Can the Clean Water Act Succeed as an Ecosystem Protection Law?
George Washington Journal of Energy & Environmental Law (Forthcoming)
UC Berkeley Public Law Research Paper No. 2168724
46 Pages Posted: 31 Oct 2012 Last revised: 26 Nov 2012
Date Written: October 30, 2012
The objective of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Yet forty years after the Act’s passage, the nation’s aquatic ecosystems are among its most distressed. A number of commentators have looked at the law’s failure to fulfill its water quality goals. In this article, we go a step further, asking explicitly whether the law can protect and restore aquatic ecosystems. As a vehicle for that question, we use a case study of the law’s operation in the San Francisco Bay/Sacramento-San Joaquin Delta ecosystem. We regard this as a best case example, because California is more committed than most states to the cause of ecosystem protection and because state law has integrated the management of water quality and water rights. Although the case study shows that the Clean Water Act can play an important role in ecosystem protection efforts, even in this best case those efforts have so far fallen short. There are two key barriers to ecosystem restoration. First, restoring degraded aquatic ecosystems necessarily requires changes in the water management status quo, and those changes are necessarily politically difficult. Second, the Bay-Delta, like other complex ecosystems, remains poorly understood, a situation which further entrenches the status quo and makes it difficult to identify effective ecosystem restoration measures. We believe EPA could use its Clean Water Act authority to address both of these barriers. On the political side, if EPA can gather the courage to push its authority, it can change the political dynamic that encourages inaction at the state level. On the information side, EPA is in a better position than the states to generate, compile, and distribute information about the relationship between water quantity and water quality. Furthermore, EPA could increase the utility of that information by pushing the states to more specifically define water uses. In the long term, major legislative changes are needed if the CWA is to achieve its ecosystem restoration goals nationwide. In the short term, while it awaits a Congress that might take on that task, EPA could take pragmatic steps to help willing states take on that role more effectively.
Keywords: water pollution, ecosystem restoration, water quality, environmental federalism, water rights, California Bay-Delta
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