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
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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
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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.
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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
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.)-
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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-
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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.
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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.
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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.).
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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