Title: Natural Resources Journal/Stormwater Runoff Control: A Model Ordinance for Meeting Local Water Quality Management Needs
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Title: Natural Resources Journal/Stormwater Runoff Control: A Model Ordinance for Meeting Local Water Quality Management Needs
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann Collection - Natural Resources Journal/Stormwater Runoff Control: A Model Ordinance for Meeting Local Water Quality Management Needs
General Note: Box 25, Folder 1 ( Water Use - Difficult Decisions for the 90's - 1988 ), Item 4
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STORMWATER RUNOFF CONTROL: A MODEL

ORDINANCE FOR MEETING LOCAL WATER
QUALITY MANAGEMENT NEEDS
FRANK E. MALONEY.* RICHARD G. HAMANN** and
BRAM D. E. CANTER'*


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STORMWATER RUNOFF CONTROL: A MODEL
ORDINANCE FOR MEETING LOCAL WATER
QUALITY MANAGEMENT NEEDS
FRANK E. MALONEY,* RICHARD G. HAMANN** and
BRAM D. E. CANTER***


INTRODUCTION

Water pollution abatement programs in the United States have
been directed almost entirely toward the elimination of point sources
of water pollution-defined in the Federal Water Pollution Control
Act' as "any discernible, confined and discrete conveyance... from
which pollutants are or may be discharged."2 Yet officials of the En-
vironmental Protection Agency estimate that fifty percent or more
of the nation's water pollution is waste picked up from the land by
rainfall, which then reaches ground and surface waters through run-
off and seepage and not through a pipe or other point source of
pollution.3
The waters which drain urban streets, construction sites, agricul-
tural areas and other sites of intensive human use are often heavily
*Professor of Law and Dean Emeritus, University of Florida Law Center; Director, Water
Law Studies of the University of Florida; B.A., 1939, University of Toronto; J.D., 1942,
University of Florida.
On April 23, 1980, as this article was being prepared for publication, Dean Frank E.
Maloney suddenly died. His colleagues, friends, and former students join with his family in
mourning his passing. The authors wish to acknowledge and honor the many professional
accomplishments and personal services of Dean Maloney by dedicating this article to his
memory.
**B.A., 1973, University of Florida; J.D., 1976, University of Florida Law Center. Mr.
Hamann is the Associate Investigator, U.S. Department of the Interior, Office of Water Re-
sources Research project, "Integrating Water Management and Planning with Land Use Con-
trols."
***Director, Water Resources Scientific Information Center of Competence in Eastern
Water Law, University of Florida Law Center; B.A., 1974, University of South Florida; J.D.,
1977, University of Florida.
SThe Model Stormwater Runoff Control Ordinance was developed substantially under a
grant from the U.S. Department of Commerce, National Oceanic and Atmospheric Adminis-
tration, National Sea Grant Program, Florida Sea Grant College Program. Additional funding
was provided by the Southwest Florida Regional Planning Council.
Much of the work on which this article is based was done under the guidance of Dan
Fernandez, a former director of the Center.
The assistance of Richard A. Brightman, J.D., 1979, University of Florida Law Center
and Richard B. Bush, J.D., 1979, University of Florida Law Center, is also gratefully acknowl-
edged.
1. 33 U.S.C. 1251-1376 (1976 & Supp. II 1978).
2. 33 U.S.C. 1362(14) (Supp. II 1978).
3. SeeG. AMY, R. PITT, R. SINGH, W. BRADFORD & M. LAGRAFF, WATER QUAL-
ITY MANAGEMENT PLANNING FOR URBAN RUNOFF 1 (1974) [hereinafter cited as
G. AMY].









NATURAL RESOURCESJOURNAL


polluted with nutrients, oxygen demanding materials, suspended
solids, trace metals, pesticides, petroleum products, and other dele-
terious substances. These pollutants are eventually carried directly
into our streams, rivers, lakes, and the seas.
Until quite recently,4 the parameters of non-point pollution prob-
lems were unknown and the data even now available are inadequate
in many areas to support the application of certain specific control
mechanisms. One complicating element of the problem is that storm-
water runoff occurs naturally in the absence of human activities and
is thus, in part, the natural state of things. The relatively recent
effort to systematically identify and control non-point sources of
pollution such as stormwater runoff has illuminated the legal diffi-
culty of the task. Runoff arises from intermittent and unpredictable
events. Its quality depends on factors that are difficult to quantify
and which vary from one site to another.
Unlike pollutants from point sources which can be regulated by
the application of effluent limitations, control of stormwater runoff
requires an entirely different approach. Stormwater runoff control
necessarily involves the regulation of the land uses which degrade its
quality or increase its volume. Because the authority to promulgate
land use regulations has traditionally been delegated to local govern-
ments, the responsibility for stormwater management rests most
heavily upon counties and municipalities. The Model Stormwater
Runoff Control Ordinance presented here was developed5 to provide
local governments with an effective mechanism for meeting this im-
portant responsibility.
The discussion which follows is meant to facilitate a better under-
standing of the Model Ordinance and its usefulness. Part I will
describe the physical aspects of the surface water pollution problem.
In Part II, general control techniques that can effectively reduce the
harmful impacts of stormwater runoff are examined. Part III looks at
the common law applicable to diffused surface waters. Part IV dis-
cusses the federal law which has stimulated the current search for
non-point source pollution control mechanisms. Some of the legal
4. One of the first studies in the United States on the pollution potential of stormwater
runoff was conducted in Detroit, Michigan in 1949. Palmer, The Pollutional Effects of
Storm-Water Overflows From Combined Sewers. 22 SEWAGE AND INDUSTRIAL WASTES
154 (Feb. 1950).
5. The Model Ordinance went through several drafts over the course of the project. After
the completion of each draft, copies were sent to water resource agencies and local govern-
ments throughout the United States for review and comment. The feedback received via this
process was of tremendous help in the refinement of the Model Ordinance. Of special help
were the comments received from the academic community, especially Dr. Edwin Pyatt, Dr.
Wayne Huber, and Dr. James Heaney of the Department of Environmental Engineering, Uni-
versity of Florida, Gainesville, Florida.


[Vol. 20









STORM WATER RUNOFF


considerations that bear on the implementation of the Model Ordi-
nance are examined in Part V. Finally, Part VI is the Model Storm-
water Runoff Control Ordinance with commentary.

I. ENVIRONMENTAL IMPACTS OF STORMWATER RUNOFF

The Structure and Function of Natural Systems
In the absence of human development and use of land, stormwater
runoff causes few problems. Indigenous biological systems are adapted
to and dependent upon existing soils and hydrologic cycles. The
quality and hydrodynamics of runoff are influenced in turn by the
community of plants and animals. Natural systems tend to be domi-
nated by mature, climax communities6 in which a diversity of well
adapted plants and animals efficiently capture, use, and recycle a
large percentage of the available nutrients.' Vegetation obstructs the
flow of runoff and protects the soil with a canopy of leaves, a cover-
ing of dead plant material, and an intricate network of roots.8 Organic
material and small animal and insect burrows give the soil an open,
spongelike structure, enabling it to quickly absorb and hold water.9
The period of runoff is thus extended, the rate is reduced and ground-
water is recharged.
Because wetlands exist at the interface of terrestrial and aquatic
systems and are the location of intensive biological activity, they
have especially significant effects on runoff.' o Wetlands buffer rapid

6. A climax community results from a process of biological development known as com-
munity succession in which a group of species occupying an area modifies it to the extent
that a succeeding group of species can become dominant. The process continues progres-
sively until an equilibrium is reached. R. DARNELL IMPACTS OF CONSTRUCTION AC-
TIVITIES IN WETLANDS OF THE UNITED STATES 50-51 (1976).
7. Id. at 52-55; Woodwell The Energy Cycle of the Biosphere, in THE BIOSPHERE: A
SCIENTIFIC AMERICAN BOOK (1970).
8. U.S. ENVIRONMENTAL PROTECTION AGENCY, PROCESSES, PROCEDURES
AND METHODS TO CONTROL POLLUTION RESULTING FROM ALL CONSTRUC-
TION ACTIVITY 46-47 (1973) [hereinafter cited as PROCESSES). No researcher has ever
had the time or patience to count how many miles of roots support a single large tree. The
work has been done on rye grass, however, with amazing results. "The report states that 14
billion [rootl hairs, with an end-to-end length of 6 thousand miles, were crammed into one
cubic inch of soil" R. PLATT, THE GREAT AMERICAN FOREST 81 (1971).
9. Jenny, Soil as a Natural Resource, in NATURAL RESOURCES 184, 198 (M. Huberty
& W. Flock eds. 1959).
10. See generally R. DARNELL, supra note 6; C. WHARTON, H. ODUM, K. EWEL. M.
DUEVER, A. LUGO, R. BOYT, J. BARTHOLOMEW, E. DE BELLEVUE, S. BROWN, M.
BROWN & L. DUEVER, FORESTED WETLANDS OF FLORIDA, THEIR MANAGEMENT
AND USE (1977) [hereinafter cited as FORESTED WETLANDS]; Proposed Amendments
to the federal Water Pollution Control Act: Hearings on S. 2770. 404 Before the Senate
Committee on Public Works. 94th Cong., 2d Sess. 390 (1976) [hereinafter cited as 404
Hearings] (statements of Louis L. Clapper & Kenneth S. Kamlet);id. at 683-87 (statement
of Orie L. Loucks).


October 1980]










NATURAL RESOURCES JOURNAL


hydrologic fluctuations by collecting runoff and then gradually re-
leasing it. They can thus reduce flood peaks and slow the velocity of
flood waters as well as diminish the duration and severity of
droughts.' In some areas, wetlands are important sites of ground-
water recharge.' 2 Wetlands also help to maintain water quality by
trapping nutrients, suspended solids, and other substances commonly
contained in runoff.' 3
The ecological health of downstream areas depends in part on re-
ceiving runoff that has been reduced in quantity and enhanced in
quality by the upriver vegetation and soils in their undisturbed
state.1' Flood plain vegetation, for example, while needing to receive
periodic overflows of water' s will die if flooded excessively.' 6 The
timing of inundation, which depends on hydrologic characteristics of
the watershed, is cruciaL"' Estuaries similarly depend upon the input
of freshwater to dilute seawater and create the brackish, nutrient-rich


11. 404 Hearings, supra note 10, at 419, 685. A six inch rise in water over ten acres of
wetlands places more than 1.5 million gallons in storage.Id. at 501. Researchers who studied
the Nepuset River in Massachusetts concluded that destroying 10% of the wetlands would
raise flood stages by 1.5 feet, and destroying 50% would raise floodwaters 3 feet. Id. at 685
n.l. The Army Corps of Engineers calculates that a 40% reduction in wetlands along the
Charles River would elevate flood stages between 2 to 4 feet. Id. at 685. In addition, by'
slowing the velocity of flood waters, wetlands can help reduce the damages when flooding
does occur. For example, after widespread flooding in Pennsylvania, bridges below a wet-
land that had been preserved were unharmed, while similar bridges elsewhere were destroyed.
Id. at 501.
12. Id. at 419, 501.
13. FORESTED WETLANDS, supra note 10, at 51, 111-13. A study of Lake Minne-
tonka in Minnesota for the period from June 1969, to May 1970, revealed that although
77,000 pounds of phosphorus were released into the watershed, only 50,300 pounds reached
the lake. Wetlands trapped 26,700 pounds. Id. at 509. The 512 acre Tinicum marsh daily re-
duces about 7.7 tons of BOD, 4.9 tons of P-PO4, 4.3 tons of N-NH,, 138 pounds of N-NO,
and produces 20 tons of O,. Id. at 503. In the Alcovy River system, the water of one tribu-
tary which was heavily polluted by human sewage and chicken offal could be reclassified as
clean after passing through 2.75 miles of river swamp and upgraded to excellent after 7
more miles. Id. In Wisconsin, researchers concluded that 300 acres of wetlands which had
been destroyed would have trapped 200-300 kg/yr of the phorphorus generated by agricul-
tural and urban development of uplands. Id. at 684 n.5. It has been estimated that a 1,000
acre marsh may be able to purify the nitrogenous wastes of 20.000 people. Id. at 421. In
addition, wetlands help to prevent siltation of downstream areas by slowing the flow of
water, thus decreasing its ability to erode stream banks and allowing a portion of the sedi-
ment load to settle out Id. at 686 n.9.
14. See generally J. CLARK, COASTAL ECOSYSTEMS, ECOLOGICAL CONSIDERA-
TIONS FOR MANAGEMENT OF THE COASTAL ZONE (1975); GEORGIA DEPT OF
NATURAL RESOURCES, INLAND LAND USE ACTIVITIES ANDGEORGIA'S COASTAL
WATERS (1979) [hereinafter cited as GEORGIA'S COASTAL WATERS] FRESHWATER
AND THE FLORIDA COAST (W. Seaman & R. McLean eds. 1977).
15. FORESTED WETLANDS, supra note 10, at 132-49.
16. R. DARNELL, supra note 6, at 204.
17. Id. at 209.


[Vol. 20









STORMWATER RUNOFF


conditions that many marine organisms such as shrimp and oysters
need.1 8 Again, flows must fluctuate cyclically to maintain optimal
conditions.

Impacts of Land Development
Unwise land development alters the balance. When vegetation is
removed or a wetland is filled, the functions they perform are lost.
Since water flows faster over a smoother surface, the rate of runoff
increases. If the soil is compacted or covered by an impervious sur-
face, less water can infiltrate and the total quantity of runoff also in-
creases. The cumulative impact of roofing, paving, filling, and com-
pacting extensive areas can be enormous. More water runs off the
land, and at a much faster rate. Streams experience more rapid and
accentuated fluctions in flow. Their banks erode as the channel
changes its configuration to accommodate the increased velocity and
volume.1 9 Flood peaks may be doubled,2 o yet because the recharge
of groundwater has been blocked, streams may cease to flow during
dry periods.2x Lowering water tables may stress overlying vegeta-
tion, and all of the downstream systems that depend on a flow of
freshwater-wetlands, flood plains, and estuaries-may be severely
disrupted.
Land development also accelerates erosion. The erosion of a con-
struction site may be as great as 40,000 times that of undeveloped
land.2 2 As water flows over the unprotected soils, it picks up particles
and carries them in suspension.23 Greater velocity and turbulence in-
creases the water's ability to erode and transport sediment.24 When
the water slows, its capacity to hold solids in suspension decreases


18. Id at 229-34. It has been estimated that "at least two-thirds of the animal popula-
tions in the oceans spend an essential portion of their life cycle in estuarine waters or are
dependent upon species that do." U.S. COUNCIL ON ENVIRONMENTAL QUALITY,
ENVIRONMENTAL QUALITY: FIRST ANNUAL REPORT 176 (1970).
19. ENVIRONMENTS FOR TOMORROW, INTER-RELATIONSHIPS OF LAND USE
PLANNING AND CONTROL TO WATER QUALITY MANAGEMENT PLANNING, 49-50
(1973) [hereinafter cited as INTER-RELATIONSHIPS]; U.S. ENVIRONMENTAL PRO-
TECTION AGENCY, PREVENTIVE APPROACHES TO STORMWATER MANAGEMENT
16-21 (1977) [hereinafter cited as PREVENTIVE APPROACHES].
20. R. DARNELL, supra note 6, at 131-32.
21. Id During dry periods, many streams depend on base flow from groundwater to
maintain a minimum flow. If groundwater is not recharged during wet periods, the stream
may become intermittent See INTER-RELATIONSHIPS, supra note 19, at 49.
22. J. Wildrick, K. Kuhn & W. Kerns, Urban Water Runoff & Water Quality Control 10
(Dec. 1976) (Report prepared for the Virginia Water Resources Research Center).
23. R. DARNELL, supra note 6, at 9.
24. Id


October 1980)











NATURAL RESOURCES JOURNAL


and they settle.2 s The resulting sedimentation is one of the most in-
sidious forms of biological destruction.2 6
Sediment literally smothers insects, molluscs, crustaceans, and fish
eggs.2 It clogs the gills of fish, blocks the transmission of light, and
increases water temperatures.2" The filling of channels, lakes, and
reservoirs by sediment decreases their usefulness.2 9 Finally, sediment
is a major transport mechanism for other pollutants, which attach
themselves to the particles and are moved with them.3 o
Lawns, streets, roofs, parking lots, and other surfaces of urban
areas collect a variety of noxious pollutants. Air pollutants, including
the lead from automobile exhaust, settle in large quantities.3 An-
other significant source of pollutants is litter.3 2 Many people com-
monly discard such materials as food, wash water, and cigarette butts
on the sidewalk or street. They may dispose of rubbish or used crank-
case oil by dumping it into a stormwater drain.3 3 Dogs freely defe-
cate.3 In addition, road deicing salts,3 5 herbicides, pesticides, fungi-
cides, fertilizers, and other chemicals are widely dispersed in the.
urban environment.3 6

25. Id. at 19.
26. Over 4 billion tons of sediment are washed into our nation's waterbodies each year.
2 COMMITTEE ON PUBLIC WORKS, U.S. SENATE, 93rd CONG., 1st SESS., A LEGIS-
LATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF
1972, at 1457 (1973). The public tends not to recognize silt as a pollutant and to view tur-
bidity as an unavoidable natural phenomenon. Most people never knew the original clarity
of their local waterway and therefore expect it to be silty. Hines, Agriculture: The Unseen
Foe in the War on Pollution, 55 CORNELL L. REV. 740, 754 (1970).
27. R. DARNELL, supre note 6, at 234-53.
28. Id.
29. "Annual sediment deposits in the nation's reservoirs amount to approximately
950,000 acre-feet, or nearly five times the total volume excavated in building the Panama
Canal" U.S. ENVIRONMENTAL PROTECTION AGENCY, LEGAL AND INSTITUTIONAL
APPROACHES TO WATER QUALITY MANAGEMENT PLANNING AND IMPLEMENTA-
TION at VI, n.1 (1977) [hereinafter cited as APPROACHES]. This excellent work, prepared
for the U.S. Environmental Protection Agency by the Environmental Law Institute, Wash-
ington, D.C., was a particularly helpful resource in the preparation of this article.
30. PROCESSES, supra note 8, at 92, 96.
31. Particulates settle on urban surfaces at an annual rate of from 170 to 320 metric
tons per square kilometer. U.S. ENVIRONMENTAL PROTECTION AGENCY, URBAN
STORMWATER MANAGEMENT AND TECHNOLOGY: AN ASSESSMENT 88 (1974)
[hereinafter cited as ASSESSMENT].
32. Measurements of litter in urban areas have shown that it accumulates at rates of
from .5 to 8 lb/day/100 feet of curb. G. AMY, supra note 3, at V, 6.
33. ASSESSMENT, supra note 31, at 136.
34. Beck, The Impact of the Canine Cean-up Law, 21 ENVIRONMENT 29 (October
1979).
35. G. AMY, supra note 3, at III, 1-3; ASSESSMENT, supra note 31, at 138. NaCI and
CaCI are the principal salts used, together with additives such as cyanide and chromium.
These materials are spread on roads at rates of 400 to 1200 lb/mile/application, and because
of their solubility, almost all enter surface or groundwater. Concentrations as high as 2,730
mg/l of chlorides have been found in surface streams. Id.
36. ASSESSMENT, supra note 31, at 90.


[Vol. 20








STORMWATER RUNOFF


Runoff flushes these pollutants into receiving waters. When natural
filters such as soils, wetlands, or vegetated areas are bypassed or de-
stroyed, the impacts are amplified. Numerous studies in recent years
have depicted the magnitude of the problem." The runoff from a
typical American city during the first hour of a storm may carry
many more pollutants than that same city's untreated sewage would
carry during the same period." The concentration of heavy metals
in urban runoff may be 10 to 100 times that of sanitary sewage.39
The Washington metropolitan area, covering only two percent of the
Potomac River Basin, contributes 25 percent of its total sediment
load.4 A study of the streams in metropolitan Atlanta indicates that
45 percent of the biochemical oxygen demand and 95 percent of the
suspended solids were derived from runoff.41 A comparison in the
Roanoke river basin between the pollutant loads of urban and rural
runoff showed that urban runoff contained 2.4 times more organic
carbon, 19.2 times more phosphates, 3.8 times more free nitrogen,
2.7 times more nitrates, 5.5 times more sodium, and 6.1 times more
calcium.42

II. CONTROL MEASURES
It is apparent that declining water quality, increased flooding, the
disruption of estuarine salinity gradients and related aspects of envi-
ronmental degradation cannot be prevented or reversed unless the
impacts of urban stormwater runoff are adequately addressed. Con-
trol measures have been developed and are continually being re-
fined.4 The selection of appropriate controls for a particular pro-
posed land use depends upon specific characteristics of the site.
Nevertheless, general techniques can be described.
One method of control is to collect runoff and treat it in large
sewage treatment plants or similar facilities.4 4 The enormous volume
of stormwater runoff and the'costs of treating it render this method
impractical except for certain intensely urbanized areas, particularly
where the pattern of existing development effectively forecloses other
options. In many situations, however, structural improvements can

37. See G. AMY, supra note 3, at V, 1-12.
38. Id at V, 4 & 8.
39. Id atV, 11.
40. ASSESSMENT, supra note 31, at 140.
41. GEORGIA'S COASTAL WATERS, supra note 14, at 3-106 to 3-107.
S42. Id at 3-107.
43. See the stormwater management practices manuals set out in Appendix A infra.
44. G. AMY, supra note 3, at IV, 15-24. See generally ASSESSMENT, supra note 31, at
145-403.


October 19801










NATURAL RESOURCES JOURNAL


be retrofitted into existing drainage systems. Government agencies
can also physically collect pollutants through such activities as im-
proved street sweeping4 s and catch basin cleaning.4 6
Another approach to control is to regulate the dispersal of pollu-
tants in the urban environment. Air pollution regulations, litter laws,
restrictions on pesticide use, bans on the use of lead in gasoline, and
animal control ordinances are examples of methods that can help to
control the quality and quantity of substances that are deposited on
urban surfaces and subsequently become a part of stormwater run-
off.47
The greatest opportunity for preventing further water quality deg-
radation, however, is through proper location, design, construction,
and maintenance of new urban development and its associated drain-
age systems.48 The Model Stormwater Runoff Control Ordinance is
designed to accomplish this objective. The full effectiveness of the
ordinance cannot be realized, however, unless additional measures
are used to protect water quality. Runoff controls should be inte-
grated into a comprehensive planning, management, and regulatory
process. Such vital components of the natural drainage system as wet-
lands, recharge areas, streams, and flood plains should be protected
from development that is inconsistent with continued performance
of their drainage control functions.49 The urban drainage system
should then be designed to modify the volume, rate, and quality of
runoff in such a way that it can be released into the natural drainage
system without causing adverse impacts.
Numerous techniques have been developed that can accomplish
this objective. Erosion and sediment control practices should be im-
plemented as an integral part of all construction projects. These prac-

45. Conventional street sweeping equipment is designed to remove litter and large par-
ticulate matter and thereby improve aesthetics. However, the remaining very fine particulate
matter contains much of the pollutants. One study determined that, "Although this mate-
rial accounted for only 5.9 percent, by weight, of the total solids... it contained approxi-
mately one-fourth of the total oxygen demand... perhaps one-third to one-half of the algal
nutrients ..., more than half of the heavy metals and nearly three-fourths of the total pesti-
cides." G. AMY, supra note 3, at V, 9. Vacuum sweepers can be used to collect this source
of pollutants. ASSESSMENT, supra note 31, at 136-37; M. WANIELISTA, STORMWATER
MANAGEMENT, QUANTITY AND QUALITY 231-34 (1978) [hereinafter cited as M.
WANIELISTA].
46. Organic materials and sediment accumulate and decompose in catch basins until
they are flushed out by storm flows. Receiving waters may then receive a major influx of
pollutants. ASSESSMENT, supra note 31, at 91-92.
47. G. AMY, super note 3, at IV, 3-5, 12; APPROACHES, supra note 29, at VI, 10-11;
PREVENTIVE APPROACHES, supra note 19, at 38-40, 46. See generally Beck, supra note
34.
48. APPROACHES, supra note 29, at VI, 8.
49. Id. at IIL


[Vol. 20








STORM WATER RUNOFF


tices generally involve minimizing the disturbance of soils, recovering
and protecting disturbed soils, and trapping the sediment in runoff
before it causes damage. Most importantly, runoff should be de-
tained. Its flow from the site should be retarded rather than speeded,
by routing the hydrologic path over a longer distance, across rougher
surfaces, and through constricted openings. Detention basins are
often constructed to receive and store the initial volume of storm-
water runoff for subsequent release at a rate that approximates the
flow that would have occurred prior to the development. Some of
the runoff should also be retained so that the overall volume of water
leaving the site is not increased. In particular, the first flush of run-
off following a storm, which carries most of the pollutants, should be
retained. The water that is retained can be disposed of by infiltration
into the soils or by evaporation. Seepage pits, percolation ponds, irri-
gation systems, and detention areas can be used for retention.


III. THE COMMON LAW APPROACH TO DIFFUSED SURFACE
WATER PROBLEMS

Drainage Rights
The rules developed at common law for adjudicating disputes over
the drainage of surface water differ substantially according to how
the water is classified. Theories of riparian rights5s and prior appro-
priation5 I generally apply to confined surface water contained in a
"waterbody" or "watercourse." A different set of common law rules
governs the drainage of diffused surface waters. Determining into
which class the waters fall, then, is crucial.s 2
A typical definition of a watercourse states that it is a stream of
water usually flowing in a definite channel having a bed and sides, or
banks, and discharging itself into some other stream or body of
water... In general the channels and banks-formed by the flowing
of the water must present to the eye on a casual glance, the unmis-
takable evidence of the frequent action of running water...; but

50. See generally Dolson, Diffused Surface Waters and Riparian Rights: Legal Doctrines
in Conflict, 1966 WISC. L. REV. 58; Hanks, The Law of Water in New Jersey, 22 RUT-
GERS L. REV. 621, 624-69 (1968).
51. Oklahoma Water Res. Bd. v. Central Oklahoma Master Conservancy Dist., 464 P.2d
748 (Okla. 1968). See generally 5 WATERS AND WATER RIGHTS 1-446 (R. Clark ed.
1972).
52. The distinction may sometimes be difficult to perceive. See generally Davis, The
Law of Surface Water In Missouri (pt. 1), 24 MO. L. REV. 137, 138-45 (1959); Maloney &
Plager, Diffused Surface Water: Scourge or Bounty, 8 NAT. RES. J. 72, 73-75 (1968);
Weston, Gone With the Water-Drainage Rights and Stormwater Management in Pennsylvania,
22 VILL. L. REV. 901, 903-05 (1977).


October 1980]









NATURAL RESOURCES JOURNAL


the water need not flow continually, and there are many water-
courses which are sometimes dry.s
Diffused surface waters, on the other hand, are waters that
occur on the surface of the earth in places other than definite
streams or lakes or ponds; they may originate from any source and
may be flowing vagrantly over broad lateral areas or, occasionally for
brief periods, in natural depressions.s 4
Until runoff reaches a watercourse or waterbody, then, it would be
treated as diffused surface waters.
Three basic common law rules govern the drainage of diffused sur-
face waters.5s They are the civil law rule, the common enemy doc-
trine, and the reasonable use rule.
In its purest form, the civil law rule5 6 prohibits interference with
the natural flow of diffused surface waters.s 7 The lower owner must
accept the surface waters which naturally drain onto the land5 a and
the upper owner can do nothing that increases the burden.5 9 This
rule is often expressed as an easement of natural drainage.60 An
underlying policy of the rule is a belief that enforcement of natural
drainage patterns results in the least harm since all landowners should
be adapted to them.6'
Most jurisdictions that follow the civil law rule have modified it
substantially, however, to avoid undesired constraints on land devel-

53. Kislinski v. Gilboy, 19 Pa. Super. Ct 453, 454-55 (1902), quoted in Kunkle v. Bur-
ough of Ford City, 305 Pa. 416, 419-20, 158 A. 159, 160-61 (1931). See also Tampa Water-
works Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896). A waterbody is treated the same as a
watercourse when it has "a reasonably permanent existence." See Dolson, supra note 50, at
90-91. See also Maloney & Plager, Florida's Lakes: Problems in a Water Paradise, 13 U. FLA.
L. REV. 1 (1960).
54. Oklahoma Water Res. Bd. v. Central Oklahoma Master Conservancy Dist., 464 P.2d
748, 751 (Okla. 1968).
55. See generally Annot., Modern Status of Rules Governing Interference with Drainage
of Surface Waters, 93 A.L.R. 3d 1193 (1979); Davis, supra note 52; Kinyon & McClure,
Interferences With Surface Waters. 24 MINN. L. REV. 891 (1946); Maloney & Plager, supra
note 52; Snodgrass & Davis, The Law of Surface Water in Missouri (pt. 2), 24 MO. L REV.
281 (1959); Weston, supra note 52; Comment, The Application of Surface Water Rules in
Urban Areas. 42 MO. L. REV. 76 (1977).
56. In support of the thesis that the rule was derived from the civil law, see 3 H. FARN-
HAM, WATERS AND WATER RIGHTS, 889a (1904).
57. Merritt v. Parker, 1 N.J.L 526 (1795); Gough v. Goble, 2 lll.2d 577, 119 N.E.2d
252 (1954). See generally Davis, supra note 52, at 147-49; Hanks, The Law of Water in New
Jersey. 22 RUTGERS L. REV. 621, 688-90 (1968); Kinyon & McClure, supra note 55, at
893-97; Maloney & Plager, supra note 52, at 76-77; Weston, supra note 52, at 906-08.
58. Le Van v. Hedlund Plumbing& Heating, 37 Mich. App. 271, 194 N.W.2d 725 (1971).
59. New Homes of Pensacola, Inc. v. Mayne, 169 So.2d 345, 347 (Fla. Dist. Ct App.
1964).
60. See Boynton v. Longley, 19 Nev. 69, 6 P. 437, 438 (1885).
61. Davis, supra note 52, at 147-48; Kinyon & McClure, supra note 55, at 895.


[Vol. 20








STORM WATER RUNOFF


opment.62 Upper landowners are thus often allowed to enhance
natural drainage if the alterations are minor63 or reasonable,64 or
there is no substantial and damaging increase in flow.6 s Some courts
have simply abandoned the civil law rule for urban areas66 while
others have abandoned it for agricultural drainage.6 "
The common enemy rule is opposite to the civil law rule.68 Its
basic premise is that diffused surface waters are an enemy and that
every landowner has a right to fight this enemy without regard for
the consequences to others.69 Thus, under the pure common enemy
rule an upper landowner may construct works that drain water onto
lower lands and damage them without incurring any liability.70
Similarly, the owner of lower lands may obstruct the drainage and
back water onto upper lands or divert it onto adjacent lands with
impunity.7
The philosophical justification for the common enemy rule is
essentially the eighteenth century notion that landowners have abso-
lute, inviolable rights to use and develop their land however they
desire.'7 It was believed that application of the rule would tend to
encourage the use and development of land.73 Whether it has this
effect is highly questionable.74 Certainly California, which follows
the civil law rule, has suffered no lack of development.7 5 Landowners
who are subject to unrestricted flooding by their neighbors may in
fact be discouraged from development by the common enemy rule.7 6
The common enemy rule has also been substantially modified to
ameliorate its unjust consequences. One common modification is to

62. See. e.g., Keys v. Romley, 64 CaL2d 396, 50 Cal. Rptr. 273, 412 P.2d 529 (1966).
63. Kinyon & McClure, supra note 55 at 920; Comment, supra note 55, at 81.
64. Keys v. Romley, 64 Cal.2d 396, 50 Cal. Rptr. 273, 412 P.2d 529 (1966); Comment,
supra note 55, at 80-81.
65. DeWitt v. DeWitt, 259 Iowa 1037, 147 N.W.2d 32, 33 (1966).
66. Dekle v. Vann, 279 Ala. 153, 182 So.2d 885 (1966); Drummond y. Franck, 252
Ala. 474, 41 So.2d 268, 272 (1949); Lunsford v. Stewart, 95 Ohio App. 383, 120 N.E.2d
136 (1953). But see. Calvaresi v. Brannan Sand & Gravel Co., 35 Colo. App. 271, 534 P.2d
652 (1975), Kinyon & McClure, supra note 55, at 933-34.
67. See. e.g. Garbarino v. Van Cleave, 214 Or. 554, 330 P.2d 28 (1958).
68. See generally Davis, supra note 52, at 149-51; Kinyon & McClure, supra note 55, at
898-904; Maloney & Plager, supra note 52, at 78-79; Weston, supra note 52, at 908-10.
69. The term "common enemy" appears to have been adopted from an English case that
referred to the sea. Davis, supra note 52, at 150.
70. Greeley v. Maine Cent R.R., 53 Me. 200 (1865).
71. See, e.g., Cloverleaf Farms, Inc. v. Surratt, 349 N.E.2d 731 (Ind. Ct. App. 1976);
Johnson v. Whitten, 384 A.2d 698 (Me. 1978).
72. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453 (1886).
73. Barkley v. Wilcox, 86 N.Y. 140 (1881).
74. Weston, supra note 52, at 909-10.
75. Id. at 909.
76. Id. at 910; Hanks, supra note 57, at 691.


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NATURAL RESOURCES JOURNAL


prohibit the collection by artificial means of diffused surface waters
and the discharge of them in a concentrated flow onto adjacent
land." Discharge into a natural drainage way may be required if
one is available.7 8 In addition, many courts now insist that, although
landowners may alter the natural flow of surface water, they must
use reasonable care to avoid causing unnecessary harm.79 In other
words, damage to the property of others by altering drainage will
only be tolerated when it is reasonably unavoidable in order to use
one's own property. In many instances a court will escapeapplica-
tion of the common enemy rule by determining that a watercourse
has been obstructed rather than that the waters are diffused surface
waters. 80
The reasonable use rule is a third major common law approach to
the drainage of diffused surface water.8' Unlike the civil law and
common enemy rules, it is grounded in theories of tort liability
rather than property law.82 The basic principle is that although
drainage alterations should be allowed, they must meet a test of
"reasonableness."83 Reasonableness is a factual determination that
must be made with reference to the particular circumstances of each
case.84 Significant factors include "the nature and importance of the
improvements sought to be made, the extent of the interference with
the water,.. the amount of injury done to the other land owners as
compared with the value of such improvements, and... whether
such injury could or could not have been reasonably foreseen."8 s
Many commentators believe the reasonable use rule represents a
desirable trend.8 6 Because of the rule's flexibility, it is not necessary
to stretch the application of an exception to achieve just results. Al-
though the result might be the same as under the modified civil law
77. Kinyon & McClure, supra note 52, at 916-19; Weston, supra note 52, at 926-28.
78. Leaders v. Sarpy County, 134 Neb. 817, 279 N.W. 809 (1938).
79. Brasko v. Prislovsky, 207 Ark. 1034, 183 S.W.2d 925 (1944); Pfeiffer v. Brown, 165
Pa. 267, 30A 844 (1895); Seventeen, Inc. v. Pilot Life Ins. Co., 215 Va. 74, 205 S.E.2d 648,
651-52 (1974); Kinyon & McClure, supra note 55, at 928-31.
80. Paasch v. Brown, 190 Neb. 421, 208 N.W.2d 695 (1973); Weston, supra note 52, at
923-24. In general, a landowner may drain into a watercourse so long as "unreasonable"
harm is not caused to other riparians, water is not diverted into the watercourse from another
watershed and the capacity of the watercourse is not exceeded. Maloney & Plager, supra
note 52, at 92.
81. See generally Davis, supra note 52, at 151-52; Kinyon & McClure, supra note 55, at
904-13.
82. Maloney & Plager, supra note 52, at 79-80.
.83. Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977); Butler v.Bruno, 115
R.I: 264, 341 A.2d 735 (1975); State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974).
84. See RESTATEMENT (SECOND) OF TORTS 825 (1979).
85. Swett v. Cutts, 50 N.H. 439, 446 (1870).
86. Kinyon & McClure, supra note 55, at 935-39; Weston, supra note 52, at 910-11;
Comment, supra note 55, at 96-99.


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STORMWATER RUNOFF


or common enemy rules, it can be more readily understood by refer-
ence to the factors that determine reasonableness.

Common Law Liability for Water Pollution
Common law rights regarding the quality of diffused surface waters
are generally either subsumed under the riparian rights applicable to
contained surface waters or protected by nuisance law.8" The first
application of riparian rights to water quality was through the natural
flow doctrine which prohibited any alteration of the natural condi-
tion of the water.88 As in the case of drainage law, this strict ap-
proach was soon modified into a rule of reasonable use under which
the lower riparian has only a right to have the water kept free of
pollution that is both harmful and unreasonable. 9 The approach to
water quality control through riparian water law has thus become vir-
tually indistinguishable in its application from the general law of
nuisance.9
The term nuisance encompasses two discrete theories of action,
private nuisance and public nuisance. A private nuisance is an un-
reasonable interference with the use of private property."' A public
nuisance, on the other hand, is an unreasonable interference with
rights held by the public in general.2 Although a water polluting
activity may constitute both a public and private nuisance, the dis-
tinction is important because only public officials may prosecute a
public nuisance, unless a private individual can show "special dam-
ages."9 3
The gravamen, then, of common law restrictions on water pollu-
tion is unreasonable harm. Pollutants can be discharged into waters
87. Liability may also be based on theories of trespass, negligence, or strict liability.
These concepts are far less successfully applicable to stormwater runoff control, however.
See generally Juergensmeyer, Common Law Remedies and Protection of the Environment,
6 U.B.C. L. REV. 215, 220-25 (1971); Maloney, Judicial Protection of the Environment: A
New Role for Common-Law Remedies, 25 VAND. L REV. 145, 149-51 (1972).
88. Hanks, supra note 50, at 628-29; Maloney, supra note 87, at 151;Comment, Private
Remedies for Water Polution, 70 COLUM. L. REV. 734, 736 (1970).
89. Hanks, supra note 50, at 630-32; Maloney, supra note 87, at 151.
90. Hines, Nor Any Drop to Drink: Public Regulation of Water Quality, Part I: State
Pollution Control Programs. 52 IOWA L. REV. 186, 196-97 (1966); Maloney, supra note
87, at 152; Comment, supra note 88, at 738-44.
91. W. PROSSER, HANDBOOK OF THE LAW OF TORTS 89 (4th Ed. 1971).
92. RESTATEMENT (SECOND) OF TORTS 821B (1979).
93. Bouquet v. Hackensack Water Co., 90 N.J.L. 203, 101 A. 379 (1917). Special dam-
ages are damages that are different in kind from those suffered by the public at large. For
example, if the pollution of a navigable watercourse caused fish to be killed, a non-riparian
would usually not be able to bring a private action since his injury would not be different
than that of the general public. For special damages to exist, the plaintiff would have to
show, for example, that his commercial fishing business was ruined or that his cow had been
killed by the pollution. Hines, supra note 90, at 197-98.


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NATURAL RESOURCESJOURNAL


so long as they do not unreasonably interfere with the exercise of
public or private property rights. To determine reasonableness a
court balances the social utility of the competing uses.

Inability of the Common Law to Successfully Regulate
Stormwater Runoff
The common law appears to be groping, with some success, to-
ward acceptable analytical tools for use in adjudicating clearcut dis-
putes between limited numbers of parties over alterations in the
drainage or quality of surface waters. It is fundamentally unable,
however, to adequately control the serious, adverse environmental
and physical impacts of improperly managed stormwater runoff.9 4
The usefulness of the common law is necessarily restricted to situa-
tions in which one party has clearly and directly caused enough in-
jury to another party that the latter is willing to risk the large expense
that is necessary to prove and prosecute a private action. If one land-
owner channels the runoff from a parking lot and directs it onto the
residential lot of another landowner, flooding a home, the common
law may be able to resolve the dispute. s But the problems resulting
from improper management of stormwater runoff and the necessary
solutions are much more complex. They are usually manifested as
the cumulative impact of numerous actions that, by themselves, are
relatively insignificant. For example, the accelerated eutrophication
of a lake may be caused by an excessive inflow of nutrients from an
intricate network of poorly designed drainage ditches that serves
thousands of individual homeowners, businesses, roads, and public
institutions. Who should be liable? Who should have standing to bring
the suit? How could a court enforce an order? What if there are other
sources of nutrients also? The deficiencies of the common law are
evident in such a case.
To begin with, there is the difficulty of proving a causal connec-
tion between the defendant's activities and the resulting harm to the
plaintiff.96 This is a particularly heavy burden when there are no
major, specific, easily identified sources of pollution. The numerosity
of parties to such litigation is a major obstacle to judicial resolution
of the problems." In addition, the basic common law concepts

94. See generally F. MALONEY, S. PLAYER & F. BALDWIN, WATER LAW AND AD-
MINISTRATION:.THE FLORIDA EXPERIENCE 112.4 (1968); Hines, supra note 90, at
196-201; Juergensmeyer, supra note 87, at 233-36.
95. See, Lawrence v. Eastern Air Lines, 81 So.2d 632 (Fla. 1955); Comment, Torts: De-
fense of Coming to a Nuisance, 9 U. FLA. L REV. 228 (1956).
96. Hines, supra note 90, at 198.
97. Id. at 198-99.


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NATURAL RESOURCES JOURNAL


eral Water Pollution Control Act Amendments of 1972 (FWPCA),' 06
in which the federal government took a leading financial and regula-
tory role in water pollution control1 07 Although the statute was
substantially amended in 1977 and is now known as the Clean Water
Act,' 0 the original structure and content is largely intact.' 09
The FWPCA created a comprehensive program designed to "re-
store and maintain the chemical, physical and biological integrity of
the Nation's waters." 10 This goal is to be accomplished by: (1)
eliminating the discharge of pollutants into navigable waters by 1985;
(2) attaining a degree of water quality conducive to recreation and the
protection of fish and wildlife by July 1, 1983; (3) forbidding the
discharge of toxic pollutants; (4) constructing publicly owned treat-
ment works through federal financial assistance; (5) implementing
areawide waste treatment management plans; and (6) initiating re-
search to develop the necessary technology.''
There are three primary means for implementing the act. A con-
struction grants program provides money for building waste treat-
ment plants. 1 A permitting process, the National Pollutant Dis-
charge Elimination System (NPDES), regulates the discharge of
pollutants from "point sources."' 3 An areawide waste treatment
management planning process is designed to integrate all planning,
funding, and regulatory efforts in order to meet water quality
goals.1 4

Section 208: Areawide Waste Treatment Management Planning
The NPDES permit system is an elaborate process''" for directly
106. Pub. L 92-500, 86 Stat. 816.
107. See generally Donley & Hall, Section 208 and Section 303 Water Quality Planning
and Management: Where is it Now?, 6 ENVTL L RPTR. 50115 (1976); Federman, The
1972 Water Pollution Control Act: Unforeseen Implications for Land Use Planning, 8 URB.
LAW. 140 (1976); Jungman, Areawide Planning Under the Federal Water Pollution Control
Act Amendments of 1972: Intergovernmental and Land Use Implications, 54 TEX. L. REV.
1047 (1976); Phillips, Developments in Water Quality and Land Use Planning: Problems in
the Application of the Federal Water Pollution Control Act Amendments of 1972, 10 URB.
L ANN. 43 (1975).
108. Pub. L No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. 1251-1376 (Supp. II
1978)).
109. See generally Hall, The Cean Water Act of 1977, 11 NAT. RESOURCES LAW.
343 (1978); Comment, The Clean Water Act of 1977: Great Expectations Unrealized. 47 U.
CIN. L REV. 259 (1978).
110. 33 U.S.C. 1251(a) (1976).
111. Id
112:lId. 0 1281-1288 (Supp. UI 1978).
113. Id 1342 (Supp. II 1978).
114. Id. 1288 (Supp. II 1978).
115. A permit is required for the discharge of pollutants into waters of the United
States. Id. 1311(a), 1342 (1976 & Supp. II 1978).


[Vol. 20








STORM WATER RUNOFF


regulating the discharge"1 of pollutants1 'I from point sources"'
into waters of the United States. "' A point source is defined as
"any discernible, confined and discrete conveyance, including but
not limited to any pipe, ditch, channel, tunnel, conduit, well, dis-
crete fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants are
or may be discharged."1 2 Until stormwater runoff has been channel-
ized, it cannot be regulated as a point source. However, unless such
non-point sources of pollution are controlled, it will not be possible
to meet water quality goals. A process for developing non-point
source controls is therefore contained in section 208 of the act, the
areawide waste treatment management planning process. 21
The act required the governor of each state to designate appro-
priate agencies to perform intensive areawide planning for geographic
areas of the state "which, as a result of urban-industrial concentra-
tions or other factors, [have] substantial water quality control prob-
lems."' 22 It also required the state to undertake planning for all
non-designated areas,' 23 a requirement that was ignored until the
case of Natural Resources Defense Council, Inc. v. Train' 24 was de-
cided. At that time more than half the states contained non-designated
areas.' 2s The decision required states to prepare 208 plans for the
non-designated areas and was thus a great stimulus to water quality
control
The content of section 208 plans is specified in the act' 6 and im-
plementing regulations.'2 One major component is that the plans
must identify non-point sources of pollution and develop alternative
solutions for management of them.' 28 Urban stormwater must spe-
cifically be addressed by the identification of best management prac-

116. Id 1362(12) (1976) (defining "discharge of a pollutant").
117. Id 1362(6) (1976) (defining "pollutant").
118. Id 1362(14) (Supp. II 1978) (defining "point source").
119. Id 1362(7) (1976) (defining "navigable waters").
120. Id 1362(14) (Supp. II 1978).
121. Id 1288 (Supp. II 1978).
122. I 1288(a)(2) (1976).
123. Id 1288(a)(6)(1976).
124. 396 F. Supp. 1386 (D.D.C. 1975), aff'd, 564 F.2d 573 (D.C. Cir. 1977).
125. Id at 1390. Ninety-five percent of the nation's waterways were thus non-desig-
nated. Id
126. 33 U.S.C. 1288(b) (1976 & Supp. II 1978). See also 40 C.F.R. 35.1513-5,
.1521-3, -4, (1979).
127. 40 C.F.R. 35.1500-.1550 (1979).
128. 33 U.S.C. 1288(b)(1)(A) (Supp. II 1978) requires the plan to "be applicable to
all wastes generated within the area" and to be "consistent with section 2181." 33 U.S.C.
1281(c) (1976) states, "[t]o the extent practicable, waste treatment management shall
... provide control or treatment of all point and nonpoint sources of pollution .. ."


October 1980)









NATURAL RESOURCES JOURNAL


tices to achieve water quality goals. 29 Best management practices
are "those methods, measures, or practices to prevent or reduce
water pollution and include but are not limited to structural and non-
structural controls, and operation and maintenance procedures."'1 3
Although nonregulatory measures, such as the construction of treat-
ment facilities, may be developed, appropriateae regulatory pro-
grams to control the location, modification, and construction of facili-
ties for municipal stormwater management must be identified."' 1
"Nonregulatory programs will be approved only where the plan pro-
vides a sound basis for determining that they will result in the achieve-
ment of water quality goals. If, after a period of implementation, a
nonregulatory program is determined by EPA or the State not to be
effective, the WQM [Water Quality Management] agency shall de-
velop a regulatory program."' 32
Significant sanctions may be imposed by the Environmental Pro-
tection Agency for failing to develop and implement an approved
plan. 33 Permitting authority that had been delegated to the state
may be withdrawn' 34 and funds that are available under the act may
be withheld.1 35

V. LEGAL CONSIDERATIONS
It is not possible to treat in depth the many legal issues that may
arise in the adoption and enforcement of the proposed Model Ordi-
nance. Nevertheless, an attempt has been made to discuss in general
terms some of the arguments that commonly are used to challenge
the legality of local land use control legislation and the manner in
which the Model Ordinance is designed to meet the challenge. The
commentary that appears within the Model Ordinance addresses
these issues in the context of specific provisions of the ordinance.
The Model Ordinance was modeled in large part on laws currently
in force in cities and counties throughout the United States. One
could say that, because of its origins, it has already in large part with-

129. 40C.F.R. 35.1521-4(e) (1979).
130. Id. 35.1521-4(c)(1).
131. Id. 35.1521-4(e). An "appropriate" regulatory program is apparently one that is
the "most practicable method (considering economic, technical, social and environmental
factors) of assuring that an effective nonpoint source control program is implemented." Id.
35.1521-4(c)(2). See also 44 Fed. Reg. 30,021 (1979).
132. 40 CF.R. 35.1521-4(c)(2) (1979).
133. See 44 Fed. Reg. 30,023 (1979) for an explanation of EPA's policy. For the view
that sanctions are weak, see Goldfarb, Water Quality Management Planning: The Fate of
208, 8 U. TOL. L REV. 105, 120-131 (1976).
134. 40C.F.R. 35.1509-3 (1979).
135. Id. 35.1509-3, .1533-3.


[Vol. 20








STORMWATER RUNOFF


stood the test of actual use. Needless to say, before any local govern-
ment adopts a version of the Model Ordinance, its legal staff should
review the ordinance to insure it does not conflict with any local or
state law.
Before discussing some of the common legal challenges, it is im-
portant first to note that local ordinances enjoy a strong presump-
tion of constitutional validity.' Courts generally proceed on the
premise that local governmental authorities have knowledge of local
conditions and that sound discretion was exercised in enacting any
local regulation. "3 This presumption requires that the burden lie
upon the party attacking the ordinance to show its unreasonableness
-a difficult burden to overcome.

Power to Regulate
A presumption underlying the Model Stormwater Runoff Control
Ordinance is that adequate authority exists at the county and munic-
ipal government level to adopt and administer such a non-point
source regulatory program. In many states, including Florida, where
the authors reside, local governments have the necessary authority to
implement this kind of regulation, based on constitutional or statu-
tory enabling provisions.' 3" In some states, however, the necessary
authority is unclear. The determination of which of the fifty states
have sufficient enabling legislation and which do not is beyond the
scope of this article. Nevertheless, it is probably fair to say that even
in those states where the authority to exercise non-point source pol-
lution control has not been explicitly given to local governments, the
authority has been implicitly granted through the enactment of gen-
eral legislation covering such subjects as flood plain protection, wet-
land protection, coastal zone management, zoning, and subdivision
control' 39

Delegation of Legislative Authority
Once it is determined that a local government possesses the requi-
site power to adopt a local non-point source regulatory program,

136. Nebbia v. New York, 291 U.S. 502 (1934); New Orleans Pub. Service, Inc. v. City
of New Orleans, 281 U.S. 682 (1930); Gorieb v. Fox, 274 U.S. 603 (1926); Village of
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
137. See Gant v.Oklahoma City, 289 U.S. 98 (1933); Atlantic & Pacific Tel. Co. v. Phil-
adelphia, 190 U.S. 160 (1902).
138. See Strauss & Kusler, Statutory Land Use Control Enabling Authority in the Fifty
States (1976) (report of the Federal Insurance Administration, U.S. Dep't of Housing and
Urban Development, Washington, D.C.).
139. See APPROACHES, supra note 29.


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NATURAL RESOURCES JOURNAL


there remains the corollary question of whether the exercise of this
power is lawful One primary constraint is that legislative powers may
not be delegated to administrative agencies. The separation of powers
doctrine would otherwise be violated. 4
Because policy-making is a legislative function and cannot be dele-
gated, the policies upon which the decision to approve or deny a per-
mit is based must be formulated by a legislative body.'41 In many
communities the review of local permits is the function of the city
or county commission itself. Under such circumstances, the delega-
tion issue would not arise. However, when an ordinance provides that
the permit review function is to be delegated to a non-legislative
board or official, specific review standards must be established that
incorporate the legislative policies and prevent policy-making by non-
legislators. 42
In the Model Ordinance a water management plan must be sub-
mitted and approved before land can be platted or subdivided and
before development can begin.' 4 The review power was placed in a
"local agency" which was contemplated to be a body of officials
other than the local commissioners.' This is not to suggest that
commissioners should not perform this function, only that in many
communities they do not. Sufficient standards are contained in the
Model Ordinance to provide for the lawful delegation of the review
function to an executive board if that arrangement is preferred.
The objectives listed in section three of the Model Ordinance
clearly outline the legislative policies to be applied to each appli-
cant.I 4 In addition, the section eight performance standards and
section nine design standards constitute a codification of legislative
policy in themselves. In reviewing the water management plan, the
objectives, performance standards, and design standards significantly
confine the discretion of the reviewing agency to a non-policy role.

140. See U.S. CONST. art. 1, 1; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952). It is well-settled that the delegation of legislative police power to a local govern-
ment for exercise within its boundaries is constitutional. See Standard Oil Co. v. City of
Marysville, 279 U.S. 582 (1929); Sprout v. City of South Bend, 277 U.S. 163 (1928); Zucht
v. King, 260 U.S. 174 (1922); Jacobson v. Massachusetts, 197 U.S. 11 (1905).
141. See Mandelker, Delegation ofPower and Function in Zoning Administration, 1963
WASH. UNIV. LQ. 60, 84-85.
142. See generally cases cited in Annot., 58 A.L.R.2d 1083 (1958).
143. Model Stormwater Runoff Control Ordinance [hereinafter cited as Model Ordi-
nance], infra, Section Five.
144. See id. at Section Six.
145. in J. M. Mills, Inc. v. Murphy, 116 R.L 54, 352 A.2d 661 (1976), where the suffi-
ciency of standards for the issuance of permits for activities in wetlands was at issue, the
Rhode Island Supreme Court held that the statute's stated purposes which listed the role of
wetlands and the need for their protection was sufficient to define the "public interest" cri-
terion in the statute. Id., A.2d at 666.


[Vol. 20








STORMWATER RUNOFF


In addition, the elected officials must approve the engineering manual
that is used to evaluate plans.146 Usually much less is required to
overcome an allegation of unlawful delegation of legislative author-
ity. 47

Reasonable Police Power Regulation
The regulatory program must also constitute a reasonable exercise
of the police power.148 The police power is the sovereign right of
the state to enact laws for the protection of the health, safety,
morals, and welfare of its citizens.4 9 The police'power is exception-
ally broad in scope of application' so but is not unlimited. The pre-
sumption of validity enjoyed by a police power regulation may be
rebutted by showing it to be unconstitutional on its face or in its
application. The key to the validity of police power enactments and
the satisfaction of the constitutional guarantee of substantive due
process is found in the notion of "reasonableness."'I s In consider-
ing the reasonableness of an ordinance, the test is not whether the
court thinks it a wise measure or the best means of approaching an
objective, but whether the objective is a valid one and whether the
ordinance is reasonably designed to achieve the objective.1 s 2
Pollution control legislation is perhaps the classic example of a
legitimate exercise of the police power.1 s 3 It is beyond question that
the protection of public health through pollution control is a proper
objective of local government. In fact, it has been said that protec-
tion of public health "is not only a right but a manifest duty of a
city."1 It is also well established that public health can be pro-
tected through the control of permissible land uses.' ss

146. Model Ordinance, infra, Section Eleven, subsection (e).
147. See, e.g, Turnpike Realty Co., Inc. v. Town of Dedham, 362 Mass. 221, 284 N.E.
2d 891 (1972); cert. denied, 409 U.S. 1108 (1973); MacGibbon v. Bd. of Appeals of Dux-
bury, 356 Mass. 635, 255 N.E.2d 347 (1970).
148. Nectowv. City of Cambridge, 277 U.S. 183 (1928).
149. Queenside Hills Realty Co. v. Saxl 328 U.S. 80 (1946); Sinclair Refining Co. v.
City of Chicago, 178 F.2d 214 (7th Cir. 1949).
150. See, e.g, Berman v. Parker, 348 U.S. 26, 32-33 (1954).
151. "[Tihe guaranty of due process... demands only that the law shall not be un-
reasonable, arbitrary or capricious, and that the means selected shall have a real and substan-
tial relation to the object sought to be attained." Nebbia v. New York, 291 U.S. 502, 525
(1934).
152. E.g., Oriental Boulevard Co. v. Heller, 58 Misc.2d 920, 297 N.Y.S.2d 431 (Sup. Ct.
1969), affd, 34 A.D.2d 811, 311 N.Y.S.2d 635 (App. Div.), affd, 27 N.Y.2d 212, 265
N.E.2d 72, 316 N.Y.S.2d 226 (Ct App. 1970), appeal dismissed, 401 U.S. 986 (1971).
153. See, e.g,, Beer Co. v. Massachusetts, 97 U.S. 25 (1877); The Slaughter-House Cases,
83 U.S. (16 Wall) 36 (1872).
154. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761, 764 (1935).
155. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).


October 1980]









NATURAL RESOURCES JOURNAL


Section two and section three of the Model Ordinance, outlining
its findings of fact and objectives, describe the problems perceived by
the legislators and the objectives which underlie the ordinance's sub-
.stantive provisions. The references cited in Appendix A generously
document the pollution problems attributable to stormwater run-
off. As a mechanism for abating the adverse impacts of uncontrolled
runoff, the Model Ordinance is directed to the achievement of a legit-
imate public purpose-the health of the local community.' 6
The references in Appendix A also support the reasonableness of
the regulatory approach of the Model Ordinance devised to attain its
objectives. The use of a pre-development plan, performance and de-
sign standards, and best management practices as a framework for
abating the adverse impacts of stormwater runoff is not arbitrary but,
quite the contrary, can actually be shown to be the current "state of
the art" in the field of non-point source pollution control. s57 The
rational relationship between the control measures and the legitimate
objectives of the Model Ordinance is thus strongly supported.
An ordinance must also afford procedural due process. The two
elements deemed essential to this requirement are notice and an op-
portunity to be heard.' s8 These must be provided before property
rights may be limited. In section seven of the Model Ordinance, the
local agency that reviews water management plans is required to
notify the applicant within 30 days after a plan's submission whether
it has been approved or rejected. If the plan is rejected, the local
agency must also explain why.' s If the applicant applies for a waiver
from the requirement to submit a water management plan, he must
be notified within ten working days of the local agency's decision. 6 0
An applicant has the right to appeal the decision of the local agency
if he is not satisfied.' 61
Section thirteen of the Model Ordinance sets forth the enforcement
powers which may be exercised in the case of a violation of any ordi-
nance requirement. It is also designed to afford procedural due
process to the alleged violator. Subsection (d) provides that a notice
of violation will be issued which includes a statement specifying the

156. "The drainage of a city in the interest of the public health and welfare is one of the
most important purposes for which the police power can be exercised." New Orleans Gas
Light Co. v. Drainage Commission, 197 U.S. 453,460 (1905).
157. See generally APPROACHES, supra note 29; D. Athayde & A. Waldo, The Urban
Stormwater Runoff Presentation (Spring 1977) (presentation at U.S. Environmental Protec-
tion Agency 208 Seminar, Washington. D.C.).
158. In re Oliver, 333 U.S. 257 (1948).
159. Model Ordinance, infra, Section Seven, subsection (d).
160. Id. at subsection (b).
161. Id. at subsection (g).


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STORMWATER RUNOFF


nature of the violation, a description of such remedial actions as are
necessary to abate the violation, and a statement of the penalties that
may be assessed against the violator. Furthermore, the written notice
informs the alleged violator of his right to appeal the agency action.
Thus, where the Model Ordinance provides that a permit may be
denied or penalties assessed against an alleged violator, notice and an
opportunity to be heard are adequately provided, to ensure due
process of law.

Equal Protection
Ordinances enacted under the police power authority of local gov-
ernment must comply with the Fourteenth Amendment's constitu-
tional guarantee of equal protection of the law.' 6 2 Almost all envi-
ronmental control ordinances involve some form of discrimination in
the delineation of those activities which are restricted or prohibited
because of their perceived danger to the environment and the public
welfare. However, as explained by the supreme court of Vermont:16 3
The equal protection clause of the Fourteenth Amendment... does
not prohibit legislative classification, and the imposition of statutory
restraints on one class which are not imposed on another.... "A
particular classification is not invalidated by the Fourteenth Amend-
ment merely because inequality actually results. Every classification
of persons or things for regulation by law produces inequality in
some degree; but the law is not thereby rendered invalid... unless
the inequality produced be actually and palpably unreasonable and
arbitrary."' 64
An unconstitutional infringement of equal protection arises where
the provisions of an ordinance, either textually or in their applica-
tion, create classes of persons subject to different requirements
where the classes are not reasonably related to the objectives of the
ordinance.' 6 Thus, the regulatory classification is subject to the
same test of rationality that was applied to the due process issues
already discussed.
The Model Stormwater Runoff Control Ordinance is applicable
only to prospective land development. Persons applying for local per-
mits to develop land are required as a condition of the permit to
show how they will minimize the environmental impacts of the pro-

162. U.S. CONST. amend. XIV, 1.
163. Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271 (1954).
164. Id., 105 A.2d at 275, quoting State v. Auclair, 110 Vt. 147, 160-614. A.2d 107,
113 (1939). See also Missouri Pac. Ry. Co. v. City of Omaha, 235 U.S. 121 (1914).
165. New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938).


October 1980]









NATURAL RESOURCES JOURNAL


posed development.1'6 They are essentially required to develop the
land in a manner which will avoid the pollution problems attribut-
able to stormwater runoff.
Distinguishing between existing and prospective land uses is a com-
mon approach of regulatory programs and is not, of itself, sufficient
to manifest an arbitrary classification.1 6' In fact, in accordance with
common principles of judicial construction of governmental enact-
ments, ordinances are often presumed to have only a prospective
operation in the absence of clear indications to the contrary.' 6 8
The Model Ordinance recognizes that certain development projects
may create no significant threat of adverse impact to community
waters. These projects may be exempted from the requirements of
the Model Ordinance under the guidelines listed in section five. Once
again, however, this approach is universal and allows the local govern-
ment to utilize its resources where they will be most effective in
accomplishing a regulatory objective. The equal protection guarantee
is not violated by the exemption of activities which are of little or no
consequence to the objectives of an ordinance.16 9
The application of the ordinance to one landowner may have a
more restrictive effect than when applied to another landowner.
However, dissimilarities in slope, elevation, soils, presence of water,
vegetation, and other characteristics of the site interact with rainfall
to produce a wide range of stormwater runoff characteristics. These
dissimilarities are thus important criteria and provide a reasonable
basis for treating development sites differently when they are not
similarly situated.' 70

The Taking Issue
The taking issue arises out of language in the Fifth Amendment of
the U.S. Constitution' 7 made applicable to the states through the

166. Model Ordinance, infia, Section Six.
167. Zahn v. Bd. of Public Works, 195 Cal. 497, 234 P. 388 (1925), affd, 274 U.S. 325
(1927). See generally Annot, 136 A.L.R. 207 (1942).
168. Krekeler v. St Louis County Bd. of Zoning Adjustment, 422 S.W.2d 265 (Mo.
1967).
169. See, e.., Kozesnik v. Township of Montgomery, 24 N.J. 154, 131 A.2d 1 (1957).
See also Oriental Boulevard Co. v. Heller, 58 Misc.2d 920, 297 N.Y.S.2d 431 (Sup. Ct.
1969), affd, 34 A.D.2d 811, 311 N.Y.S.2d 635 (App. Div.), affd, 27 N.Y.S.2d 212, 265
N.E.2d 72, 316 N.Y.S.2d 226 (Ct App. 1970), appeal dismissed, 401 U.S. 986 (1971).
170. See Penh. Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).
171. "No person shall. be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just compensation." U.S.
CONST. amend. V.


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STORMWATER RUNOFF


Fourteenth Amendment.172 It has been justifiably referred to as
"the most stubborn of all property issues."' "7 While the taking issue
can involve the actual destruction of property as by flooding,' 74
most often the issue arises when a property owner claims that gov-
ernment regulation has had the practical effect of appropriating his
property for a public use. In essence, the owner asserts that there has
been an exercise of eminent domaint but without the payment to
him of just compensation. While the exercise of the police power is
undeniably limited by the constitutional prohibition against taking
private property for public benefit without just compensation, it is
equally clear that a substantial restriction in the allowable uses of pri-
vate property may be required by government regulation designed to
protect the public health, safety, and welfare without constituting an
unconstitutional taking.' 7
Various judicial approaches have been used to distinguish between
a lawful regulation and an unlawful taking. Courts have generally
applied either the "diminution in value"' 76 test or the "residual
beneficial use" test.' 7 To a large extent, the difference between the
two approaches is a matter of judicial perception; one court might
view the glass as being half-empty, another, half-full.
Ever since Justice Holmes wrote in Pennsylvania Coal Co. v.
Mahon that "if regulation goes too far it will be recognized as a
taking," 7 courts have been trying to find a standard to determine
the extent of diminution in land value brought about by regulation
that "goes too far." No clear standard has yet been established. Reg-
ulations have been upheld, however, that severely reduce the eco-
nomic value of private lands in the interest of public health and wel-
fare.1 79


172. U.S. CONST. amend. XIV, 1; Chicago, Burlington & Quincy R.R. Co. v. Chicago,
166 U.S. 226 (1897).
173. Costonis, A Reply..., in J. COSTONIS, C. BERGER & S. SCOTT, REGULA-
TION v. COMPENSATION IN LAND USE CONTROL 67, 67 (1977).
174. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871).
175. See generally F. BOSSELMAN, D. ALLIES & J. BANTA, THE TAKING ISSUE
(1973); Sax, Takings, Private Property and Public Rights. 81 YALE L.J. 149 (1971).
176. The diminution test originated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922).
- 177. Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587 (1938), is gen-
erally regarded as the classic articulation of the residual use test.
178. 260 U.S. 393, 415 (1922).
179. Eg, Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962); Candlestick Proper-
ties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal
Rptr. 897 (1970). See also F. BOSSELMAN, D. COLLIES & J. BANTA, supra note 176, at
208.


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NATURAL RESOURCES JOURNAL


The Model Stormwater Runoff Control Ordinance establishes per-
formance and design standards and incorporates a manual of storm-
water runoff control techniques as a regulatory framework.1 80 This
approach provides a wide range of alternative methods for accom-
plishing its objectives. The flexibility provided by the performance
and design standards allows the developer to design his own regula-
tion, in a sense, since he may choose preferred techniques for con-
trolling stormwater on his property so long as they meet the pre-
scribed performance and design standards. The approach is not likely
to cause such a diminution in the land's development value as to be
held a public appropriation requiring just compensation.' In fact,
the use of best management practices on the site of development
may in some instances enhance the value of the property by, for ex-
ample, improving its aesthetic quality. It is also possible that com-
pliance with the requirements of the Model Ordinance would prevent
substantial economic loss to the landowner arising from stormwater
related damages.
The residual beneficial use test attempts to identify those benefits
that remain to be enjoyed by the owner in lands that are restricted
by regulation. Regulations are held to be takings when they act to
deny all practical or reasonable use of the land.' 8 2
The concept behind the Model Ordinance is that land can be used
in a manner that minimizes or avoids adverse environmental impacts.
The Model Ordinance encourages land uses that harmonize with the
needs of the natural environment; it does not attempt to prevent any
particular kind of land use. The concern is thus with how land is used
and not with whether it is to be used at all. Consequently, the Model
Ordinance is designed to preserve for the developer a reasonable and
beneficial use of his land consistent with the public health and wel-
fare.

180. See Model Ordinance, infra. Sections Eight, Nine & Eleven.
181. "The power which the States have of prohibiting such use by individuals of their
property as will be prejudicial to the health, the morals, or the safety of the public, is not-
and, consistently with the existence and safety of organized society, cannot be-burdened
with the condition that the State must compensate such individual owners for pecuniary
losses they may sustain, by reason of their not being permitted, by a noxious use of their
property, to inflict injury upon the community." Goldblatt v. Town of Hempstead, 369
U.S. 590, 594 (1962), quoting Mugler v. Kansas, 123 U.S. 623, 669 (1887).
182. "To sustain an attack upon the validity of the ordinance, an aggrieved property
owner must show that if the ordinance is enforced the consequent restrictions upon his
property preclude its use for any purpose to which it is reasonably adapted." Walker v. Bd.
of County Comm'rs of Talbot County, 208 Md. 72, 116 A.2d 393, 405, cert. denied, 350
U.S. 902 (1955), quoting City of Baltimore v. Cohn, 204 Md. 523, 105 A.2d 482, 486
(1954). See also Spiegle v. Borough of Beach Haven, 46 N.J. 479, 218 A.2d 129, cert.
denied, 395 U.S. 831 (1966); Ocean Villa Apts., Inc. v. City of Fort Lauderdale, 70 So.2d
901 (Fla. 1954).


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STORM WATER RUNOFF


A prohibition simply upon the use of property for purposes that are
declared, by valid legislation, to be injurious to the health, morals, or
safety of the community, cannot, in any just sense, be deemed a
taking or an appropriation of property for the public benefit. Such
legislation does not disturb the owner in the control or use of his
property for lawful purposes, nor restrict his right to dispose of it,
but is only a declaration by the State that its use by any one, for cer-
tain forbidden purposes, is prejudicial to the public interests.... .18
In cases involving the taking issue a distinction is often made be-
tween government action designed to secure a public benefit and
action designed to protect the public from actual or potential harm.
When the intent is to secure for the public a benefit it does not pre-
sently enjoy, then the courts are more likely to hold that the adversely
affected landowner must be compensated for the value of his prop-
erty which has been destroyed.1 4 On the other hand, government
action intended to protect the general public from an injury resulting
from the use of private land will rarely constitute an unconstitutional
taking though the private owner's economic interest is thereby dim-
inished.1 85
As the Model Ordinance sets out in section two and as generously
detailed in the literature listed in Appendix A, stormwater runoff can
be a significant pollution problem in urbanized areas. The indiscrim-
inate alteration of land for development has been identified as a major
factor in urban runoff pollution. In its attempt to control stormwater
runoff as a nuisance and danger to the public health and welfare it
seems clear that a local government may regulate private land in such
a way as to restrict its permissable uses and cause some diminution in
the owner's potential economic return on its development without
violating the Fifth Amendment. 8 6
The most recent of the few United States Supreme Court cases to
address the taking issue in the context of land use regulation is Penn
Central Transportation Co. v. New York City. 18 There, the Court
considered whether New York City could, as part of a comprehensive
program to preserve landmarks, place restrictions on the development
of individual landmarks without effecting a taking requiring the pay-
ment of compensation. In holding that the application of the Land-
marks Law to the Grand Central Terminal property did not consti-
183. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593 (1962), quoting Mugler v.
Kansas, 123 U.S. 623, 668-69 (1887).
184. See Dunham, A Legal and Economic Basis for City Planning, 58 COLUM. L. REV.
650 (1958).
185. See, eg, Miller v. Schoene, 276 U.S. 272 (1928).
186. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
187. 438 U.S. 104 (1978).


October 1980]









NATURAL RESOURCES JOURNAL


tute a taking, Mr. Justice Brennan, writing for the 6-3 majority, out-
lined the current law regarding the taking issue:
(1) In a wide variety of contexts, the government may execute
laws that adversely affect economic values without constituting a
taking; where health, safety, and welfare is involved, government
may enact regulations that have serious adverse affects on property
interests.1 s
(2) Validity of government regulation depends in part upon both
the character of the action and on the nature and extent of the inter-
ference with rights in the property as a whole. Government may
deny the ability to exploit a property interest previously thought to
be available for development without effecting a taking.1 89
(3) Diminution of property values alone is not enough to find a
compensable taking.1 90
(4) The fact that some owners may be affected more than others
is not sufficient to constitute a taking.' 9 1
(5) Prohibitions on the use of one feature of property while allow-
ing gainful use of others do not comprise a taking.' 92
(6) No taking exists where the plaintiff may still realize a reason-
able return on his investment.'9
Despite some unanswered questions, the precedential value of the
Penn Central case is undeniable. It clearly developed the historical
context of the decision, outlined the elements of the taking issue,
and declared the validity of an ordinance that, as applied to the par-
ticular facts of the case, was quite restrictive.
It would appear to be a fair statement that there is a trend of more
favorable judicial reception to the reasonable necessity of most land
use restrictions imposed to protect environmental quality. Greater
general awareness of the valuable functions of natural systems has
helped to spotlight the link between their protection and the public

188. Id at 126-27.
189. Id. at 130-31.
190. Id at 124.
191. Id at 125-26.
192. Id at 130-31.
193. Id. at 133-34. The particular factual circumstances of this case appear to control
the Court's application of a basic test of economic impact, Le., did the regulation interfere
with "primary economic expectations" and was there a "reasonable return on investment."
The owner's ability to continue the present use of the terminal despite the regulation, as
well as potential uses contemplated for the future, influenced the Court to find no taking.
The opportunity to transfer development rights to other properties seems significant as
well The Court noted specifically that although transferrable development rights may not
be just compensation where a taking has occurred, they are valuable, and should be taken
into account as mitigating financial burdens when considering impacts of regulation. Id.
136-38.


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STORMWATER RUNOFF


health and welfare. As stated by the Wisconsin Supreme Court in the
now well-known decision in Just v. Marinette County, 94
What makes this case different from most condemnation or police
power zoning cases is the interrelationship of the wetlands, the
swamps and the natural environment of shorelands to the purity of
the water and to such natural resources as navigation, fishing, and
scenic beauty....
... An owner of land has no absolute and unlimited right to change
the essential natural character of his land so as to use it for a purpose
for which it was unsuited in its natural state and which injures the
rights of others.' 9
It is becoming more obvious to courts and legislators alike that the
use of land has ramifications beyond the boundaries expressed in the
deed. As Professor Sax has noted, "[f] frequently, use of any given
parcel of property is at the same time effectively a use of, or a demand
upon, property beyond the border of the user."'9 6 The Model
Stormwater Runoff Control Ordinance is simply a device which re-
quires landowners to use their land in a manner that will not harm
themselves and others.

MODEL STORMWATER RUNOFF CONTROL ORDINANCE
Concept Behind The Model Ordinance
The presumption underlying the Model Stormwater Runoff Con-
trol Ordinance is that land development can be accomodated on
almost any site without resulting in irreparable damage to local water
resources and the biological community. Land can and should be used
in a manner that minimizes or avoids adverse environmental impacts.
The choice is not between development or no development; it is be-
tween wise development or destructive development. The Model
Stormwater Runoff Control Ordinance was developed to encourage a
more harmonious relationship between land alteration for human use
and the needs of the natural environment.
The Model Ordinance is intended to require the implementation of
stormwater runoff management practices that accomplish two basic
objectives:
1. Protect the absorptive, purifying and retentive func-
tions of natural systems that exist on the site of a pro-
posed development; and

194. 56 Wis.2d 7, 201 N.W.2d 761 (1972).
195. Id., 201 N.W.2d at 768
196. Sax, supra note 176, at 152.


October 1980]









NATURAL RESOURCES JOURNAL


2. Provide for post-development stormwater runoff char-
teristics that resemble the conditions that existed before
the site's alteration.
The Model Ordinance, however, could not possibly be drafted to
fit perfectly into all of the innumerable varieties of regulatory pro-
grams that exist at the local government level. There are instances,
for example, in which a specialized department handles all regulatory
matters except the final decision to issue or deny a permit which is
specifically left to the governing board of the county or municipality.
In other localities, an environmental agency has full authority to take
final action on permit applications. There are still other programs
where this responsibility is shared by the governing body and a spe-
cialized department. The diversity of such regulatory "styles" made
the task of developing a model program quite difficult.
The Model Stormwater Runoff Control Ordinance is designed to
be adapted to the unique characteristics of each local government or-
ganization. It is presumed that some provisions of the Model Ordi-
nance will be modified or possibly even rejected altogether. Other
provisions may have to be added. Nevertheless, the regulatory ap-
proach and the means that were formulated to accomplish storm-
water runoff control in the Model Ordinance should greatly facilitate
the creation of effective controls in areas where no controls presently
exist and to meet the section 208 water quality management plan-
ning requirements of the Federal Water Pollution Control Act.

SECTION ONE: SHORT TITLE
This ordinance shall be known as the "Stormwater Runoff Control
Ordinance."

Commentary
Use of the term "stormwater runoff" does not imply that prob-
blems result only from the way runoff is handled following extra-
ordinary rainfall. In fact, problems result from the manner in which
all surface water is managed.

SECTION TWO: FINDINGS OF FACTS
The of finds
(governing authority) (local unit)
that uncontrolled drainage and development of land has a significant
adverse impact upon the health, safety and welfare of the commu-
nity. More specifically,


[Vol. 20










(a) Stormwater runoff can carry pollutants into receiving water
bodies, degrading water quality;
(b) The increase in nutrients such as phosphorus and nitrogen
accelerates eutrophication of receiving waters, adversely affecting
flora and fauna;
(c) Improperly channeling water increases the "elocity of runoff,
thereby increasing erosion and sedimentation;
(d) Construction requiring the alteration of natural topography
and removal of vegetation tends to increase erosion;
(e) Siltation of water bodies resulting from increased erosion de-
creases their capacity to hold and transport water, interferes with
navigation, and harms flora and fauna;
(f) Impervious surfaces increase the volume and rate of stormwater
runoff and allow less water to percolate into the soil, thereby de-
creasing groundwater recharge;
(g) Improperly managed stormwater runoff can increase the inci-
dence of flooding and the level of floods which occur, endangering
property and human life;
(h) Improperly managed stormwater runoff can interfere with the
maintenance of optimum salinity in estuarine areas, thereby disrupt-
ing biological productivity;
(i) Substantial economic losses result from these adverse impacts
on community waters;
(j) Many future problems can be avoided if land is developed in
accordance with sound stormwater runoff management practices.

Commentary
Regulation under the police power must be reasonably related to
protection of the public health, safety or welfare. Findings of fact
identify the problems which the ordinance is intended to remedy. A
reviewing court or an affected citizen should be able to read the find-
ings of fact and understand the reasons for imposition of the ordi-
nance's requirements. Appendix A contains a listing of studies which
have identified or described the adverse impacts of improperly man-
aged stormwater runoff on water quality and other environmental
values.

SECTION THREE: OBJECTIVES
In order to protect, maintain, and enhance both the immediate
and the long term health, safety and general welfare of the citizens of
______u__, this ordinance has the following objectives:
(local unit)


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NATURAL RESOURCES JOURNAL


(a) To encourage productive and enjoyable harmony between
humanity and nature;
(b) To protect, restore, and maintain the chemical, physical and
biological integrity of community waters;
(c) To prevent individuals, business organizations and govern-
ments from causing harm to the community by activities which ad-
versely affect water resources;
(d) To encourage the construction of drainage systems which aes-
thetically and functionally approximate natural systems;
(e) To encourage the protection of natural systems and the use of
them in ways which do not impair their beneficial functioning;
(f) To encourage the use of drainage systems which minimize the
consumption of electrical energy or petroleum fuels to move water,
remove pollutants, or maintain the systems;
(g) To minimize the transport of pollutants to community waters;
(h) To maintain or restore groundwater levels;
(i) To protect, maintain or restore natural salinity levels in estua-
rine areas;
(j) To minimize erosion and sedimentation;
(k) To prevent damage to wetlands;
(1) To prevent damage from flooding, while recognizing that
natural fluctuations in water levels are beneficial;
(m) To protect, restore, and maintain the habitat of fish and wild-
life; and
(n) To ensure the attainment of these objectives by requiring the
approval and implementation of water management plans for all ac-
tivities which may have an adverse impact upon community waters.

Commentary
A listing of objectives serves a number of purposes. The public's
understanding of the ordinance and its control program is facilitated.
Judicial understanding is promoted as well. Objectives help to outline
the direction and scope of the runoff control program. They can also
serve as a checklist against which the ordinance can later be evaluated.
T. DEBO, SURVEY AND ANALYSIS OF URBAN DRAINAGE OR-
DINANCES AND A RECOMMENDED MODEL ORDINANCE 51
(1975).

SECTION FOUR: DEFINITIONS
Unless specifically defined below, words or phrases shall be inter-
preted so as to give them the meaning they have in common usage
and to give this ordinance its most effective application. Words used


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STORMWATER RUNOFF


in the singular shall include the plural and the plural the singular;
words used in the present tense shall include the future tense. The
word "shall" connotes mandatory and not discretionary; the word
"may" is permissive.
(a) "Adverse Impacts" are any modifications, alterations or effects
on a feature or characteristic of community waters br wetlands, in-
cluding their quality, quantity, hydrodynamics, surface area, species
composition, living resources, aesthetics or usefulness for human or
natural uses which are or may potentially be harmful or injurious to
human health, welfare, safety or property, to biological productivity,
diversity, or stability or which unreasonably interfere with the enjoy-
ment of life or property, including outdoor recreation. The term in-
cludes secondary and cumulative as well as direct impacts.
(b) "Clearing" means the removal of trees and brush from the
land but shall not include the ordinary mowing of grass.
(c) "Detention" refers to the collection and storage of surface
water for subsequent gradual discharge.
(d) "Developer" means any person who engages in development
either as the owner or as the agent of an owner of property.
(e) "Development" or "Development Activity" means:
(1) the construction, installation, alteration, demolition or re-
moval of a structure, impervious surface, or drainage facility; or
(2) clearing, scraping, grubbing, or otherwise removing or kill-
ing the vegetation of a site;
(3) adding, removing, exposing, excavating, leveling, grading,
digging burrowing, dumping, piling, dredging, or otherwise signifi-
cantly disturbing the soil, mud, sand or rock of a site.
(f) "Drainage Facility" means any component of the drainage sys-
tem.
(g) "Drainage System" is the system through which water flows
from the land. It includes all watercourses, waterbodies and wetlands.
(h) "Erosion" is the wearing or washing away of soil by the action
of wind or water.
(i) "Flood" is a temporary rise in the level of any waterbody,
watercourse or wetland which results in the inundation of areas not
ordinarily covered by water.
(j) "Impervious Surface" means a surface which has been com-
pacted or covered with a layer of material so that it is highly resistant
to infiltration by water. It includes semi-impervious surfaces such as
compacted clay, as well as most conventionally surfaced streets,
roofs, sidewalks, parking lots and other similar structures.
(k) "Natural Systems" means systems which predominantly con-
sist of or use those communities of plants, animals, bacteria and other


October 1980]









NATURAL RESOURCES JOURNAL


flora and fauna which occur indigenously on the land, in the soil or
in the water.
(1) "Owner" is the person in whom is vested the fee ownership,
dominion, or title of property, i.e., the proprietor. This term may
also include a tenant, if chargeable under his lease for the mainte-
nance of the property, and any agent of the owner or tenant includ-
ing a developer.
(m) "Person" means any and all persons, natural or artificial and
includes any individual, firm, corporation, government agency, busi-
ness trust, estate, trust, partnership, association, two or more persons
having a joint or common interest, or any other legal entity.
(n) "Predevelopment Conditions" are those conditions which
existed before alteration, resulting from human activity, of the
natural topography, vegetation and rate, volume or direction of sur-
face or ground water flow, as indicated by the best available histori-
cal data.
(o) "Receiving Bodies of Water" shall mean any waterbodies,
watercourses or wetlands into which surface waters flow either natur-
ally, in manmade ditches, or in a closed conduit system.
(p) "Retention" refers to the collection and storage of runoff
without subsequent discharge to surface waters.
(q) "Sediment" is fine particulate material, whether mineral or
organic, that is in suspension or has settled in a waterbody.
(r) "Sedimentation Facility" means any structure or area which is
designed to hold runoff water until suspended sediments have settled.
(s) "Site" means any tract, lot or parcel of land or combination
of tracts, lots, or parcels of land which are in one ownership, or are
contiguous and in diverse ownership where development is to be per-
formed as part of a unit, subdivision, or project.
(t) "Structure" means that which is built or constructed, an edi-
fice or building of any kind, or any piece of work artificially built up
or composed of parts joined together in some definite manner but
shall not include fences or signs.
(u) "Subdivide" means to divide the ownership of a parcel of land,
whether improved or unimproved, into three or more contiguous lots
or parcels of land, whether by reference to a plat, by metes and
bounds or otherwise, or, if the establishment of a new street is in-
volved, any division of a parcel of land. Subdivision includes a resub-
division and, when appropriate to the context, relates to the process
of subdividing or to the land subdivided.
(v) "Vegetation" means all plant growth, especially trees, shrubs,
vines, ferns, mosses and grasses.
(w) "Waters" or "Community of Waters" means any and all water


[Vol. 20








STORMWATER RUNOFF


on or beneath the surface of the ground. It includes the water in any
watercourse, waterbody or drainage system. It also includes diffused
surface water and water percolating, standing or flowing beneath the
surface of the ground, as well as coastal waters.
(x) "Water Management Plan" refers to the detailed analysis re-
quired by Section Six for each activity described in Section Five of
this ordinance.
(y) "Watercourse" means any natural or artificial stream, river,
creek, channel, ditch canal, conduit, culvert, drain, waterway, gully,
ravine, street, roadway, swale, or wash in which water flows in a defi-
nite direction, either continuously or intermittently, and which has a
definite channel, bed or banks.
(z) "Waterbody" means any natural or artificial pond, lake, reser-
voir or other area which ordinarily or intermittently contains water
and which has a discernible shoreline.
(aa) "Watershed" means a drainage area or drainage basin contrib-
uting to the flow of water in a receiving body of water.
(bb) "Wetlands" means those areas where
(1) the soil is ordinarily saturated with water; or
(2) the dominant plant community is one or more of those
species designated by the ------ as identifying
(local agency)
wetlands or the transitional zone of wetlands.


Commentary
Sources of the definitions include: Environmental Policy Standards,
DEKALB COUNTY, GA, CODE Ch. 6-A (1974); Snohomish County,
Wash., Drainage Ordinance, Title XXIV (1979); Volusia County, Fla.,
Ordinance No. 78-32 (1978); Knox County, Tenn., Grading, Soil
Erosion and Sedimentation Control Regulations; METROPOLITAN
COUNCIL OF THE TWIN CITIES AREA (St. Paul, Minn.), MODEL
ORDINANCES FOR USE BY LOCAL GOVERNMENTS (1977)
[hereinafter cited as MODEL ORDINANCES]; The Florida Coastal
Management Program (Oct. 1978) (threshold draft prepared by the
Florida Dep't of Environmental Regulation); F. Maloney & D. Fer-
nandez, Development of County and Local Ordinances Designed to
Protect the Public Interest in Florida's Coastal Beaches (July 1977)
(technical paper prepared for the Florida Sea Grant Program). For
alternative definitions of wetlands see Environmental Law Institute,
Strengthening State Wetlands Regulation (prepared for the U.S. Fish
and Wildlife Service, Office of Biological Services). Communities
might also consider specifically mapping wetland areas in advance.


October 19801









748 NATURAL RESOURCES JOURNAL [Vol. 20

SECTION FIVE: APPLICABILITY
(a) Unless exempted pursuant to subsection (b) or waived pur-
suant to subsection (c), a Water Management Plan must be submitted
and approved before:
(1) a plat is recorded or land is subdivided; or
(2) an existing drainage system is altered, rerouted, deepened,
widened, enlarged or obstructed; or
(3) development is commenced.
(b) Exemptions. The following development activities are exempt
from the Water Management Plan Requirement:
(1) the development of less than five single family or duplex
residential dwelling units and their accessory structures
(such as fences, storage sheds and septic tanks) in an exist-
ing subdivision;
(2) the development of one single family or duplex residen-
tial structure not in an existing subdivision;
(3) agricultural activity not involving the artificial drainage of
land;
(4) any maintenance, alteration, use or improvement to an
existing structure not changing or affecting quality, rate,
volume or location of surface water discharge.
(c) Waivers.
(1) A waiver of the Water Management Plan requirement may
be obtained by submitting an application on forms sup-
plied by The application shall
(local agency)
contain:
(i) the name, address and telephone number of the de-
veloper and owner; and
(ii) a description and a drawing of the proposed develop-
ment; and
(iii) the location of the development; and
(iv) any other information requested by
(local agency)
that is reasonably necessary to evaluate the pro-
posed development.
(2) The may grant a waiver if the applica-
(local agency)
tion demonstrates the development is not likely to:
(i) [significantly] increase or decrease the rate or vol-
ume or surface water runoff;
(ii) have a [significant] adverse impact on a wetland,
watercourse or waterbody;


I








STORM WATER RUNOFF


(iii) [significantly] contribute to the degradation of water
quality.
(3) The following types of development shall not be eligible
to receive a waiver:
(i) shopping centers;
(ii) industrial or commercial facilities;
(iii) subdivisions;
(iv) roads;
(v) impervious surfaces greater than 10,000 square feet.
(d) Variances.
The may grant a written variance from any
(local agency)
requirement of this ordinance using the following criteria:
(1) there are special circumstances applicable to the subject
property or its intended use; and,
(2) the granting of the variance will not:
(i) [significantly] increase or decrease the rate or vol-
ume of surface water runoff;
(ii) have a [significant] adverse impact on a wetland,
watercourse or waterbody;
(iii) [significantly] contribute to the degradation of
water quality;
(iv) otherwise [significantly] impair attainment of the
Objectives of this ordinance.

Commentary
When a plat is submitted for approval and recordation by the local
S government, potential impacts on the environment and especially on
water quality should be among the considerations examined by the
commissioners. The manner in which land is subdivided can have a
significant effect upon the ultimate impact of development. If there
are wetlands in an area detaining and purifying runoff and recharging
groundwater, the land should be subdivided in a way that preserves
these important functions. No lot should be created that contains
too little dry upland to be useful. A landowner should not have to
resort to drainage of all or part of a wetland to create additional dry
land for a homesite. Similarly, consideration must be given to the
reservation of sufficient land for such things as drainage system com-
ponents, roads and rights-of-way, utilities and other services. In order
to make advance consideration possible, approval of a water manage-
ment plan is required before a plat is recorded or the land is sub-
divided. Changes in existing drainage systems should be made only


October 1980










NATURAL RESOURCESJOURNAL


after careful evaluation and, therefore, prior approval of a water
management plan is required before such changes are made.
The ordinance is applicable to a broad range of development
activities that have the potential to cause adverse impacts on water
resources. It is not possible or desirable, however, to regulate all de-
velopment activity. Therefore provision is made for a system of ex-
emptions and waivers. The difference between the two is that exemp-
tions are granted in the ordinance, whereas waivers are granted by the
local agency under the authority of the ordinance. There is no re-
quirement for the submission of any information regarding exempted
activities. Exemptions should include only those activities that would
clearly not have adverse impacts. Waivers may be used to relieve other
types of development from the necessity of submitting a water man-
agement plan for the proposed development. Unlike exemptions, how-
ever, waivers require that some preliminary information regarding the
proposed activity be available to the agency for use in deciding
whether a waiver is appropriate. Because certain types of develop-
ment have such a high potential for causing significant adverse im-
pacts, the local agency should have no discretion to waive the require-
ment of submitting a water management plan with regard to them.
The specific listings in this section are only illustrative of the types
of development that might be exempted or made ineligible to receive
a waiver. The problems, needs and regulatory capabilities of each
local government vary greatly. This structure may be adapted to fit
many diverse situations and to incorporate the experience of the local
government.
The words "significant" and "significantly" included in earlier
drafts, now appear io brackets. Such terms arguably can be used to
create loopholes in the ordinance that would weaken it substantially.
On the other hand, without such qualifying language the waiver and
variance provisions would be almost beyond practical use. A compro-
mise was to put the words in brackets so as to flag this important
question for the potential users of the Model Ordinance. The crucial
consideration, of course, is not whether to use or not use a term such
as "significant" but, rather, to insure that decisions of the reviewing
body are consistent with the objectives of the ordinance as opposed
to undermining them.
Some examples of exception and waiver provisions were found in
Snohomish County, Wash., Drainage Ordinance, Title XXIV (1979)
arid Volusia County, Fla., Ordinance No. 78-32 (1978). An excellent
review and commentary from the Florida Department of Environ-
mental Regulation was of considerable help in developing this section.


(Vol. 20








STORM WATER RUNOFF


SECTION SIX: CONTENTS OF THE WATER MANAGEMENT PLAN
(a) It is the responsibility of an applicant to include in the Water
Management Plan sufficient information for the to
(local agency)
evaluate the environmental characteristics of the affected areas, the
potential and predicted impacts of the proposed activity on commu-
nity waters, and the effectiveness and acceptability of those measures
proposed by the applicant for reducing adverse impacts. The Water
Management Plan shall contain maps, charts, graphs, tables, photo-
graphs, narrative descriptions and explanations and citations to sup-
porting references, as appropriate to communicate the information
required by this section.
(b) The Water Management Plan shall contain the name, address
and telephone number of the owner and the developer. In addition,
the legal description of the property shall be provided, and its loca-
tion with reference to such landmarks as major waterbodies, adjoin-
ing roads, railroads, subdivisions, or towns shall be clearly identified
by a map.
(c) The existing environmental and hydrologic conditions of the
site and of receiving waters and wetlands shall be described in detail,
including the following:
(1) the direction, flow rate, and volume of stormwater runoff
under existing conditions and, to the extent practicable,
redevelopment conditions;
(2) the location of areas on the site where stormwater collects
or percolates into the ground;
(3) a description of all watercourses, waterbodies and wetlands
on or adjacent to the site or into which stormwater flows.
Information regarding their water quality and the current
water quality classification, if any, given them by the [State
Water Quality Management Agency] shall be included;
(4) groundwater levels, including seasonal fluctuations;
(5) location of flood plains:
(6) vegetation;
(7) topography;
(8) soils.
(d) Proposed alterations of the site shall be described in detail, in-
cluding:
(1) changes in topography;
(2) areas where vegetation will be cleared or otherwise killed;
(3) areas that will be covered with an impervious surface and a
description of the surfacing material;


October 19801









NATURAL RESOURCES JOURNAL


(4) the size and location of any buildings or other structures.
(e) Predicted impacts of the proposed development on existing
conditions shall be described in detail, including:
(1) changes in water quality;
(2) changes in groundwater levels;
(3) changes in the incidence and duration of flooding on the
site and upstream and downstream from it;
(4) impacts on wetlands; and
(5) impacts on vegetation.
(f) All components of the drainage system and any measures for
the detention, retention, or infiltration of water or for the protection
of water quality shall be described in detail, including:
(1) the channel, direction, flow rate, volume and quality of
stormwater that will be conveyed from the site, with a
comparison to existing conditions and, to the extent prac-
ticable, redevelopment conditions;
(2) detention and retention areas, including plans for the dis-
charge of contained waters, maintenance plans, and predic-
tions of water quality in those areas;
(3) areas of the site to be used or reserved for percolation in-
cluding a prediction of the impact on groundwater quality;
(4) a plan for the control of erosion and sedimentation which
describes in detail the type and location of control mea-
sures, the stage of development at which they will be put
into place or used, and provisions for their maintenance;
(5) any other information which the developer or the
believes is reasonably necessary for an evalua-
(local agency)
tion of the development.

Commentary
This section specifies the information that must be provided to the
local agency. The complexity and depth of information that is neces-
sary for proper evaluation will depend on the nature of the site and
the extent to which it will be altered. The Manual of Surface Water
Management Practices discussed in Section Eleven should describe
specific techniques for obtaining and calculating the data required in
the Water Management Plan. See the commentary following Section
Eleven for more information regarding the use of a practices manual.
The- Manual should tell an applicant what conditions must be ac-
counted for-drought, the 10 year storm, the 25 year storm, etc. The
Water Management Plan is similar to an environmental impact assess-
ment The Water Management Plan contents were adapted in part


[Vol. 20








STORMWATER RUNOFF


from the MODEL ORDINANCES, supra. Examples of hydrologic
and hydraulic studies required in the drainage ordinances of several
communities are contained in T. DEBO, supra, at 90-100.

SECTION SEVEN: PROCEDURES AND FEES
(a) Any person planning a development as defined in this ordi-
nance, unless exempted, shall submit a Water Management Plan or an
application for waiver to the
(local agency)
(b) Within ten (10) working days after submission of the com-
pleted waiver application, the _____ shall notify the
(local agency)
applicant that the waiver has been approved or denied and whether a
Water Management Plan must be submitted by the applicant.
(c) A permit fee will be collected at the time the Water Manage-
ment Plan or application for waiver are submitted and will reflect the
cost of administration and management of the permitting process.
The ----- shall establish, by resolution, a prorated
(governing authority)
fee schedule based upon the relative complexity of the project. The
fee schedule may be amended from time to time by the ---
(governing
by resolution. Notice of such resolution shall be pub-
authority)
lished no less than fifteen (15) days prior to adoption.
(d) Within thirty (30) days after submission of the completed
Water Management Plan, the _____ shall approve,
(local agency)
with or without specified conditions or modifications, or reject the
Plan and shall notify-the applicant accordingly. If the ___
(local agency)
has not rendered a decision within thirty (30) days after Plan submis-
sion, it shall inform the applicant of the status of the review process
and the anticipated completion date. If the Plan is rejected or modi-
fied, the ______ shall state its reasons. However, it is
(local agency)
not the responsibility of the to design an ac-
(local agency)
ceptable project.
(e) The Water Management Plan shall not be approved unless it
clearly indicates that the proposed development will meet the Per-
formance Standards described in Section Eight and the Design Stan-
dards described in Section Nine, except where a variance has been
granted pursuant to Section Five, Subsection (d), or where off-site
management is approved pursuant to Section Ten.


October 19801










NATURAL RESOURCESJOURNAL


(f) Inspections. No Water Management Plan may be approved
without adequate provision for inspection of the property before de-
velopment activity commences. The applicant shall arrange with the
for scheduling the following inspections:
(local agency)
(1) Initial Inspection: prior to approval of the Water Manage-
ment Plan;
(2) Bury Inspection: prior to burial of any underground drain-
age structure;
(3) Erosion Control Inspection: as necessary to ensure effec-
tive control of erosion and sedimentation;
(4) Finish Inspection: when all work including installation of
all drainage facilities has been completed.
The shall inspect the work and shall either
(local agency)
approve it or notify the applicant in writing in what respects there
has been a failure to comply with the requirements of the approved
Water Management Plan. Any portion of the work which does not
comply shall be promptly corrected by the applicant or the applicant
will be subject to the penalty provisions of Section Thirteen.
(g) Appeals. Any person aggrieved by the action of any official
charged with the enforcement of this Ordinance, as the result of the
disapproval of a properly filed application for a permit, issuance of a
written notice of violation, or an alleged failure to properly enforce
the Ordinance in regard to a specific application, shall have the right
to appeal the action to the The
(special hearing examiner)
appeal shall be filed in writing within twenty (20) days of the date of
official transmittal of the final decision or determination to the ap-
plicant, shall state clearly the grounds on which the appeal is based,
and shall be processed in the manner prescribed for hearing adminis-
trative appeals under
(local or state code provision)


Commentary
The procedures involved in the Model Ordinance are straightfor-
ward. A proposed development is either exempted from the require-
ments of the Ordinance, is granted a waiver from its requirements
after a review of a written request for waiver, or requires the submis-
sioh of a Water Management Plan. The fee structure will provide funds
to pay the cost of administration, including costs of review and in-
spection.
If the Plan is not approved, the applicant will be told why and will
know what he can do to meet the requirements of the Ordinance.


[Vol. 20







STORM WATER RUNOFF


Even if the Plan is otherwise in good order, an initial site inspection
will be necessary to determine whether the redevelopment condi-
tions are actually as they have been described in the Plan and whether
any considerations have been omitted. After approval of the Plan and
commencement of the development, it will be important to inspect
the progress and completion of the project to make certain that the
approved Water Management Plan is followed.
The appeals procedure may require modification or inclusion of
more detail in a specific jurisdiction because this area is one where
differences are most pronounced. It is contemplated that the proce-
dure for hearing appeals will usually be drafted to conform to an
existing procedure for hearing appeals from building permit denials.
Some counties have a hearing examiner for these purposes and this
type of appellate process seems to be a good one.
Some of the language in this section was adopted from Drainage
Ordinance, Title XXIV, Snohomish County, Washington (1979); and
Ordinance No. 78-32, Volusia County, Florida (1978).

SECTION EIGHT: PERFORMANCE STANDARDS
Water Management Plans must demonstrate the proposed develop-
ment or activity has been planned and designed and will be con-
structed and maintained to meet each of the following standards:
(a) Ensure that after development, runoff from the site approxi-
mates the rate of flow, volume and timing of runoff that would have
occurred following the same rainfall under existing conditions and,
to the extent practicable, redevelopment conditions, unless runoff
is discharged into an Off-site Drainage Facility as provided in Section
Ten;
(b) Maintain the natural hydrodynamic characteristics of the
watershed;
(c) Protect or restore the quality of ground and surface waters;
(d) Ensure that erosion during and after development is mini-
mized;
(e) Protect groundwater levels;
(f) Protect the beneficial functioning of wetlands as areas for the
natural storage of surface waters and the chemical reduction and
assimilation of pollutants;
(g) Prevent increased flooding and damage that results from im-
proper location, construction and design of structures in areas which
are presently subject to an unacceptable danger of flooding;
(h) Prevent or reverse salt water intrusion;
(i) Protect the natural fluctuating levels of salinity in estuarine
areas;


October 19801









NATURAL RESOURCES JOURNAL


(j) Minimize injury to flora and fauna and adverse impacts to fish
and wildlife habitat;
(k) Otherwise further the objectives of this Ordinance.

Commentary
The basic objective of the Ordinance is to prevent development
from causing unnecessary harm to valuable functions of the natural
environment. The primary basis for evaluating a developer's proposal
is to ascertain whether it is likely to meet that objective. A set of per-
formance standards has been developed which incorporates the envi-
ronmental processes that should be maintained. The local policy-
making body needs to determine what will be an acceptable risk of
flooding for different types of uses. For example, it might be accept-
able to build roads in areas that are likely to flood every five years,
but not hospitals.
Performance standards have the advantage of allowing a great deal
of flexibility in the use of control techniques. Each site and proposed
development will involve unique characteristics that rigid engineering
rules cannot easily account for. In addition, performance standards
allow for the use of new and innovative engineering technology,
whether structural or non-structuraL

SECTION NINE: DESIGN STANDARDS
To ensure attainment of the objectives of this Ordinance and to
ensure that performance standards will be met, the design, construc-
tion and maintenance of drainage systems shall be consistent with
the following standards:
(a) Channeling runoff directly into waterbodies shall be pro-
hibited. Instead, runoff shall be routed through swales and other sys-
tems designed to increase time of concentration, decrease velocity,
increase infiltration, allow suspended solids to settle, and remove
pollutants;
(b) Natural watercourses shall not be dredged, cleared of vegeta-
tion, deepened, widened, straightened, stabilized or otherwise altered.
Water shall be retained or detained before it enters any natural water-
course in order to preserve the natural hydrodynamics of the water-
course and to prevent siltation or other pollution;
(c) The area of land disturbed by development shall be as small as
practicable'. Those areas which are not to be disturbed shall be pro-
tected by an adequate barrier from construction activity. Whenever
possible, natural vegetation shall be retained and protected;
(d) No grading, cutting or filling shall be commenced until erosion


756


[Vol. 20








STORMWA TE RUNOFF


and sedimentation control devices have been installed between the
disturbed area and waterbodies, watercourses and wetlands;
(e) Land which has been cleared for development and upon which
construction has not commenced shall be protected from erosion by
appropriate techniques designed to revegetate the area;
(f) Sediment shall be retained on the site of the development;
(g) Wetlands and other waterbodies shall not be used as sediment
traps during development;
(h) Erosion and sedimentation facilities shall receive regular main-
tenance to insure that they continue to function properly;
(i) Artificial watercourses shall be designed, considering soil type,
so that the velocity of flow is low enough to present erosion;
(j) Vegetated buffer strips shall be created or, where practicable,
retained in their natural state along the banks of all watercourses,
waterbodies or wetlands. The width of the buffer shall be sufficient
to prevent erosion, trap the sediment in overland runoff, provide
access to the waterbody and allow for periodic flooding without
damage to structures;
(k) Intermittent watercourses, such as swales, should be vegetated;
(1) Retention and detention ponds shall be used to retain and de-
tain the increased and accelerated runoff which the development gen-
erates. Water shall be released from detention ponds into water-
courses or wetlands at a rate and in a manner approximating the nat-
ural flow which would have occurred before development;
(m) Although the use of wetlands for storing and purifying water
is encouraged, care must be taken not to overload their capacity,
thereby harming the wetlands and transitional vegetation. Wetlands
should not be damaged by the construction of detention ponds;
(n) The first one inch of runoff from impervious surfaces shall be
retained on the site of the development;
(o) Runoff from parking lots shall be treated to remove oil and
sediment before it enters receiving waters;
(p) Detention and retention areas shall be designed so that shore-
lines are sinuous rather than straight and so that the length of shore-
line is maximized, thus offering more space for the growth of littoral
vegetation;
(q) The banks of detention 'and retention areas shall slope at a
gentle grade into the water as a safeguard against drowning, personal
injury or other accidents, to encourage the growth of vegetation and
to allow the alternate flooding and exposure of areas along the shore
as water levels periodically rise and fall;
(r) The use of drainage facilities and vegetated buffer zones as
open space, recreation and conservation areas shall be encouraged.


October 1980]









NATURAL RESOURCES JOURNAL


Commentary
Design Standards create limitations on the specific methods that
can be utilized to achieve the Performance Standards of Section Eight.
For example, the performance standard that requires runoff after de-
velopment to approximate the rate, quantity and timing of runoff
under natural, redevelopment conditions could be met by construct-
ing a deep, rectangular pit to trap runoff which could then be pumped
out on a schedule that approximates the natural, redevelopment
hydroperiod. Obviously, that solution would not be desirable be-
cause the pit would be dangerous and unsightly and the water in it
would probably be of low quality. Design Standards constrain such
undesirable solutions. The list of Design Standards included in the
Ordinance should be augmented and modified as appropriate to meet
the needs of a particular community.
The Design Standards are drawn in strict terms to ensure the
achievement of the objectives of the Ordinance. However, it is pos-
sible that a proposed development may deviate from the strict word-
ing of a particular Design Standard and yet still be shown to provide
sound stormwater management consistent with the objectives. In
such an instance, the Section Five, Subsection (d) variance provisions
provides a procedure for making this showing to the reviewing agency.
A common infirmity of local regulatory programs, and one which
prompts lawsuits, is the lack of clear guidelines to assist the regulatory
board in its decision-making. The performance and Design Standards
in the Model Ordinance create clear objective guidelines to direct
decision-making. Some Design Standards were adapted or modified
in part from MODEL ORDINANCES, supra, and Environmental Pol-
icy Standards, DEKALB COUNTY, GA., CODE Ch. 6-A (1974).

SECTION TEN: OFF-SITE DRAINAGE FACILITIES
(a) The may allow stormwater runoff that
(local agency)
is otherwise of unacceptable quality or which would be discharged in
volumes or at rates in excess of those otherwise allowed by this Ordi-
nance, to be discharged into drainage facilities off the site of develop-
ment if each of the following conditions is met:
(1) It is not practicable to completely manage runoff on the
site in a manner that meets the Performance Standards
and Design Standards;
(2) The off-site drainage facilities and channels leading to
them are designed, constructed and maintained in accord-
ance with the requirements of this ordinance;


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STORMWATER RUNOFF


(3) Adequate provision is made for the sharing of construc-
tion and operating costs of the facilities. The developer
may be required to pay a portion of the cost of construct-
ing the facilities as a condition to receiving approval of
the drainage plan;
(4) Adverse environmental impacts on the site of develop-
ment will be minimized.
(b) A request to use off-site drainage facilities and all information
related to the proposed off-site facilities should be made a part of the
developer's Water Management Plan. Guidelines for the consideration
of off-site facility use will be defined in the Manual of Surface Water
Management Practices.

Commentary
The Model Ordinance was initially designed to regulate the land
activities that affect runoff by requiring on-site management in every
instance. However, it was later recognized that not only are there
cases where on-site management is impracticable but it is often much
less cost-effective for the developer and the local government with
respect to costs of drainage facilities and their subsequent mainte-
nance. Therefore, Section Ten was drafted to provide a mechanism
for providing off-site management as an alternative where it can be
demonstrated to otherwise meet the objectives of the Model Ordi-
nance. The establishment of regional facilities is provided for in the
Model Stormwater Management Ordinance included in the Snohomish
County/King County 208 Areawide Waste Management Planning
Study (1977).

SECTION ELEVEN: MANUAL OF STORMWATER MANAGEMENT
PRACTICES
(a) The____ (_agenc) shall compile a manual of Storm-
(local agency)
water Management Practices for the guidance of persons preparing
Water Management Plans, and designing or operating drainage sys-
tems. The Manual shall be updated periodically to reflect the most
current and effective practices and shall be made available to the
public;
(b) The Manual shall include guidance and specifications for the
preparation of Water Management Plans. Acceptable techniques for
obtaining, calculating and presenting the information required in the
Water Management Plans shall be described;
(c) The Manual shall include guidance in the selection of environ-


October 1980]










NATURAL RESOURCES JOURNAL


mentally sound practices for the management of stormwater and the
control of erosion and sediment. Specific techniques and practices
shall be described in detail. The development and use of techniques
which emphasize the use of natural systems shall be encouraged;
(d) The Manual shall also establish minimum specifications for the
construction of drainage facilities. Construction Specifications shall
be established in accordance with current good engineering practices;
(e) The shall submit the Manual and sub-
(local agency)
sequent revisions of it to the ----- for review and
(local authority)
approval.

Commentary
There are numerous effective techniques that have been developed
for managing stormwater runoff in an environmentally acceptable
manner. Many local developers will be unfamiliar with these tech-
niques, however. The local agency, therefore, should compile a man-
ual to guide persons in the selection of appropriate techniques.
The manual should not be a limiting document forcing the engineer
to use standard designs and procedures. Several design examples
should be given... with latitude for the design engineer to use his
imagination and engineering judgment. The manual should have the
connotation of a document that suggests and informs rather than
limiting or prescribing. In addition, the manual would give more
complete definitions of some of the concepts included in the ordi-
nance. ...
T. DEBO, supra, at 38-39. The use of innovative techniques should
be encouraged, subject always to the review of the local agency as to
whether they will be effective.
A list of helpful reference materials including existing manuals of
stormwater management practices are compiled and included as
Appendix A. These manuals could be adopted in whole or in part by
local governments in the development of their own manual or man-
agement practices.

SECTION TWELVE: MAINTENANCE
(a) Drainage facilities shall be dedicated to the
(governing authority)
where they are determined to be appropriately a part of the
(local
Maintained regional system or are unlikely to be adequately
unit)
maintained by the developer or owner of the property;


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STORMWATER RUNOFF


(b) The systems maintained by the owner shall have adequate ease-
ments to permit the ----- to inspect and, if neces-
(local agency)
sary, to take corrective action should the owner fail to properly
maintain the system. Before taking corrective action, the
(local
shall give the owner written notice of the nature of the
agency)
existing defects. If the owner fails within thirty (30) days from the
date of notice to commence corrective action or to appeal the matter
to the the may take
(special hearing examiner) (local agency)
necessary corrective action, the cost of which shall become a lien on
the real property until paid.

Commentary
A frequent comment that was received in response to requests for
comment on early drafts of the Model Ordinance was that mainte-
nance problems can be a significant headache for local governments.
Section Twelve provides alternatives for allocating the maintenance
responsibility between the private and public sectors. No cost sharing
is provided for maintenance here as it is in Section Ten for off-site
facilities. There may be particular situations, however, where a cost
contribution would be justified and easily administered by the local
government that assumed maintenance responsibility. Articulating
those situations, however, is extremely difficult. This section was
adapted from Volusia County, Fla., Ordinance No. 78-32 (1978).

SECTION THIRTEEN: ENFORCEMENT
(a) Nuisance. Any development activity that is commenced with-
out prior approval of a Water Management Plan or is conducted con-
trary to an approved Water Management Plan as required by this
Ordinance, shall be deemed a public nuisance and may be restrained
by injunction or otherwise abated in a manner provided by law.
(b) Civil and Criminal Penalties. In addition to or as an alterna-
tive to any penalty provided herein or by law, any person who vio-
lates the provisions of this Ordinance shall be punished by a fine of
not less than One Hundred Dollars (S100) nor more than One Thou-
sand Dollars ($1,000) or by imprisonment in the county jail for a
period not to exceed sixty (60) days, or by both such fine and im-
prisonment. Such person shall be guilty of a separate offense for each
day during which the violation occurs or continues.
(c) Any violator may be required to restore land to its undisturbed
condition. In the event that restoration is not undertaken within a


October 1980]










NATURAL RESOURCES JOURNAL


reasonable time after notice, the may take nec-
(local agency)
essary corrective action, the cost of which shall become a lien upon
the property until paid.
(d) Notice of Violation. When the deter-
(local agency)
mines that development activity is not being carried out in accor-
dance with the requirements of this Ordinance, it shall issue a written
notice of violation to the owner of the property. The notice of viola-
tion shall contain:
(1) the name and address of the owner or applicant;
(2) the street address when available or a description of the
building, structure, or land upon which the violation is
occurring;
(3) a statement specifying the nature of the violation;
(4) a description of the remedial actions necessary to bring
the development activity into compliance with this Ordi-
nance and a time schedule for completion of such reme-
dial action;
(5) a statement of the penalty or penalties that shall or may
be assessed against the person to whom the notice of vio-
lation is directed;
(6) a statement that the determination
(local agency)
of violation may be appealed to the
(special hearing examiner)
by filing a written notice of appeal within fifteen (15)
days of service of notice of violation.
The notice of violation shall be served upon the persons) to
whom it is directed either personally, in the manner provided for per-
sonal service of notices by the court of local jurisdiction or by mail-
ing a copy of the notice of violation by certified mail, postage pre-
paid, return receipt requested to such person at his or her last known
address.
A notice of violation issued pursuant to this section constitutes a
determination from which an administrative appeal may be taken to
the
(special hearing examiner)

Commentary
The local government is provided with a substantial arsenal for en-
forcing the provisions of the Model Ordinance. A violator is provided
with detailed notice of the nature of his alleged violation and related
matters. This section was drawn in part from Drainage Ordinance,


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STORM WATER RUNOFF


Title XXIV, Snohomish County, Washington (1979) and Ordinance
No. 78-32, Volusia County, Fla. (1978).

SECTION FOURTEEN: SEVERABILITY
Each separate provision of this Ordinance is deemed-independent
of all other provisions herein so that if any provision or provisions of
this ordinance be declared invalid, all other provisions thereof shall
remain valid and enforceable.

SECTION FIFTEEN: EFFECTIVE DATE
This Ordinance shall become effective on

APPENDIX A
REFERENCES FOR STORMWATER RUNOFF IMPACTS AND
CONTROL MEASURES
Amy, Pitt, Singh, Bradford & Lagraff, WATER QUALITY MANAGEMENT
PLANNING FOR URBAN RUNOFF, EPA-440/9-75-004 (NTIS PB 241.689/
AS) (1974).
CH2M Hill, Inc., URBAN RUNOFF CONTROL HANDBOOK, Ada and Canyon
Counties, Idaho (1977).
Day & Gary, Site and Community Design Guidelines for Stormwater Manage-
ment, Va. Water Resources Center, Blacksburg, Va. (1976).
Darnell, IMPACTS OF CONSTRUCTION ACTIVITIES IN WETLANDS OF
THE UNITED STATES, EPA-600/3-76-045 (1976).
Environmental Protection Agency, IMPACT OF HYDROLOGIC MODIFICA-
TIONS ON WATER QUALITY, EPA-600/2-75-007 (1975).
Environmental Protection Agency, NONPOINT SOURCE CONTROL GUID-
ANCE: HYDROLOGIC MODIFICATIONS (1977).
Environmental Protection Agency, PERFORMANCE CONTROLS FOR SENSI-
TIVE LANDS: A PRACTICAL GUIDE FOR LOCAL ADMINISTRATORS,
EPA-600/5.75-005 (1975).
Environmental Protection Agency, PREVENTIVE APPROACHES TO STORM-
WATER MANAGEMENT, EPA-440/9-77-001 (1977).
Environmental Protection Agency, PROCESSES, PROCEDURES, AND METH-
ODS TO CONTROL POLLUTION RESULTING FROM ALL CONSTRUC-
TION ACTIVITY, EPA-430/9-73-007 (1973).
Environmental Protection Agency, THE CONTROL OF POLLUTION FROM
HYDROLOGIC MODIFICATIONS, EPA-430/9-73-017 (1973).
Environmental Protection Agency, URBAN RUNOFF POLLUTION CONTROL
TECHNOLOGY OVERVIEW, EPA-600/2-77.047 (1977).
Environmental Protection Agency, URBAN STORMWATER, MANAGEMENT
AND TECHNOLOGY: UPDATE AND USER'S GUIDE, EPA-600/8-77-014
(1977).


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NATURAL RESO URCES JOURNAL


[Vol. 20


McHarg, DESIGN WITH NATURE, Natural History Press, New York (1969).
McPherson, URBAN RUNOFF CONTROL PLANNING, NTIS no. PB 271548
(1977).
Oberts, Water Quality Effects of Potential Urban Best Management Practices: A
Literature Review, Tech. Bulletin No. 97, Wisc. Dept. of Natural Resources
(1977).
Snohomish County, Washington, STORMWATER MANAGEMENT: PROCE-
DURES AND METHODS (1977).
Tourbier & Westmacott, WATER RESOURCES PROTECTION MEASURES IN
LAND DEVELOPMENT: A HANDBOOK, Univ. of Delaware Water Resources
Center (NTIS PB 236-049) (1974).
Wanielista, STORMWATER MANAGEMENT: QUANTITY AND QUALITY,
Ann Arbor Science (1979).
Wanielista & Shannon, STORMWATER MANAGEMENT PRACTICES EVAL-
UATIONS, East Central Florida Regional Planning Council (1977).
Wildrick, Kuhn & Kerns, URBAN WATER RUNOFF AND WATER QUALITY
CONTROL, Va. Water Resources Center, Blacksburg, Va. (1976).




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