Green Infrastructure for Chesapeake Stormwater Management in a Changing Climate

• Date: 01 February 2018

48 ELR 10150 ENVIRONMENTAL LAW REPORTER 2-2018

Green

Infrastructure for

Chesapeake

Stormwater

Management in a

Changing Climate

by Cynthia R. Harris

Cynthia R. Harris is a Sta Attorney at

the Environmental Law Institute.

Summary

One of the greatest impacts of climate change on the Chesa-

peake Bay Watershed will be the need for stormwater man-

agement. With green infrastructure, the Chesapeake region

is in position to take national leadership on the issue of

climate change impacts to vulnerable coastal communities

and to demonstrate resiliency in the face of change. is

Article examines and addresses potential legal obstacles and

describes the most promising pathways within the existing

legal framework. It recommends specic actions that legis-

lative and regulatory bodies can take to modify the current

stormwater management regime to more easily incorporate

pragmatic consideration of climate change impacts.

The Chesapeake Bay Watershed extends through six

states and the District of Columbia and is home to

almost 18 million people—10 million of whom live

along or near the coastline. e 64,000-square-mile water-

shed stretches over 11,684 miles of shoreline and encom-

passes 150 major rivers and streams.1

e Chesapeake is also distinctly susceptible to the

impacts of climate change—particularly to increasing

ooding and more intense rainstorms. e Northeast

Atlantic shares with Louisiana the highest relative sea-level

rise projection in the United States, at 0.3 to 0.5 meters

(one to 1.65 feet) higher than the global mean sea-level

rise projected for 2100.2 e Hampton Roads region of

Virginia is particularly vulnerable to sea-level rise,3 while

Maryland, with 16 of its 23 counties situated within the

coastal zone,4 is expected to witness a relative sea-level rise

of at least 3.7 feet.5

1. Chesapeake Bay Program, , https://www.chesapeakebay.net/

discover/facts (last visited Dec. 4, 2017).

2. N’ O  A A., G  R S L-

 R S   U S vii, 9 (2017) (NOAA T-

 R. NOS CO-OPS 083) [hereinafter NOAA S L R], avail

able at https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_

and_Regional_SLR_Scenarios_for_the_US_nal.pdf.

3. See H B  ., 2017 CL S S R

(2017), available at http://www.corelogic.com/about-us/researchtrends/

storm-surge-report.aspx?WT.mc_id=pbw_170530_iRNG1#; H

B  ., 2016 CL S S R (2016), available

at http://corelogic.maps.arcgis.com/apps/MapJournal/index.html?appid

=0cd57ed426974442ac928615931803cd; R J. N  .,

O  E C-O  D, E-

 W P N. 1, R P C W H

E  V  C E (2008). While the

Hampton Roads region is noted as being particularly at risk, the degree and

overall ranking of this risk can vary. e often-cited claim that this region is

second only to New Orleans in risk from sea-level rise is not documented.

E-mail from Rob ieler, Director, Woods Hole Coastal and Marine Sci-

ence Center, to Ethan Blumenthal (June 28, 2017) (on le with author);

E-mail from Tal Ezer, Professor of Ocean, Earth, and Atmospheric Science,

Old Dominion University, to Ethan Blumenthal (June 29, 2017) (on le

with author); E-mail from Benjamin Strauss, Vice President for Sea Level

and Climate Impacts, Climate Central, to Ethan Blumenthal (July 5, 2017)

(on le with author).

4. Md. Dep’t of Natural Res., , http://dnr.maryland.

gov/ccs/Pages/md-coastal-zone.aspx (last visited Dec. 4, 2017).

5. S.  T. W G, M. C C C’, U-

 M’ S-L R P 15 (2013), available at

http://www.mdsg.umd.edu/sites/default/les/les /Sea-Level_Rise_Projec-

tions_Final.pdf.

       Green

Infrastructure for Chesapeake Stormwater Management: Tools

for Climate Resilient Siting (2017). It was supported by a grant

          

content. James McElsh led the project and Ethan Blumenthal made

invaluable contributions through his research and editing assistance.

      

        

Program’s Climate Resiliency Workgroup, generously provided their



Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

2-2018 NEWS & ANALYSIS 48 ELR 10151

One of the greatest impacts of climate change, both in

the near and long term, will be on stormwater manage-

ment. Urban areas located in the Chesapeake Watershed

face hazards posed by rising sea levels, severe storm surges,

and more extreme weather events,6 all of which contribute

to increased localized ooding during rain events. is,

in turn, heightens the risk of stormwater facility failure,

resulting in pollutants entering water bodies unimpeded.

From a local governance perspective, climate change

presents a problem of logistics and infrastructure, requiring

one of either two solutions: managed retreat—strategically

6. e Intergovernmental Panel on Climate Change (IPCC) denes “climate

extremes” (also known as “extreme weather” or “climate events”) as “[t]he

occurrence of a value of a weather or climate variable above (or below) a

threshold value near the upper (or lower) ends of the range of observed

values of the variable.” See IPCC, , in M  R

 E E  D  A C C A-

 557 (C.B. Field et al. eds., Cambridge Univ. Press 2012), available at

https://www.ipcc.ch/pdf/ special-reports/srex/SREX- Annex_Glossary.pdf.

Examples of extreme events include heat waves, droughts, tornadoes, and

hurricanes. See Nat’l Ctrs. for Envtl. Info., Nat’l Oceanic & Atmospheric

Admin., Extreme Events, https://www.ncdc.noaa.gov/climate-information/

extreme-events (last visited Dec. 4, 2017).

relocating people and assets away from vulnerable areas7—

or creative adaptation. Yet—and despite numerous emerg-

ing eorts among government, academic, and institutional

actors to recognize and adapt to climate change—incor-

poration of climate change impacts into stormwater man-

agement planning and implementation of related capital

projects has been limited at best. Perhaps most perplexing

is that, in a region maintaining a reputation as a pioneer in

green infrastructure,8 few localities have considered how to

site and utilize green infrastructure practices more strategi-

cally for stormwater management in a changing climate.

is Article focuses on green infrastructure as a solution,

and discusses legal and policy tools that will enable local

governments in Maryland and Virginia—home to almost

70% of the Chesapea ke Watershed’s population9—to site

green infrastructure stormwater management and inltra-

tion projects in locations that maximize the resilience of

these projects to projected climate change impacts, while

also increasing community capacity to handle projected

changes in stormwater resulting from climate change. It

examines the potential legal obstacles to Maryland’s and

Virginia’s state and local governments that may consider

spearheading innovation in this area, and explores oppor-

tunities to establish binding siting guidelines. I review the

most promising pathways within the existing legal frame-

work, and recommend specic actions that legislative and

regulatory bodies can take to modify the current stormwa-

ter management regime to more easily incorporate prag-

matic consideration of climate change impacts.

I. Green Infrastructure and Local

Stormwater Management

A. Introduction to Green Infrastructure

Developed areas are a major source of water pollution

because of the high quantity of runo produced by imper-

meable surfaces, such as asphalt and concrete. ese sur-

faces prevent water from being absorbed into the ground

and ltered naturally.10 Unmanaged stormwater can cause

erosion, more loca lized ooding, and greater amounts of

pollutants entering into waterways, as stormwater—rain or

7. See Miyuki Hino et al., ,

7 N C C 364, 364 (2017), abstract available at http://

www.nature.com/nclimate/journal/vaop/ncurrent/full/nclimate3252.html.

8. Green infrastructure is an environment-oriented method of managing

stormwater runo. U.S. Envtl. Prot. Agency (EPA),   

, https://www.epa.gov/green-infrastructure/what-green-infrastruc-

ture (last updated Aug. 14, 2017).

9. Chesapeake Bay Program, Population Growth, http://www.chesapeakebay.

net/issues/issue/population_growth#inline (last visited Dec. 4, 2017).

10. See U.S. EPA,    , https://www.epa.gov/nps/

nonpoint-source-urban-areas (last updated Mar. 31, 2017).

Figure 1. Map of the Chesapeake Bay Watershed

Source: Kar l Musser, WIKIMEDIA COMMONS, h ttps://comm ons.wiki-

media.org /wiki /.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.