Clean Water Act 40th Anniversary

Samne Knudsen, Robert Adler

October 25, 2012

Samne Knudsen:

OK, I know some of you guys are filtering in. Feel free to help yourself to the food if you haven’t already. It’s my great pleasure to introduce our distinguished speaker today. Of course, the broader event that gathers us here today is the 40th anniversary of the Clean Water Act this month. Just a word about the Clean Water Act, although Professor Adler will give us more than a few words. It’s one of the great environmental laws passed in the 1970s, when Congress was feeling bold enough to address some tough and pressing environmental problems with some conviction.

Given the Clean Water Act’s stature in environmental law generally, what better person to have with us today to reflect on the aspirations of the act than one of the great scholars in the area of water law and the Clean Water Act. That is Professor Bob Adler from the University of Utah.

Somewhat ironically, though not quite so also logically, Professor Adler has written two books on water, from one of the most arid states in the Union, from Utah -- one on the history and impact of the Clean Water Act, and the other on restoring Colorado River ecosystems. He’s also published dozens of law review articles, including ones in Vanderbilt Law Review, Harvard Environmental Law Review, Utah Law Review, George Washington Law Review.

Even before joining the Utah law faculty and building his reputation as a scholar in this area, Professor Adler had the Clean Water Act in his knuckles, as he was litigating numerous cases with the Natural Resources Defense Council.

He’s continued that role in keeping the law in his knuckles, as he started and directs the environmental law clinic at the University of Utah, which is where I met him a couple of years ago when I was a visiting professor at the University of Utah.

So it’s from personal experience that I can say Professor Adler is a remarkable teacher, scholar, litigator, and mentor. Without further word from me, I hope you’ll join me in giving him a warm welcome. Thank you.


Robert Adler:

Thank you so much. It’s a great pleasure to be here. I actually have a triple synergy to this law school. I played a very small role in bringing Professor Knudsen here and recommending her, so you should thank me for that. Professor Wildermuth’s sister is a close colleague of mine at the University of Utah. Third, a little known fact is that I took environmental law and natural resources law when I was no older than most of you here from none other than Bill Rodgers when he was still at Georgetown. To be honest, I’m not sure he was all that older than I was at the time. He inspired my career in environmental law, for which I owe him a great debt. Hopefully, we have some synergies there.

So, 40th anniversary of the Clean Water Act. An awful lot has been written from a doctrinal perspective about what’s right with the act, what’s wrong with the act, by me and many other scholars. But I want to take this anniversary event as a time to ask a somewhat more fundamental question, and to continue a dialogue that has been in the environmental law literature for quite some time about the value and legitimacy of aspirational statutes.

In my view, the Clean Water Act is one of the most, if not the most, aspirational of all environmental statutes. I would characterize it as highly aspirational, and I’ll explain why in a little bit. But everyone who has studied implementation of the Clean Water Act and the relative success of the Clean Water Act agrees that there are some success stories, some rather significant success stories.

Some parts of the statute have been abject failures, and there’s a whole lot in between. But the lofty aspirations, the loftiest aspirations of the Clean Water Act, have not been met. The key question is "Why?" I want to ask why, and then what we might do about it, and I want to pose three somewhat overlapping theories or possibilities.

Theory number one is what I’ll call the cynical or realistic or realpolitik view, which is that for various political and institutional and other reasons, the aspirations of the statute have been undermined over time because of disparate political and legal power.

Economic interests have been able to pressure Congress, pressure EPA and state agencies, and to successfully litigate in the court to undermine various of the operative provisions of the act. I’m going to give a number of examples of that from the history of Clean Water Act implementation a little bit later.

Theory number two is that we don’t meet aspirational laws because they’re written too aspirationally. In other words, everyone understands that the goals that we’ve set are so aspirational, so lofty, that they can’t possibly met, and so we don’t even try. Instead, the various entities that implement the act, EPA, the other agencies, set more realistic goals that they believe can actually be met.

They effectively become the real goals of the statute. They become the de facto goals that we try to meet. And, as a corollary, we either ridicule the original goals of the statute or give them a wink and a nod but really ignore them. Other scholars have said that this allows Congress to feel virtuous, but actually to let the agencies pick up the tab. And to take the heat for not actually implementing the statute.

Explanation number three -- again, it sounds a little bit similar to two, but I’ll explain why it’s different -- the whole point of aspirational statutes is not to be met. Which sounds counterintuitive. But the strategy is to set an extremely high goal that no one really expects to meet, but no one will actually say so, with the idea that, by trying to achieve that aspiration, we’ll achieve the highest standard possible.

Or at least a higher standard than we would have otherwise. That means that we shouldn’t worry if we don’t meet the loftiest aspirations of the statute. We just keep trying. We keep trying harder in this somewhat asymptotic attempt to try to get as close to the goal as we can. Theory two and theory three sound similar, but they’re different in this important respect.

With the third, we keep trying, we keep shooting for that aspirational goal. Whereas, with the second, we just ignore it or give it that wink and a nod. So which of these theories do I think is most explanatory? Well, it’s football season so I’m going to punt and I’m going to argue that it’s a little bit of all three. And here’s what I want to do.

The first thing I want to do is to try to identify the most aspirational aspects of the statute by virtue of the statutory text. I have a very limited PowerPoint show. I promise you I’m not going to give you dozens of slides. But I do think that it’s valuable to look at some of the key statutory texts and to focus on it. Second, I want to, very briefly, demonstrate the extent to which I think those aspirations have or have not been met.

Third, I want to explain those failures in the context of the three reasons that I laid out a couple of minutes ago. Fourth, I want to try to suggest some modest possible new perspectives about how we might overcome those failures over time. Which you, in turn, can characterize as either aspirational or quixotic. As the case might be.

So let’s start with the aspirational characteristics of the Clean Water Act. There are a lot of them. I’m going to focus just on the opening provision of the statute, Section 101, which sets forth the major statutory objectives and goals. So the opening sentence -- the clean water geeks in the room know this backwards and forwards. But for the rest of you, the overriding objective of the Clean Water Act is to restore and maintain the chemical, physical and biological integrity of the nation’s waters. Not just some of them, but all of them.

The question is, what do we mean by integrity? Because this can be a rather ambitious goal if you think about the extent to which rivers, lakes, aquatic ecosystems have been modified by modern industrial culture.

Did Congress really think about this? The answer is yes. There’s actually evidence of a lot of expert testimony that went into the assembly of the Clean Water Act in 1971 and 1972. The Senate report interprets this language in a way which is, perhaps, even more aspirational. The Senate committee defined integrity as any changes in a pristine water body as being temporary, such that, by natural processes, they’ll return to a state which is functionally identical to the original, within a few hours, days or weeks.

So I would describe this as an essentially non-impairment standard. A virtual non-impairment standard for aquatic ecosystems.

The House report was maybe a little bit more ecologically oriented. They said we don’t need to have ecosystems which are exactly the same as they were, but at least which maintain the natural structure and function of ecosystems. Again, a pretty ambitious, lofty goal.

This is re-enforced by the definition of pollution in the statute, what we mean by water pollution as the man-made or man-induced alteration of chemical, physical, biological and radiological integrity of water. So if you think about that, that encompasses not just discharges of pollutants, but every dam, every water withdrawal, every introduction of non-native species, like rainbow trout, that people can fish.

Every levee, every flood control structure, every land use that causes erosion is an impairment of physical, chemical and biological integrity. So this goal that Congress set was really quite aspirational. Congress followed up that opening objective with a series of goals and policies. I want to focus on the first three, the other primary examples of aspiration.

Section 101A1 establishes what we called the zero discharge goal. A national goal that the discharge of pollutants be eliminated by 1985. Backed up by a very broad definition of pollutants, a somewhat broad definition of the nation’s waters -- which, as I’ll talk about later, the Supreme Court has eroded somewhat. But a very tight deadline.

In 1972, we treated our water bodies as compete dumping grounds. We had 13 years to move from treating our water bodies as complete dumping grounds to discharging nothing into them whatsoever. Second goal, the so-called fishable and swimmable goal of the Clean Water Act. Wherever attainable, an interim goal, just an interim goal, of water quality that protects fish and aquatic life, shell fish and wildlife.

And provides recreation in and on the water. This goal seems inherently a little bit more achievable. It’s tempered by the phrase, "Wherever attainable." Although I would argue that there’s at least a textual argument that what it meant is, "wherever attainable by 1983." Not wherever attainable at all. And it also seems inherently more reasonable.

That, at a minimum, our water bodies should be clean enough to protect the indigenous fish and aquatic life and should be clean enough to swim in without getting sick. But the deadline was rather tight. We had a little more than a decade to move from rivers that were literally catching fire -- the Cuyahoga River caught fire in 1969. That’s emblematic. But actually there were many rivers that were flammable in 1969. So we gave ourselves a little bit more than a decade to move from flammable rivers to fishable and swimmable rivers.

Example number three, the final one. The national policy that the discharge of toxic pollutants in toxic amounts be prohibited. On its face, this seems a little bit contradictory to the zero discharge goal. One says we have to eliminate discharges entirely. The second one says we only have to eliminate the discharge of toxic pollutants in toxic amounts.

How do we explain the anomaly? One, potentially, is just the difference between the House bill and the Senate bill. There are a lot of examples of amalgamating two different bills in the statute.

I’m not going to get down in those weeds. But they’re there, for this particular talk. Another possible explanation is that zero discharge was articulated as a goal and no toxics in toxic amounts was articulated as a policy. Maybe policy means more immediate action. In fact, the zero discharge goal had a 1985 deadline, whereas the no toxics in toxic amounts policy had no associated deadline.

So maybe the way to reconcile them is to argue that the no-toxics policy was supposed to be implemented much more quickly. That it was a step along the road to zero discharge. OK. So those are the aspirations. You can see that they’re indeed pretty ambitious. To what extent have they been met? You won’t be surprised to learn that the record is a bit mixed.

There’s certainly been a lot of progress. Wanda Wilcher was the assistant administrator of EPA during the administration of George Bush Sr. I worked with her fairly closely when I was at NRDC in Washington. She was always very fond of saying, "We can’t honestly say that all of our waters are fishable and swimmable, but at least we can say that they’re no longer flammable."

I always though that, as aspirations go, that was a rather modest one. But after a while I thought, "Maybe she has a point." The point is that we really ought to celebrate our achievements. Because, in my view, one of the reasons for the current anti-regulatory sentiment, the current anti-regulatory fervor in the country is what I called collective societal amnesia.

That is that many people don’t remember the fact that rivers used to catch on fire. Many people in this room aren’t old enough to have experienced the fact that rivers caught on fire, that there were massive fish kills, that there were beaches that were filled with raw sewage. So there’s a lot of evidence of progress that we ought to celebrate.

I want to tick off some statistics. The actual numbers aren’t important. The flavor of the numbers are important. Let’s start with sewage pollution. People served by advanced waste water treatment systems, modern sewage treatments systems, have jumped from fewer than eight million to 113 million people in the United States since 1972.

The population served by primitive sewage treatment, primary treatment has dropped from 50 million to under four million. EPA has estimated that there’s been a 45 percent reduction in discharge of pollutants from sewage treatment plants in the face of a 35% increase in inflow. More people, more growth, but less pollution. There have been measurable improvements in water quality downstream from sewage treatment plants.

On the industrial side, about 45,000 facilities are now controlled by permits that didn’t used to. EPA estimates that, as a result of those permits, we’ve reduced the discharge of toxic pollutants into the nation’s waters by more than a billion pounds a year. Much more for so-called conventional pollutants. And in terms of what people really care about, that means that more waterways are safer for swimming, more fish are safer to eat.

And many more populations of fish and aquatic life are recovering. So even for those of us who aspire to improve the implementation of the statute, it’s important to take note, I think, of this progress. Because if we fail to celebrate that progress, it just contributes to this collective societal amnesia. Which, in turn, fuels anti-regulatory rhetoric.

And contributes to the argument that aspirational statutes do nothing more than cost a lot of money, but don’t achieve anything more than making us feel good. So we have to take note of our successes. On the other hand, we’re a long way from achieving the full aspirations of the statute.

According to EPAs most recent national water quality inventory, which compiles all the water quality reporting from the states, 54% of our river miles are impaired. Which, under Clean Water Act language, means they don’t fully support all the uses that we want to use them for -- fishing, swimming, support of aquatic life and so forth.

66% of our estuaries, 69% of the acreage of our lakes and other large water bodies. And 85% of the acreage of our wetlands. EPA recently published a national survey of small stream health. One for larger rivers is going to be published in December. 42% of rivers were determined to be in poor condition. For rivers, the poor are the 42%, rather than the 47%.

25% are in fair condition. 28% only are in good condition and 5% not assessed. Everyone who has studied the Clean Water Act knows that the biggest source of remaining pollution is non-point source pollution. Pollution that’s not controlled in permits from point sources. I’m not going to spend a lot of time on that. Because so many people have said it for so many years.

We’ve known what the problem is. But the fact is that run-off pollution is the predominant source of that impairment. I like this graphic. It’s from a very recent study in bio-science, assessing the risk of non-point source pollution impairment around the country. You can see the agricultural areas, the farming areas, are the areas that are at most risk from uncontrolled non-point source pollution.

But also some agricultural areas in other parts of the country, like up here, or along the Wasatch Front in Utah, where I live. So not only have we not restored the chemical, physical and biological integrity of the nation’s waters. For more than half of them we haven’t even met the interim goal of fishable and swimmable waters, for which the target was 1983, or approximately 30 years ago.

Zero discharge goal is even farther from reality. So for sewage pollutants, the flip side of the 45% reduction is that 55% of that pollution continues to be discharged into the nation’s waters. And growth has the potential to overwhelm those gains. EPA has estimated that if our current policies continue, by 2016, the amount of pollution from sewage treatment plants will approximate what it was in the mid-1970s.

By 2025, discharges will be higher than they were before 1972, before the Clean Water Act was passed. For industrial pollutants, most of those 45,000 permits allow discharge. So according to EPA’s toxics release inventory, we still discharge about a quarter of a billion pounds of toxic pollutants into the nation’s waters. Hardly zero discharge.

No toxics in toxic amounts. USGS has found at least one toxic pesticide in 97% of all surface waters sampled, and in over 90% of our fish. 10,000 river miles and about a half a million lake acres have fish advisories, which means that the waters are fishable, but the fish aren’t safe to eat. So we clearly haven’t met the no toxics in toxic amounts goal.

So my summary assessment is this. We made a lot of progress under the Clean Water Act in the first decade or two. But since then, we’ve been stuck. That doesn’t mean that we haven’t made some progress for some waterways, for some pollutants or for some facilities. But if you look at a national database, we’re basically where we were 20 years ago, 25 years ago.

Haven’t made any further progress. Let’s turn to why. What are these possible reasons for why the aspirations haven’t been met? I want to give you each of those three theories on whatever evidence I have. Theory number one was that the aspirations have been subverted over time, because of disparate political and legal power.

I think there are examples of this at the legislative level, at the administrative level, and the judicial level. I could probably talk about this all day. I’m just going to give you a few highlights in each of the areas. Legislative is perhaps the saddest, because it was Congress, after all, that set these aspirational goals in the statute. But as early as five years later, in 1977, it said, effectively, "We said zero discharge, but maybe we didn’t really mean it."

And they didn’t do it by repealing the zero discharge goal, but by dulling the tools that the agencies had to achieve the zero discharge goal. Two examples. For sewage treatment plants, there were originally two standards that were supposed to get sequentially stricter over time. The second standard was supposed to require recycling and reuse of municipal waste water, so that we would be reclaiming that water and reclaiming those nutrients. Rather than simply dumping them into our waterways.

In 1977, Congress repealed the second round of municipal pollution controls, so we’ve stayed stuck ever since then. Secondary treatment, in most cases, is the standard.

Similar for industrial sources. EPA was supposed to ratchet best technology controls for industrial pollution down over time. So they would get stricter and stricter, until we would approach and achieve zero discharge. In 1977, Congress adopted an intermediate standard -- for the water quality geeks, it’s called BCT, Best Conventional Technology -- but I would argue that that basically gave EPA an out to have an intermediate level of control that would continue and we’ve remained stuck ever since this time.

Perhaps worst of all, I think Congress didn’t make good on an implicit promise that, with respect to non-point source pollution, if the states failed to take sufficient action to control this pollution, Congress would step in and strengthen the statute. It never really has. A major reason why we’ve remained stuck.

So that’s at the legislative level. At the administrative level, there are thousand of regulations that EPA has promulgated that we could critique. A lot of examples, I’m going to give what I think are the three most important. One is that the best form of pollution control we have is for point sources.

EPA, in order to avoid the administrative burden of permitting all these sources, has redefined what a point source is, to exempt a lot of categories of pollution from point source controls. Case before the Supreme Court this term -- I was talking to some of the students this morning about it -- regarding discharges from logging roads.

Professor Knutson just coauthored an amicus brief in that case. But, essentially, EPA has narrowed the universe of what requires a permit and what requires strict controls. Example number two is the ossification of these technology based standards, the best technology standards. Which, as I said earlier, were supposed to get stricter and stricter over time.

But in fact, they haven’t. They’ve been stuck in place. Professor Knutson and I worked on a case together in Alaska, involving an industry in which the regulations haven’t changed since 1974. Since two years after the statute was passed. GAO, the body of Congress, just issued a report last month, pointing out that EPA has changed only three rules in the last ten years.

And, at that, only marginally. So this theory that we would get stricter and stricter over time and achieve zero discharge simply hasn’t worked. The third administrative example is the wetlands program. In which the intent was that you can’t destroy a wetland. You can’t discharge pollutants into wetlands unless there is no less damaging practicable alternative.

That standard has morphed into one in which the general rule is that you can destroy wetlands at will, unless the agency finds a compelling reason not to grant your permit. So the actual implementation of the statute is the converse of what, I think, Congress intended.

Turning to the judicial realm, of course the courts have upheld many of these actions that the agencies have taken to undermine legislative intent. Obviously, guided by arbitrary and capricious standards of review, Chevron deference and so forth. But arguably, in complete contravention of that deference to agencies, the courts and the Supreme Court in particular, have presided over a piecemeal curtailment of the scope of waters that are covered by the clean water act in Rapanos and other cases.

The final judicial case is what I think is perhaps the most absurd example. A case in Alaska involving a mining discharge, the Coeur Alaska case. One of the few cases in which EPA actually promulgated a zero discharge regulation and would have prohibited discharges entirely. But the courts sanctioned the complete opposite result, in which the mining company was allowed to discharge all of its waste into a pristine Alaskan lake, without any treatment whatsoever. And on the record, it was admitted that this would kill every fish in the lake for 20 years.

How is this complete abortion of the zero discharge goal permitted? By getting a permit under Section 404 of the statute, rather than under Section 402 of the statute. So just a very crystalized example of how the principles can be undermined.

Theory number two is that the goals were so aspirational that they were never really taken seriously. I’ve got two examples of that. One is a bit of a war story and the other is a record of history. In the early 1990s, I was a member of one of these multi-stakeholder collaborative groups, looking forward at Clean Water Act and other water policy.

It was called Water Policy 2000. I remember, to this day, the opening statement of the representative of the Chemical Manufacturer’s Association, who ridiculed the aspirational goals of the Clean Water Act by saying, "Restoring and maintaining the chemical, physical and biological integrity of the nation’s waters requires a return to pre-Colombian America. It was ridiculous from the start and we’ll never need it."

Then she said that the zero discharge goal violates the second law of thermodynamics. Because you can’t produce anything without producing waste. Of course, that doesn’t mean that you have to discharge the waste into water bodies, as opposed to recycling them or doing something else with them. This sentiment has been around for a long time.

Just eight months after Congress passed the modern Clean Water Act in 1972, in June of 1973, the National Water Commission, which is a group of prominent national experts, issued its final report to the President and to Congress. Here’s what they thought of the overriding objective of the Clean Water Act and of the definition of pollution.

They said, "This isn’t a good way to define pollution. Pollution has to be defined by reference to societal values, as to the respective value of water quality, versus other things and goods that we like in society." With respect to the zero discharge goal, they said, "This is no more sound a policy than would be a no development goal for controlling land use."

The commission’s report went on for quite some time about the irrationality of the zero discharge goal given available technology -- that it assumes that water is more valuable than other resources; that it’s an imputation of an extravagant social value to an abstract concept of water purity.

On the other hand, the commission liked the fishable and swimmable goal, but only in a qualified way. They said that standards that are based on real-world uses to which we want to put water bodies represent the most rational policy from a cost/benefit standpoint, and they allow maximum adaptation to local conditions.

"Qualified," I say, because the commission also said that water body uses should be determined at the local level. They shouldn’t be presumptively fishable and swimmable, but states and localities should be entitled to declare that some water bodies are good only for agricultural use, only for industrial use; in fact, they said, for "disposal and transport of waste."

We had this whole body of experts who thought that the goals set forth by Congress were irrational. Maybe these more modest goals were what the experts expected from the start, so that’s what we got, and that’s what we should be satisfied with. They’re realistic.

Theory number three is that we never really expected the full lofty goals of the Clean Water Act to be met. It was just a stimulus to try harder. An irony is that this is the most difficult theory for me to prove, to find evidence of, but I think it’s probably closest to the truth.

It’s the most difficult to prove because it’s the poker bluff theory. You don’t successfully bluff in poker if you communicate to your playing companions that you’re just kidding. Likewise, if you’ve statutory aspiration that you adopt as a tool to prod us to do better and better over time, it won’t work if Congress, EPA, or anyone else says in public that we’re just kidding.

There’s sparse evidence of this in legislative history, and we’ll probably never really know what Senator Muskie had in mind at the time, but it still makes sense to me as the most legitimate argument, the most legitimate justification of aspirational statutes.

Holly Doremus, who teaches at Berkeley, made a very similar point regarding the Endangered Species Act in an article called "Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation." Her argument was essentially the fact that most species haven’t been delisted under the Endangered Species Act doesn’t mean the statute’s a failure. It just serves as a continuing source for needed protection.

Some of my other colleagues have been a lot more critical about this nature of aspirational statutes. David Schoenbrod wrote an article in 1982 called "Goals Statutes or Rules Statutes" in which he criticized Congress for doing this very thing, for establishing these broad, aspirational statutory goals and simply ordering the agencies to implement them by writing regulations. Instead, Congress should just establish statutory rules of conduct and tell the agencies to simply enforce them.

John Dwyer wrote an article in 1990 called "The Pathology of Symbolic Regulation." And it’s interesting that he called it symbolic regulation -- I call it aspirational statutes -- because his view was that Congress writes symbolic legislation to sound virtuous, to convince the American public that it’s doing good without considering administrative feasibility and implementation and leaving the agency to pick up the pieces.

So with those three theories, what about the future? What are our choices? And what I’m going to do is to match each theory with a potential future. Theory number one is to simply accept that Congress writes these aspirational goals. They’re always subject to legal and political push and pull. That’s the way the system works. They can be subverted. That’s why we have NGOs. That’s why we have environmental groups, to push back, and the system, the system of administrative law produces the appropriate balance under any particular set of political and legal circumstances.

Theory number two is to accept the argument that the goals we set in 1972 were overly ambitious, and to revert to this more realistic set of goals that the agencies have set as the de facto goals, because we can actually meet them. Maybe zero discharge was just absurdly unrealistic from the outset. Maybe we need to do triage. Maybe we need to accept the fact that some water should be fishable and swimmable, and for others, we have to settle for "not flammable." That’s good enough.

And that would be less expensive, it would be less controversial, it would be less divisive. And people like realistic goals, for which we can work realistically hard, and then actually achieve them and declare success.

So those are two options. I think you can probably sense that they’re not my preferred option. My preferred option is to think more creatively about approaches to achieve our initial goals, however lofty. So I’m going to propose something a little bit ironic, which is that the solution to aspiration, to excessive aspiration, is yet more aspiration -- or maybe it’s more accurate to say "redefine aspiration."

I’m going to give you three examples, all of which have a common theme, and they all come from my personal preoccupation with biological water quality criteria. So for the non-Clean Water Act geeks in the room, let me give you a very short course in water quality criteria, which are the standards that apply in the water body themselves.

As opposed to how clean a particular discharge has to be. So they’re how clean a water body has to be to protect particular uses, like fishing or swimming or public drinking supply. Or whatever. There are many different flavors of water quality criteria. One is narrative criteria, things like no toxics in toxic amounts. It’s a tort-like standard.

It’s got the advantage of being flexible. It’s got the disadvantage of requiring difficult proof. How toxic is toxic? So to deal with that we also have numeric water quality criteria, which are precise, measurable, enforceable criteria. Like, no more than X micrograms of cadmium per liter of water. They have the advantage, obviously, of being measurable and enforceable, and they set a bright line.

But they only protect against one pollutant at a time. So to address that, we’ve got something called whole effluent toxicity criteria, which is a somewhat complicated scientific method to try and address the additive or synergistic effects of a whole bunch of pollutants dumped in a water body at one time.

The problem is that none of those address the real aspiration of the Clean Water Act, which is restoration. Restoration of chemical, physical and biological integrity. So in order to do that, we have bio-criteria. I should give homage to Professor Jim Carr, from the University of Washington, who was one of the scientific pioneers of these criteria.

What bio-criteria do is to compare impaired streams and other aquatic ecosystems with relatively healthy ones. So you statistically characterize the degree of difference and use them as a benchmark for affirmative ecosystem health. In other words, we describe not what’s bad, not what we don’t want, but we define the characteristics of the ecosystem health that we aspire to achieve.

Example number two. Sounds awful geeky. It’s called hydro-geomorphic method. Or the HGM Method of Wetlands Assessment. So without getting into the technical details, HGM does the same thing for real world wetlands functions and values as bio-criteria do for streams and lakes. So when the army corps of engineers issues a permit to fill a wetland, the theory is that the developer is supposed to provide compensatory mitigation.

To more than offset that harm. You do that by restoring degraded wetlands or by creating artificial wetlands. This is what we’ve gotten over the years. We’ve gotten this simple arithmetic calculus of counting acres. You destroy X acres of wetlands, in return for which, you have to compensatory mitigation on Y acres. And as long as Y is greater than X, we’re happy and go home.

But the question we haven’t asked is, what was really lost and what was really gained in return? How much wildlife habitat was lost and of what type? How much nutrient filtering capacity was lost? How much flood retention capacity was lost? So HGM, like bio-criteria is designed to actually measure the real world wetlands values and functions that we aspire to restore and maintain.

The third and last example is a little bit more vague and variable. It comes from the world of collaborative watershed management. These are efforts to identify the desired future condition to restore water bodies. One example is from the Chesapeake Bay program, where rather than simply prohibiting what we don’t want people to do, we’ve defined things like, how many acres of submerged aquatic vegetation are necessary to restore the health of the bay?

What populations of blue crab are necessary to define what we aspire to for the bay? So three examples. Why might these ideas be helpful in renewing the spirit of aspiration in the Clean Water Act? I have three quick explanations and then I’m interested in your questions and reactions. Reason number one is that people respond better to affirmative goals than to prohibitions.

It’s just human nature. The first time I wrote about bio-criteria I described them as aims to achieve, rather than ills to avoid. So one problem with the Clean Water Act is that these highly aspirational goals are not matched by equally aspirational implementation mechanisms, but rather by prohibitions.

You can’t discharge without a permit. You can’t violate these discharge requirements. You can’t fill wetlands unless you meet strict requirements. And just to be very clear, as Governor Romney said in the first debate, regulation is necessary. I’m not saying it’s not. That wasn’t a political endorsement, by the way. I’m just quoting him on that.

I’m not saying that we should back off on the regulatory regimes because I think we’ll backslide if we do that. What I am suggesting is that maybe to get beyond where we’re stuck, we need to inspire people with affirmative aspirational goals. What we want to achieve and not just what we want to prohibit. Reason number two is that people in communities respond better when they have a role in defining these affirmative aspirational goals, particularly for place-based watershed programs.

Farmers have resisted regulation for years because they don’t like top-down regulatory commands from EPA. Maybe if they’re part of an effort to define what they want to achieve in their watersheds, what’s good to achieve, they’d be willing to accept more regulation or more actions to achieve those goals.

Finally, aims to achieve, I think, can transcend the philosophy of this, "We’ve done the best we can," mentality of the Clean Water Act. I said earlier that best technology is a principle that runs through the Clean Water Act. It’s done a lot of good. It’s responsible for a lot of success. The flip side is that, once we’ve done the best we can, what else is there?

How can you do better than the best you can? Which brings me to this great quote from Winston Churchill, "Sometimes doing your best isn’t good enough. Sometimes you have to do what’s required." I guess my thought is that, by being more aspirational, by defining aims to achieve, perhaps we will be able to do what’s required, rather than just the best we can, as we’ve done.

So thanks again. I appreciate the invitation and welcome your questions and comments. Yes?

Questioner 1:



I actually think that the biggest area of law that’s relevant to water quality, aside from water pollution law, is farm policy and agricultural law. We essentially subsidize farmers to do the worst things for water quality. I’ve proposed things like withdrawing those subsidies and replacing them with reverse auction programs, where we pay farmers to protect the environment, rather than paying them to hurt the environment. There are some examples of that in the farm bill. In terms of intellectual property, the theory of best technology controls is that you incentivize people to develop better, stricter pollution controls over time, if EPA’s going to require them. But that only works if EPA actually revises the regulations. So I think you could pair intellectual property policy with pollution control policy if EPA was more vigilant about ratcheting down the standards.

Some economists have argued, just tax pollution, and then you’ll incentivize better pollution controls. But that’s a whole other debate.

Questioner 2:



So classic law professor answer -- yes and yes. All of the above. I do think that there’s tremendous power in watershed programs, in defining these aspirational goals. The problem is, they only work if there’s enough parity of power, within the people working in the groups. And if there’s enough incentive for people to do them. I do think that one of the problems with non-point source pollution is, there’s this incredibly disparity between the regulatory controls for point sources and non-point sources. About 15-20 years ago, through the TMDL process, the Total Maximum Daily Load process, the environmental community thought, "If we put a lot more pressure on the point sources, they’ll think that it’s increasingly unfair and they will be our allies in helping Congress amend the statute to try to give more parity."

So far it hasn’t worked. We have something like 50,000 TMDLs that have been worked on around the country. I, at least, don’t see any evidence that that’s worked. So I think the local programs would work, but Congress does need to step in and do something to address this power imbalance. Yes?

Questioner 3:



Yes, absolutely. You are well aware of the quotes where courts have said that zero discharge is the guiding star of the statute. And other quotes like that. Many in the court of appeals, some in the district courts as well. They kind of read the statutory goals and do what I did, which is to say, "There they are. We should be aspiring to meet them." Professor Knudsen has a quote in her brief she told me about this morning that may help a little bit, in terms of that. But again, I think it would have been bad for Congress, at the time it passed the statute, to say, "We’re setting these goals this high, in the hopes that maybe you’ll keep trying to meet them." Because it was kind of like a POCO bluff.

But yeah, I think there might be evidence in the lower courts. So thanks.

Questioner 4:



Bio-criteria, you’re correct, have challenges in implementation. Let’s say you find, in a particular stream, that the macro-invertebrate population is very different from what you expect in a natural stream. What do you do with that? It’s very different than -- you find excess cadmium, you know there’s a plant upstream that discharges cadmium. You monitor that and you take enforcement action. What you have to do is to do some scientific

Detective work that forces you to get on the ground and ask the hard question, which is, "What’s really causing that impairment?

But that’s exactly what we haven’t done. We’ve said, "We’ll write permits. We’ll have self-monitoring and reporting for the permits. We’ll enforce only that." And then we’ll say, "Gee! The water body’s impaired." It might be from the dam upstream. It might be because people have denuded the banks of riparian vegetation. It might be from farm runoff.

I think what it does is two things. One is to build community motivation to say, "This is what we want to achieve. Let’s figure out what we need to do to achieve it." Number two, it provides impetus for the scientific detective work that we haven’t done to figure out what the real sources of impairment are. They’re likely to be multiple.

I think it was a great last question. Thank you.


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