In 1861, the Ohio Supreme Court adopted the Absolute Use Rule to govern groundwater, essentially allowing landowners its unencumbered use. The opinion noted that the behavior of subterranean water was “occult and mysterious” and that it was beyond the competence of judges to determine its appropriate use. The Ohio court reversed course in 1984 and adopted the Reasonable Use Rule. By then, scientific knowledge had advanced to the point that the interconnected movement of water was more readily discoverable. The court noted that a primary goal of water law should be to conform to hydrologic fact. This Article explores the advance of scientific knowledge related to water pollution, which reveals the clear relationship between land use and water quality. It examines the Clean Water Act and concludes that, despite advances in scientific knowledge, federal law does not conform to scientific fact but remains mysteriously incapable of addressing much of the nation’s severe water pollution. Non-navigable waters, groundwater, and nonpoint sources, with minor exceptions, all fall outside the Clean Water Act’s regulatory scope, as currently interpreted.
State governments, however, may use their reserved police powers to protect natural resources, including watersheds. Most state legislatures have delegated broad power to local governments to mitigate water pollution through the adoption of land use plans, zoning laws, and land use and public nuisance regulations. The Article describes a host of local government gap-filling strategies that protect water quality and explores a number of intermunicipal and intergovernmental collaborations that defy the many critics who warn against relying on localism to solve natural resource problems. It analyzes the principle of subsidiarity, which holds that responsibility for dealing with problems should be delegated to the most decentralized institution capable of addressing them. There is general agreement among most critics that, despite their limitations, local governments must play a key role in resource conservation, but that they need assistance. To accommodate the diversity of situations and the need for flexibility in approach, the Article constructs, explains, and recommends the Principle of Collaborative Subsidiarity as a strategic path for rectifying the fragmented nature of the nation’s system of water law.
John R. Nolon, Calming Troubled Waters: Local Solutions, 44 Vt. L. Rev. (forthcoming 2019), https://digitalcommons.pace.edu/lawfaculty/1136/