Proposal for a model state watershed management act.

• Author: Ruhl, J.B.

1. INTRODUCTION II. DESIGN PARAMETERS FOR WATERSHED MANAGEMENT LAW III. THE NEED FOR A STATE-LEVEL WATERSHED MANAGEMENT INITIATIVE IV. KEY FEATURES OF THE MODEL STATE WATERSHED MANAGEMENT ACT V. THE PROPOSED INSTITUTIONAL FRAMEWORK A. State Watershed Management Agency B. Regional Watershed Coordination Agencies C. Local Watershed Management Councils VI. CONCLUSION VII. APPENDIX I I. INTRODUCTION

   The progress of watershed management stands at a fork in the political road. It is widely agreed that implementing watershed management, to the extent it grows in importance as an organizing policy foundation, is complicated by the mismatch between watershed boundaries and conventional political boundaries. (7) Finding the right "fit" between the two realms presents difficult choices when constructing political institutions. On the one hand, as we increasingly understand that the "problemshed" of most water quality and water quantity issues corresponds more closely to geographically delineated watersheds, (8) proposals for new watershed-based political structures have grown more focused. (9) On the other hand, many local government authorities have extended beyond their traditional role as land-use regulators into environmental protection and resource conservation, giving many watershed management advocates hope that existing local political structures may play a central role in shaping and implementing watershed management policy. (10) Watershed management, it seems, is as much a political science as it is a physical science. (11)

   The connection between the physical and political dynamics of watersheds has become increasingly apparent. Decades ago researchers demonstrated that land-use patterns within watersheds have a dominant influence on the hydrologic regime, water quality, and physical habitat of streams and rivers, and on the ecological interactions that take place in the aquatic ecosystem. (12) More recently, researchers have targeted restoration of the physical integrity of rivers while using a watershed framework across a wide range of geographic environments, focusing on facilitating the dynamics of rivers as the key to reversing the rapid decline of aquatic ecosystems in the United States. (13) In short, watershed-based problems--including river fragmentation from the construction of dams, the loss of riverine wetlands, and the separation of river channels from floodplains through levees--demand watershed-based solutions.

   Accordingly, the need for watershed-based land-use and resource management has gradually been integrated into concrete policy objectives. The idea itself is not new by any means, (14) and numerous historical antecedents to watershed-based policy frameworks exist, (15) but none are as comprehensive as what we are witnessing today. For example, the most recent Army Corps of Engineers Strategic Plan identifies environmental repair on a watershed basis as one of its primary goals. (16) The United States Environmental Protection Agency (EPA) has recently taken even broader steps than the Army Corps of Engineers by committing itself to pursuing "multi-stakeholder efforts within hydrologically defined boundaries to protect and restore our aquatic resources and ecosystems." (17) This "watershed or 'place-based' approach" is, according to the initiative, "one of the most important environmental guiding principles" for the current administration. (18) At least twenty states have also adopted some form of statewide watershed management policy for purposes of managing at least some aspects of water quality protection. (19) It is not surprising, therefore, that the National Research Council recently concluded that "[m]any factors are converging to cause citizens, scientists, resource managers, and government decisionmakers to look increasingly to watershed management as an approach for addressing a wide range of water-related problems." (20)

   Nevertheless, while the need for a watershed-based approach has become a basic tenet of policy, it is not nearly as clear how to match political structures to the problem so defined. The EPA has established the Watershed Management Council, comprised of representatives from the agency's headquarters and regional offices, to integrate the watershed into the agency's planning and policy apparatus. But the initiative contemplates no explicit federal, state, or local governance structure for watershed management. Indeed, EPA observes that "there can be many variations in the specific approaches states use to implement programs on a watershed basis" and thus declines to suggest a particular watershed management model, leaving it instead for the states to implement "the approaches they find work best for them." (21) Yet, while we applaud EPA's movement toward the watershed approach, we are concerned with the agency's apparent indifference to the absence of a model for the development of state watershed management law.

   Being far from indifferent about the matter, in this Article we take the step of proposing a framework for a model state watershed management law. Our model law establishes a three-tiered governance structure within which the authority, expertise, and accountability for watershed-based decision malting are carefully distributed so as to balance the physical and political realities of watersheds and watershed management. In Part II of this Article, we lay out what we believe are the critical design parameters for any legal framework intended to implement the watershed management approach across large geographic scales. In Part III, we explain our reasons for proposing a model state enabling law rather than either a comprehensive federal regulatory law or a model local ordinance. In Part IV, we outline the basic theoretical underpinnings of the approach we have taken in our model state law. Part V outlines the key features of the model law, providing annotated explanations of and justifications for its critical components.

2. DESIGN PARAMETERS FOR WATERSHED MANAGEMENT LAW

   The objective of treating watershed-based problems through watershed-based political institutions raises many foundational issues. In particular, three themes emerge as critical to the discussion of watershed-based political structures. First, watersheds, even where they can be clearly delineated, come in many sizes, and their different scales often are "nested" in hierarchies of relatedness. (22) In a large riverine system, for example, the cumulative impacts of land-use actions taken in countless small tributary watersheds may have profound impacts in the river mainstem and estuary. Seasonal hypoxia in the northern Gulf of Mexico offers a striking example of such cumulative impacts. (23) Hence, one core issue of watershed management is the scale at which to design watershed-based political institutions and how the related nature of different physical scales can be reflected in political boundaries.

   Second, even using watershed-based political boundaries, water quality and water quantity issues cannot always be described and addressed though intrashed features, or even through exclusively water-based features. Air pollution from sources within or even beyond a watershed's boundary may profoundly affect its water quality, (24) and water supply demands from local or distant populations can impair water availability in a watershed. (25) Yet as the political unit's scope of authority increases both in geographic extent and in subject matter, the institution's legitimacy to effect change at local levels may be more difficult to establish and maintain. (26) Accordingly, once their boundaries are delineated, what is the appropriate geographic and substantive scope of authority for watershed-based political units?

   Finally, as watershed-based political institutions would serve limited purposes, conventional political entities such as cities and counties would surely continue to exist for many other purposes. Presumably, however, some of the authority previously enjoyed by various existing political entities would be transferred to or shared by the new watershed-based institutional structure. Thus, watershed management policy must confront the question of how watershed-based political institutions will be "overlain" on the existing political framework such that these divisions of authority are clear and respected.

   In his sweeping exploration of the state of watershed management initiatives, Professor Robert Adler anticipates these three themes in his discussion of five basic "design issues" for watershed management institutions--the definition of scale, boundary, control, mission, and consistency. (27) The three themes also arise in later studies examining the issue of watershed management in general, (28) as well as in studies of specific watershed projects and settings such as the Chesapeake Bay, (29) watershed groups in California, (30) and in our own interdisciplinary work examining the historical, political, and economic aspects of watershed planning in southern Illinois. (31) Our study of the issue has led us to conclude that several overarching institutional design goals should shape the approach taken to answering these three foundational questions. The institutional design goals are as follows:

   1) The institutional structure for watershed management must enjoy the type of power and authority generally associated with centralized administrative governments, such as the federal or state governments, but must also be capable of establishing democratically based legitimacy at regional and local levels where many regulatory actions are implemented. This requires going beyond federal or state laws enabling local districts to take action. Rather, much like watersheds themselves, a nested hierarchy of interrelated federal, state, and local governmental authorities will be necessary.

   2) The institutional structure must have the authority and the responsibility to manage watershed...