The subject of stormwater management raises threshold questions about the federal system. Is the regulation of stormwater runoff and the environmental pollution it causes within the federal government's legal jurisdiction? Is it a matter reserved to the states under the Tenth Amendment? Or is it a joint responsibility and, if so, precisely how is federal and state authority shared? How does the delegation of power by states to local governments to regulate the use of privately owned land affect the federal-state division of power? What limits should there be on local control of land uses that cause “nonpoint source” pollution, the principal culprit to be controlled in stormwater management? Stormwater runoff is one of the most serious causes of water pollution in the United States; in many locales, the contamination caused by the runoff exceeds what is caused by more visible and direct commercial and industrial facility wastewater. Stormwater runs off from development sites-- carrying sediment from the disturbed soils--and from developed properties, where lawns and vegetation and paved surfaces and buildings are loaded with harmful substances. Water runoff from storm events carries with it algae-promoting nutrients, floatable trash, used motor oil, suspended metals, sediments, raw sewage, pesticides, and other toxic contaminants. These contaminants flow with the stormwater from their source to streams, rivers, lakes, estuaries, and oceans. The regulation of construction and development, and resultant stormwater runoff, is understood to be within the province of local governments, under power delegated to them by state legislatures. Yet municipal sewer systems collect and dispose of stormwater through effluent pipes identified as point sources subject to federal jurisdiction. As a result, the regulation of stormwater runoff is confused as a matter of law.
John R. Nolon, Katrina's Lament: Reconstructing Federalism, 23 Pace Envtl. L. Rev. 987 (2006), available at http://digitalcommons.pace.edu/lawfaculty/191/.