Watershed Moment
U of L law professor Tony Arnold works to blend laws that protect watersheds and preserve property rights.
From Tony Arnold's point of view, that fresh coat of pesticide on your lawn represents a major land-use decision.
Why?
Because when multiplied by thousands of homes and farms, those chemicals wash away and accumulate in water supplies far from their sources.
From that, more issues arise, including the labyrinth of laws that protect the rights of private property owners to do what they want on their land versus the broad public interest.
It's that labyrinth that Tony Arnold enters in his scholarship.
Land-use is such an important public issue that U of L established a scholarly chair devoted to its study.
Arnold occupies the Boehl Chair in Property and Land Use in U of L's Brandeis School of Law.
He says the effects of "many small land decisions, on waterways are especially critical in Kentucky from both an environmental and economic standpoint.
"Kentucky has more running water than any other state except Alaska," he says. "Water is an important part of who we are. It is an important part of our sense of community and our economy."
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Tony Arnold
The state profits greatly from water-based recreation such as fishing and canoeing. Degradation of rivers and streams, Arnold says, could adversely affect the quality of life for residents and the state's tourism industry, which in 2002 had an economic impact of $9.1 billion.
Even so, Arnold says communities need to strike a balance between environmental law and the ownership of private property.
"We need to look at the value to the community of having private property," Arnold says. "But we also need to check that what owners do with property is realistic."
Efforts to protect the Ohio River point to how complex this balancing act is. Cities and counties control land use, yet the river runs through multiple states.
Instead of merely studying the issues, Arnold suggests possible solutions. And New York state appears ready to listen to his ideas.
At a recent symposium in White Plains, N.Y., Arnold presented a paper in which he proposes the creation of regional watershed management agencies with planning authority and tools to help local governments conform their local land-use plans to watershed-based plans.
"With this set-up, local areas would retain control over land use, but be subject to watershed protection policies," he says. "Also, regional watershed agencies could study and analyze local land-use decisions on water quality, providing expertise and advice about how to modify our land uses."
The New York state legislature will consider Arnold's and other symposium experts' suggestions next year.
Arnold's credentials include several books on land and water use, including the recently published Wet Growth: Should Water Law Control Land Use?
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"I look at ways that the legal system and regulation can be put to use in a broader conservation effort," Arnold says. "Because the law fragments these regulations into clean air regulations, clean water regulations, and the like, I try to reweave them because they are all connected in the real world. Smart growth principles are incomplete if they don't address how land development and growth affect water resources."
Arnold says some blame lies with government officials who don't enforce already existing regulations to curb urban runoff. However, he says, judicial decisions do not present adequate solutions.
"The law in and of itself will not solve all these problems," he says. "We turn to law to settle tough questions and situations. The law and legal institutions play a role, but they are not responsible for actual outcomes. They are triggered to move people toward solutions."
In many communities, grassroots groups are weighing in. River Fields in Louisville, for instance, purchases land to keep it in its existing state and protect it from development.
Arnold admits that there is a natural tension between private-property owners' rights and the environment and common good. Collaborative problem solving and changing public values or ethics are critical.
"We need a more nuanced approach to how we handle land use," he said. "We need more of a mix of reforms that do a better job of balancing land use needs with ecological needs."
