Runoff and Reality : Externalities, Economics and Traceability Issues in Urban Runoff Regulation

It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described as non-point source pollution. According to the United States Environmental Protection Agency (EPA), States report that nonpoint source pollution is the leading remaining cause of water quality problems. As a result, determining the origin of certain pollutants becomes very difficult - if you cannot trace them to a certain dumping pipe because the substances simply runoff from a non-point source it becomes far more difficult to identify the originating location of contaminants. This Article will explore these difficulties. In addition to and in conjunction with federal regulation, most states have implemented plans to control for the contribution of runoff and non-point source pollution to water quality, but it is a still developing area of environmental law. The complexity of this process of regulation, however, is high. This Article remains largely agnostic and focuses on the complexities and difficulties that must be taken into consideration as regulations develop and are applied in this area. It attempts to identify the metrics, economics, and realities that must underlie the regulation of runoff