Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act

Abstract

The last truly significant revisions to federal water pollution legislation (the “Clean Water Act” or “CWA”) occurred in 1972. The CWA has been among the nation’s more successful environmental statutes, especially with respect to control of point source discharges of pollutants into surface waters. However, when viewed from the broader statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” the statutory tools are either too dull to accomplish the task, or in some cases the appropriate tools have yet to be forged at all. In this Article, I argue that the focus of the CWA should be modified or expanded in four ways. First, we need to make better use of current concepts of ecosystem resilience rather than the notion of ecosystem “stability” that prevailed when the 1972 law was passed. Second, we need to develop the statutory and other tools necessary to press forward with the restoration goal of the statute. Third, we need to pursue the long-recognized statutory gap in redressing non-industrial forms of water pollution from a much wider range of sources than traditional industrial and municipal point source discharges. Finally, we need to revise our definitions of “waters” and “waters of the United States” to focus on the sustainability of aquatic ecosystems for human and natural uses, rather than on the antiquated concept of navigability.

Keywords: Clean Water Act, CWA, water, waters, waters of the United States, water pollution, resilience, sustainability, nonpoint source pollution, restoration, biological integrity

JEL Classification: D73, D81, H11, H7, H70, H73, H77 I18, K23, K32, Q15, Q2, Q20, Q24, Q25, Q28