners and establishes collective rights to

community environment. .A change 'hi zoning simply

reapportions property rights. Reapportionment occurs

for many reasons but voluntary exchange on mutually

advantageous terms is not often one of them.75
Furthermore, Pogodzinski and Sass suggest that

zoning is welfare-improving if it reduces the level of

negative externalities to which consumers and firms

are exposed, by an amount greater than costs

associated with implementing and enforcing zoning.7°
Recently, zoning has been used as a technique to protect
environmentally sensitive land. Zoning techniques have been
used to protect shorelands, floodplains, wetlands, and

groundwater.77

A local unit of government could, for example,
control a development’s density, which would indirectly limit
the amount of pollutants that could enter’ the groundwater
supply.

Another zoning technique, overlay zoning, places additional
requirements to existing underlying zoning. These overlay zones
provideia means to protect sensitive areas that would not otherwise
be covered by aui area’s existing zoning. ‘These overlay zoning

districts can be used to protect environmentally sensitive areas

such as: vulnerable areas, aquifer recharge areas, areas of

 

75 David E. Mills, "Zoning Rights and Land Development
Timing,“ Land Economics 66 (August 1990): 283.

'n J. Michael Pogodzinski and Tim R. Sass. "The Economic
Theory of Zoning: A Critical Review," Land Economics 66 (August
1990): 295.

 

T7Yanggen and Born.

32
suspected contamination, and well protection areas. Additionally,
areas that are suspected of contamination (e.g. areas that are down
stream from landfills) can be required to obtain its drinking
supply from a lone deep well, rather than several shallow wells.
Wellhead protection districts can be created to protect those
locations where existing and future municipal or private wells are
recharged.78

There is a number of other zoning methods that could be
utilized for environmental protection purposes. Of particular
interest are performance zoning, conditional zoning, and
environmentafl and resource protection controls. Performance zoning
is an approach that

requires applicants to demonstrate that the current

functions of the resource area or process will be
maintained or improved. . . . For example, in the case

of the aquifer recharge, the ordinance might require

applicants to demonstrate that the recharge area,
following development, will continue to transmit water

at y quality and x quantity per unit of time.79
Conditional zoning, which can be issued on a case-by-case basis,
permits a petitioner to implement a non-zoned use, providing
that the petitioner promises to "limit the future use of land,
dedicate property, or meet any other conditions."80
Environmental and resource protection controls are special types

of land use controls that designate critical or environmentally

sensitive areas. Critical environmental areas: may include

 

7" Yanggen and Born.
79 So and Getzels, 133.

8° Wyckoff , 7 .

«9'

33
"floodplains, rivers, stream valleys, wetlands, inland lakes,
shorelands, scenic uplands, steep slopes, woodlands, groundwater
acquifers, unique plant and animal habitats, unique natural
features, etc."81 These controls may also include techniques
to prevent pollution to surface and groundwater, and can limit
waterfront access.82
Subdivision regulations are used to direct the platting and
development of individual lots of land. Local governments can
review subdivided plats for a number of physical elements,
including the sufficiency of water supply, adequate stormwater
management, and erosion and sedimentation control.
Interestingly, subdivision regulations may require that a
subdivider perform structural improvements, such as a
centralized water and sewer system or monitoring wells.”3
Land acquisition techniques can range from the purchase of
title and all the rights attached to the land, to the purchase
of a portion of the rights to land. In making a full fee
acquisition, the land could be reserved for permanent public
open space. This technique could be used to help set the course
for an area’s desired land use patterns. However, there are
also negative connotations with full fee acquisition, in that

costs can be exorbitant, particularly if the plan promoted land

 

3‘ Ibid., 9.
82 Ibid., 9.

°3Yanggen and Born.

34

speculation.84

Furthermore, in contested cases, local units of
government would have to exercise their right of eminent domain
(assuming, of course, that the purchase met the public purpose
requirements for a taking). These proceedings would further
increase program costs.
Local units of government may also be able to purchase certain
rights pertaining to development, without actually taking title
to the land. These purchased development rights could range
from to temporary holding to permanent purchases. This practice
could help to slow growth, or eliminate particular land uses
that may be environmentally harmful. Mills asserts:

if the community owns development rights to the

offending land use, then landowners (developers) may

not impose external costs (N1 the community without

first acquiring development rights. The community’s

rights may be protected by either a liability rule or

a property rule If the rights are protected by a

liability rule then landowners may buy them for a

price equal to the damage caused by development. If

they are protected by a property rule then the city

may agree or refuse to sell them at any price. In

either case, if the community sells development rights

for a price equal to the external damage caused by

development, then efficient land use is achieved.85
Transferable development rights is another technique that uses
market-driven forces to help divert development from sensitive
or undesirable areas 1x> more preferable locations. This

technique "permits owners cfi’ property restricted from

 

“‘Seymour 1. Schwartz, Robert A. Johnston, James R.
Blackmarr, David E. Hansen, Controllini Land Use for Water
ManaLement and Urban Growth Management: A Policy Analysis,
(Davis, CA: California Water Resources Center, 1979), 8.

'5 Mills, 283-284.

 

35
development to recoup some lost value by selling development
rights to developers for transfer to another location where
increased densities are allowed."86

Tax and fee systems also provide a market-driven approach
to guiding land use decisions. While traditional property
taxation often leads to premature conversion of land to urban
use, primarily due to speculation, other forms of taxation on
property may help to deter this conversion. However, many of
these techniques could invite legal challenges, if appropriate
state enabling legislation has not been enacted. Land value
taxation is "the taxation of land only, or the taxation of land

"37 Land value

at a higher rate than any improvements on it.
taxation is popular among economists, however, there are
uncertainties with respect to the effectiveness of the land
value tax as a tool to protect water resources.

This measure is likely to produce a smaller rate of

conversion of agricultural and other open space lands

to urban use. However, the measure is not selective

with respect to preservation of resource lands that

are desirable for water management objectives."88
Preferential, or deferred, taxation can be a: particularly
effective means of discouraging urban growth. These programs,
which may be administered at the state level, involve

the assessment of property based on ’current use’

rather than ’highest and best use,’ with all or some
portion of any taxes that are avoided deferred and

 

8° Miles, 219.
"Wyckoff, 13.

3" Schwartz et al . , 48.

36

levied upon a change of use with or without interest
and a penalty.89

In addition to these tax techniques, local communities may
want to explore the use of development impact fees as part of
their growth management plan. However, the use of impact fees
is controversial, and involves many legal implications. "The
argument about impact fees is based, in part, on the economic

"9° Essentially, impact fees are

theory of externalities.
assessed to developers to finance public facilities, whether on-
site or off-site that are necessitated by new development. The
use of impact fees could serve a dual purpose, in that
development could be discouraged due to the added cost of
developing a site, or new facilities would be added to offset
the negative externalities from the development. In the case of
water resources protection, structural facilities could be
erected to protect resources from the effects of urbanization.
However, developers have argued that improvements benefit not
only their development, but also the entire community.
Consequently, as the following discussion will indicate, it is
paramount that a community incorporate a systematic, rational

means when determining impact fees.91

 

8" Wyckoff, 13.

90Donald G. Hagman, and Julian C. Juergensmeyer, Urban
Planningfiand Land Development Control Law, 2nd ed. (St. Paul,
MN: West, 1986), 284.

M Richard Peiser, "Calculating Equity-Neutral Water and
Sewer Impact Fees," Journal of The American Planning
Association 54 (Winter, 1988): 38.

37
There are a number of court cases that have helped to shape
the criteria for the use of impact fees. These standards may
also be applicable for an assortment of non-traditional taxes
and fees that may be considered by local units of government.
There are several tests that the courts have imposed in order to
determine the validity of impact fees. Generally, the validity
of the fee is based upon the authority of the community to exact
an impact fee» Impact fees have generally been created as
regulations, but occasionally have been created as taxes. If
the impact fee is challenged, the courts should determine under
which form the impact fee has been developed, and whether
the community is authorized to enact this measure under state

92 If the court determines that the impact fee is indeed

law.
a tax, the court will then look for express statutory
authorization to levy such a tax. Most states will generally
not authorize municipalities to enact taxes other than property
taxes (with the possible exception of income taxes). If this is
the case, the impact fee ordinance will be disallowed as ultra
vires. "Even if statutory authorization is present,
constitutional limitations on taxation may still invalidate the
statute."93

Due to the state courts’ narrow interpretation of taxing

authority, in most states impact fees are usually created as

 

92Kristine Williams, "Impact Fees & Exactions: An Overview
and Look at Their Applicability in Michigan," Planning & Zoning
News, August, 1987: 5-6.

9‘3Hagman and Juergensmeyer, 279.

38
regulatory measures.9‘ In the absence of specific state
enabling legislation, local units of government have imposed
impact fees as a function of their police power.95 If the
courts determine that the fee is within the local unit of
government’s implied authority, the courts have applied an
additional test, the rational nexus test, which requires that
there be "a close nexus between the fee and the purpose it
serves."96 The Supreme Court appears to have reaffirmed the
application of the rational nexus test in Nollan v. California
Coastal Commission, 107 S.Ct. 3141 (1987).97

A community can also influence future growth patterns by
means of public provision of public facilities, which includes
governmental development of infrastructure, such as roads and

public utilities.

 

9" Williams, 5-6.
95 Ibid.

9" Nancy St roud, "Legal Considerations of Development Impact
Fees," Journal of The American Planning Association 54 (Winter,
1988): 33.

9"There has been some disagreement regarding the actual
Supreme Court position regarding the use of impact fees, since
the Nollan case involved a physical taking. Many scholars such
as Stroud (see Stroud) maintain that the decision reaffirms the
rational nexus test used by most state courts. Meanwhile, other
legal commentators such as Morgan state that various legal tests
apply, depending upon the constitutional provision in which the
fee has been challenged (see Terry 0. Morgan, "The Effect of
State Legislation on the Law of Impact Fees, With Special
Emphasis on Texas Legislation," Institute on Planning. Zoning,
and Eminent Domain (1988): pp. 7.11 - 7.14). Until the Supreme
Court rules specifically on impact fees, the state courts will
have to make this determination, and as stated previously, most
are already using the rational nexus test.

39

By deciding where to put water lines, sewers, roads,

and other public facilities, and by deciding when to

put them there, a community is not only making public

investment decisions, but, more, important, is setting

a pattern and establishing a framework for the much

larger amount of private development that will be

influenced by these public decisions.98
The timing of funding for public facilities is generally
included in a community’s capital improvement program.

In some states, a local unit of government may have the
power to incorporate land use regulations for locations outside
of its municipal boundaries. In these places, a municipality
could devise a plan to protect its groundwater resource by
imposing zoning or subdivision regulations on those areas
outside of its boundaries, and thus prevent the development of

undesirable land uses, in an area in which a municipality would

not normally have authority.99

Additional Considerations

Best management practices are procedures that landowners
can use to help address a number of concerns, such as reducing
the level of pollutants that flow from their properties to the
water, or promoting the sustainability of resources.100 ’These
methods, which may be structural or nonstructural, or a

combination thereof, could be incorporated into local zoning

 

9° Hagman and Juergensmeyer, 268.
99Yanggen and Born.
100John D. Warbach, Mark A. Wyckoff, and Kristine Williams.

Protecting Inland Lakes: A ‘Watershed Management Guidebook,
(Lansing, MI: Planning & Zoning Center, Inc., May 1991), 5-1.

40
ordinances or used on a voluntary basis. Best management
practices have traditionally been associated with agricultural
lands" so asixipreserve important resources, protecting against
things such as soil erosion and decline in water quality and
quantity. Some of these principles can be applied to urban land
uses. Stormwater practices could include "limiting the
production of sediments, maintaining wetlands to store runoff,
and directing runoff to vegetation strips, wetlands, or

H 101

detention basins that will filter out sediments. Retention

and detention ponds may be built to reduce flows of sediment to

2 The amount of impervious surfaces could

lakes and streams.10
be limited by building "narrower roads serving multiple parcels,
and smaller parking lots."“” Best management practices could
also reduce the risk of groundwater contamination by
incorporating a number of different measures. For example, the
threat of contamination from industrial uses could be reduced by
placing containers such as drums or tanks into secondary
containment devices; or, interior floor drains could be

connected directly to public sanitary sewer systems or closed

holding tanks.104

 

10‘ Ibid.
1°?- Ibid., 5-6.
”315101.

1o“’Lillian F. Dean and Mark A. Wyckoff. Community Planning
a Zoning for Groundwater Protection in Michigan: A Guidebook
for Local Officials (Lansing, MI: Office of Water Resources,
Michigan Department of Natural Resources, May 1991), 2—10 - 2—
11.

41

A community may also want to examine nonregulatory
techniques, including public education and notification
programs. These programs provide additional opportunities for
citizens to become involved with the protection of water
resources. However, it is important that educational and public
relations efforts also be extended to include elected officials,
business organizations, the press, and any other organization
that could affect or be affected by the plan. The local
community’s involvement and commitment at E“) early stage is
paramount to successful implementation of the plan.

In summary, in order to successfully develop a water
resources plan, a community must identify its water and land
resource objectives, review available alternatives, and
determine the feasibility for each alternative» 'The feasibility
of each alternative should be evaluated in light of any number
of applicable variables, including benefits versus costs,
political viability, public acceptance, practicality, and any
other factors deemed as being important to the community. In
the next section, there will be a closer look at some important

considerations when selecting growth management techniques.

Effectiveness of Resource Protection Alternatives

The federal, state, and local levels of government have had
varying degrees of success with their wide range of water
protection programs. These programs have had a diverse set of

objectives, ranging from floodplain management to groundwater

 

.1
9 ii

'1

"iu

42
protection. While there may be distinct objectives for each of
these water management programs, there are many similarities
between the underlying land use techniques that have been used
to guide these various programs The following discussion
examines the effectiveness of various resource protection
techniques, and whether their results can match a community’s
intended objectives.

The National Flood Insurance Program is a federal program
that was created for two primary purposes. The first intention
was to level out federal emergency funding by initiating flood
insurance premiums. The second intention was longer-term in
nature, requiring participating communities throughout the
nation to develop floodplain regulations.105

The intrusion of the federal government into local

land—use regulation has been justified by the nature

of flooding-n-a.low-probability, high-impact event --

and the inadequate response by local governments to

risks of that nature. Flooding risks are often

ignored by local governments and floodplain residents
until the flooding occurs. By then, though, it is too

late to prevent unwise development in these critical

areas.106
Holway and Burby concluded that the National Flood Insurance
Program has "had an effect on land use in localities across the

U.S., but that its effect can be amplified or subverted by local

land use policy decisions."107

 

”5 Wal esh, 42 .

106James M. Holway and Raymond J. Burby, "The Effects of
Floodplain Development Controls (M1 Residential Land Values,"
Land Economics 66 (August 1990): 259.

107Ibid.

43
In general, floodplain land use management programs have
focused upon altering private sector decisions. These growth
management programs have already been described at length.
Burby points out that "land use management programs often are
targeted at several different decision points in the land
conversion process."108 As the land conversion process
progresses from vacant land to developed sites, some prevention
techniques may be more effective then others, depending upon a
site’s position in this process. 'The likelihood for development
increases the further along a site is in its conversion process.
Furthermore, Holway and Burby state that "land value is expected
to increase with proximity to urban services and neighborhood
status and to decrease with increasing parcel size. The effect
of flood hazards can be examined similarly."109 The thought is
that the risk of flood hazards would be capitalized into the
cost of the property, lowering property values. If the
developer took measures to account for this hazard, in response
to purchaser concern, his cost of development would increase,
reducing the likelihood of development.
In their conclusion, Holway and Burby declared that
floodplain land use regulations, particularly low density

zoning, would ideter floodplain development. Their studies

 

‘M’Raymond J. Burby, et al. Cities Under Water (Colorado:
University of Colorado Institute of Behavioral Science, 1988),
85.

 

'w’Holway zuui Burby, "Floodplain Development Controls,"
259.

44
indicated that as parcel size increased, the value per square
foot decreased. The authors’ findings also indicated that the
location of thoroughfares and distance to an interchange can
also affect the value of land. By carefully developing a
capital improvement program, a community can divert public
facilities that promote development from identified critical or
sensitive areas. A local unit of government that keeps abreast
of the market-driven forces of supply and demand that affect the
land conversion process, can effectively influence the
development decisions. "By decreasing the potential profit from
development, floodplain land use management programs should
discourage intensive uses of flood hazard areas."“°

However, communities must also realize that some programs
may have little effect, or may actually help promote the
opposite of desired effects. For example, a community may want
to discourage development iri a floodplain, for ti variety of
reasons, including flood damage, water quality, and the presence
of environmentally sensitive elements. This community' may
explore a number of issues, both structural and nonstructural.
Holway & Burby assert that structural remedies to the flood
hazard, such as dams or floodwalls, would reduce flood risk, and

111

would run: deter development ir1 the floodplain. In fact,

public projects such as these would most likely increase

 

11oBurby et al., 118.

111Holway awn! Burby, "Floodplain Development Controls,"
263.

45
property values, stimulating development.‘12 Additionally,
certain regulatory approaches such as building requirements, and
loss protection measures, such as the NFIP, will reduce the risk
of flood damage costs to property owners. As a result, these
measures would not serve their objective as deterrents to
building in the floodplain. Therefore, it is important that
communities are aware of the implications for each scenario
before enactment, as desired outcomes may not occur.

A growth management technique that has grown in popularity
is transferable development rights (TDR). The concept of TDR
recognizes that development rights is one of the many bundle of
rights that a landowner possesses. Although a landowner may
possess land that is located in a sensitive, government
restricted area, he can recoup possible losses by selling this
particular right to another landowner who possessed land in an
acceptable area for higher density development. This technique
"helps equalize the windfalls and wipeouts that are so common
with many zoning decisions."113 The TDR technique, however,
relies upon the market demand for these rights. In order to
generate an acceptable level of demand for TDRs, the community
would have to have a well constructed plan that limited the
total amount of development within the community. This demand
could be promoted by downzoning buildable areas from their

previous level of allowable units, but allowing landowners in

 

“zBurby et al., 156.

“3 Wyckoff , 12.

46
these areas to increase their densities by purchasing TDRs.“‘
However, the pricing of these rights could be an issue that

5 Government may

would involve a great deal of negotiation.11
need to intercede to help streamline the pricing process.

There has been successful implementation of the TDR
technique, such as in the New Jersey Pinelands Development,
where each landowner received

different amounts of TDRs depending on the value to

society of preserving that owner’s property. In areas

in which development is permitted, landowners must

hold TDRs to develop their property. Thus, the total

amount of development in the Pinelands is capped, and

the regional distribution is partly restricted, but

the precise allocation of development on permissible

properties is left to the market for TDRs.‘”

In addition to the approaches described above, there have
been a number of important nonregulatory approaches. One
important nonregulatory approach appears to be the providing of
information regarding water hazards to the public. Researchers
have demonstrated that in addition to likely concern with loss
of human life, ecological damages, and loss in intrinsic value,
there also appears to be concern with other costs needed to

avoid exposure to water contaminants, or averting

expenditures.‘" The issue of averting expenditures appear to

 

11“Schwartz et al., 33.

”5 Kayden, 578.

“5 Stewart, 556.

117Charles W. Abdalla, Brian A. Roach, and Donald J. Epp,
"Valuing Environmental Quality Changes Using Averting

Expenditures: An Application to Groundwater Contamination,"
Land Economics 68 (May 1992): 163.

47
be correlated to effective public notification.
Since awareness of contamination influences averting

behavior, the policies and procedures for public
notification are ralso hnportant factors affecting

public realization of the costs. . . . Notification
efforts could be intensified towards those groups
which appear to be more concerned with water

quality." (e.g. family with children; notify child
care centers, pediatricians’ offices)18

When considering an appropriate techniques, a community
must select the technique that is appropriate for its situation.
Selected techniques Shauld also be evaluated for potential
pitfalls and opposing results. Both regulatory and
nonregulatory approaches should be considered. In fact, a
community may want to concentrate its initial endeavors on
practices that educate the public and elected officials, so that
these individuals become involved with the process at an early
stage. Finally, a community must be cognizant of the

institutional framework in which the plan will be implemented.

Institutional Considerations

As has been emphasized throughout this paper, it is
paramount that water issues be addressed at the watershed level.
At the watershed level, unique characteristics can be considered
when implementing plans. FUrthermore, at this level
constituents can become more involved with solving their own
problems. However, once a community has gained an awareness of

its water resources issues, it would then need to identify the

 

“31616., 168-169.

48
appropriate institutional framework under which to formulate and
implement water resources plans. As discussed previously, the
most appropriate form of institution would be at a more local
level of government than federal or state government, preferably
a regional form of government that operates at the watershed
level.

This approach is shared by Harrison, who contends that the
problemiwith federal control lies in problems with institutional

9 Harrison attributes disputes 1K) the federal

perspectives.11
agencies that serve in a managerial capacity. These agencies
define the public interest along their narrow mission-oriented
perspective, rather than on a comprehensive basis. Harrison
maintains that local governments should be given the opportunity
to develop the mechanism that best serves the needs of the
public, since local governments are much closer to their
constituencies. However, a reform process is needed to
encourage the federal government, and to some extent state
governments, to relinquish some of its authority over water
matters, so that local units of government can come together to
develop their own institutions. Furthermore, with local
governments taking control of policy guidance, the federal and
state agencies’ assignment would be redesignated, from their

current capacity, where they serve by default as narrow

perspective policy makers, to a supporting or implementation

 

119David C. Harrison, ”The Local Role in Water Policy,"
Unified River Basin Management - Stage II (American Water
Resources Association), (October, 1981).

49
role to local government. In order to develop a constituency-
based water policy process with a coherent institutional
structure, the federal government would have to provide support.
This support should include financial, technical, procedural,
and legal backing.”°

While Harrison’s approach may be considered by many as
either visionary or fantasy, depending upon their convictions,
he does touch upon several interesting points. His viewpoint
regarding the removal of federal agencies from a managerial
capacity is thought provoking. Other authors have shared his
view, including Brimelow and Spencer, who preferred that the
Environmental Protection Agency (EPA) be abolished. If the EPA
were not abolished, they believed that its mission should be
redirected to serve in a more advisory—oriented capacity.
Brimelow and Spencer also favored a return to ‘traditional

‘ The abolition

property rights and the common law of torts.12
of the EPA is probably not feasible, given the current political
atmosphere. However, more authority should be given to units of
government that perform watershed—level planning.

Local or regional level institutions may take several
forms, including lake associations, watershed councils, or

citizen—based groups. In the case of market-driven techniques

such as TDRs, a special institution may have to be initiated to

 

12° Ibid.

121Peter Brimelow and Leslie Spencer, “Should We Abolish
the EPA?" Forbes 150 (September 19, 1992): 432-444.

5O
accommodate the market place. However, given many states’
current statutory practice of home rule, any effort to plan at
the regional level would require a great deal of
intergovernmental cooperation between local levels of
government. It would be necessary for each affected unit of
government to provide its approval in order for most plans to be
implemented. While the states could reassert their authority
over such matters by directly overseeing this watershed
approach, the state creation of regional governments that
possess broad powers could prove more beneficial. These
regional governments could institute a process that local
governments would need to consider in order to gain approval for
development cu“ development related regulation. Furthermore,
regional levels of government are close enough to the local
situation to ascertain constituency—based considerations. The
successful New Jersey Pinelands case that was previously
described was instituted at the regional level. Similarly, a
successful Chesapeake Bay area growth management plan that was
instituted to protect an environmentally fragile area, was also
initiated at the regional level.122 In fact, growth management
plans executed at the regional level would most likely be more
successful than those instituted at the local level, due to the
greater amount of area involved, most likely encompassing whole

watersheds.

 

'mzPatrick W. Beaton and Marcus Pollack, "Economic Impact
of Growth Management Policies Surrounding the Chesapeake Bay,"
Land Economics 68 (November 1992): 434-453.

51

The feasibility of implementing powerful regional units of
government in most states is questionable, in light of the
political environment favoring strong homeiruleu However, while
the states continue to explore the possibility of strong
regional governments, local units of government will need to
guide their water resources efforts. Nevertheless, this
practice can prove worthwhile if the affected local units of
government consider the effects of their actions on the entire
watershed, not just the portion of the watershed within their
own boundaries. Furthermore, "by directly involving all
affected units of government in the watershed planning process,
it will be easier to garner support for regulations,
implementation programs, and ordinance changes in the

"”3 While this effort would require :1 great deal of

future.
effort and intergovernmental cooperation, the long term benefit

to affected parties could prove beneficial.

Conclusions

Due to their broad ramifications, environmental related
concerns will remain at the public forefront. A primary concern
is the protection and sustainability of water resources, and the
land and property affected by water. Obviously, water is
essential to human sustenance and ecological stability, but it
also affects most activities, ranging from recreation to

industry. While water resources affect national interests, it

 

‘23 Warbach et al . , 4-6.

52
is important to realize that the characteristics of the
occurrence of water differs across each watershed. Therefore,
it is vital that water resources planning be performed at a more
local level of government than federal or state government,
preferably a regional form of government that operates at the
watershed level.

When embarking upon a water resource plan, a community
needs to review all alternatives, including feasibilityu Growth
management techniques have been useful tools in protecting
resources. Resource protection controls appear to be
particularly useful in the protection of environmentally
sensitive or critical areas. Techniques that are particularly
intriguing are market-driven approaches, such as TDRs. Further
research regarding the effectiveness of these techniques needs
to be performed, considering such elements as success at meeting
objectives, public perception, political feasibility, and
economic feasibility.

Finally, further research should be undertaken regarding a
regional approach to water resources planning. State decision
makers may welcome a regional approach to planning, even in the
absence CH: specific enabling legislation, Of particular
interest would be a study that examines the effectiveness of
inter-governmental cooperation in fostering a regional approach
in "home rule" states. The analysis could also address the
extent to which these states’ existing body of laws facilitate

a regional approach.

 

BIBLIOGRAPHY

Abdalla, Charles W., Brian A. Roach, and Donald J. Epp.
"Valuing Environmental Quality Changes Using Averting
Expenditures: An Application to Groundwater Contamination. "
Land Economics 68 (May 1992): 163-169.

Adams, Roy M., Charles 0. Fox, and Sheldon A. Zabel, “Liability
for Environmental Hazards: The Saga Continues." Trusts &
Estates (January 1993): 30-39.

Baumol, William J. and Alan S. Blinder, Economics: Principles
and Policy. 2nd ed. New York: Harcourt Brace Jovanovich,
Inc., 1982.

Beaton, W. Patrick. "The Impact of Regional Land—Use Controls
on Property Values: The Case of the New Jersey Pinelands."
Land Economics 67 (May 1991): 172-194.

Beaton, W. Patrick and Marcus Pollack. "Economic Impact of
Growth Management Policies Surrounding the Chesapeake Bay. "
Land Economics 68 (November 1992): 434-453.

Black, Peter' E. Conservation of Water and Related Land
Resources. Rowman & Littlefield, 1987.

Brimelow, Peter and Leslie Spencer. "Should We Abolish the
EPA?" Forbes 150 (September 19, 1992): 432-442.

Brooks, Kenneth N., et al. Hydrology and the Management of

 

 

 

Watersheds. Ames, Iowa: Iowa State University Press,
1991.

Burby, Raymond J., et al. Cities Under' Water; Colorado:
University of Colorado Institute of Behavioral Science,
1988.

DiNova, Frank and Martin Jaffe. Local Groundwater
ProtectionzMidwest Region. Chicagon American Planning

 

Association, 1984.

Dean, Lillian F. and Mark A. Wyckoff. Community Planning .83.
Zoning for Groundwater Protection in Michigan: .Atmuidebook

 

for Local Officials. Lansing, MI: Office of Water
Resources, Michigan Department of Natural Resources, May
1991.

Dzurik, Andrew A. Water Resources Planning. Savage, Maryland:
Rowman & Littlefield, 1990.

The Economist. "Cleaning up: A Survey of Industry and the
Environment." The Economist (September 8, 1990): 3-20.

Forbes, "Meeting the Challenge of Sustainable Development.“
Forbes (May 25, 1992) 118-133.

Ferguson, Bruce K. and Philip W. Suckling. "Changing Rainfall-
Runoff Relationships in the Urbanizing Peachtree Creek
Watershed, Atlanta, Georgia." Water Resources Bulletin 26
(April 1990): 313-322.

Goodman, Alvin S. FHdnciples of water Resources Planning.
Englewood Cliffs, N.J.: Prentice Hall, 1984.

Grigg, Neil S. Water Resources Planning. New York: McGraw
Hill, 1985.

Hagman, Donald G. and Juergensmeyer, Julian C. Urban Planning
and Land Development Control Law. 2nd ed. St. Paul, MN:
West, 1986.

Harrison, David C. “The Local Role in Water Policy.“ Unified
River Basin Management - Stage II (American Water Resources
Association) (October, 1981): 483-493.

Holway, James M. and Raymond J. Burby. "The Effects of
Floodplain Development Controls on Residential Land
Values." Land Economics 66 (August 1990): 259-271.

Holway, James M. and Raymond J. Burby. “Reducing Flood Loss:
Local Planning and Land Use Controls." Journal of tha
American Planning Association 59 (Spring 1993): 205-216.

 

Isberg, Gunner. "Strategic Planning for a Comprehensive Water
Plan." Journal of Soil and Water Conservation 46 (May-
June 1991): 178-183.

Jones, Philip. Hydrology. Oxford: Basil Blackwell Publisher,

1984.

Kayden, Jerold S. "Market-Based Regulatory .Approaches: A
Comparative Discussion of Environmental and Land Use
Techniques in the United States." Boston Collega

 

Environmental Affairs Law'Review 19 (Spring 1992): 565-580.

Lazaro, Timothy R. Urban Hydrology: A Multidisciplinary
Perspective. rev. ed. Lancaster, PA: Technomic Publishing
Co., Inc., 1990.

Levy, John M. Contemporary Urgan Planning. 2d ed. Englewood
Cliffs, N.J.: Prentice Hall, 1991.

Linsley, Ray K. Jr., Max A. Kohler, and Joseph L. H. Paulhus.
Hydrology for Engineers. New York: McGraw Hill.

Marsh, William in. Landscape Planning: Environmental
Applications. New York: John Wiley & Sons, Inc., 1991.

 

 

Mayo, Alan L. "A 300-Year Water Supply Requirement." Journal
of the American Planning Association 56 (Spring 1990): 197-
207.

McConnell, Virginia D. and Robert M. Schwab "The Impact of
Environmental Regulation on Industry Location Decisions:
The Motor Vehicle Industry." Land Economics 66 (February
1990): 67-81.

McHarg, Ian L” Design with Nature. New York: John Wiley &
Sons, Inc., 1992.

Miles, Mike E., et al. Real Estate Development Principles and
Process. ‘Washington, D.C.: ULI - the Urban Land Institute,
1991.

Mills, David E. "Zoning Rights and Land Development Timing."
Land Economics 66 (August 1990): 283-293.

Morgan, Terry D. "The Effect of State Legislation on the Law of
Impact Fees, With Special Emphasis on Texas Legislation.“
Institute on Planning. Zoning. and Eminent Domain (1988):
Chapter 7.

Newell, Gale E., et al., "The Effect of Michigan’s Environmental
Regulations (including PA 307) on.Accounting and Auditing."
The Michigan CPA 44 (Fall 1992): 8-14.

Nothdurft, WilliamlE. Renewing America: Natural Resource Assets
and State Economic Development. Washington D.C.: The
Council of State Planning Agencies.

Ortolano, Leonard. Environmental Planning and Decision Making.
New York: John Wiley & Sons, Inc., 1984.

Page, G. William, ed. Planning for Groundwater Protection.
Orlando: Harcourt Brace Jovanovich, 1987.

Peiser, Richard. "Calculating Equity-Neutral Water and Sewer
Impact Fees." Journal of The American Planning Association
54 (Winter, 1988): 38-48.

Pogodzinski, J. Michael and Tim R. Sass. "The Economic Theory
of Zoning: A Critical Review." Land Economics 66 (August
1990): 294-313.

Riggs, H.C. Streamflow Characteristics. Amsterdam: Elsevier
Science Publishers, 1985.

Roberts, Steven V., Dorian Friedman, and Susan Pastrick,
"Election 1992: The Issues.“ U.S. News and World Report
(August 31 -September 7, 1992) 42-44.

Schwartz, Seymour 1., Robert A. Johnston, James R. Blackmarr,
David E. Hansen. ControllingyLand Use for Water Management
and Urban Growth Management: A Policy Analysis. Davis, CA:
California Water Resources Center, 1979.

So, Frank S. and Judith Getzels, ed. The Practica of Local
Government Planning. 2nd ed. Washington D.C.:
International City Management Association, 1988.

Steiner, Frederick. The Living Landscape. New York: McGraw-
Hill, Inc., 1991.

Stewart, Richard B. "Models: for Environmental Regulation:
Central Planning Versus Market-Based Approaches." Boston
College Environmental Affairs Law Review 19 (Spring 1992):
547-559.

Stroud, Nancy. "Legal Considerations of Development Impact
Fees." Journal of The American Planning Association 54
(Winter, 1988): 29-37.

Vink, A.P.A. Landscape Ecology and Land Use. New York:
Longman, Inc., 1983.

Walesh, Stuart G. Urban Surface Water Management. New York:
John Wiley & Sons, Inc., 1989.

Warbach, John 0., Mark A. Wyckoff, and Kristine Williams.
Protecting Inland Lakes: A Watershed Management Guidebook.
Lansing, MI: Planning & Zoning Center, Inc., May 1991.

Ward, R.C. Principles of Hydrology. London: McGraw Hill, 1967.

Williams, Kristine. "Impact Fees & Exactions: An Overview and
Look at Their Applicability in Michigan." Planning 8.
Zoning News, August, 1987, pp. 4-11.

Wyckoff, Mark A. "Growth Management Techniques." Planning &
ZoningpNews, August, 1989, pp. 4-15.

Yanggen, Douglas A. and Stephen M. Born. "Protecting
Groundwater Quality by Managing Local Land Use." Journal
of Soil and Water Conservaticni 45 (March—April 1990): 207-

211.

"Assessing Environmental

Zuber, George R. and Charles G. Berry.
43-48.

Risk." Journal of Accountancy 173 (March 1992):

 

llillllllllllillllIllllilililililililiillllllllllilllillililil

 

31293 02645 9838