19watershed.pdf

(1)

Fall1990, Vol.16,No.2 ₁₉

Articles

Watershed

Protection:

Problems

and

Possibilities

Judith

Welch

Wegner

For

various

reasons,

including

heightened

development

pressures,

health concerns,

and

new

federal

and

state regulations,

many

local

governments

are for the

first

time

taking

steps to

protect

their

water

supply.

These

steps usually

include regulation

_{of land}

use

in

the

water

supply watershed,

and

this

regulation often

crosses jurisdic-tional

boundaries. This

article

describes

the

steps

taken by

representatives

ofCarrboro,

Chapel

Hill,

and

Orange

County

(TV.

C.)to

improve

the regulatoiy

scheme

governing

the

University

Lake

watershed.

The

article identifies

four

majorproblems

encountered

in thisprocess,

and

provides

valuable

insights

for

jurisdictions

facing

similar

challenges.

Watershed

protection has

become

amatter ofincreasing

concerntoplanners

and

electedofficialsin

North

Carolina

and

elsewhere. Inrecentyears,existingwatersupplieshave proved inadequate to serve public needs resulting

from

increaseduseof water

and

population growth.

Even where

existingsuppliesprovideasufficient

volume

ofwater,

more

intensive

development

nearby

may

leadtodegradation of waterquality.

New

reservoirsiteshave

become more

and

more

difficultto identify, as

undeveloped

sitesconvenient

to high-quality water supplies

and

user populations

be-come

increasinglyscarce. Scientificstudieshave

demon-strated previously

unknown

health risks associated with

levels of pollutant loading that

may

have

been

accepted without

comment

inthepast,

and

federal regulationofthe qualityof drinking watersupplies has

become more

com-prehensive

and

more

stringent.

North

Carolina has also

adopted

more

demanding

re-quirementsforwater supply watershedprotection,through

the

enactment

in1989 of

House

Bill156(G.S. 143-214.5),

and adoption of

accompanying

regulations in

December

1990. Thislegislationprovidesforacooperative

program

ofwatershed

management

and

protection to be

admini-steredbylocalgovernmentsconsistent with

minimum

state-wide

management

requirements.

The

state willcontinue

toplay a role inadoptingrules for classificationof water supply watersheds

and

protectionofsurfacewatersupplies

through

minimum

performance-based water supply

water-shed

management

requirements,butwillhave an

enhanced

role in administering

and

enforcing

minimum

statewide

requirements if local

governments

fail to adopt a water supply watershedprotection

program

or fail tocarryout

their enforcement responsibilities. Local

governments

must

develop ordinances

which comply

with

minimum

state requirements

and

address land use activities, best

management

practices,

development

density controls,

and

structuralstormwatercontrols,

and

submit such ordinances

forreviewat thestate level. Iflocal

governments

failto

adopt

programs

that

meet

state requirements or fail to

adequately administer

and

enforcethe provisions oftheir

programs,thestate

Environmental

Management

Commis-sion

may

assume

responsibilityforwater supply watershed

protection.

As

localgovernments,planners, electedofficials, advis-ersto

development

interests,

and

members

ofthe public

prepareto

meet

thesignificant challenges

posed

bythese recent developments, it is importantto take stockofthe

problems

likelytobe confrontedinthecourse ofeffortsto

improve

theprotectionafforded watersupply watersheds,

and

to think creativelyabout possible solutionsto those

problems. Thisessayendeavorsto

do

just that,drawing

on

theauthor'srecentexperienceasa

member

of theCarrboro,

North

Carolina

Board

of

Aldermen

duringatimein

which

representatives ofCarrboro,

Orange

County and Chapel

Hill sought to

improve

the regulatory

scheme

governing

the University

Lake

watershed (which supplies drinking watertoarea residents)

and

her

background

asateacher of

local

government and

landuselaw.

The

essayfirstprovides

background

aboutthe University

Lake

watershed. Itthen analyzes four

major problems

encounteredinthecourse of

efforts todevelop an appropriateregulatoryscheme,

and

discusses the policy

development

process

and

possible solutions tothose

problems

identified inconnection with

the University

Lake

experience.

The

essayconcludes with

suggestionsfordecisionmakersinotherjurisdictionsthat

may

soon

facesimilar challenges.

JudithWelch Wegnerisdean

and

professoroflawintheSchool of

Law,

University of North Carolina at

Chapel

Hill.

She

servedontheCarrboro(N.C.)

Board

of

Alderman from 1985

(2)

FIGURE

1.

LOCAL

GOVERNMENT

JURISDICTIONS

IN

THE

UNIVERSITY

LAKE

WATERSHED

ORANGE COUNTY

PLANNING

AND

ZONING

CHATHAM COUNTY

PLANNING

AND

ZONING

2000 4000 (FEED

The

University

Lake

Watershed

The

University

Lake

watershedislocatedin

Orange and

Chatham

Counties. Itisapproximately 30 squaremilesin size.

More

than 95 percent of thewatershed is privately

owned.

The

watershedliesinthreedifferent political juris-dictions,with roughly 80 percent ofthelandfallingunder

thorityofCarrboro,

and

10percentundertheauthorityof

Chatham

County

(seeFigure1).

The

University

Lake

reservoir

was

built in 1932.

The

reservoirisa

major

component

ofthewater supply system

thatprovideswaterfor

Chapel

Hill,Carrboro,

and

partsof

Orange

County.

The

reservoir is

managed

bythe

Orange

Water

and

Sewer

Authority

(O

WASA),

an

independent

authoritygoverned bya

nine-member

board (five

mem-bersappointedby ChapelHill

and two

each by Carrboro

and

Orange

County).

OWASA

provides water

supply

and

wastewater serv-icestoapproximately 60,000

residentsofCarrboro,Chapel

Hill,

and

Orange

County.

Fewer

than 10 percent ofthe University

Lake

watershed's residents are

consumers

of

University

Lake

water,

how-ever,

and

the nearly 1,850

households located in the University

Lake

watershed

relyprimarily

on

private wells

and

septicsystems.

Questions concerningthe

adequacy

ofthearea'swater supply

had been

raisedfora

number

ofyearsasa result

ofincreasedwater

consump-tion,populationgrowth,and

summer

droughtconditions.

OWASA

began

steps to

develop anadditional reser-voirtosupplynecessary water.

Aftera

good

dealof debate

and

litigation,construction

began

on

the

Cane

Creek

reservoir. This reservoir eventually

came

on

line in

1988, increasing

OWASA's

raw

water supply to 13.5

million gallonsperday.

In the

meantime,

Univer-sity

Lake

reservoir

came

underincreasing pressure. In

the early partofthedecade,

Orange County and

Carrboro

had implemented

landuserestrictionsdesignedtoprotect the qualityofthereservoir'swater,byidentifyingacritical area nearthelake,

and imposing

densityrestrictions (one

and two

acrelotsizes)

and

impervioussurfacelimitations.

By

1985

and

1986, however,

development

pressures had

escalated,particularlywith regardtolandjusttothewestof

Carrboro.

Two

significant residential subdivisions

were

proposed

(one, Laurel Springs,

was

located in

Orange

County'sjurisdiction,

and

the other,

Amberly,

in an area adjacent to

Carrboro where

annexation

was

requested).

(3)

Fall1990, Vol.16,No.2 ₂₁

"One

of

the

most

difficult

aspects

of

resolving

such a debate over

the

definition

of

the

problem

of watershed

management

is

that

each

of

the

arguments

advanced above

has

merit;

each

of

these

viewpoints

iscorrect. Ifitis

possible

to

proceed

from

this

premise,

rather

than

the

premise

that

one

or

another

viewpoint

is correct

and

others

are

incorrect,

a

coordinated

response

to

watershed

management

on

a

variety

of

levels

may

ultimately

be

achieved.

"

residents

and

electedofficialsof

Chapel

Hill

and

Orange

County, duetoitslargesize (215 acres

and

177

units)

and

pro-posed reliance

on

public water

and

sewerservices (which,if

made

available,

would

havetobe authorized by

OWASA).

The

debate overthe

Amberly

projectultimatelysetthe stage for

more

extensive discus-sionof watersupply watershed

management

strategies,

and

led totheadoption of

new

landuse regulationsby

Carrboro

and

Orange County

in1990aswellasrelatedmodification

of

OWASA

policiesduringthe

same

period.

Problems

and

Pitfalls in

Developing Regulatory

Strategies

Planners

and

electedofficialsfacedwithascenariosuch

as that just described might well identify a

number

of concrete policy issues or considerations that should be considered in developing watershed

management

strate-gies. Soil

and

topographic conditions,hydrological data regarding water quality degradation

and

the impact of waterquality

on

health

and

safety,population trends

and

economic

projections, legalrequirements

and

procedural

prerequisites

must

allbe takenintoaccount. Certain other

institutional

problems

and

pitfalls

may

also

havea

dramatic

effect

on

theabilityoflocal

governments

todevelop

effec-tivewatershed

management

strategies.

These

institutional

problems

and

pitfalls deserve special attention here

be-cause they

may

be encountered by

many

jurisdictions for

thefirst time while preparing

new

watershed

management

policies.

1. Difficulty in Defining the Problem.

Development

of

government

policies ina

wide

varietyofareas

may

require

acarefuldiagnosisofsurprisingly

complex problems and

an

extensivesearchforsuitableresponses.

For

example,local

governments' responses to the

need

for

more

affordable housing, a revitalized

downtown,

or

improved

relations

between

the police force

and

the

community

may

require thoughtfulexamination

and

understanding ofa varietyof viewpoints

and

the creation of multi-faceted solutions.

Perhaps

more

thanintheseothersettings,however,there

may

be significant difficulties in defining the

problem

of watershedprotection

and

watershed

management,

aswell

asindiagnosingthe

problem and

finding suitable solutions.

Watershed

management

problems

tend to exist at a

varietyofdifferent levelssimultaneously.

A

given jurisdic-tion

may

face a veryconcrete question

whether

toapprove

aconditional usepermit or rezoningrequestfor a particu-lar

development

project.

That

jurisdiction

may

therefore

definetheproblem

as

one

of reaching

an

appropriate

resolution with

regardtothe given projectwithin the contextofexisting regulations.

At

the

same

time,

how-ever, the project

may

stimulate questions regarding the

adequacy ofthe jurisdiction'sexisting regulatory

scheme

forprotectingwaterqualitywithinthespecificwatershedin

question;the

adequacy

ofitsoverall regulatory

scheme

for

otherwatersheds within itscontrol; the relation

between

regulatory goalssuchastheprotectionofwaterquality

and

the

promotion

ofaffordablehousing or farmland

preserva-tion;itsobligations to protect the qualityof watersupplies that

may

serveotherjurisdictions;

and

the

adequacy

of the regulatory

schemes

in effect in otherjurisdictions that lie within the

same

ornearby watersheds.

Different participants in discussions concerning the

development

of an appropriate watershed

management

strategy

may

favordifferentdefinitionsofthe

problem

at

hand

fora varietyofreasons.

For

example,it

may

wellbe

argued that for reasons of fairness, existing regulations

shouldbe appliedto resolving a

pending

permit or rezoning

request.

At

the

same

time, it

may

be

contended

that a particular

development

proposalraises

more

fundamental questionsthat

must

be addressed

on one

ofthelarger scales justdescribed.

Yet

again, definitionofthe

problem

on

an area-widescaleatthe outset

may

well

mean

thata

prompt

resolutionofthedebate

on

possiblesolutions proves

im-possible, in light of the difficult coordination

problems

raised

and

theincreased potentialforimpasse.

Which

definitionofthe

problem

isthe correct

one-one

of thosejust sketched,orothers that might be imagined?

One

ofthe

most

difficultaspectsofresolvingsuchadebate overthe definitionofthe

problem

of watershed

manage-ment

is that each of the

arguments advanced above

has merit;each oftheseviewpointsiscorrect. Ifitispossible toproceed

from

thispremise,ratherthanthepremisethat

one

or another viewpoint is correct

and

others are

incor-rect,acoordinatedresponsetowatershed

management

on

a varietyoflevels

may

ultimatelybe achieved. If,instead,

thedebatestallsover

which

viewpoint isthe correct one, theconfusion

may

be

compounded

and

littleprogress

made

toward

common

goals.

2.

Problems

inDevelopingan

Adequate

InformationBase.

As

noted above, planners

and

elected officials generally

recognizethe

need

todevelop an appropriate information base before reaching important public policy decisions.

Thereare,however,specialpitfallsinreachingthisobjective in connection with the

development

of watershed

(4)

22 CarolinaPlanning

There

areat leastthreedimensionstotheinformation

base thatis

needed

inreaching

sound

watershed

manage-ment

decisions. Informationis

needed

concerningfactors

generally

consid-eredin the

devel-contactwithregional councilsof

government

orseparate

water

and

sewer authorities in

an

area, orthrough

con-tractsorconsulting relationswithtrained engineers,

con-tact

between

gov-ernment

staffsand

"At

theoutset,itis

important

to

recognize

that"politics

'

'is

not a

dirty

word;

it is all

too easy

to

describe

the

view

of one segment

of

the

community

as

"political"

while

treatingthat

_of

another

segment

as

legitimate

and

sacrosanct.

An

_{assessment of}

politicalrealities

can

and

should

represent

a

careful evaluation

_of

the

viewpoints

of

differing

segments of

the

community,

and

the

bases

for those views

-whether

they

be economic,

historical,

or psychological.

opment

of landuse policies;thosethat relateto

environ-mentalhealth

and

science

and

more

technical engineer-ing issues;

and

thosethat relate to

balancing the con-cerns of different

segmentsof the

community

(oftendescribedas"political" incharacter). Inaparticularjurisdiction,information

may

beunavailablerelating to

one

oranother ofthese

dimen-sions, or,ifavailable,

may

notbe shared byall those

in-volvedin

development

of watershed

management

policies. Conflictscanthereforeariseunless a

more

adequate,shared

informationbaseisdeveloped.

Traditionally,localjurisdictions have staffwith exper-tiseinlanduse planning, often derivedthrougha

combina-tionofformaleducation

and

practicalexperience.

Such

in-dividuals

may

be skilled in addressing the

problems

of

urbanand

suburban

populations,or (injurisdictionswith

lessdevelopedland)inrespondingtothedifficultiesfaced

by

more

ruralpopulations;however,they frequently

do

not have experience in bothareas.

Moreover,

planners

who

have

been on

staff forquite

some

time

may

lackinsightinto

orconfidencein

newer

strategies forlanduse

management

withintransitionalor environmentallysensitive areas,

may

lack training in

communications and

dispute resolution skillsthatare helpfulindealingwithdiverse populations, or

may

have developed relatively inflexible

judgments

concerningtheimportanceof

competing

policy

considera-tionsastheyaffectagiven

community

or

group

of

commu-nities. Finally,

due

to continuing financial stringencies

throughout the publicsector, planningdepartments

may

be understaffed or

may

experience repeated turnover of

personnel,

making

itdifficultto allocatestafftime toward

development

ofa

comprehensive

information base regard-ingwatershed

management,

inlightofthe press ofurgent

business inother areas.

Depending on

thejurisdiction,

more

or less technical

information regardinghealth

and

safety

and

engineering

issues related towaterquality

may

be available.

Limita-tions

on

staff

background

and experience such as those

outlined

above

may

also exist with regard to those staff

members

responsiblefor

managing

anarea'swatersupply,

particularlyifsuchstaffhavelimited training

and

respon-sibilityforland useplanningissues, just as planningstaffs often lack training

and

expertise regarding engineering

issues. Whileadditionalexpertise

may

beavailablethrough

elected officials,

and

others with

specialized exper-tise

may

be

infre-quent

and

may

not

be

enough

to

de-velopastrong

and

lasting

informa-tion base.

In addition, it

must

be

borne

in

mind

that efforts to protect drinking

waterwatersheds continueto require analysis

and

infor-mation-gathering at the cutting edge of environmental

science

and

engineering.

As

scientificstudiescontinueto

be undertaken, understanding ofthe relationship

between

waterquality

and

nearby

development

islikelytoincrease.

Nonetheless,reliance

on

projections

and

computer

mod-elingwillcontinue tobe required inorderto identifythe potentialforfuture

problems

and

to

head

them

offbefore theyarise.Analysis

must

alsotakeintoaccountthe signifi-cant differences

between

individualwatersheds,including

thosethatarisebecause ofvariationsinsoiltypes,

topog-raphy, reservoir characteristics, tributary systems,

mete-orological conditions, existing patterns ofdevelopment,

and

othersignificant variables. In addition,itisimportant torecognizethat technically sophisticated analysis

and

in-formation ofthistype often

may

notbeeasilydigestedby

all

members

ofthe

community

(whetherthey are elected

officialsorcitizens), in lightoftheunfamiliarterminology

and

conceptstypicallyusedto

communicate

relevant find-ings.

Finally,informationis

needed

concerningthepolitical realitiesat

work

ingivenjurisdictions.

At

the outset,itis

importanttorecognizethat "politics"isnotadirtyword;

itisalltooeasy to describe theview of

one segment

ofthe

community

as "political" while treating that ofanother

segment

aslegitimate

and

sacrosanct.

An

assessment of

political realitiescan

and

shouldrepresent a careful evalu-ationof theviewpointsofdifferingsegments ofthe

com-munity,

and

the basesfor those

views-whether

they are

economic,historical,orpsychological.

Moreover,

itis im-portanttorecognizethateconomic,historical,

and

psycho-logicalconsiderations arelikelytooperate withregardto

each

segment

ofthe

community,

notjustsome.

For

example,urban or

suburban

waterusers

who

do

not

livewithin a regulatedwatershed

may

strongly favor

strin-gent watershed regulation for reasons quite apart

from

health

and

safetyconsiderations: they often

would

prefer

notto paythe cost ofpurchasingadditional landforthe

(5)

Fall1990, Vol.16,No.2 ₂₃

may

traditionally have looked

down

on

more

rural resi-dentsaslesseducatedorpoliticallypowerful;

and

they

may

be both

more

aware

or

more

fearful ofpotential health risks,lessused to

accepting

unwel-policydecisions relatingtowatershed

management.

Three major

shortcomings ofthe existinglegal system

are

worth

special note. First, the substantivelegal prin-ciples forresolving

disputes are, in a

"Three

major

shortcomings of

the existing legal

system

are

worth

special note. First,

the substantive

legalprinciples

for

resolving

dis-putes

are, in

a

number

of

relevant respects,

simply

incomplete or

unclear. . . .

In

addition, the existing legal

system

lacks

flexibility. . . .

Finally,

the

legal

system

does not provide

for

effective

collaboration

among

affected

parties,

decisionmakers

and

jurisdictions."

come

change

within their

envi-ronment

without

protest,

and

more

inclinedtoretain thesize

and

char-acterofthe

com-munityasitexists ratherthan

allow-inganadditionalinfluxofpopulationthat

may

ariseif

strin-gent land use controls arenotimposed.

On

theother hand,

more

rural residents

who

live inwater supply watersheds

may

reasonablyfearthatstringent regulationswill result in

decreased landvalues (foreclosinganopportunityforneeded

agriculturalfinancingor retirementsupport); believe that

watershedregulationefforts representjust

one

more

ina

series ofefforts by

suburban

political

powers

to

impose

burdens without providing offsetting benefits;

and

con-cludethat their ability tocontroltheir

own

destinies

and

to

manage

propertylongheld in theirfamiliesisthreatened without adequate reason by those

who

have not had to

exercise careful stewardship ofthe land.

These

political realities

may

notbe understood byallelected officialsor

government

staff. Ifthey areignoredorlightlydismissed,

without beingunderstoodaspartofa shared information

base, irreparable controversy

and

unsound

policy

judg-mentsarelikelyto result.

3. InadequacyofTraditional

Decision-Making

Processes.

The

procedural

and

substantiverequirementsthatgovern adoption of regulations

and

related decisions by local

governments

are generally well

known

and

reasonablywell

understood by planners

and

local

government

officials.

Local

governments

must

have adequate authority to

undertakevarioussortsofinitiatives,

and

theymustoperate withinstatutoryandconstitutionalbounds.

Where

rezoning,

permitting,annexation,or landuseordinancerevisionsare

concerned, federal

and

state constitutions,state statutes, judicialdecisions,

and

localordinancesgenerally prescribe

basiccontours concerning

what

may

and

may

notbe done.

Certain key decision points are thereby identified as a

matter of law; procedural requirements for notice

and

hearings are specified;voting requirements applicableto

relevant governmental entities are stated;

mandates

for

open

meetings are imposed;

and

standards for judicial

reviewintheeventofan appealare delineated.

While

the

legal

framework

justdescribed also hassignificantbearing

on

the

development

of

management

strategies fordrinking waterwatersheds,itisunfortunately not always well suited inand ofitselffor facilitating the

development

of

sound

number

ofrelevant respects,simply

in-complete

or

un-clear. In an area

suchaswatershed

management

where

novel strate-gies

may

be needed

to reach public policygoals,statutoryauthority

may

notyetexisttoensure

that certain sorts ofregulatory tools or expenditures of

public funds can be undertaken without challenge.

The

process of statutory reform

may

be

slow

and

difficult, particularlyif

one

or another

segment

ofthe

community

prefersthe status

quo and opposes

legislative action. In

addition,

some

ofthe

most

significant legaldoctrinesthat

may come

into playin theevent of appeals

from

govern-mental action are notoriously ambiguous. Traditional doctrinedesignedtoaddressconflictingland uses (suchas

thelawofnuisance) involves a careful fact-oriented balanc-ingprocess

whose

outcome

can

be

difficulttopredict.

The

development ofconstitutional"taking" doctrineasa

means

forpreventingexcessive regulationby governmental enti-tieshas

become

increasinglyunclear overthe past several

years, as the

United

States

Supreme

Court

has rendered

numerous

splitdecisions

and

made

a

number

ofconfusing

distinctionsconcerning theweight tobe afforded certain

sortsof governmental purposes,the

need

forclose

relation-ships

between

governmental purposes

and

theregulatory

scheme

employed, procedural requirementsthat

must

be

satisfied,

and

theavailabilityofa

compensation

remedy

in

certainexceptionalcases.

Inaddition,theexisting legalsystemlacksflexibility. It

isdesignedtoensure thatdecisionsarereachedat

appro-priatecheckpoints,ratherthanto

encourage

the

compila-tion ofadequate information over an extended period. It

tendstosanctionwin-loseresolutionsfollowingexpensive

judicial appeals, rather than to facilitate

development

of win-winsolutionsdesignedto

accommodate

diverse

com-petinginterestsfollowing extensiveinformalconsultation. Itprovidesfew opportunitiesforgive

and

take,theraising

of questions

and

provisionof answers bya wide range of

citizens,

government

officials

and

staff,

and

thesortoffrank discussion(attimesoffthe record)

and

brainstormingthat

may

be

needed

todevelop

sound

policies.

Finally,thelegalsystem,asitis

now

constituted,doesnot

providefor effectivecollaboration

among

affectedparties,

decisionmakers

and

jurisdictions.

The

formalityofthe

decision-makingprocessjustnoted hasasitsflipside the

(6)

24 CarolinaPlanning

"Wlien

multiple

jurisdictions

are involved

inregulating

within

a

given

watershed,

difficulties

are

compounded,

since

there is

generally

no

established

forum

for discussion

on an

intensive basis

between

af-fected

officials,

press

reports

may

provide a

limited

or

incorrect

portrayal

of

related events,

and

there

may

be a

history

of

difficultiesin

communication

ordistrust

between

relevantofficials

or governments.

collaborativeinterchange

among

citizens, staff

and

elected officials.

Governing

boards are expected (and wish) to

preservetheir

autonomy

and

decision-making power,

and

may

curb informal

discussions with any given citizen

group orinterest inordertoensure

that

no one group

orinteresthas

un-due

influence. Hearings are in-efficient

methods

forgathering

use-ful insightinto very

complex

issues,since they often

come

faralonginthedecision-makingprocessafterdraft

propos-alshavebeen developed,result incontentiousdebates

once

tempers haveflared,

and

provide onlylimitedtimefor

sub-missionofbriefformal

comments.

When

multiplejurisdic-tionsare involved inregulatingwithin agivenwatershed,

difficulties are

compounded,

since there is generally

no

established

forum

for discussion

on

an intensive basis

between

affected officials, press reports

may

provide a limitedorincorrectportrayalofrelated events,

and

there

may

beahistoryofdifficulties in

communication

ordistrust

between relevant officials or governments. In addition, staff

may

feelobliged tofocus only

on

theirjurisdiction's

independentinterestratherthan

on

cooperativesolutions intheinterestofthe areaas awhole. It

may

alsobedifficult tocoordinatediffering decision-makingprocessesof sev-eraljurisdictionsthat involveuniquetraditions,ordinance

provisions,

and

advisory boards.

4. Difficulties inCreatingEffectiveSolutions. Solutions

to watershed

management

dilemmas

may

well be

more

difficulttodevelop thanthoseinothersettings for

many

of thereasonsnotedabove.

There

isas yetonlyalimited track record ofstrategies thathaveprovedeffectivein thiscontext.

As

a result,

many

jurisdictions (and their planners

and

electedofficials)

may

needtoinventsolutions forthemselves, ratherthanbeingableto rely

on

examples

from

elsewhere

orfromtheir

own

pastexperience. Solutions may,inany

event,needtoberelativelyunique,inlightofthediffering characteristics of watersheds, reservoirs, established

ordinancestructures,

and

relevantpoliticalconcerns.

They

may

need to be unusually comprehensive, involving not only novelforms oflandusecontrols,butalsoengineering requirements, expenditures of funds for land acquisition,

additionstoinspectionstaffs,

and

coordination of farmland

preservation

and

affordablehousinginitiatives.

They

may

alsoarise onlyafterheated debate leaves the

community

deeplydivided

and

lackingin

common

ground,

and

it

may

bedifficultinsuch circumstancestodevelopaconstituency

fora middle courserather than

one

oranother win-lose

solution. Solutions

may

alsorequire the collaboration of

severaldifferent area jurisdictions, but at the

same

time

entailcarefulcoordination ratherthan adoptionofidentical strategies.

A

balance of

complementary

skills,willingness to learn,

and

mutualrespect

on

the part ofstaff

and

elected

policymakers

may

be critical.

The

necessity for tech-nical expertise,

creative insight, trust,

and

respect for others' viewpoints

and

autonomy

may

be

more

than

many

jurisdictions canmuster without careful preparation

and

thought.

One

Area's

Response

The

experience ofarea

governments

inaddressing the

needfor

improved

management

strategieswithin the

Uni-versity

Lake

watershed not onlyyielded insight into the existenceofthedifficultiesjustdescribed,butalsoresulted in

some

effective

and

creativeresponsestothesedilemmas. Because planners

and

elected officials in other

jurisdic-tions

may

findit useful to

draw

upon

the University

Lake

watershed experienceinformulating their

own

responses

tothesedifficulties,itis

worth

describing thatexperiencein

more

detailhere.

1. Defining theProblem. Carrboro,ChapelHilland

Orange

County

officials

were

able to finesse the difficulties of

defining theproblemofwatershed

management

byproceeding

on

severaldifferent tracks.

Although

steps

had

been

takenearlier inthedecade by Carrboro

and

Orange County

toadopt land useregulations

that

would

ensureadequateprotectionforthe University

Lake

watershed,a

major

re-examination ofthewatershed

management

problem

came

aboutasa resultofa private developer'sproposalforconstructionofthe

Amberly

proj-ect in 1986.

Carrboro

initially attempted to develop a

sound

response to the issues presented by the project (includingtheappropriatelevelofdensityrestrictions,the

availabilityofcluster rather than large-lot development,

accesstopublicwater

and

sewer,

and

applicationof

appro-priatebuffer

and

roadlocationrequirements).

The

matter

remained

under considerationfor

more

thanayear,during

most

of1986

and

partof1987.

Debate

withintheCarrboro

Board

of

Aldermen

also focused

on whether

the project

shouldbe consideredwithin theterms ofexistingorrevised regulations, theextentofdiscretioninreachingannexation

and

rezoningdecisions,

and

the obligationsof

O

WASA

to

(7)

Fall 1990, Vol.16,No.2

25

environmentallysafe thanreliance

on

septic systemsthat

couldpotentiallyfail.

The

debateattimes

became

acrimo-nious, resultinginaninitialdecisionbyaboardsplit3-4not

toapprovetheproject,alaterdecision byavote of4-3 to

approve the project, litigation byboth

opponents

ofthe project

and

thedeveloperchallengingboarddecisions,

and

significantchangesinthe

membership

of theboardaftera

bitterlycontestedelection

marred

by innuendo.

Effortstoaddressthe

problem

ofUniversity

Lake

water-shed

management

also proceeded

on

several additional

frontsduringthisperiod

and

the yearsthatfollowed,

how-ever. Officials

from

Carrboro,

Chapel

Hill

and

Orange

County

hadinprioryearsdiscussedstrategies for jointland useplanningwithin thesouthern partof

Orange

County,

after

Chapel

Hill's request for extended extraterritorial jurisdictionhad

been

rejectedby

Orange

County.

The

joint

planningdiscussions

had

not gained significant

momen-tum, however, until the

Amberly

controversy proved a catalyst forresolutionofa

number

ofinterrelatedplanning

issues,including theissueofwatershedprotection.

Awork

group ofrepresentatives

from

the

Carrboro Board

of

Al-dermen,

Chapel

Hill

Town

Council,

and

Orange County

Board

of

Commissioners convened and met on

aweekly

basis during the fall

and

winter of 1986-87, seeking to

develop an

agreement

inprinciple that

would

resolvekey

issues that

had

prevented adoption of a joint planning scheme.

The

result

was

a brief multi-faceted proposal whichdescribed areasofconcurrentauthorityforthe

two

towns

and

the county, established arural buffer/greenbelt

which

would

notreceive publicwater

and

sewer

and would

not besubject to annexation for a

number

ofyears,

and

which recognizedthat the

governments

continuedto

dis-agree about the response to be

made

to the

Amberly

proposal (acknowledgingthat

Carrboro

would

ultimately

have to resolve that matter

on

its

own,

whiletaking into

account theviews ofadjacentjurisdictions).

The

agree-ment

in principle alsocontemplated that

OWASA

would

commission

a

major

study of the University

Lake

water-shed,inordertoprovidethe necessaryinformation basefor

subsequent review of Carrboro

and Orange County

ordi-nances

and

OWASA

policies.

The

abilitytoreach

agree-ment on

thesematters provided an important foundation

thatstimulated trust

and

willingness ofthe area jurisdic-tions tocontinueto

work

together

on

watershedpolicy

de-velopment

intheensuingyears.

The

University

Lake

watershedstudy

was completed

in 19S9,asdiscussedin

more

detailbelow. Again, thethree

jurisdictions

had

to

work

together to define the precise

watershed

management

problem

to be addressed at the next stage of policy development.

Although

discussions

continued regarding

whether

other water supply

water-shedsinthe areashouldalso besubject to policies

devel-oped

withan eye towardthe University

Lake

watershed,the

interjurisdictional

workgroup

that

proposed

strategies for

University

Lake

watershed

management

ultimately

con-centrateditsattention

and recommendations on

the

Uni-versity

Lake

area, rather than venturingfarther afieldto

include the distinctive

Cane

Creek

watershed

and

other water supply watersheds in the northern part of

Orange

County,as

some members

had

urged.

2. Developing

an

InformationBase.

The

University

Lake

watershed study just mentioned, undertaken by

Camp,

Dresser

and

McKee

pursuanttoa contractwith

OWASA,

providedcritical technical information

on

the University

Lake

watershed.

The

study

was commissioned

by

OWASA,

upon

agreement bytheaffected jurisdictionstodeferfurther

action regardingwatershed

management

regulationsuntil

more

information could begathered.

The

study included

an inventory of the watershed (concerning existing land use,soils,topography,andhydrology),anestimateof nonpoint

pollutant loading, thecreationoffivealternativedevelopment

scenarios forthewatershed (includingexisting localland

useplans,one-acreresidentialzoning,five-acre residential

zoning, variable density cluster development,

and

high densityurban development),theuse ofapollutant loading/ reservoir

model

topredict thewaterqualityeffectsofeach

scenario,

and

watershed

management

recommendations.

Both

a technical advisory

committee and

an advisory

committee

composed

ofgovernmentofficialswere appointed

toprovide additional advice

and

gain additional information

duringthecourse ofthe study,butthese

committees

were

used onlytoalimitedextent.

The

consultantsdid,however, hold public meetings to describe the study

methodology

and

preliminaryfindingsalongtheway.

The

consultants ultimatelydevelopeda

model

thatthey believed

would

be useful in projecting pollutant loading

underthe various

development

scenarios described,

rec-ommended

agoalofpreventingsignificantfuture deterio-ration of water quality, focused

on

total

phosphorus and

chlorophyll a concentrations as indicators of pollutant loadings,identifiedstructural

and

nonstructuralstrategies forachieving the goalof

minimal

degradation, discussed the costs

and

risksassociatedwithstructuralstrategiessuch

asuseof wet detentionponds,

and

preservation of vegetated buffers.

They

also

recom-mended

adoption of conventional septic systems rather

than

community

systems or public sewer systemsat least

where

strict controls

on

size

and

capacity

would

not be

sufficientto

overcome

pressuresfor

more

intensive

devel-opment.

While

the

Camp,

Dresser

and

McKee

studydid a great dealto

expand

the technical information base, itdid not

attempttoaddressthefullrange oflanduseplanningissues

posed by watershed

management

initiatives,

and

the diffi-cult questions related to the diverseconcerns ofvarious

(8)

understand-ing

between

citizens,planners,those withtechnical exper-tise,

and

electedofficials

from

thearea's jurisdictions.

Subsequently,inthe

summer

of1989, representativesof

the electedboards of

Orange

County,Carrboro,and Chapel

Hill

convened

fordiscussionsconcerning

how

torespond

to the study's recommendations.

An

intergovernmental

committee

createdtoaddress planning, water, transporta-tion

and

relatedissues in

Orange and

Chatham

Counties hadbeen established ayearearlier,

and

providedan

avail-able

and

effective vehicle for discussions

among

elected officials

who

hadalready

become

reasonablycomfortable

in

working

together.

The

intergovernmental

committee

was

assisted by a

working group

ofstaff

members

from

Orange

County, Carrboro,

Chapel

Hill, the Triangle J

Councilof

Governments,

and

OWASA.

Through

inten-sivemeetingsevery

week

or

two

duringlate August, Sep-tember,

and October

1989, the

committee

of elected offi-cials,along withthe

committee

of professionalstaff,

were

able to discuss at

some

length the

Camp,

Dresser

and

McKee

findings

and recommendations,

aswell as to

de-velopadditional information concerning planning issues,

addressquestions related tothe impact

on

land valuesof

stringentdensity constraints,

and

identify significant his-torical

and

emotionalissues thatunderliethepolitical dif-ferences

between

constituentsinvariousareas.

Of

particu-larimportance

was

the forthrightdiscussion of

disagree-ments

concerningthe allocationofbenefits

and

burdens

as-sociatedwith the regulations (shouldwaterusersbeobliged

to pay

compensation

to landowners subject to stringent regulatoryconstraints,orshouldlandowners beobligedto refrainfrom

development

thatmightadverselyaffectwater

users?), the strong sense of inequitable treatment

and

historicalgrievances concerning thearea'sschool system and

economic development

thatcontinuedtotroublerural

landowners(but

had been

relativelyinvisible toresidentsof

the towns),

and

the potential stake thatall

members

of the

community

hadintrying todevelopa mutually agreeable

solution.

These

concerns might initially have

been

dis-missed as "political" in nature by certain of the area's leaders,butbytheconcluding phases ofthe discussion they

were

understoodtobesignificant,legitimate,

and

veryreal. 3. Creating

an

AppropriateDecision-MakingProcess.

The

process for developing

sound

management

strategies for University

Lake

watershedreliedboth

upon

legally-mandated

mechanisms

forreachinggovernmentaldecisions,and

upon

more

informal

mechanisms

designed to

supplement

the

decision-making process.

The

affected

governments

continuedto

comply

withrequirements concerningnotice, hearing,permittingand rezoningrequirements,andrequests

forspecial legislationto authorizenovel

mechanisms

for

cooperative planningandunusual

means

of land usecontrol.

Indeed, the uncertainties associatedwithlegaldoctrine

and

potential litigation at times increased the pressure for

development

ofbalanced,well-justifiedsolutions thattook

intoaccountthe

many

viewpoints expressed overthe several years of

community

discussions concerning the

most

appropriate

management

strategies for University

Lake

watershed.

On

theotherhand,theinformalprocessesusedin

devel-opingastrategyforUniversity

Lake

watershed

management

contributed in significant ways to the

development

of a

better understandingof the

problem

and

the

development

of

more

satisfactorysolutions.

As

notedabove, a multi-stage process

was

usedindefiningthe

problem and

addressingit

on

several levels, including not only the project-specific level,butalsothewatershed-widelevel,

and

thearea-wide

level(insofarasit

was

necessarytotake intoaccountother related issuessuch asthe

need

to identify non-watershed

areasas focalpointsforresidential

and commercial

growth,

and

to specificallyaddressthe

problems

ofruralcharacterin

non-watershed areas ofthe county). In addition, a

more

flexible

and

collaborative processallowedelectedofficials

and

staff

members

togather

and

poolinformation,identify

common

goals, flagareas

where

consensus

was

lackingfor

further discussion

and

exploration, identify areas of

ulti-mate

agreement, brainstorm aboutpossible solutions,

and

respectfullydisagree

where agreement

couldultimatelynot bereached.

Thatisnottosay that there

were no

flawsinthe process used.

Although

the meetings of the intergovernmental

group

that ultimatelydeveloped

recommendations

toarea jurisdictions

were open

to thepublic,

and

comments

from

members

of the audience

were

invited

and

welcomed

at meetings,

some

citizens

may

havefeltthatthey

would

have

liked

more

formal opportunities for providing

comments

duringthisprocess,or

may

haveconcludedthatthisprocess

of discussions

among

staff

and

elected officials did not

providean adequate role forlandowners

and

other

inter-estedcitizensbefore

momentum

grew

insupport of

some

sort ofcollaborative solution. In addition, a significant effort

was needed

to provide adequate information to all interested

members

ofthepublic,a goal that

was

partially,

but notcompletely, achieved.

Members

ofthestaffsof area jurisdictions

and

some members

of governingboards also felt constrained late in the process to raise questions or

recommend

changes in certain facets of the

compromise

developed bytheintergovernmental

work

group,inorderto

addressspecificconcernsraisedbyconstituentsorproblems

thattheybelieved

were

notadequately takenintoaccount by

the

compromise

proposal. Finally,

an

idealsolution

would

have

been

one

supported byall

members

ofthe

community.

Despiteefforts to developa

compromise

that

would

take intoaccountthe fullrange of concerns

among

waterusers,

landowners,

and

others,feelingsstillranhighatthetimeof hearingsconcerningproposed watershed

management

regu-lations,

and

asense ofdivision

between

thosebenefitedand those

burdened

bysuchregulationsremained.

Nonetheless, the use of a

more

flexible process that

(9)

Fall1990, Vol.16,No.2 ₂₇

among

staff

and

elected officials,

and development

ofa

compromise

designedtohelp local

governments

develop

necessary regulatory provisionsinacoordinated

and

timely fashioncontributedsignificantlytotheadoption ofa care-ful,balanced,

and

sophisticatedsetof watershed

manage-ment

policies inarelativelyshort time.

The

substanceof

thoseregulations

and

related measures taken byarea

gov-ernments

and

OWASA

isoutlinedbelow.

4. CreatingEffectiveSolutions.

The

creation ofaneffective

solution for University

Lake

watershed

was

helped

significantly by the steps outlined

above

(developing a multi-faceted definition of the problem,creating a

sound

and

comprehensive

information base,

and

developing a

more

flexible, collaborative decision-making process).

Importantlessonscanalsobelearnedfromthesubstance of

thesolutions ultimatelyadopted.

The

basic

Camp,

Dresser

and

McKee

recommendation

offive-acre

minimum

lotsizeswithprivate septicsystems wasultimatelyadoptedbyboth

Orange County

andCarrboro, with certain modifications.

Among

the

most

significant

modifications

was

the recognition that existing lots of recordcouldbe subdividedsoas tocreatenotonlylargelots offiveacresor

more

insize,but also a small

number

oflots

between two

and

fiveacresinsizeinordertomitigate the

hardship feared by landowners.

An

option for cluster

development was

also permitted (provided thatstringent

impervious surface limitations

were

satisfied, structural

stormwatercontrol

mechanisms were implemented

in ap-propriate cases.a

one-acreminimum

lotsize

was

observed,

anoverall densityof

no

more

than

one

unitperfiveacres

wassatisfied,

and

septic systems rather than

community

systems

were

utilized).

Orange County and

Carrboro

ulti-mately disagreed

on

the appropriate level of impervious

surfacecontrolstobe applied to land within their respec-tivejurisdictions,withCarrboropreferringafourpercent

impervioussurface limitationforlotsoffiveacresormore, and six percent for lots

between

two

and

five acres;

and

Orange County

adopting a sliding scale of impervious

limitswitha

maximum

ofsixpercent for five-acrelotsand

a

maximum

oftwelvepercentfortwo-acrelots. Vegetative

buffers

were

mandated, controls

on

lot placement

and

sitingof structuresspecified,

and

otherregulatory

require-ments adopted.

In addition, a

number

ofotherpoliciesrelatedto

water-shed

management

were

identified forfuture consideration byareajurisdictionsand

OWASA

Orange County

planned

to pursue the

development

ofstrategies for dealingwith

special hardships that might be suffered by farmers,

and

OWASA

agreedto create awatershed protectionfund to

acquire feesimple title or

development

rights in particu-larly sensitive land within the watershed.

OWASA

also

adoptedapolicyofgenerally prohibiting extensionofpublic

waterand sewer into the University

Lake

watershed,

and

continueditsextensivewaterqualitymonitoring program.

Conclusion

The

University

Lake

storyisintended onlytoprovidea

startingpoint,notan endingpoint,fordiscussionof strate-gies forwatershed

management.

The

lessons learnedby

those

who

soughttodevelopa solutionfortheUniversity

Lake

watershed

were many-including

the

need

todefine thescope of watershed

problems

carefully;theimportance of a shared information base including both technical,

planning

and

politicalinformation; the usefulnessof flex-ible,collaborativedecision-makingprocesses thatcan

sup-plement

traditional legally-mandated decision-making

mechanisms; and

the possibilities for creative solutions

that take into account the diverse concerns

and

many

variables involvedin

development

of watershed

manage-ment

policies.

A

number

ofthe

government

officials,university

profes-sors,

and

staffinvolvedin the University

Lake

watershed

negotiations believe thatitispossibletolearn

how

to

work

more

effectively insolvingsuchdifficultproblems.

To

that

end,your helpisrequested. It

would be

very usefultolearn

ofyour

own

storiesaboutdealingwithdifficultwatershed

management

issues, so that

we

could develop a set of

detailedcase studies tobe shared with otherjurisdictions

thatare about to

commence

their

own

journey through unchartedwaters. In addition,

we

hope

to developa

de-tailedsimulation exercise, based

on

the University

Lake

experience, foruse bystaff

and

government

officials

who

would

like to gainexperiencewith a "dry run" involving

watershed

management

issuesbefore

embarking on

their

own

reallifeadventures.

To

make

suchan experience

most

meaningful,

we

would

liketodevelop such an exercise in

conjunction withstaff

and

electedofficialsinother

jurisdic-tions

who

might considerparticipatinginsuch anexercise

at

no

or

minimal

cost. Ifeitherofthese ideasinterestsyou, pleasecontact theauthoratthe Universityof

North

Caro-linaSchool ofLaw,

CB

3380,

Chapel

Hill,N.C. 27599, or

phone

(919)962-4417.

Acknowledgements

TheauthorwishestoexpressspecialthankstoJulieAiidresen,memberof the Chapel HillTown Council; Andy Sachs, Orange County Dispute Settlement Center;RoyWillifordof theCarrboroplanningdepartment;

AnnWeeks,formerly Carrborosenior planner; Kimberly Brewer, for-merlyof theChapelHilltownplanningstaffand nowa memberof the Triangle J Council of Governmentsstaff; and Ed Holland.

OWASA

researchand planning administrator, fortheircommentson anearlier draftortheirwillingness to provideimportantinformationthat contrib-utedto this essay.Shewouldalsoliketorecognize theimportant informa-tionandinsightsprovidedbyEdHolland'spaper"WaterQualityGoals andWatershedManagementDecisions"and bytheCamp,Dresserand