No Virtue Like Necessity: Dealing with Nonpoint Source Pollution and Environmental Flows in the Face of Climate Change

Abstract

In many ways, the Clean Water Act of 1972 has been a tremendous success. Discharges of water pollutants from both industrial and municipal point sources have plummeted; the loss of wetlands has been cut decisively; and water quality has improved broadly across the nation. Despite all of this progress, the quality of many of our waters remains impaired. In other words, a significant proportion of our rivers, lakes, and smaller streams are simply not clean enough to fully support their designated uses such as fishing or recreation. The primary reason for this lies in the failure of the Act to effectively tackle two significant sources of water pollution: nonpoint source pollution diffuse runoff from, for instance, fields and logging operations and hydrologic modifications such as water withdrawals, impoundments, and diversions for off-stream uses. In both cases, Congress bowed to old concepts of federal and state responsibility and left control of both kinds of pollution primarily in state hands. While some states have responded well to the challenge, most have not proven equal to the task. New approaches are thus needed to deal more effectively and more comprehensively with these two problems, the magnitude of each of which is staggering: over 40,000 nonpoint source impaired waterbodies and thousands of flow impaired waters.

Both problems, moreover, are just going to get worse since climate change will exacerbate each problem. Climate change has already brought more intense precipitation in its wake, and this national trend toward heavier precipitation events will intensify in the future producing even more runoff and nonpoint source pollution. In addition, hotter and drier conditions, especially in the West, will place greater strains upon streamflows, wreaking increasing damage on aquatic ecosystems as well as creating more conflict among those who use water.

Progress on creating a more effective federal-state partnership to combat both problems has proven impossible for over forty years. Many states and their allies in Congress have successfully resisted such efforts citing traditional state interests over land use and water allocations. The problems, however, are growing more severe. Action is becoming imperative if the nation is going to respond in a rational fashion to both challenges. This article, therefore, concludes with an exploration of a number of administrative and legislative approaches for creating more dynamic and integrated strategies for dealing with both of these national problems.

Keywords: environmental law, water pollution, clean water act, nonpoint source pollution, environmental flows, federalism