The Decline and (Possible) Renewal of Aspiration in the Clean Water Act

In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward the CWA’s goals has stalled in the past two decades. This Article explores several possible reasons for that failure. Those reasons include subversion of the statutory goals at the administrative, judicial, and legislative levels due to an imbalance in power between groups interested in how the law is implemented; the degree to which the statutory goals are perceived as unrealistic by those charged with implementation; and the potential that Congress intended those ambitious goals to serve as prods for as much progress as possible, but did not actually expect them to be achieved. The Article then proposes that significantly more progress can be made if we take advantage of available means of defining the ecological integrity of aquatic ecosystems more clearly and more precisely, using as examples biological water quality criteria, functional assessment methods for wetlands restoration and protection, and the use of real-world desired future condition definitions for watersheds. Better definition of what the somewhat imprecise statutory goals mean in the real world might help to overcome the apparent belief that those goals are impossible or infeasible to attain

A Unified Theory of Clean Water Act Jurisdiction

As it reaches its half century mark, the modern version of the federal Clean Water Act (CWA) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law’s reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies that implement the law, and members of the public Congress intended to protect. A unified interpretive approach focuses on the statutory text and its stated goals, considering the whole statute in context rather than individual terms construed in isolation. This analysis negates the inappropriate assumption that Congress was simply sloppy in its use of multiple terms to define the scope of various CWA programs. Rather, Congress adopted a nested set of scope terms to apply to different statutory provisions and purposes rather than a single definition applicable throughout the statute. Under this analysis, the CWA is not as limited by the concept of navigability as the Supreme Court has suggested in some cases. Read in the context of the whole statute, the term “navigable waters” extends beyond the traditional notion of navigability as reflected in cases such as The Daniel Ball. In the CWA, Congress designed multiple strategies, to be implemented by varying players, to achieve the broad and ambitious statutory objective and goals. The definitional terms applicable to each program, therefore, should be construed to effectuate the statutory goals Congress articulated for those programs in the text and structure of the whole statute

Balancing Compassion And Risk In Climate Adaptation: U.S. Water, Drought, And Agricultural Law

It is inevitable that the world will experience a significant amount of global warming before efforts to mitigate the buildup of greenhouse gases (GHGs) in the atmosphere can even begin to succeed. Therefore, adaptation to climate change impacts, as well as mitigation, will be necessary to deal with climate disruption. In designing climate change adaptation efforts, a looming issue is how to balance the need and compassionate impulse to provide financial and other relief to victims of climate disruption impacts with the equally compelling need to reduce the overall risk of those impacts. U.S. water, drought, and agricultural law and policy provide a good example of how past disaster relief efforts have sought to compensate drought victims or to insulate them against the effects of drought, but in the process have encouraged behavior that increases long-term risk and vulnerability. For example, past and ongoing water and agricultural law and policy encourage production of crops with high water demand and with inefficient irrigation methods, even in arid regions, and fail to provide significant incentives for sustainable water use. In the long run, a more “compassionate” approach, particularly as a strategy for climate change adaptation, is to implement systemic policies to reduce vulnerability to drought and other climate-induced disasters by increasing the sustainability of various economic sectors in advance. For example, drought should be defined such that governmental relief is available only for impacts that are beyond the range of reasonable predictability; and drought relief should be conditioned on actions to use water more sustainably, and thereby to reduce drought vulnerability. Similarly, agricultural policy should provide incentives to shift production, particularly of water-intensive crops, to regions with increasing, rather than decreasing, water supply. These efforts to balance compassion and risk will become increasingly important as drought and other impacts of climate disruption become more frequent and more severe

SLIDES: Who Should Be at the Table, and What Should They Be Talking About?

Presenter: Robert W. Adler, James I. Farr Chair in Law, University of Utah, S.J. Quinney College of Law 9 slide

Unfunded Mandates and Fiscal Federalism: A Critique

The term unfunded federal mandates is used to challenge federal obligations imposed on states and localities without accompanying funding. Unfunded mandates were alluded to by both the majority and dissenting opinions in Printz v. United States, in which provisions of the Brady Handgun Violence Protection Act were invalidated by the U.S. Supreme Court on Tenth Amendment grounds. In this Article, Professor Adler critiques the fiscal, legal, and policy arguments against unfunded federal mandates. This analysis, in turn, raises two broader issues. First, is the concept of unfunded mandates independently useful to the nation\u27s ongoing debate about federal- ism? Second, does the mandate issue provide insight into the key legal question of whether judges or elected officials are best suited to decide the appropriate roles of the federal and state governments? Following a brief history of the debate over unfunded federal man- dates, the Author analyzes the term and its component parts and concludes that the phrase has been used too broadly to challenge actions that are not properly unfunded, federal, or mandates. Next, Professor Adler concludes that past efforts to assess the costs of unfunded federal mandates seriously overstated the costs of such mandates to states and cities. Moreover, he argues that the costs of federal mandates are more than offset by all forms of federal aid and that states and cities remain net beneficiaries in intergovernmental fiscal relations. The legal analysis concludes that, for most purposes, the degree of funding attached to federal programs is not relevant to their validity on Tenth Amendment grounds. Last, the Author challenges the presumption that unfunded federal mandates are bad on normative grounds, rather than legitimate, neutral policy choices about what level of government should decide and pay for various aspects of public policy. Because the unfunded federal mandate terminology defies precise definition, because it is legally irrelevant to the validity of federal programs on constitutional grounds, and because such mandates can be supported as well as opposed on normative grounds, Professor Adler concludes that the mandate concept provides little independent utility to the ongoing debate about federalism. Moreover, since elected officials can properly weigh the costs and benefits of individual mandates in the context of overall federal tax, spending, and regulatory policy, while federal judges are limited to discrete challenges to individual federal programs, the analysis lends strong support to the view that the political branches are better equipped than the judiciary to decide important issues of federalism

Drought, Sustainability, and the Law

Researchers and responsible officials have made considerable progress in recent years in efforts to anticipate, plan for, and respond to drought. Some of those efforts are beginning to shift from purely reactive, relief-oriented measures to programs designed to prevent or to mitigate drought impacts. Considerably less attention has been given to laws that may affect practices and policies that either increase or decrease drought vulnerability. Water law regimes, drought response and relief legislation, and laws governing broader but related issues of economic policyespecially agricultural policyshould be evaluated more comprehensively to enhance incentives for more ?water sustainable? practices in agriculture and other sectors of the economy. Those changes will be increasingly important if current climate change models are correct in their prediction that many parts of the world can expect more frequent and more severe conditions of meteorological drought in the ensuing decades

Natural Resource and Natural Law Part I: Prior Appropriation

In recent years, there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists have also relied on civil disobedience to assert natural rights to a healthy environment based on public trust, fundamental human rights, and other principles. This Article explores the legitimacy of natural law assertions that prior appropriation justifies private property rights in federal grazing resources. A subsequent article will evaluate the legitimacy of related assertions of natural law to support the public trust doctrine and other legal theories to support environmental protection

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

Some of the major underpinnings of the Clean Water Act ( CWA ) merit reconsideration given changes in science and society. Any attempt at such a sweeping analysis of a statute that spans hundreds of pages of text would necessarily be incomplete, especially in a relatively short symposium essay. Therefore, I am taking a thematic approach based on the guiding principles Congress articulated in the law‘s opening provision: The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters. From this overarching statement of the statutory goals, I will critique four major concepts. First, the concept of integrity was adopted and has been interpreted based on ecological concepts that have evolved considerably over time; today, there is greater recognition of the understanding that healthy ecosystems are evolutionary rather than static. In Part I, I address the need to move from a focus on ecological stability or equilibrium to an emphasis on ecological health and resilience of the nation‘s waters. Second, although the text says restore and maintain, the concept of restoration is unfortunately narrow in practice, in part due to limitations in the operative provisions of the law itself and in part due to the historically narrow focus of statutory implementation. In Part II, I propose a relative shift in focus from maintenance to restoration. Third, although Congress clearly recognized in 1972 that runoff from agriculture and other intensive land use contributes as significantly to water pollution as do discharges from municipal and industrial point sources, the operative provisions of the law were written—and certainly have been implemented—mainly with the latter in mind. In Part III, I suggest a shift in focus appropriate to the transition from an industrial to a post-industrial age. Finally, although Congress expressed a clear intent in 1972 to expand the scope of federal water pollution control efforts to the full extent permissible under the Constitution, its definition of the waters of the United States retained a reference to navigation, which the Supreme Court has interpreted as limiting the scope of the statute in some significant respects. In Part IV, I support efforts to expand the jurisdictional focus of the Act from navigable waters to sustainable waters, to better match the breadth of Congress\u27s constitutional authority, and to better fulfill the statutory focus on watershed and ecosystem health

The Legal and Ethical Case for a Conservation Pool for Great Salt Lake

A Conservation pool is the minimum water levels necessary to support and maintain important public resources such as navigation, ecosystem components and services (including fish and wildlife), recreation, and aesthetic values