United States Environmental Protection Agency Off ice Of The Administrator (A-101F6) EPA 101/F-91/052 April 1991 v»EPA Growth Management Planning In New England The Role Of EPA #906103 -e- Printed on Recycled Paper ------- Growth Management Planning in New England: the Role of EPA Prepared for the US Environmental Protection Agency, Region I Water Management Section By Edward Prewitt Research Fellow, National Network of Environmental Management Studies program ------- DISCLAIMER This report was furnished to the U.S. Environmental Protection Agency by the student identified on the cover page, under a National Network for Environmental Management Studies fellowship. The contents are essentially as received from the author. The opinions, findings, and conclusions expressed are those of the author and not necessarily those of the U.S. Environmental Protection Agency. Mention, if any, of company, process, or product names is not to be considered as an endorsement by the U.S. Environmental Protection Agency. ------- Table of Contents Abstract i Introduction 1 An overview of growth management in New England .: 2 The importance of growth management 2 Specifics of growth management 4 Growth management statutes in New England 6 Local level 6 Regional level 7 State level 10 Federal involvement in growth management 12 Lessons for EPA 17 The necessity of local control 17 The need for federal participation 19 The argument for EPA 20 Technical expertise 20 Experience 21 Prestige and notoriety 21 Money 22 Recommendations 22 Siting controversial pollution facilities 24 Writing model ordinances 24 Focusing efforts on the state and local levels of government 24 Achieving federal consistency 25 Emphasizing the geographic initiative approach 25 Emulating the Waquoit Bay study 25 Funding GISs 26 Publicizing the issue of growth management 27 Conclusion 27 Bibliography 28 ------- Abstract Increasingly, land use planning for growth management is seen as the only solution to the environmental degradation accompanying rapid economic growth in New England. In particular, growth management is viewed as the best preventative of non-point source pollution, which former EPA administrator Lee Thomas has called the agency's "largest chunk of unfinished business." Because most growth management ordinances are relatively new, the hierarchy of authority among the different levels of government and private citizens is unclear. This report seeks to ascertain the proper role of EPA. It examines the experience of growth management initiatives in New England, the general requirements of growth management, and the philosophical basis of federal involvement in land use. The majority of growth management activities have occurred at the local, regional, and state levels. EPA's extensive and vital involvement in growth management has been in cooperation with other levels of government in every case examined. EPA is on the right track in doing so. Its strengths with respect to growth management, and the basis for its involvement, lie in its technical expertise, experience, prestige and notoriety, and funding. The eight recommendations herein are based on those strengths. This report has been prepared by Edward Prewitt, a master's degree candidate at the John F. Kennedy School of Government at Harvard University, during the latter half of 1990 at the request of Bartlett Hague. Mr. Hague is the Chief of Environmental Quality in the Water Management Section of the United States Environmental Protection Agency, Region I. The research was paid by and conducted under the aegis of EPA's National Network for Environmental Management Studies program. The opinions herein are the author's, and are not necessarily shared by Mr. Hague or EPA. ------- ------- Introduction As economic development surged in New England in the late 1980s, interest resurged in "growth management," an encompassing phrase that first came into use in the 1960s and is now today gaining currency as a long-term solution to the problems that accompany growth. Towns and cities; private organizations; regional planning agencies; the states of Vermont, Maine, Rhode Island, and Massachusetts; and EPA all have worked to define growth management and suggest actions. The problems of growth are clear, and the definition and recommendations of growth management are relatively established; what remains is the implementation of those recommendations. Implementation is, of course, the most difficult part. No amount of paper and talk will do good until actions result: protecting open space, setting aside buffer areas near water bodies, overlaying zoning plans, shutting down combined sewer overflows (CSOs) and building improved waste treatment plants, for example. Some of the growth management actions proposed are relatively simple, such as finding money for waste treatment plants; but others, such as finding the will and cooperation to set and enforce performance standards, strain the political power of New England institutions. Difficulty of action is compounded by the lack of clarity over authority. Protection of navigable waters and wetlands is traditionally a federal responsibility. States pass zoning and land-use laws, which are administered by municipalities. Fertilizer use — a significant component of runoff into lakes and bays — is, of course, left to the private landowner. The question inevitably rises: who will take the lead in growth management? 1 ------- This report is sponsored by the US Environmental Protection Agency. As the nation's largest environmental organization (measured by operating budget) and the arm of the federal system that is charged with thinking about such matters, EPA obviously is interested in growth management. This report examines EPA's proper role in the matter. It does so by studying the experience of growth management initiatives in New England, the requirements of growth management, and the philosophical basis of federal involvement in land use. An overview of growth management in New England The importance of growth management The pollution, congestion, sprawl, and loss of open space accompanying rapid development in several parts of New England have been met with sweeping statutes for land-use control. The Cape Cod Commission Act, passed in March 1990 by Cape Cod residents to control some of the highest growth rates in New England, gives a land-use body the authority to plan for the provision of affordable housing, economic development, historic preservation, jobs, recreation, coastal resource protection, open space, and waste disposal.1 The direct interest of EPA and environmentalists clearly is limited to the last three items. Similarly, the legislation for Maine's 1988 Growth Management Law, as the bill has been dubbed, contains ten goals for local and state planning. Among them are providing affordable housing, creating jobs, and protecting rural character, in addition to protecting forests, freshwater and marine resources, and wildlife habitats.2 While all these goals, including the non-environmental ones, are 1 The Commonwealth of Massachusetts, Department of the Attorney, "Summary of an Act Establishing the Cape Cod Commission" (Boston, Mass.), p. 2. 2 Maine Municipal Association, "Growth Management Legislation" (Augusta, Me.), pp. 1-2. 2 ------- certainly good and admirable, the aspect of growth management that is particularly important to environmentalists is the statutory emphasis placed on land use control. With such power, growth management regulations have the potential to prevent and turn back "non-point source pollution," which EPA has recognized as a growing and unanswered environmental threat. In a report issued when he left office in 1989, former EPA Administrator Lee Thomas called non-point source pollution EPA's "largest chunk of unfinished business" and said it accounts for 60 percent of water pollution in the US.3 Paul Keough, Deputy Regional Administrator of EPA's New England region, Region I, in a speech on "Growth Management: A Key to New England's Environmental Future," noted that: Having spent over a quarter century restoring waters from [factory] pipe pollution, we face the challenge to anticipate and prevent another round. of pollution from non-pipe land runoff and infiltration into groundwater; we must protect wetlands, critical habitat, and landscapes.4 Defined simply, non-point source pollution is air or water pollution that is diffuse and does not discharge through a pipe. Examples include runoff of fertilizer from farms and yards, runoff of toxic chemicals from parking lots and construction sites, and the combined exhaust of thousands or millions of cars. Though the diffusion and variety of non-point sources makes generalization difficult, one thing that can be said is that they tend to grow proportionally with population density. The often banal nature of 3 Bob Cummings, "'Non-point' pollution difficult to control," Maine Sunday Telegram (Portland, Me.), September 10, 1989. 4 Bart Hague, US EPA, Region I, Water Management Division, Chief of Environ- mental Quality, "Growth Management: A Key to New England's Environmental Future,"speech text for Paul Keough, then-Acting Regional Administrator, US EPA, Region I (Boston, Mass.), p. 1. 3 ------- single non-point sources belies their lethal cumulativity. Their effect in the Gulf of Maine, for instance, has been declining species of wildlife such as the right whale; liver lesions and fin rot in fish and shellfish; and health advisories both for swimming in coastal waters and for eating fish caught in the Gulf, which historically has been one of the country's most important fishing grounds.5 The hope is that growth management statutes and regulations, by regulating land development and management and the siting of buildings, will be the avenues for prevention and control of this difficult category of pollution. Indeed, growth management may be the only route if our efforts against non-point source pollution are to have the success garnered by the long campaign against factory pipes. Specifics of growth management Growth management is described in a recent EPA handbook on the subject as "the use of planning, zoning, and other forms of land use control to direct the quality, rate, and location of a community's development."6 Although this definition is correct, a more helpful distinction can be made between the planning regulations of the past and a new class of statutes. For underlying growth management is a sense that zoning is not enough to protect against environmental degradation; that "build-out" of New England — growth and development of communities to the full extent allowable in a zoning plan — would be ecologically and aesthetically disastrous. Thus another EPA-sponsored report on growth management 5 Katrina Van Dusen and Anne C. Johnson Hay den, Maine State Planning Office, "The Gulf of Maine: Sustaining Our Common Heritage" (Augusta, Me.), p. 5. 8 Brian Morrison et. al., Industrial Economics, Inc., "Protecting Wetlands and Coastal Waters: A Land-Use Guide for Growing Communities," second draft (Cambridge, Mass.), p. 1-1. 4 ------- differentiates between "the hundreds of zoning ordinances and bylaws, subdivision and health regulations" that have long been available to communities; and, more recently conceived, "a group of mechanisms...[g]enerically labeled as regulatory tools..."7 with the potential for alleviating non-point source pollution. The latter phrase is applied to such imaginative techniques as: • transfers of development rights, known as TDR programs, in which the bundle of legal rights that accrues to each parcel of land is split into portions, which are sold • "land banks," formed when taxes on private interests in land go to buy property for public ownership • impact fees for expected harmful effects of development • "performance standards," based on the establishment of carrying capacities for pollution • catch basin maintenance and other drainage requirements • limits on lawn fertilizer application • prohibitions of land uses involving toxic chemicals • "overlay" groundwater and surface water protection districts • vegetative buffers around buildings and subdivisions • health board reviews of development, in addition to building safety inspection • special permit requirements for environmentally harmful structures and uses • required sewage system upgrades 7 Mary Jo Moubry and Jon Witten, Horsley Witten Hegemann, Inc., "Water Quality Protection Through Growth Management in Buzzards Bay" (Cambridge, Mass.), p. 1. 5 ------- This list is not exhaustive.8 (Although some of these techniques come under the heading of zoning, they are distinguished from traditional zoning by their emphasis on protection of environmental amenities instead of property values.9) Growth management statutes in New England Most of the above techniques and then some are employed at various spots in New England. At the local level, TDR programs have been set up by municipalities in three different parts of Massachusetts: Falmouth, on Cape Cod, for water resource protection; Townsend, in central Massachusetts, for preservation of scenic views; and Sunderland, in the western part of the state, for the protection of agricultural land. In Maine, the State Planning Office has proffered a TDR plan for the shoreline of Moosehead Lake, the largest lake in the state. (Controversy over the TDRs, however, has left the plan unresolved for two years.10) Nantucket Island created its well-known land bank in 1983. Falmouth and Mashpee, Massachusetts, have passed ' performance standards for housing subdivisions' contribution to water bodies of nitrogen and phosphorus, which cause eutrophication. In Vermont, where development pressures are less intense but nevertheless worrisome, Conservation Commissions in the towns of Randolph and Williston have inventoried agricultural lands and open space, respectively, in order to protect those environmentally sensitive and aesthetic areas. 8 For a succinct discussion of different growth management techniques, see Moubry and Witten, pp. 17-26. 8 It should be noted that the legal basis of zoning is limited to furtherance of public health, safety, morals, or the general welfare. Since the establishment of zoning in the 1930s, however, much of its popular support has stemmed from the manner in which it boosts private property values. 10 Christina Tree, "Moosehead Lake," The Boston Sunday Globe (Boston, Mass.) August 19, 1990, p. Bl. 6 ------- The town of Narragansett, Rhode Island, after inventorying its land, designated overlay districts for coastal waters and wetlands, "where natural physical limitations render the land unsuitable for development without restriction."11 Ecology and human health are the stated bases for protection of the districts. North Kingstown, Rhode Island, .applies a density formula to proposals for housing subdivisions that are within critical watersheds or that lay over sensitive groundwater. These are but a few examples of the diversity and extent of local GM ordinances in New England.12 Growth management efforts at the regional level have been quite notable in several instances. Regional structures, which here means organizations representing areas smaller than states, seem to come in two forms. Regional planning agencies (RPAs), formed in the 1960s to administer federal grants, represent groups of municipalities within single states; most states in New England contain and are constituted of several RPAs, which vary greatly in levels of activity. More recently, regional organizations have been established to protect specific environmentally sensitive areas such as bays or rivers. This latter angle, called the "geographic initiative" approach, has resulted in several impressive gains. One private group with the geographic initiative mien is Maine's Lakes Environmental Association, headquartered in the town of Bridgton. In 1987, LEA's concern over algae blooms in several large lakes in the rapidly growing southern portion of the state led to its Long Lake Watershed Study, funded primarily by EPA Region I and overseen by the Maine Department of Environmental Protection. The result was the 11 Appendix B, Narragansett Code (Narragansett, R.I.), p. 1823. 12 For a comprehensive register of local growth management efforts across the United States, contact the Lincoln Institute of Land Policy, Cambridge, Mass., which has been conducting research on the matter for several years, including the compilation of a database. 7 ------- development (by Maine DEP) of the Lake Vulnerability Index, a mathematical model which provides the carrying capacity analysis that is necessary for performance standards. Yankee magazine has described the index as a "program that can be plugged into anyone's computer and, with enough information about a lake's health, can predict how much more development that lake can stand."13 Another regional organization taking the geographic initiative perspective is the Great Bay Estuarine System Conservation Trust, a private group in New Hampshire. The trust's work has led the New Hampshire Office of Planning, with the cooperation of the National Oceanic and Atmospheric Administration (NOAA), to establish the Great Bay National Research Estuarine Reserve, which is essentially a buffer zone of 500 acres and growing in populous coastal New Hampshire. In north-central Massachusetts, the non-profit Nashua River Watershed Association has recently revitalized its greenway project, which seeks to persuade owners of riverside land to donate a 300-foot buffer to a conservation trust. Total donations stand at 84 miles out of 194 total miles of river bank. New England's many geographic initiative organizations usually are well focused on an issue, which gives them a force that often leads to success. But their voluntary and transient nature inevitably leaves gaps in the prosecution of growth management. Eliminating non-point source pollution requires diligence and "micro"-management, which calls for full- time, expert action. The RPAs of New England, with their planning staffs and experience, have a role to play. From this perspective, then, it is unfortunate that RPAs have little political power and even less prominence in most of New England. This Edie Clark, "The Race for Clean Lakes," Yankee (Boston, Mass.), June 1990, p. 120. 8 ------- may stem from their historic basis as administrators of federal grant programs, disbursed first by the Office of Housing & Urban Development and later by EPA, which dried up. Many RPAs never recovered; those that have, survived by doing planning studies for hire. Adding to the difficulties of RPAs is the renowned unwillingness of New. England municipalities to give up control. One RPA that has bucked the trend and prospered, perhaps because it represents the fastest-growing area in Maine, is the Southern Maine Regional Planning Commission. While it does hire out its services to member municipalities, SMRPC has continued to focus on land-use planning and related water quality planning, according to executive director Madge Baker. A report, "1990: A Plan for Southern Maine," calls for, among other things, TDR programs and performance standards for development. It is worth noting, however, that the great majority of the plan's 89 recommendations require action by municipalities rather than by the SMRPC itself. "We have no power," Baker says.14 "It's up to the towns to act." The exception to that rule of political power for RPAs — and the most successful instance of growth management planning in New England — is the Cape Cod Commission. Formerly the Cape Cod Planning and Economic Development Commission, which was the RPA for the 15 towns of Cape Cod, the commission assumed regulatory authority on March 28, 1990, after a referendum. Following the lead of Martha's Vineyard, the commission has spent its first year deciding which areas to name Districts of Critical Planning Concern and which building projects to name Developments of Regional Impact. DCPC is the designation of most interest to growth management From a personal interview. ------- advocates; all development in environmentally sensitive areas such as watersheds and water supply districts is subjected to commission review. In addition, the enabling act provides for a geographic information system (GIS), an expensive computerized mapping system that puts land-use data such as soil types, groundwater drainage patterns, topography, and population density into easily-read forms To find attempts at growth management that match the Cape Cod Commission in thoroughness, one must look to the state level. In 1988 Vermont supplemented an earlier 'planning act, Act 250, with Act 200, known as the Growth Management Act of 1988. The former was felt to be falling short of its designers' goal, which was to provide long-range planning for growth. In response, a gubernatorial commission headed by Douglas Costle, former chief of EPA, held hearings around the state. The result was 32 planning goals, of which more than a third were environmentally-oriented, such as: "Special resource areas shall be identified, development shall be planned so as to protect and preserve them and, when necessary, they should be placed in whatever form of public or private ownership that would best maintain and utilize their value to the public."15 The unwieldiness of 32 goals has since prompted the legislature to reduce the number to a dozen. Act 200 provides money, funded by a statewide property tax increase, to encourage (but not require) towns to write comprehensive plans that are consistent with the 12 goals. The law strengthens RPAs by requiring towns to work with them, and by giving them authority to write regional plans. Lastly, part of the extra tax 16 Vermont Department of Housing and Community Affairs, "Vermont's New Act 200 for Growth Management — A Citizen's Guide" (Montpelier, Vt.), p. 7. 10 ------- revenue has gone for the development of a GIS. Maine's Growth Management Law, as described at the start of this report, contains ten planning goals. As in Vermont, the state government in Maine has given the right and the burden for planning to the municipalities and RPAs. Using state money, municipalities are required to write Comprehensive Plans which demarcate growth areas and rural areas. Standard zoning laws apply to the former, but in the latter ...protection should be provided for agricultural, forest, open space, and scenic lands within the municipality. Each municipality shall adopt land use policies and ordinances to discourage incompatible development. These policies and ordinances may include, without limitation, density limits, cluster or special zoning, acquisition of land or development rights [TDR programs], or performance standards...16 Maine's ten RPAs have the responsibility of reviewing the completed plans, to ensure that neighboring towns act consistently. That requirement has driven the cities and towns to work with the RPAs from the beginning of the process. In the fall of 1990, for instance, the Greater Portland Council of Governments RPA was assisting nine of its 21 member municipalities with their Comprehensive Plans, according to GPCOG planning director Mathew Eddy. Such an incentive for cooperation with RPAs is wise; the technical expertise required for good growth management planning may be missing, otherwise. Massachusetts, the most heavily developed state in New England, lacks a statewide growth management law. A commission created last year by the state legislature has called for mandatory comprehensive planning, however, after the pattern of the Cape Cod Commission and the Maine Municipal Association, "Growth Management Legislation," p. 4. 1 1 ------- Martha's Vineyard Commission. The commission's report recommends creation of a new administrative bureau to oversee 11 goals for growth management.17 State budget constraints have thus far prevented serious discussion of the report. Lastly, in their laws for the protection of wetlands, the states of Connecticut, Maine, Massachusetts, and New Hampshire all have given municipalities a preeminent role. Nearly all cities and towns in Connecticut have wetlands boards to implement the Inland Wetland and Watercourses Act. A similar process occurs in the other states. New Hampshire also has a Lakes and Great Ponds program, in which towns or groups of towns can request state assistance in writing pollution control management plans for watersheds Federal involvement in growth management The remaining category in this digest of growth management is, of course, the federal level. Properly speaking, this section should be quite short: direct federal involvement in growth management ordinances has been rare. Rather, EPA Region I devotes itself to assisting states, regions, and municipalities. This indicates that it is on the right track, as will be discussed. Just two years after EPA was formed, and before the term "growth management" came into use, a charter section of the 1972 federal Clean Water Act directed the agency to involve itself with planning growth. Under §208 EPA gave large sums of money to RPAs, via state governments. The RPAs were to promote orderly, environmentally sound growth by working with municipalities. Because RPAs have no regulatory power, however, many of their plans went unheeded, and §208 is now viewed by 17 The Commonwealth of Massachusetts, "Special Commission on Growth and Change: Final Report" (Boston, Mass.)- 12 ------- many as a great failure. (RPA planners nevertheless remember the period wistfully.) Since then, EPA Region I has taken two different approaches: on the one hand, granting money and substantial discretion to state Departments of Environmental Protection (DEPs); and at the same time creating or assisting in "geographic initiative" projects. The former activity takes place under §205(j)(5), §319, and §320 of the Clean Water Act. DEPs apply for grants for specific projects, and oversee the subsequent projects. In the words of a 1988 Region I task force on non-point source pollution, "[o]ver the last 15 years, the States have assumed an increasingly greater level of responsibility for daily program implementation and enforcement activities."18 A sizable portion of the §205(j)(5) funds are supposed to be passed down to municipalities for studies of their own. (In order to receive grants, states are required to write plans for the management of groundwater and non-point source pollution. Under the Clean Water Act, EPA must review the plans. Where states refuse to draw up plans, EPA can do so in their stead. But in an inconsistency, Congress has not given EPA specific authority to implement management plans where states have been recalcitrant.) Geographic initiatives are currently in evidence mostly around the coasts of New England. In 1984 EPA Region I began a research program on groundwater protection called the Cape Cod Aquifer Management Program (CCAMP), in coordination with the now-transformed Cape Cod Planning and Economic Development Commission. Several reports were produced — typical titles were "Truro/Provincetown Aquifer Assessment and Groundwater Protection Plan" and "A Mass-Balance Nitrate Model for Predicting the Effects of Land Use on Groundwater Quality in Municipal 18 US EPA, Non-Point Source Task Force,"Issue I: Federal/State Partnership/ (Washington, D.C.), P- 1- 13 ------- Wellhead Protection Areas" — that have led to some growth management ordinances passed by the affected towns, and that contributed to the political atmosphere in which the Cape Cod Commission Act became law. EPA Region I and Cape Cod Commission officials both term CCAMP a very successful federal/regional cooperative project. In an attempt to replicate that cooperation, EPA Region I has engaged in a similar study at Waquoit Bay, a small inlet at the southwestern corner of Cape Cod that the NOAA previously had designated a National Estuarine Research Reserve. The bordering towns of Falmouth and Mashpee expressed interest, and the state of Massachusetts and the National Science Foundation were persuaded to join (in fact, the Massachusetts Division of Water Pollution Control was already studying the bay), resulting in an extraordinary coalition. The goal of the Waquoit Bay project is to develop a computer-based tool and handbook for predicting impacts of land use decisions on water quality and aquatic resources, and graphically illustrate these impacts in a convincing fashion. At present, no such tool exists and land use decisions (e.g. zoning) often are made in the absence of an understanding of cumulative impacts. The first use of this tool will be by the Cape Cod [Commission] and the towns of Falmouth and Mashpee to assess the adequacy of zoning in [Waquoit Bay's] critical watershed.19 If achieved, this goal will result in a far more scientific quantification of the sources and causes of water pollution, especially non-point source pollution, than has been previously attainable, according to EPA Region I " US EPA, Region I, "Waquoit Bay Land-Margin Ecosystem Project: Impacts of Land Use on Water Quality," (Boston, Mass.), p. 2. 14 ------- employee Bruce Rosinoff, who works at the Buzzards Bay project. At about the same time as CCAMP, the headquarters office of EPA announced a new endeavor, the National Estuary Program, to be conducted in conjunction with state, regional, and local agencies. Three of the first four estuaries chosen for study are in New England: Buzzards Bay, Long Island Sound, and Narragansett Bay. Maine's Casco Bay joined the list in June 1990, with a budget of $500,000 over five years. Massachusetts Bay was added shortly thereafter. The Buzzards Bay Project was the first to come to fruition, in late 1990. Its management plan has identified and recommends fixes for the major pollution problems in the bay: human wastes, excessive nutrients, and toxic metals and chemicals. In addition to action plans for specific pollutants, the plan proposes that growth management mechanisms be broadly applied. The individual action plan recommendations alone are not sufficiently protective; inherent in each set of recommendations is an understanding that a holistic approach to water quality protection is needed. The cornerstone of such an approach is land-use planning for growth management.2 20 Among the mechanisms suggested are: overlay ground/surface water protection districts for drainage basins, performance standards for protection against nitrogen loading, vegetative buffers to collect stormwater, and cluster zoning for the preservation of open space. The hope is that, with officials from the local, regional, state, and federal levels on the management committee, the report's recommendations will be put into law. 20 US EPA, Region I, and Mass. Executive Office of Environmental Affairs, "Buzzards Bay Comprehensive Conservation and Management Plan," (Boston, Mass.), p. 129. 15 ------- EPA Region I has embarked on several other geographic initiative projects of note: at the Blackstone River, in Massachusetts and Rhode Island; at the Merrimack River in New Hampshire and eastern Massachusetts; and at Lake Champlain, in northern Vermont and New York. All of these programs have resulted in cooperation between federal, state, and local agencies and private organizations. A recent meeting for the Blackstone River project drew representatives from EPA, the state of Rhode Island, four Massachusetts state offices, two private groups, and one university21. In the Lake Champlain instance, EPA Region I has entered into an agreement with Region II, which holds responsibility for New York state. As previously noted, EPA has helped fund the Lake Vulnerability Index created in Maine. In addition, EPA has joined the Rhode Island Department of Environmental Management in funding an organization called the Land Management Project, which was established to provide technical assistance to communities in addressing growth management and nonpoint source control issues during the statewide comprehensive planning process. The project is promoting new principles of "sustainable growth" appropriate for volunteer town governments and is evaluating data and testing strategies to use in overcoming specific obstacles to change in land management/growth management practice.22 This project offers free advice, assistance, and training to town governments on the environmental consequences of their land and water uses. If the Land Management Project is successful in its goals, then EPA 21 US EPA, Region I, "Summary of the Blackstone River Meeting" minutes (Boston, Mass.), Attachment 1. 22 Jennie Myers, Land Management Project director, "The Land Management Project" leaflet (Providence, R.I.). 16 ------- through its funding truly will have contributed to growth management efforts in New England. Lessons for EPA The necessity of local control The individualism and singular character of the New England Yankee tradition can be well summed in one phrase: private property rights. At the heart of growth management exists a dilemma over the need for governments at all levels to respect the autonomy of private property owners versus the need to reign in environmentally unsound uses. The dilemma becomes more pronounced as pollution becomes more diffuse; for example, government officials would be loathe to contend that regulation of lawn fertilizer use is warranted to prevent non-point source pollution. The numerous EPA reports and comments on the subject of growth management recognize well that property owners in the US dislike being told what to do: The desire for home rule and local control over local concerns is a powerful theme in American history. People generally believe that they know what is best for them — that local problems are best addressed by local solutions. Land use issues often present prime examples of this attitude.23 The NPS [non-point source pollution] problem inherently requires that the private sector... contribute to its solution.24 What is recognized less clearly, perhaps, is an equally important point: responsibility and ownership of land spark a sense of caring about it. The 23 Brian Morrison et. al., Industrial Economics, Inc., p. 1-6. 24 US EPA Office of Water, "Final Report on the Federal/State/Local Nonpoint Source Task Force...," p. 18. 17 ------- Wall Street Journal, objecting to a criticism by EPA Administrator William Reilly of "mainstream attitudes about private property," comments that tt[a]s Soviet reformers know, private property rights lead to a cleaner environment because they imply individual responsibility. Maybe what Bill Reilly and his EPA colleagues need is a couple of years studying Lake Baikal to remind them."25 The snideness of tone in The Wall Street Journal notwithstanding, there are compelling reasons for leaving land-use control at the levels of governance closest to the locality. Non-point source pollution problems differ from town to town, depending on population density, proximity to water, water supply, and other factors. Local and regional officials are in the best position to know these peculiarities, and to promulgate custom- tailored regulations. Furthermore, the local level of government traditionally has had responsibility for siting public facilities, which are an important element in the management of growth. This high level of detail needed for the administration of successful growth management leaves federal and sometimes even state officials in a poor position to monitor and enforce regulations. Thus growth management ordinances, even more than other types of regulations, require that a large proportion of the people affected be convinced that it is in their interest to comply. Local-level officials are able both to know when that is the case, and to persuade their constituency of the necessity of growth management. Of course it is also true that private property rights have a powerful legal ally: the Fifth Amendment of the US Constitution, which prohibits the taking of property without compensation. Federal courts periodically reinforce the conclusion that the "taking" issue is not to be overlooked. In 25 Editorial, "EPA v. Private Property," The Wall Street Journal (New York, N.Y.), August 27, 1990, p. A10. 18 ------- decisions last year, the US Claims Court ordered the federal government to pay $3.7 million to two property owners, when the Army Corps of Engineers' refusal of permits for development on wetlands in Dade County, Fla., and Long Beach Township, N.J., was found to be unwarranted.26 The need for federal participation Yet it is often true that the complexities of non-point source pollution overwhelm the purview of municipalities. The issue is characterized nicely in an early report on growth management by the state of Massachusetts: ...communities recognize that developments of regional significance do exist, but these same communities are adamant about the need to maintain local control over such development. Nevertheless, there is a clear recognition that certain problems, such as solid waste and water supply, can be effectively addressed only through some form of inter-municipal cooperation.2 27 In the terms of natural resource economics, the effects of pollution are frequently "external" to the property owner. That is, pollution disperses from property that an owner cares about and pays to keep clean, and permeates an outside area. The eventual result — whether dispersal is intentional or inadvertent — is that "commons" areas, such as surface water, groundwater, and air, become disposal sites for pollution. Continuing the economic analysis, there are two types of responses to degradation of commonses: either private property owners voluntarily join in agreement to clean up and protect the adjacent commons, or a "sovereign" body with authority over all the landowners is created to 26 "EPA v. Private Property," The Wall Street Journal. 27 The Massachusetts Office of State Planning, City and Town Centers: A Program for Growth — The Massachusetts Growth Policy Report (Boston, Mass.), p. 9. 19 ------- direct the cleanup. Private organizations such as the Nashua River Watershed Association reflect the former reaction. But because enforcement is assured, the latter response generally is more effective, and is far more prevalent in our society. EPA and all government agencies at every level are examples. The argument for EPA When agencies are seen in this light, the obvious ensuing question is: what peculiarities of EPA make it stand out over other governmental bodies with respect to preventing non-point source pollution? Put more simply, what is the basis of EPA's involvement with growth management? The answer lies in EPA's claim on several factors that are usually lacking in agencies at other levels and private organizations: technical expertise, experience, prestige and notoriety, and money. EPA's technical expertise is a valid form of federal intervention/assistance because the techniques of growth management require training and experience to implement. In particular, the scientific studies necessary to an understanding of the relationships between non- point source pollution and degradation are beyond both the reach and purview of most municipal or even state-level organizations. EPA's studies of non-point source pollution, particularly those with the geographic initiative perspective, give its employees critical know-how. The study of Casco Bay under the National Estuary Program, for example, has the potential to reveal fundamental information to towns in Maine, according to Jacki Cohen, town planner of Freeport. "We have no idea if anything we're doing impacts the bay because we don't know how currents work," she says.28 "I hope [EPA] will use the Casco Bay study as an 28 From a personal interview. 20 ------- example of how to go about non-point source control." EPA studies have potential for providing scientifically defensible information that municipalities, regional organizations, and states can use in writing growth management ordinances and regulations. Local-level and regional-level officials cite the Waquoit Bay study, especially, as research of great value for that purpose. "The real appeal of [the Waquoit Bay study] is that specific information — like how do nutrients get in [to water bodies, where they precipitate eutrophication], how much nutrient degrades the bay, and how would you manage it if you knew how to — can be learned here that can be applied to a lot of other sites," says Armando Carbonell, executive director of the Cape Cod Commission.29 EPA's experience in dealing with non-point source pollution (which is a function of its technical expertise, of course) has resulted in an important bank of knowledge. The example of §208 shows what is politically wise to do and what is difficult; the geographic initiative studies are showing what has to be done. EPA's experience is further valuable to those working on growth management issues because the complexities of the subject have not yet been fully realized by many. The tendency is to expect growth management statutes to deal with environmental degradation with the same degree of precision applied to point sources of pollution. This mistake has been apparent at all levels of government: witness the futile clauses of the federal Clean Air Act and its amendments over the last 20 years on the ambient air pollution from automobiles. The prestige and notoriety of EPA come into play because of the aforementioned requirement, particularly strong with growth management statutes, of convincing citizenries that necessary constraints are in its 29 From a personal interview. 21 ------- interest. Fears about unplanned growth frequently are overmatched against the American and New England tradition of strong private property rights. In our busy society, local-level or even state-level pronouncements on the dangers of runoff are rarely given much attention. EPA's comparatively high profile on environmental matters gives a publicity boost to the issues which it establishes as priorities. Were EPA's community relations divisions to publicize growth management as they have the danger of radon, for example, the local, regional, and state officials responsible for implementing growth management laws might find their constituencies more receptive. Finally, EPA's money continues to be necessary to fund the geographic initiatives that are beyond the scope of other levels of government. It is conceivable that state DEPs could bring the proper "watershed" perspective to growth management studies, but given their long-time reliance on EPA for funding of non-point source assessment and groundwater management studies and a host of other programs, it is politically unlikely that state DEPs will do so in the near future. That likelihood is compounded by the current budget shortfalls in most New England state governments. If EPA does consider non-point source pollution its biggest piece of unfinished business, then it should apply its efforts and money toward resolution. Recommendations The recommendations of this report follow from the section above. As a preface, however, it is important to note that one course EPA should not follow is that of enforcer of growth management mechanisms and 22 ------- regulations30 . It is true that EPA would be on solid legal ground in doing so: public health and safety are the two most concrete bases for exercises of police power; and the requirement of a nexus between public purpose and regulation, set by the US Supreme Court in its two famous 1987 cases31 on the taking issue, is clearly met.32 As previously discussed, though, control of land use is a cornerstone of the powerful theme of home rule. Federal involvement in land use probably would be construed as federal interference, quickly evoking an emotional and detrimental reaction. Indeed, land use control by governments at any level is likely to be slandered as anti-democratic, as illustrated by the comments of a Vermont state senator on Vermont's Act 200: What the Act 200 people want is that every town should plan in accordance with 32 state-deemed goals drawn up by the environmentalists and the affordable-housing advocates. The goals protect "special areas." What are "special areas"? Who the hell knows? It's something that some planner thinks is special.33 This serves to highlight the centrality of public cooperation to the success of growth management, as well as the central role played on the local level by persuasion. It also illustrates the inevitably controversial nature of attempts at growth management. 30 This judgment excludes EPA's review of major developments under the National Environmental Policy Act of 1969 (NEPA). The agency's function in that case is commentator and overseer, not administrator — an important distinction. 31 Nollan v. California Coastal Commission. 107 S.Ct. 3141 and First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 107 S.Ct. 2378. 32 Gail Osherenko, Esq., "Where Will the Taking Issue Take Vermont?," Vermont Environmental Report. Vermont Natural Resources Defense Council (Montpelier, Vt.), p. 8. 33 "John McClaughry" interview, Vermont magazine, March/April 1990, p. 69. 23 ------- Perhaps the one activity relating to growth management in which EPA should directly intervene is siting controversial pollution facilities. Although it has been loathe to get involved in this sticky issue, the federal government seems to be the only level of authority capable of overcoming political deadlock. In economic terms, EPA is the sole authority with potentially "sovereign" power in this instance, and therefore the only organization capable of acting effectively. Julie Belaga, EPA Region I Administrator, has shown her organization's potency by requiring that a cleanup schedule be set for Boston Harbor, complete with dump sites. That requirement has not come without debate, but it has been effectuated. EPA does have a role in assisting with the structuring of state, regional, and local regulations. Growth management statutes are still new, and the lessons from various codes around the nation could stand collection and cataloging. The feasibility of some of the mechanisms listed at the opening of this report is still unknown. Accordingly, EPA could help its governmental counterparts and serve its cause well by writingmodel ordinances. Of critical importance to such ordinances is overt recognition that growth management, even more than other governmental controls, must be tailored to the circumstances of localities and regions. In applying its technical expertise to model ordinances, EPA should remember the lesson of §208. Although the regional level is recognized anew each generation as the logical choice for planning the management of growth, until RPAs gain regulatory power in the manner of the Cape Cod Commission, EPA would be wise to focus efforts on the state and local levels of government. While working with state and local authorities, at the same time EPA has a duty to get the federal house in order, so to speak. Some other 24 ------- federal agencies, notably the Department of Transportation and the Army Corps of Engineers, hold statutory responsibility that relates to non-point source pollution and growth management. On more than one occasion these organizations have worked at cross-purposes with EPA, and intra- agency jealousies are legendary. It is a truism that federal deadlocks can be broken only on the federal level. No higher authority exists. Federal laws to alleviate this situation do not always work, however: witness the federal consistency sections of NEPA, the Clean Water Act, and the Coastal Zone Management Act. Yet federal agencies do work together on occasion. The Corps, long the bane of environmentalists, recently has signed a Memorandum of Agreement with EPA and the US Fish and Wildlife Service on the protection of wetlands. A Corps officer also sits on the management committee of the Buzzards Bay Project. To achieve federal consistency, EPA would do well to focus on projects such as geographic initiatives or "issue" initiatives (e.g. the wetlands MoA), where resource protection rather than agency power is the goal. The geographic initiative approach has been seen to earn remarkable cooperation from state, local, and private officials and organizations, especially given the history of antipathy between the levels of governance. Geographic initiatives are also a logical method of learning about the cumulative effects of all types of pollution in an entire watershed or biologic system — a necessary precursor to successful growth management planning, as has been discussed. Accordingly, EPA ought to emphasize the geographic initiative approach. In designing and funding geographic initiative research, EPA should emulate the Waquoit Bay study, where scientific knowledge on non- point source pollution is being expanded. Certainly at the current stage of 25 ------- growth management activity in the US, hard data is lacking. Needed most, according to Jim Bernard, Director of the Natural Resources program at the Maine State Planning Office, are "ground-floor, baseline studies that you can replicate elsewhere: figuring out the percentage of point sources versus percentage non-point, trying to assess what methods of stormwater management are...most successful,...looking at a watershed and seeing all the uses. That includes land use versus water use, water quality versus quantity, surface water and groundwater."34 By baseline study, Bernard means information applicable elsewhere, along the lines of the Lake Vulnerability Index in Maine and the Waquoit Bay study. This sphere of technical assistance appears to be a major contribution EPA can make to the furtherance of growth management. In the same category is funding GISs. Although to many people GISs seem at first look to be extraordinarily expensive gewgaws, the experience of the state of Vermont and the Cape Cod Commission rebuts that interpretation. A GIS can spotlight the pollution that would stem from different levels of development, including build-out of current zoning arrangements, for example. (That in itself could prove the worth of a GIS, if it persuades ^citizens that zoning plans are inadequate to control non- point source pollution.) By making work on growth management a priority of its own, EPA can heighten the issue in the minds of state, regional, and local officials. To that end, it has been suggested that EPA establish grant preconditions — that is, make grant awards contingent on growth management planning and implementation reports. Although this approach is tempting (after all, few things motivate like a financial incentive) the likely result is simply more reports that do not get read. If people are encouraged to think of From a personal interview. 26 ------- growth management plans as a hurdle, they are likely to think as much of growth management. A better approach relies on the carrot of technical assistance and the power of persuasion. To the latter end, the last recommendation encourages EPA to publicize the issue of growth management, aiming at local citizens rather than the specialized audience of state DEPs. The agency's recent use of television to heighten public awareness about radon has been effective and impressive. The same can surely be done for the need for growth management. Conclusion As stated earlier, the basis of the involvement of EPA, a federal agency, with growth management — at its heart a local concern — is fourfold. Technical expertise, experience, prestige and notoriety, and money are things available to EPA that are often beyond other organizations concerned with growth management. The above recommendations draw from these strengths of EPA. Funding GISs and studies that emulate the Waquoit Bay assessment will require money that may not be available from other sources. Siting pollution facilities will draw deeply on EPA's prestige and technical expertise. Coordinating federal activities that affect non-point source pollution — a never-ending, if not impossible, battle — will take all of the agency's prestige and experience. Not only do these four characteristics provide a basis for EPA's involvement in growth management, they highlight something else: action from EPA is a necessity. Without such action, the goals of anti-degradation and alleviation of non-point source pollution, inherent in growth management, may very well go unachieved. 27 ------- Bibliography Bley, Jerry, Natural Resources Council of Maine. "Managing Growth," Maine Environment. Augusta, Me., November' 1986. The Bureau of National Affairs, Inc. "Federal Laws: Water Pollution Act," Environment Reporter. Washington, D.C., January 13, 1989. Cambareri, Water Resources Coordinator/Hydrogeologist, et. al.; Cape Cod Planning and Economic Development Commission, Water Resources Office; in conjunction with the Cape Cod Aquifer Management Project. "Truro/Provincetown Aquifer Assessment and Groundwater Protection Plan." Barnstable, Mass., October 1989. Clark, Edie. "The Race for Clean Lakes," Yankee magazine. Boston, Mass., June 1990. 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Goodman, Denise. "In Maine, land preservation isn't always welcomed," The Boston Sunday Globe. Boston, Mass., July 22, 1990. Groffman, Peter M., et. al., University of Rhode Island, Department of Natural Resources Science. "Final Report, Narragansett Bay Project: An Investigation into Multiple Uses of Vegetated Buffer Strips." second draft. Kingston, R.I., March 16, 1990. Hague, Bart, United States Environmental Protection Agency, Region I, Chief of Environmental Quality, Water Quality Bureau. "Growth Management: A Key to New England's Environmental Future," speech text for Paul Keough, then-Acting Regional Administrator, United States Environmental Protection Agency, Region I. Boston, Mass., November 3, 1989. Hague, Bart, United States Environmental Protection Agency, Region I, Chief 29 ------- of Environmental Quality, Water Quality Bureau. "Maine Initiatives to Ensure Environmental Quality for a Sustainable Economy." Boston, Mass., June 26, 1990. 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Augusta, Me., undated. The Massachusetts Office of State Planning. City and Town Centers: A Program for Growth — The Massachusetts Growth Policy Report. Boston, Mass., September 1977. McKernan, John R. Jr., Governor, State of Maine. "The Nomination of Casco Bay to the Natibnal Estuary Program." Augusta, Me., July 1, 1989. McLaughlin, Jeff, The Boston Globe. "Planners take reins after win on Cape." Boston, Mass., March 29, 1990. 30 ------- Morrison, Brian, et. al., Industrial Economics, Inc. "Protecting Wetlands and Coastal Waters: A Land-Use Guide for Growing Communities," second draft. Cambridge, Mass., March 1990. Moubry, Mary Jo, and Jon D. Witten. "Water Quality Protection Through Growth Management in Buzzards Bay." Cambridge, Mass., undated. Myers, Jennie, Land Management Project, Director. "The Land Management Project" leaflet. Providence, R.I., undated. Nashua River Watershed Association. Watershed. Fitchburg, Mass., summer 1990. Natural Resources Council of Maine. Maine Growth Management News. Augusta, Me., fall 1989. Office of State Planning, New Hampshire. "Draft Work Program: Cooperative Planning Project for a Great Pond — Case Study: The Squam Lakes." Concord, N.H., December 1987. Southern Maine Regional Planning Commission. "1990 — A Plan for Southern Maine." Sanford, Me., undated. State of Connecticut Department of Environmental Protection, Water Compliance Unit. "Report for the Blue Ribbon Commission on Housing, on the Land Required to Support Residential Development in Connecticut." Hartford, Ct., May 1989. Steppacher, Lee, United States Environmental Protection Agency, Region I; in conjunction with the Cape Cod Aquifer Management Project. "Demonstration of a Geographic Information System for Ground Water Protection." Barnstable, Mass., September 1988. Storey, Laurie J. "N.H. seacoast tries to balance growth and preservation," The Boston Globe. Boston, Mass., June 25, 1990. Tree, Christina. "Moosehead Lake," The Boston Sunday Globe. Boston, Mass., August 19, 1990. 31 ------- Turkel, Tux, and Joanne Lannin, et. al. "Maine's Troubled Waters: A Special Report," Maine Sunday Telegram. Portland, Me., August and September 1988. United States Environmental Protection Agency, Non-Point Source Task Force. "Issue I: Federal/State Partnership." Washington, D.C., June 1988. United States Environmental Protection Agency, Office of Water. "Final Report on the Federal/State/Local Nonpoint Source Task Force and Recommended National Nonpoint Source Policy." Washington, D.C., January 1985. United States Environmental Protection Agency, Region I. "Summary of the Blackstone River Meeting" minutes. Boston, Mass., March 19, 1990. United States Environmental Protection Agency, Region I. "Waquoit Bay Land-Margin Ecosystem Project: Impacts of Land Use on Water Quality." Boston, Mass., January 5, 1990. United States Environmental Protection Agency, Region I, and Massachusetts Executive Office of Environmental Affairs. "Buzzards Bay Comprehensive Conservation and Management Plan," public draft. Boston, Mass., May 1990. Van Dusen, Katrina, and Anne C. Johnson Hayden, Maine State Planning Office. "The Gulf of Maine: Sustaining Our Common Heritage." Augusta, Me., November 1989. Vermont Department of Housing and Community Affairs. "Vermont's New Act 200 for Growth Management — A Citizen's Guide." Montpelier, Vt., undated. Vermont Natural Resources Council. Vermont Environmental Report. Montpelier, Vt., fall 1987/winter 1988. The Wall Street Journal. "EPA v. Private Property," editorial. New York, N.Y., August 27, 1990. 32 ------- |