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Fixing Our Drinking Water_ From Field and Forest to Faucet | Water Purification | Drinking Water

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Keith S. Porter, Fixing Our Drinking Water: From Field and Forest to Faucet, 23 Pace Envtl. L. Rev. 389 (2006) This article reviews the fluctuating history and need for protecting water supplies at their source-at the watershed level-and outlines how Delaware County, as a partner in the New York City watershed, is fostering such protection through local comprehensive planning.
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  Pace Environmental Law Review   Volume 23Issue 2 Summer 2006  Article 46-1-2006 Fixing Our Drinking Water: From Field and Forestto Faucet Keith S. Porter This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in PaceEnvironmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contactcpittson@law.pace.edu. Recommended CitationKeith S. Porter, Fixing Our Drinking Water: From Field and Forest to Faucet   , 23 PaceEnvtl.L. Rev.389 (2006) Available at: http://digitalcommons.pace.edu/pelr/vol23/iss2/4  Fixing Our Drinking Water: From Fieldand Forest to Faucet KEITH S. PORTER* SUMMARY The protection of water supplies predates Earth Day by more than 150 years,yetmodem environmental law has tended toover- look this concern for water supply protection. Rules and regula- tions aimed at protecting water supplies from pollution date from the early eighteen hundreds. As the nineteenthcentury progressed, considerable reliancewas placed on safeguarding water supply catchments, or as they are now more commonly termed, watersheds. This safeguarding relied, in part, upon con- trolling human activity in the catchment area by means of state and local government initiatives. It also invoked the assistance of police powersto ensure the continuance of the safety andwelfare of society. In theearly twentieth century, however, preference for catchment management retreated as water engineers developed increasingly effective methods of watertreatment and as water treatment was increasinglyrelied upon to provide protective bar- riersagainst waterbornediseases. Unfortunately,in more recent years, increasedawareness of new threats to water supplies has undermined confidence in primary reliance on water treatment. The existence of the New York City watershed demonstrates a renewed reliance on rules and regulations to protect water sup- ply. However, the New York City watershed differsfrom the nine- teenth century concept of the idealcatchment area sought for water supplies. Unlikemany nineteenth century watersheds, the New York City watershed hosts multiple land uses and associated nonpoint sources. Traditionally, police powers administeredthrough watershedrules and regulations had limited reach in con- trolling such sources of contamination. Therefore, assumption of local responsibility in managing land to protect water quality * Director, New York State Water Resources Institute, Adjunct Professor of Law,CornellLaw School. The author acknowledges the veryhelpful assistance of Jery Stedinger, Professor of Environmental Engineering, Cornell University, for his review of an earlier version of this article. 389 1  PACE ENVIRONMENTAL LAW REVIEW seems essential. In this regard, the NewYork City watershed pro- gram is an experiment that is attempting to determinewhatshould be managed-and how and by whom-to best ensure the continued integrity of the water supply.Delaware Countyis seeking and testing answers to these questions. This article reviews the fluctuating history and need for protecting water supplies at their source-at the watershed level-and outlines how DelawareCounty,asa partner in the New York City watershed, is fostering such protection through lo- cal comprehensive planning. I. INTRODUCTION Compared to the Clean Water Act (CWA), 1 the Safe DrinkingWater Act (SDWA) 2 is relatively overlooked. This lesser attention may seem remarkable given that SDWA's subject matter is funda- mental forpublic health. Thefact that drinking water is a com- modity provided as a service that has been thoroughly tested is likely the reason SDWA is so often overlooked. In fact, the safety of our public water supplies has long been assumed with confi- dence. However, recently recognized threats to public health con- veyed by drinkingwater have disturbed complacency about its purity. Methods of water treatment traditionally relied upon for 100 years now appear insufficient to protect against the protozoan parasite, Cryptosporidium parvum. 3 In addition, suspected car- cinogens that result when chlorinationreacts with organic mate- rialin the raw water during water treatment, 4 known collectively as disinfection byproducts, have alsobecome a concern. Such con- cerns havereawakened interest in the nineteenth century prac- tice of protecting drinking water supplies at their source to provide a first lineofdefense against waterbornediseases.Protection of drinking water at the watershed level, or source water protection, is now an enhanced objective of the Safe Drink- ing Water Act. 5 The New York City watershed is a nationally sig- nificant demonstration of protection of a major water supply at its source. This watershed, encompassing nearly 2000 square miles, 1. 33 U.S.C. §§ 1251-1387 (2000). 2. 42 U.S.C. §§ 300f-300j-26 (2000). 3. Greg Hannahs, Cryptosporidium parvum: An Emerging Pathogen, http://biol-ogy.kenyon.edu/slonc/bio38/hannahs/crypto.htm (last visited Mar. 13, 2006). 4. G.L. Gilbert, From Broad St. to Prospect via Milwaukee: Water Contamination and Human Disease, 8 INOCULtM 1 (1999). 5. 42 U.S.C. §§ 300j-13, 300j-14. 390 [Vol. 23 2http://digitalcommons.pace.edu/pelr/vol23/iss2/4  FIXING OUR DRINKING WATER is inhabited and will remain so. 6 Farming, other land uses, andhuman activities create nonpoint sources of potential pollution.Thus, to securely protect the integrity of water necessitates high standards of land management and comprehensive planning. Pro-tecting water supplies is a primary objective in comprehensive wa- tershed management with significantly wider environmental benefits. Hence, comprehensive watershedmanagement yields en- vironmental benefits beyond water quality alone. Safe drinkingwater is essential for human health,but also, asProfessor Wil- liam Cox has observed, human health is fundamentally related to environmentalquality. 7 Not only does comprehensive watershed management yield a variety of environmental benefits, it also generally incorporatesmultiple jurisdictions and levels of government. It is impossible, however, to regulate and monitor multiple nonpoint sources through police powers alone. Therefore, to securely protect a water supply and provide other environmental benefits in an in- habited watershed such as New York City's, it is essential to en- gage farmers andother landowners, businesspersons, community leaders, and residents so they willingly manage the nonpoint sources over which they individually have control. Management of nonpoint sources is local management, and therefore ownership of the management program is also local. Delaware County, which accounts for about 50 percent of the New York City watershed, is demonstratingthe acceptance of re- sponsibility at the local level for watershed protection. 8 The county represents confirmation of the evolution, noted by Profes- sor John Nolon, toward environmental sensitivity in local land use controls. 9 This acceptance of responsibility is integrated with the responsibilities of other watershed partners, including NewYork City. Thus, the DelawareCounty Action Plan and its local management procedures are a paradigm for inclusive protection of 6. EPA, WATERSHED PROGRESS: NEW YORK CITY WATERSHED AGREEMENT, EPA 849-F-005 (1996) [hereinafter WATERSHED PROGRESS], http://www.epa.gov/owow/wa- tershed/ny/nycityfi.html. 7. William E. Cox, Evolution of the Safe Drinking Water Act: A Search for Effec-tive Quality Assurance Strategies and Workable Concepts of Federalism, 21 WM. & MARY ENVTL. L. & POL'Y REV, 69, 91 (1997). 8. Michael A. Principe, William N. Stasiuk, & Ira A. Stern, Protecting New York City's Drinking Water Sources (2000APA Nat'l Planning Conference, Apr. 19, 2000), http://www.asu.edu/caed/proceedings00/PRINCIP/princip.htm. 9. JOHN R. NOLON, OPEN GROUND 9 (2003). 20061 391 3
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