Forty Years Later, Time to Turn in the CWA Clunker for Something Suited for the 21st Century

by Dan Tarlock

October 12, 2012

As the Clean Water Act (CWA) turns 40, it is useful to compare it to the cars on the road in 1972. Big cars, some still adorned with tail fins and grills, ruled the road, running on 36 cents per gallon gas.  Forty years later, we look back on the early 70s and ask how could we consider these cars, and what we wore driving them, so cool. Today, we are driving smaller, better engineered and designed fuel efficient cars.   

If only it were so for our water protection laws. Instead, we are still trying to maintain and improve the quality of our nation’s waters and the aquatic ecosystems that they support with a clunky piece of legislation written four decades ago.  For a long time, most in the environmental community have recognized that the CWA needs to be traded in.

The environmental community has three options for the future of the Act. First, it could spend all its time keeping the clunker running as industry uses the Republican Party to eviscerate it or return to pre-1972 inconsistent and largely non-existent state protection.  Second, there is a well-developed incremental reform agenda. It includes closing gaps such as non-point sources and confined agricultural run-off, reforming the dysfunctional Section 404 Corps-EPA relation, and strengthening the long-running TMDL program.  The third option is to work toward trading in the Act for a new model, an Audi A8 Clean Water Act, if you will.

What might such an Act look like? The guiding principle should be to reintroduce hydrology into the Act.  We have to run with perhaps the most useful environmental principle announced by the Supreme Court.  In PUD No. 1 v. Washington Department of Ecology, Justice O’Connor called the distinction between water quality and quantity “artificial” because the two are closely related.  Hydrology was an integral part of pre-1972 pollution control, but it was used to promote, not control, the use of rivers and lakes as waste sinks.  Lakes and streams were considered natural waste repositories because of their natural waste assimilative capacity. Their “highest and best use” was as open sewers. The CWA, of course, changed this. Section 101 makes a nod to the chemical, physical, and biological integrity of stream, but then shifts the emphasis from the watercourse to the condition of discharges into it.  The hydrology of the system was, however, an implicit part of the Act. Both NPDES technology-standards and the maintenance of pre-1972 water quality standards rest on unarticulated assumptions about matters such as seasonable flows.

Of course, we do not want to give up the benefits of the Act, but a number of factors require the reintroduction of hydrology into the Act. First, climate change is here and is impacting water use, and given the unwillingness of the international community, led by China, India and the United states to engage in serious mitigation, so the present option is to adapt best we can.  We are already seeing adverse impacts. This past summer, Illinois had to issue variances for thermal discharges from nuclear plants because of high water temperatures and low flows. Second,   the federal government and many states have committed billions of dollars to aquatic ecosystem restoration experiments. The kicker is none of these experiments have a clear target of what the restored system should look like in terms of climate adjusted water quantity and quality parameters.  Third, there are too many gaps in program in the Act that need to be closed before we can come close to meeting the integrity goal of the Act.

Where do we start? We have to start with the watershed. There have been numerous efforts to control pollution at the watershed level, but almost none have had an adequate legislative framework. When the federal government stopped building large dams, it also exited from any serious effort to create effective watershed management institutions. This Progressive Era vision needs to be revived and adapted to the Environmental Protection Era. Next, we need to comb through all post- 1972 efforts to measure water quality and synthesize them with all the research on river function and the ecosystem services that water bodies provide. The end product should be a set of acceptable stream function parameters.  For each watershed, these parameters would have to be adjusted for climate change and applied to develop an acceptable range of stream conditions.  We could think of these as hydrology rather than use based water quality standards.  From here,  state pollution control agencies, overseen by the federal EPA, would have to identify, using all the new land mapping technology that has been developed since 1972, ALL major sources of harmful discharges, including dams, diversions, farms for starters, that need to be controlled to maintain the parameters.   Using legislation that gives them authority all these sources, a mix of best practices, performance standards and technology-based standards would be applied to bring the watershed into compliance.

This is a big dream and an impossible one to many, if not most, students of environmental regulation, especially in today’s take-no-prisoners environment. Even if one could get over the pollution barriers that have stalled all environmental legislative innovation, let alone most modest reform, there are formidable barriers to developments and integrating the science necessary to make this approach credible and workable.  However, at some point, it becomes inefficient, if not impossible, to keep a 40 year old car running. Even as individual parts are replaced, the car can no longer perform the functions and services that it did when it was built. The same can be said of the CWA. It is time to think of a trade-in for something suitable to the challenges we will face managing the natural resources that we need to survive and thrive.

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Also from Dan Tarlock

A. Dan Tarlock is a Distinguished Professor of Law at the Chicago- Kent College of Law and Honorary Professor UNECSO Centre for Water Law, Science and Policy, University of Dundee, Scotland. His teaching and research interests include environmental law, property, land use controls, biodiversity conservation and water law.

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