This article was originally posted April 9, 2020, in the Marquette University Law School Faculty Blog. It is reproduced here with permission.

Earlier this week, the University of Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, a paper I co-authored with Dr. Walter McDonald of the Department of Civil, Construction and Environmental Engineering (CCEE) in Marquette’s College of Engineering; Joe Naughton, a 2020 Sea Grant Knauss Fellow at the National Oceanic and Atmospheric Administration; and Hannah Hathaway, a member of the Law School’s Class of 2020. Another faculty colleague, Dr. Tony Parolari of the CCEE department, participated in the underlying research grant that resulted in the paper. This kind of work is part of our core mission: the Marquette University Water Law and Policy Initiative seeks, among other things, to employ an interdisciplinary approach, and to pursue opportunities for information exchange and collaboration within and outside Marquette University.

The following excerpt describes the work. The full article is freely available at the above link.

“Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors. These changes have increasingly stressed existing “static” stormwater management systems such as pipe networks, retention ponds, and detention ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

“Dealing with these stressors may require innovative solutions such as real time control (RTC) or “dynamic” stormwater management systems. RTC systems are typically automated or semi-automated and “involv[e] applications of sophisticated dynamic models to design and operate controls in real time,” such as modifying setpoints to open and close valves, or routing stormwater differently under particular system setpoints. The goal of an RTC system is to continuously regulate the flow in the various branches of a network based on real-time information related to system capacity and weather conditions, thus reducing the magnitude of outflows during storms and relieving other stresses on the system.

“Yet RTC systems have not been widely adopted. Some analysts have blamed historical resistance to innovation, especially among governmental system operators responsible for protecting public health and safety. One recent study identified six factors that inhibit innovation: the risk-averse nature of water managers, the long life expectancy and significant complexity of most water systems, geographic and functional fragmentation, water pricing practices, absence of incentivizing regulations, and insufficient access to venture capital. This paper examines the possible reasons that stormwater management system operators (typically municipalities) have generally been reluctant to adopt RTC technology.

“Our interdisciplinary team of law faculty, engineering faculty, and graduate students from both disciplines studied dozens of examples involving RTC implementation in the United States and abroad. We also examined the literature detailing institutional barriers to RTC innovation. Finally, we reviewed numerous legal decisions related to municipal liability for stormwater management (or mismanagement).

“From this foundation, we distilled several institutional and legal barriers that prevent municipalities from embracing this particular type of innovation. Key institutional barriers include regulatory fragmentation, workforce readiness, resistance to innovation, data management, cybersecurity , and cost. Municipalities considering RTC innovations must be ready to address those challenges.

“On the legal side, two factors should concern a stormwater management system operator considering RTC: first , that by actively making decisions to control and route the flow of stormwater in its system, it increases the likelihood of liability for negligence or nuisance claims; and second , that the sheer amount of data collected by RTC networks effectively puts the municipality on notice of problems within its system, increasing the likelihood of legal liability connected with future claims. The paper suggests a variety of strategies to combat these institutional and legal barriers to smooth the transition to RTC systems.

“Some of the lessons learned in overcoming these barriers may be applicable to analogous situations involving other innovative technologies capable of improving public health and the environment.”

This work was made by possible by a grant from the National Science Foundation Industry/University Cooperative Research Center for Water Equipment and Policy.