32 ELR 10167 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Fresh Water—Toward a Sustainable Future

[Editors Note: In June 1992, at the United National Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In September 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in the book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Robert W. Adler is a Professor of Law of the Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah College of Law. He is indebted to Barbara McFarlane and to the staff at the University of Utah Law Library for invaluable research assistance; and to co-authors on previous projects, including Jessica Landman, Diane Cameron, Sarah Van de Wetering, and Michele Straube, whose work was drawn upon in this chapter. Work on this chapter was funded in part by the University of Utah College of Law Research Fund.

[32 ELR 10167]

Introduction

It is difficult to imagine a resource more essential to a sustainable economy and to a sustainable, healthy human community than fresh water. Humans cannot live for more than several days without water, shorter than for any source of sustenance other than fresh air. Water is essential to grow, raise, or support in the natural environment every source of food used by human populations, from wild fish and game to livestock and to all forms of plant food, whether cultivated or collected. Without adequate supplies of water we could not rely on trees and other plants for building materials, natural fabrics, paper, and other goods. Natural water cycles play a role in maintaining the relatively stable weather patterns relied on for a sustainable economy and lifestyle, and protect communities from flooding, drought, and other impacts of more volatile climates. Fresh water is also essential to natural communities, the ecological foundation on which sustainable human economies are built. As international water expert Peter Gleick writes, "water runs like a river through our lives, touching everything from our health and the health of ecosystems around us to farmers' fields and the production of goods we consume."¹

Unfortunately, human societies worldwide have not always appreciated the need to protect and maintain adequate sources of fresh water. Throughout history, human populations have abused aquatic ecosystems and water sources, either through ignorance, neglect, or greed. From oversalination of agricultural soils in the fertile crescent² to desertification of what is now the Sahara Desert to contamination of city water supplies and accompanying epidemics of typhoid, cholera, and other diseases, neglect of fresh water has reduced or, in some cases, eliminated entirely the sustainability of human civilizations.

Even today, much of the world suffers greatly from inadequate access to potable water. Thousands of people every day die from water-related diseases, and roughly one-half of all people in developing nations suffer from waterborne or food-related illness.³ From an ecological perspective, the picture is equally gloomy. In a recent pilot assessment of global ecosystems, the World Resources Institute concluded that fresh water ecosystems "appear to be the most severely degraded overall, with an estimated 20 percent of freshwater fish species becoming extinct, threatened, or endangered in recent decades."⁴ And at least before enactment and implementation of modern environmental legislation, the United States was hardly immune to such serious health and environmental problems.⁵

This chapter will outline the international and domestic legal framework for restoring and protecting U.S. fresh water resources; and assess the current status and health of fresh water resources in the United States, with comparisons where possible to the same or similar indicators at the time the Rio Declaration was adopted. It will also identify areas of needed improvements in domestic water resource policies, and suggest reforms that could contribute to a more sustainable future for U.S. water resources.

Despite the past history of neglect, both an international and domestic legal and institutional framework exist to protect aquatic resources in the United States. These laws and institutions, including the Clean Water Act (CWA),⁶ other federal statutes, and state law governing allocation and protection of water supplies, had laid the framework for sustainable use and protection of fresh water resources even before the Rio Declaration. Changes since that time have been marginal, however, in part because legal tools for water resource protection were relatively sophisticated at the time, but in part due to political barriers to further improvements designed to address issues and problems that have evaded solutions under existing law. While additional regulations [32 ELR 10168] have been implemented to address more point sources of pollution, a comprehensive regime to tackle runoff from agriculture, city streets, and other land uses remains elusive. Moreover, efforts to address the cumulative impacts of multiple sources of pollution on specific water bodies have been reinvigorated, but progress has been slow due to legal and political controversy. Similarly, legal tools to address physical impairments to U.S. aquatic ecosystems remain fragmented and poorly implemented. As a result, significant threats to the sustainability of U.S. fresh water resources remain, as demonstrated by available data on the actual state of those resources. However, some of the gaps in national and state programs to protect water resources have been filled by a wellspring of local and regional watershed programs around the country designed to promote collaborative, holistic solutions to problems in individual watersheds.

Significant progress has been made in restoring and protecting chemical water quality over the past several decades, especially in the areas of industrial and public wastewater treatment. With improvements in the implementation of existing statutes and regulations, along with some improvements in the laws themselves, much additional control is possible. But while a generally workable system of water pollution has been in place in the United States for nearly three decades, only marginal improvements have been realized in the decade since the Rio Declaration was signed. While long-term ambient water quality trends are difficult to evaluate, available data suggest that, on a nationwide basis, there has been no clear trend in water quality over the past decade. Meanwhile, between 35% and 45% of the nation's rivers and lakes remain impaired for at least some beneficial uses, as determined by attainment of state water quality standards. Threats to human health continue through contamination of swimming waters, fish and shellfish, and drinking water. Similarly, fresh water aquatic species and the ecosystems on which they depend remain impaired due to chemical pollution as well as widespread habitat loss and impairment, including serious depletion of instream flows due to excess water withdrawals in many parts of the country. A detailed conservation assessment by the World Wild-life Fund-United States (WWF-United States) concluded recently that fresh water ecosystems in North America are among the most threatened,⁷ and indeed that "time is running out" because "the most special biological elements of these habitats may disappear forever."⁸

Progress can be made toward reducing these problems, however, through changes and improvements in U.S. fresh water policy. In addition to continued efforts to control more point sources of pollution, an analogous comprehensive program to reduce polluted runoff from rural and urban sources remains imperative if additional water quality improvements are to be realized. Those programs should involve both new pollution controls and changes in agricultural policy designed to prevent or to discourage farming of surplus crops on environmentally sensitive lands. Integrated, holistic watershed protection programs need to be strengthened both by encouraging and supporting existing and new watershed programs, and by strengthening the legal tools in the CWA designed to address pollution from multiple sources. Aquatic habitat can be restored by including a broader range of impairments within the broad definition of "pollution" in the CWA, and by improving federal and state programs to protect wetlands, floodplains, and other habitats, to restore aquatic ecosystems that have been modified by dams, channelization, and other artificial structures, and to protect critical minimum instream-flow regimes. The agenda remains large and challenging, but these improvements can be achieved consistently with the use of fresh water resources for a sustainable human economy.

Water and Sustainability: The International Framework

To some degree, water is an inherently sustainable resource. Absent large-scale climatic upheaval (addressed in a forth-coming Environmental Law Reporter Article by Don Brown), global, regional, and local water cycles renew water supplies through a continuous process of precipitation, infiltration, runoff, evaporation, and evapotranspiration. And at least when aquatic and associated terrestrial ecosystems are functioning properly, water supplies are purified through natural processes of physical, chemical, and biological filtration.

Indeed, the need for sustainable sources of clean water is perhaps so basic—hence so much of a given—that it is not even addressed explicitly in many multilateral environmental texts. Somewhat astonishingly, there is even a debate in the literature about whether there is a legally recognized human right to adequate supplies of clean water, due to the absence of any explicit mention of water in major international texts that do reference other natural resources, such as food, clothing, and housing.⁹ Of course, because water is essential to meet those other needs, the "right" to clean water would appear to be derivative.

Similarly, the word "water" appears nowhere in the text of the 1992 Rio Declaration on Environment and Development,¹⁰ although certainly the need to protect water resources can be inferred from many of the more general principles articulated in that document.¹¹ Several core principles from the Rio Declaration seem particularly relevant to the protection of fresh water resources, and will be highlighted in the assessment of the U.S. legal framework below. The "precautionary principle" meshes with one of the fundamental theories of U.S. water pollution control law, to reduce pollution levels to the maximum extent technologically and economically achievable without the need to "prove" the value of resulting water quality gains. The call [32 ELR 10169] for "integrated decisionmaking" matches the recent resurgence in the United States of an integrated, watershed-based approach to protecting and restoring aquatic ecosystems. Those programs both integrate the diverse laws and institutions designed to address disparate fresh water resource issues, e.g., water quality, water quantity, aquatic biodiversity, and habitat, at different levels of government and the private sector, and promote better substantive understanding of the manner in which those issues intersect and interact. The call to restore and maintain the "health and integrity of the earth's ecosystems" properly states the biggest remaining challenge to water resource policies in the United States, whose aquatic ecosystems have been degraded so dramatically. The "polluter-pays" principle, included both in Principle 16 of the Rio Declaration and in Chapter 18 of Agenda 21, which suggests that those responsible for water pollution should bear the costs of its control, is embodied in many—but not all—aspects of U.S. water pollution control law. Finally, to the extent that water law is designed to allocate the earth's most basic water fairly, so that all people have access to safe, clean, and adequate supplies of fresh water for domestic and economic uses, the concepts of equity included in Principles 3 and 5 of the Rio Declaration are important to the development of fresh water law and policy.

Clean water is addressed more explicitly in later and more detailed international documents. The more detailed objectives and policies set forth in Agenda 21 include one chapter devoted explicitly to "protection of the quality and supply of freshwater resources . . .,"¹² as well as a series of other chapters with obvious implications for the protection of sustainable water resources.¹³ Chapter 18 of Agenda 21¹⁴ sets forth a comprehensive, even if voluntary, program for protection of fresh water resources. It includes calls for integrated, watershed-based approaches¹⁵ with priority given to "the satisfaction of basic [human] needs and the safeguarding of ecosystems"; and for holistic programs to protect water resources, water quality, and aquatic ecosystems with the objectives of maintaining aquatic ecosystem integrity, protecting public health, and supporting human resources development.¹⁶ Those more specific goals confirm the applicability of the more general principles in the Rio Declaration to watershed-based approaches that focus on human and biological systems in addition to individual sources of pollution.¹⁷ Chapter 18 also establishes goals for assurance of adequate safe water supplies for human use along with environmental sanitation to protect those supplies¹⁸; special attention to the demand for water to sustain rapidly-growing urban development¹⁹; a similar focus on water for food production and rural development²⁰; and consideration of the impacts of climate change on water resources.²¹

Similarly, the need to protect and assure access to adequate sources of fresh water has been addressed in other international conferences and agreements. The 1977 international water conference at Mar del Plata recognized that: "All peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs."²² United Nations (U.N.) documents interpreting the 1986 U.N. Declaration on the Right to Development expressly included water as among the "basic resources" to which all people are entitled.²³ Article 24 of the 1989 Convention on the Rights of the Child included the first explicit recognition in the text of a multinational agreement that states have an obligation to provide clean drinking water, among other essential resources, in order to combat disease and malnutrition and otherwise to protect the health of the world's children.²⁴

These multinational texts confer no binding requirements on the United States for specific water resource protection programs, except to the extent that they establish agreed-upon international norms. Nevertheless, they provide a template with which to assess the adequacy and success of U.S. laws and institutions for protecting fresh water systems.

Water and Sustainability in the United States—An Assessment

The U.S. Legal Framework for Sustainable Water Resources

At the time the Rio Declaration was adopted, the United States already had in place a detailed set of laws and institutions designed to protect and manage fresh water resources. While, as shown below, this system was (and remains) far from perfect, basic structures existed to address the most basic tenets of the Rio Declaration and Chapter 18 of Agenda 21. Mechanisms and laws existed to allocate fresh water among diverse uses and users; to reduce discharges of pollutants into surface waters and to minimize contamination of groundwater, to provide safe, adequate water supplies for municipal, industrial, and agricultural uses; to restore and protect the integrity of aquatic ecosystems; and at least to encourage a holistic, watershed-based approach to fresh water resource issues.

Since Rio, most of the changes in these laws and institutions have been at the margins, with relatively minor improvements or policy shifts rather than fundamental reforms in response to Rio or other factors. The relative stability of U.S. water resource policy since Rio reflects the widespread success of those programs in addressing the most immediate water resource problems that face many nations, such as basic [32 ELR 10170] sanitation and water supply services and pollution control from large, centralized sources such as factories and sewage treatment plants. The relative stagnation of those same policies reflects the political difficulty of addressing more intractable issues, such as aquatic ecosystem restoration and runoff from a wider array of pollution sources.

Common-Law Approaches and Limitations

The U.S. system of water pollution control and water resource protection is derived from English common law and statutory law. Common-law approaches to water pollution derive largely from tort law and property law, and remain viable in the Anglo-American legal systems.²⁵ The major common-law legal theory used to address water pollution has been the law of nuisance, which provides a judicial remedy to individual plaintiffs for the interference with the use and enjoyment of property.²⁶ While in many respects this common-law doctrine has been supplanted by modern environmental statutes, common-law cases remain a viable, and sometimes important, supplement to ensure that those responsible for water pollution bear the demonstrable costs to downstream users, consistent with the "polluter-pays" principle in the Rio documents.

Water pollution has also been addressed under common-law doctrines developed primarily to address allocation of water quantity. The riparian rights doctrine in England required upstream users to maintain water in its natural state, not diminished in either flow or quality. In the eastern United States, the doctrine was applied more flexibly to allow any use that does not unreasonably interfere with the use of downstream landowners. Similarly, the western U.S. doctrine of prior appropriation, which allocates scarce water resources according the priority of beneficial diversion and use "first in time, first in right," prevents junior (later arriving) appropriators from impairing the use of senior appropriators in either quality or quantity, and similarly prevents even senior users from unreasonably polluting waters.

Common-law approaches to water pollution control proved insufficient to promote sustainable U.S. water resource policies. The common-law system relies on the existence of individual plaintiffs who are willing to bring a lawsuit, i.e., some downstream water user must feel sufficiently aggrieved by an upstream discharge to incur the expense, both in time, money and risk, of filing and prosecuting a lawsuit. As pollution sources grew in number and diversity, it became more difficult to prove that a particular source was causing the specified harm.²⁷

Moreover, the common law of water rights and allocation, particularly in the western states, in many cases does more to promote the excess and inefficient use of water resources and the accompanying degradation of aquatic ecosystems. Western water rights depend on the physical diversion of water from the water body, along with documented use of that water for legally recognized human uses. The "use it or lose it" aspect of this legal doctrine, along with sparse recognition of the ecological and societal value of instream water uses, has resulted in the overallocation of most river basins in the West, and significant ecological damage to riparian ecosystems. In the past, traditional western water law and policy has promoted human urban and rural water uses and the human economy in general, as it was intended to do, and to that degree promoted some of the goals set forth in Agenda 21. Even from this human utilitarian perspective, however, in many places insufficient water now remains to support all of the new uses to which we want to put it, whether for new urban growth or for instream restoration and protection.²⁸ Water resources are scarce in part because we have already overallocated the resource.²⁹ Moreover, because of the rigid application of prior appropriation doctrine, water is often locked into certain uses.³⁰ New laws and policies are needed so that some of this water can be put to uses society now thinks more important, and that are critical to both sustainable economies and ecosystems.

Statutory and Nonlegislative Approaches to Water Pollution

Modern laws governing fresh water pollution³¹ are voluminous and diverse, and cannot all be identified much less described fully in a work of this length. Instead, this chapter will outline the general principles of U.S. water pollution law and policy as well as nonlegislative approaches to water pollution, and describe and evaluate the major approaches in somewhat greater detail. The major existing federal statute dealing with water pollution,³² the CWA, has been in place largely in its current form since 1972. Major amendments were adopted in 1977 and 1987, but efforts to modify the law in any significant way have faced political deadlock since that time.

Statutory Prohibitions—Absolute and Qualified

The most basic form of statutory water pollution control is the strict prohibition of certain conduct. The U.S. CWA contains a "national goal that the discharge of pollutants into the navigable waters be eliminated . . ." (known as the "zero discharge" [32 ELR 10171] goal).³³ Indeed, discharges of certain highly toxic chemicals, such as dichlorodiphenyltrichloroethane (DDT), are banned entirely under this system. This type of absolute control, which requires no showing of actual environmental harm, is perhaps the clearest possible application of the precautionary principle articulated in the Rio Declaration and in Agenda 21.

For most pollutants, however, this zero discharge goal must be implemented realistically in the context of a modern economy. Absolute bans, therefore, gave way to qualified prohibitions under which the discharge of pollutants into waterways was prohibited except in accordance with certain prescribed conditions or limitations, or except in accordance with a permit issued by a designated government agency or authority. The permit, in turn, was the legally enforceable vehicle that set forth the mandatory conditions that limited discharges in amount, timing, location, and other characteristics. The core provision in the U.S. CWA provides: "Except as in compliance with [various provisions of the Act] the discharge of any pollutant by any person shall be unlawful."³⁴ The referenced provisions, in turn, provide for the issuance of individual discharge permits that are required to be based on certain minimum requirements. When the Rio Declaration was adopted, this permitting system was already firmly in place for tens of thousands of industrial and municipal sources of pollution in the United States, and thousands of additional discharges of fill material to wetlands and other water bodies.³⁵ While the scope of the permitting system has been expanded since that time, for example to include more sources of municipal stormwater and large feedlots (discussed further below), the basic structure of the system has remained essentially unchanged.

The permitting system, of course, begs several important questions. First, what is the scope of activity covered by the prohibition, or alternatively, by the permitting requirement? As discussed at the outset, water pollution is caused by a tremendous variety of economic activities, ranging from small farms to huge factories and municipal wastewater treatment plants, from sediment running off of small construction sites to highly toxic pollutants from petrochemical plants. Requiring discharge permits from every source of water pollution to surface waters alone would present a monumental administrative task. In the U.S.CWA, only "point sources" of pollution are required to obtain a permit. Point sources are defined broadly to include virtually all situations in which pollution is collected and conveyed,³⁶ and thus includes urban stormwater runoff as well as factory and sewage discharges. However, the law expressly excludes "agricultural stormwater and return flows from irrigated agriculture."³⁷ All forms of nonpoint source pollution, then, as well as even channelized agricultural runoff, are exempted from the discharge prohibition in CWA § 301 and the permitting requirement. These pollution sources must be addressed, if at all, through other statutory mechanisms.

Second, what types of waters are covered by the permit obligation? The U.S. CWA limits its scope largely to surface waters, and the same is true of the permit requirement in particular. By the time of Rio, the scope of waters governed by the basic CWA has been expanded to include millions of acres of wetlands, which are integral components of healthy aquatic ecosystems, as well as open bodies of water, a regulatory interpretation that was largely upheld by the U.S. Supreme Court.³⁸ More recently, however, the Supreme Court rejected CWA jurisdiction over "isolated" water bodies, i.e., wetlands and other small water bodies that are not "adjacent to" navigable waters.³⁹ The full import of this new limitation is not yet known, but waters not subject to CWA jurisdiction can be protected only by individual states. Groundwater pollution is governed by a combination of other federal statutes aimed at particular types of problems, such as solid and hazardous waste disposal, as well as the laws of individual states. These separate statutes often impose separate permitting requirements that apply to various types of facilities. For example, under U.S. law, owners and operators of facilities that treat, store, or dispose of hazardous wastes are required to obtain permits, which prescribe various conditions on the location, design, and operation of the facility.⁴⁰

Third, the bare requirement for a permit does not indicate what conditions, limitations, and other requirements should be imposed on different dischargers. In another example of the manner in which U.S. water pollution law effectuates the precautionary principle, water pollution permits are governed by the stricter of two distinct types of controls: technology-based requirements reflecting the best treatment methods available and economically achievable regardless of water quality impacts; and water quality-based control requirements where necessary to protect human health and the environment irrespective of costs and technological feasibility.

Technology-Based Treatment Standards

A "technology-based" or "feasibility-based" treatment standard is established based on a determination of the types of treatment methods that are available to control the pollution in question. This type of standard necessarily depends on considerations of technology and economics, but not on the nature or extent of harm caused. Thus, all facilities that are similar in nature of activity and amenability to pollution control will be required to meet similar or identical treatment standards regardless of where they discharge or how much harm they cause. In the U.S. CWA, the U.S. Environmental Protection Agency (EPA) is directed to promulgate the degree of pollution reduction possible using the "best [32 ELR 10172] available treatment technology"⁴¹ for different classes and categories of industry on a nationwide basis. While variances and other exceptions apply to meet special circumstances, in theory a steel plant located in one part of the country must meet the same control requirements as a similarly built and operated plant 2,000 miles away.

The development of these "categorical effluent limitations" requires a complex assessment of the cost and technological availability of various pollution control methods, and the extent to which they can be employed by various types of facilities within an industry. While implementation of those standards is responsible for a large percentage of the improvements in U.S. water quality since 1972, the effort to adopt those requirements has been a struggle. At the time of Rio, EPA had issued national categorical guidelines governing thousands of industrial dischargers, but many others remained subject only to inconsistent individual permits,⁴² and many existing guidelines are incomplete or outdated.⁴³ Since that time, EPA has continued to make progress in writing national treatment standards pursuant to a 1987 statutory amendment⁴⁴ and a consent decree with national environmental groups,⁴⁵ but the overall task remains far from finished, reflecting the ongoing complexity and ever-changing nature of such a large undertaking.

Water Quality Standards

The treatment obligations of individual dischargers are, where necessary, further defined under the CWA by a type of ambient environmental standard known as water quality standards (WQS).⁴⁶ Because the WQS program has been the subject of considerable evolution as well as controversy in the post-Rio decade, they are addressed here in relatively more detail.

WQS are divided into two components. "Beneficial uses" constitute the purposes for which a water body is to be protected; while water quality criteria (WQC) establish conditions deemed necessary to protect those beneficial uses.⁴⁷ Such standards establish the goals for individual water bodies and provide one legal basis for pollution control decisions.⁴⁸ WQS for surface waters⁴⁹ are promulgated by individual states, with statutorily mandated oversight by the national EPA.⁵⁰ As of Rio, the system of EPA-guided and state-adopted WQS was well in place, although significant gaps remained in scope and coverage.⁵¹ Some of those gaps are in the process of being filled, such as the issuance of WQC to address aquatic sediment contamination.⁵²

While water quality-based effluent limitations are written for individual point sources, at least in theory WQS are supposed to be implemented through a more holistic process, under which total maximum daily loads (TMDLs) are calculated for impaired waters and pollution control obligations are allocated among the various sources of pollution within the watershed. In plain English, a TMDL⁵³ refers to the maximum amount of pollution a water body can take from all sources combined before it begins to exceed ambient WQS.⁵⁴ Thus, the WQS and TMDLs themselves do not define requirements for individual activities along a river. Rather, they define the collective requirements for all whose actions affect a river's health. However, EPA regulations implementing the TMDL requirement also require states to allocate the maximum pollution loads among various sources of pollution, which in turn is used to drive pollution controls for individual sources or categories of sources.⁵⁵ At least in theory, this process is consistent with the type of integrated decisionmaking suggested by the Rio Declaration and the watershed approaches set forth in Agenda 21. As shown below, however, program limitations have prevented the TMDL concept from being used as a truly integrated system of decisionmaking or watershed protection.

The 1972 law required states to identify all waters that violate WQS even after certain pollution controls were in place for individual sources—and then to write and implement TMDLs for each water.⁵⁶ This amounted to a zero sum game in which each state has to decide which sources have to reduce pollution by how much until the TMDL is met and the WQS is attained. Once the TMDL and its various component allocations are calculated, various statutory mechanisms exist, with highly varying degrees of rigor and effectiveness, to implement those allocations. From a procedural and enforcement perspective, the provisions addressing point sources are strict and relatively clear. By July 1, 1977, point source controls were supposed to include more stringent [32 ELR 10173] effluent limitations as necessary to meet WQS.⁵⁷ Such requirements must be included in the permits required of all point source dischargers,⁵⁸ and compliance with permit terms is enforceable by states, EPA, and citizens through an arsenal of administrative, civil, and criminal sanctions.⁵⁹ Moreover, EPA has a duty to implement and enforce the necessary point source controls if a state chooses or fails to do so, or to do so properly. As discussed further below, however, implementation of TMDLs for nonpoint sources of pollution is far less certain.

At the time of the Rio Declaration and still today, the TMDL program has not met its full potential due to extensive delays and problems with program implementation.⁶⁰ Most states did little on their own to implement the TMDL program seriously, and EPA officials admitted that in the first two decades of CWA implementation they downplayed the WQS side of the statute, which required site-specific analysis in individual watersheds in favor of the nationally focused technology-based program. As a result, the TMDL provisions of the Act thus lay dormant until, in the last few years, environmental groups began to sue to enforce this requirement of the law. As of February 1999, this resulted in court orders in 13 states, lawsuits pending in another 16, and notices of intent in another 11 states.⁶¹ For example, Idaho was forced to list almost 1,000 rivers for TMDLs and cleanup plans in the next decade. Recently, EPA proposed widespread changes in its regulations designed to expedite and improve implementation of the TMDL program.⁶²

Serious political controversy remains over TMDL program implementation, however, resulting in a political deadlock over changes in EPA's TMDL program regulations.⁶³ Among other controversies, states and others question whether the TMDL program requires states to develop and adopt integrated implementation plans, which would effectuate the watershed planning focus of Agenda 21. Similarly, farmers and others who generate nonpoint source pollution have challenged the legality of applying TMDLs to those forms of pollution (discussed further below). While one U.S. district court confirmed the applicability of TMDLs to nonpoint sources, that decision is currently on appeal, and the issue has been raised as well in the challenge to EPA's new TMDL program regulations.⁶⁴

A second significant tool for implementing WQS is the water quality certification provision embodied in CWA § 401.⁶⁵ Under this provision, applicants for any federal license or permit that may result in a discharge into any navigable water—a huge potential universe of water pollution sources and activities—must receive "certification" from the receiving water state that the activity will not result in a violation of that state's WQS or other applicable water quality requirements. States may either deny or qualify certification in order to protectfresh water resources and ecosystems. At the time of the Rio Declaration, this potentially powerful provision lay largely unused, prompting some commentators to label it a "sleeping grant."⁶⁶

Section 401 remains a relatively docile provision of the CWA despite a 1994 post-Rio Supreme Court decision that interpreted broadly the scope of its reach, and subsequent calls for more aggressive use of its authority.⁶⁷ Indeed, this decision broadened the potential reach not only of § 401, but of the CWA as a whole. While most of the above discussion applies largely to the discharge of chemical and other pollutants from point sources, the CWA defines the term "pollution" much more broadly as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water."⁶⁸ This broader term encompasses changes in the physical and hydrological structure of water systems, and in biological habitats and communities, and therefore embodies more of the goals articulated in the Rio documents. For example, it includes changes in stream morphology caused by channelization, the impoundment or other modification of waterways by dams or other structures, the alteration or elimination of riparian habitat, and the filling or other alteration of wetlands. The Supreme Court cited the breadth of this definition to uphold a state's assertion of authority to regulate water quantity, as opposed to water quality, under state water quality standards.⁶⁹

Nevertheless, there is no apparent evidence that the potential breadth of § 401 in particular, or of the term "pollution" more generally, has been used widely in the decade since Rio to address the types of aquatic ecosystem impairment that threaten large numbers of U.S. waters. Moreover, as with the TMDL program, nonpoint source interests have brought legal challenges to the use of § 401 to address the large number of activities that continue to impair aquatic ecosystems, especially in the western states. In one such case, a U.S. court of appeals ruled that § 401 certification [32 ELR 10174] does not apply to the issuance of federal grazing permits that affect millions of acres of federal lands, and thousands of miles of rivers and streams, in western states.⁷⁰ As the formal permitting mechanisms in the CWA clearly do not apply to nonpoint sources, and with unresolved legal doubts about the applicability of TMDLs and water quality certifications to those significant remaining sources of impairment, the availability and utility of other tools to tackle this largely unaddressed source of impairment is critical to our ability to address the full set of goals set forth in the Rio documents.

Nonpoint Source Pollution, Land Use Controls, and Watershed Programs

Most "nonpoint source pollution" comes from land use activities, such as agriculture and urban and suburban development, which alter both the chemical and hydrological properties of natural runoff. Chemical and other pollutants in uncontrolled runoff, changes in the magnitude or intensity of runoff, and the resulting erosion and changes to aquatic habitat, are often difficult to "treat" or otherwise "control" at a fixed point of generation or discharge into an aquatic ecosystem.

A different approach, then, is to modify or relocate the land use activities that cause these types of pollution. Best management practices (BMPs), are methods of operation that seek to minimize off-site environmental impacts. Examples include integrated pest management rather than widespread prophylactic application of pesticides, soil testing and careful timing of fertilizer application rather than an automatic "more is better" approach to soil augmentation, and "conservation tillage" in which less soil is disturbed during and after planting than in typical modern row crop agriculture. Land use controls focus more on what activities can occur where than on how the activities are conducted. For example, setback requirements can be imposed such that new construction occurs outside the critical riparian zone or sensitive wetlands or floodplains. Farms can be required to plant or retain vegetative buffer strips between fields and water bodies. New urban or suburban developments can be required to retain a certain percentage of pervious surfaces (through green space or relatively porous paving materials) to minimize impacts on regional hydrology. The key challenge in nonpoint source pollution control is how to implement those controls in a wide variety of geographic, climatic, geologic, topographic, and economic settings.

In the CWA, Congress has chosen to rely primarily on a system of planning implemented by individual states in an effort to address the inherent variability in nonpoint source pollution problems. CWA § 208 of the law,⁷¹ adopted in 1972, required states to adopt integrated programs to control all sources of water pollution within watersheds, to identify various categories of nonpoint source pollution, and to develop a set of BMPs to control each type of source.⁷² The manner in which those practices were to be implemented, however, was left to state discretion, and few mandatory requirements were adopted in favor of largely voluntary, education-based and cost-sharing strategies. CWA § 319, added in 1987 to address the obvious ineffectiveness of CWA § 208, required states to adopt a new set of watershed-based plans focused more specifically on nonpoint source pollution, but with a similar absence of mandatory controls.⁷³ Thus, both planning provisions comport to some degree with the integrated decisionmaking and watershed-based goals of the Rio Declaration and Agenda 21, but neither adopted the "polluter-pays" and "precautionary principle" aspects of those texts.

At the time the Rio Declaration and Agenda 21 were adopted, most states had achieved nominal compliance with the planning provisions of the CWA. At least as measured by the basic water quality and other environmental indicators evaluated below, however, those programs had not achieved significant gains in water quality or aquatic ecosystem health. Institutional mechanisms were in place to address the problem, but little real-world improvements were evident. Nor is there any compelling evidence that significant gains have been made under either provision since that time, although many states have begun to adopt regulatory as opposed to entirely voluntary nonpoint source pollution controls.⁷⁴ In the Chesapeake Bay region in the eastern United States, for example, both the states of Maryland and Virginia have enacted laws designed to protect the shoreline of the bay and its tributaries from additional development and encroachment through state and local land use controls.⁷⁵

As discussed above, there remains some potential for more effective nonpoint source pollution controls to be adopted through the TMDL program. Even assuming that EPA continues to support and the courts continue to uphold the applicability of TMDLs to nonpoint sources, however, implementation of TMDLs is clearly more complex in this arena. Unlike analogous point source controls, the nonpoint source control provisions in the statute do not expressly require the states or EPA to impose on nonpoint sources pollution controls that are tied so precisely to WQS, and contain no similar statutory deadline. While better use of the Act's planning requirements could contribute to the general goal of meeting WQS, the law includes no specific requirement to match the combined set of controls selected or implemented under the plan with what is necessary to attain or maintain WQS.

Despite the absence of a comprehensive national program for more integrated, effective watershed programs, however, there has been a tremendous resurgence of watershed programs in recent years more as a voluntary matter than through legislative mandates (although some such programs enjoy a legislative imprimatur or financial support).⁷⁶ Examples include large watershed efforts like the Chesapeake Bay Program, the Great Lakes Program, the San Francisco Bay Delta Agreement (CALFED), the Everglades restoration [32 ELR 10175] program in central and South Florida,⁷⁷ as well as hundreds if not thousands of smaller, often local watershed initiatives all around the country.⁷⁸ The reasons for these initiatives vary substantially. Some are practical; others are born of necessity or due to the sheer failure of more isolated strategies. Especially in the absence of major legislative and regulatory initiatives, many of the most important real-world improvements in aquatic ecosystems since Rio have been achieved through these efforts.

In recent years two major multiagency initiatives have been adopted in an effort to address nonpoint source pollution in particular and widespread watershed impairment in general. In 1998, the Clinton Administration elevated water pollution control efforts to a higher perceived status by releasing the Administration's multiagency Clean Water Action Plan.⁷⁹ With direction from Vice President Al Gore and a proposed S558 million in new federal resources, EPA and the U.S. Department of Agriculture were asked to develop an action plan to strengthen federal, state, and local water pollution programs, with a focus on partnership approaches and watershed restoration as well as protection. The plan focused on four major approaches to restoring U.S. fresh water ecosystems, including efforts to promote collaborative watershed approaches to ecosystem restoration and human health protection; to strengthen federal, state, and tribal water pollution standards; to foster "natural resource stewardship" in activities such as farming, grazing, and logging; and to disseminate more and better information to citizens and public officials about water quality issues. All of these approaches seek to effectuate key elements of the Rio texts, such as integrated decisionmaking, watershed approaches, and a focus on both human health protection and aquatic ecosystem integrity. The action plan undoubtedly will produce improvements in some discrete areas, such as improved coordination of comprehensive water quality monitoring and watershed assessment efforts. While the plan established goals for actual rulemaking and other more specific results, however, in and of itself it effectuated no actual changes in federal law or policy. Moreover, much of the proposed new funding was resisted by Congress, and it is not clear whether the Clinton Administration's approach will be followed or pursued aggressively by President George W. Bush or ensuing administrations.

A second Clinton Administration initiative appears even less certain to promote real change in nonpoint source pollution and watershed protection programs. On October 18, 2000, eight federal agencies jointly issued a United Federal Policy for Ensuring a Watershed Approach to Federal Land and Resource Management.⁸⁰ The policy was issued as one of the "action items" in President William J. Clinton's Clean Water Action Plan, and announces the intent of federal agencies to increase their attention to watershed restoration and protection. The stated goals of the policy are to "(1) Use a watershed approach to prevent and reduce pollution of surface and ground waters resulting from Federal land and resource management activities; and (2) Accomplish this in a unified and cost-effective manner."⁸¹ It promises to do so through a "consistent and scientific approach" to federal land and resource management, comprehensive and consistent watershed delineation and assessment methods, designation of high-priority watersheds for restoration and protection, improved federal compliance with CWA requirements, improved collaboration with other landowners and stakeholders within watersheds, and assistance in the development of TMDLs in watersheds with significant federal land and resource management activities.⁸² With respect to nonpoint source pollution in particular, the agencies commit to identify BMPs that meet applicable water quality standards, adjust those BMPs when monitoring indicates that they do not adequately protect water quality, and mitigate unexpected adverse water quality impacts from BMP implementation.

Aside from these assertions of increased levels of commitment and better coordination and collaboration, however, nothing in the policy signals a major change in legal requirements governing nonpoint source pollution on or off of federal lands, or actually ensures that those sources will be subject to significantly stricter controls. In part in response to public comments alleging that the proposed policy would cause federal agencies to violate existing legal mandates, the policy carefully disclaims any change in legal requirements:

This policy does not create any right or benefit, or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. This policy does not alter or amend any requirement under statute, regulation, or Executive Order.⁸³

Reliance on ill-defined BMPs⁸⁴ reflects nothing more than the standard operating procedure for nonpoint source pollution control, a policy that has failed to make significant progress nationally over the past three decades. If the policy is implemented as intended, it is certainly possible that BMPs can be employed far more effectively than in the past through more consistent, rigorous, site-specific, and scientifically driven watershed programs. Given the policy's express failure to impose any enforceable new requirements, [32 ELR 10176] however, as with the Clean Water Action Plan only time will tell whether theory will be translated into more effective nonpoint source pollution control on the ground and in the water.

Indicators of Sustainability

In a book written, coincidentally, the year the Rio Declaration was signed (and published the following year), two coauthors and I assessed the status of U.S. water quality and the health of U.S. aquatic ecosystems 20 years after passage of the federal CWA.⁸⁵ We concluded that certain "traditional" indicators used to measure the success of water pollution control efforts, such as dollars spent on municipal and industrial pollution control infrastructure or estimates of the pounds of pollutants removed from domestic and industrial waste streams, or even compliance with numeric WQC for individual pollutants, had only limited value in evaluating the true success of water pollution control efforts. It was more useful to explore "real-world" indicators of success, such as the degree to which water bodies supported various beneficial uses, the existence of health threats to water users and consumers of seafood and other water-dependent species, the health of species and communities of species that live in or rely on aquatic ecosystems, and the degree to which aquatic ecosystem habitat has been altered, damaged, or destroyed.

Similar measures are appropriate to an assessment of the degree to which U.S. water resources are being protected in ways that promote sustainable economies and ecosystems. While traditional measures continue to have some value in evaluating water resource protection programs, and will be evaluated briefly below, what we really care about is the extent to which water resources and aquatic ecosystems support the resources we rely on for health, sustenance, and economic prosperity, and the degree to which they sustain healthy populations, communities, and habitats. After all, those are the basic goals articulated in the Rio Declaration and Agenda 21. Therefore, wherever possible, this assessment of the degree to which the United States has met these sustainable development goals a decade after their adoption will compare the same kinds of indicators explored in our 1993 analysis to similar or identical sources of information available now.

This assessment will show that, in many respects, the United States has made significant strides toward meeting the sustainable development goals articulated in the Rio texts, especially in the area of basic human needs. Most Americans have access to adequate supplies of fresh water of at least acceptable quality relative to much of the world, and U.S. agriculture and industry has similarly adequate water quantity and quality. At least in its basic institutions, the United States is also moving toward the goals of integrated decisionmaking in the area of water resources, watershed-based restoration and protection programs, and aquatic ecosystem integrity. Legal tools exist to implement the precautionary principle for some, but not all, sources of water pollution.

On the other hand, much of the progress toward meeting these goals pre-dated Rio, and while some progress has been made since that time, much of it has been marginal and hampered by political opposition to additional water pollution funding and programs. For many indicators of water quality and aquatic ecosystem health, that political stagnation has been matched by no improvement or even deterioration in real-world indicators. Relatively little progress has been made in addressing water pollution from contaminated run-off and habitat destruction from causes such as hydrologic and physical alteration of aquatic ecosystems. As a result, evidence shows that U.S. aquatic ecosystems continue to face severe threats, and some significant threats continue in the area of human health protection. In these respects, more work is needed to move from nominal and institutional compliance with the goals established at Rio and in Agenda 21 to the real-world manifestation of that compliance.

Traditional Indicators

Public Wastewater Treatment Systems

One of the more specific but basic goals of Agenda 21 is to provide for adequate sanitation in both urban and rural areas, in order to protect human health, water quality, and aquatic ecosystems. Driven by specific municipal point source control requirements of the CWA, the United States is well ahead of most countries in this respect, and certainly those in the developing world. As of 1989, federal, state, and local governments had invested more than $ 128 billion in public sewage treatment facilities, with impressive results: plants providing secondary treatment⁸⁶ or better served almost 60% of the U.S. population, and EPA estimated that this improved treatment resulted in a 46% reduction in the release of organic wastes despite a large increase in the amount of wastes treated.⁸⁷ Despite those large investments and concomitant gains, however, over 26 million U.S. residents were served by plants providing less than secondary treatment, and many others had access to no modern sewage treatment, to faulty septic systems or other inadequate treatment services. Still others were served by modern sewage treatment plants but collector sewers that overflowed billions of gallons of raw sewage, and billions of pounds of pollutants, into public waters every year.⁸⁸ By 1990, EPA estimated that additional treatment needs would exceed $ 110 billion by 2010,⁸⁹ although even this figure was probably understated.

Updated information shows that these general trends have continued since the late 1980s: even more Americans are now served by modern sewage treatment facilities due to continued public infrastructure investments, but significant gaps in our sewage collection, conveyance, and treatment systems continue to plague many rivers, lakes, and coastal waters. According to EPA's most recent Clean Water Needs Survey,⁹⁰ over 190 million Americans (73% of the total U.S. population) are now served by public wastewater treatment [32 ELR 10177] plants, and it is expected that this figure will climb to 275 million (over 90% of the population) by 2016. The percentage of these plants providing less than secondary treatment declined from 11% in 1988 to 1% in 1996, thus virtually (and finally) meeting the CWA's 1977 minimum secondary treatment goal⁹¹; and the percentage providing better than secondary treatment grew from 22% in 1992 to 28%in 1996.

At the same time, however, significant public wastewater treatment needs continue. EPA now estimates future treatment needs (for design year 2016) of almost $ 140 billion, compared to its 1988 estimate of $ 110 billion in needs for 2010. This includes costs to build or upgrade new treatment plants, to upgrade collection systems, and to control sewer system overflows. Moreover, while urban and suburban waters now receive better protection from raw or improperly treated sewage, the impacts of growing urban sprawl on water quality and aquatic ecosystems is getting worse due to contaminated stormwater discharges and significant changes to the hydrology and habitat caused by urbanization. As noted above, that sprawl was facilitated at least in part by expanded sewage treatment system infrastructure. While stormwater control costs are not nearly as well documented as those for sewage treatment, EPA estimates them at an additional $ 7.4 billion. In short, while basic sanitation needs may be considered the province of the developing world, and while the CWA certainly has prompted dramatic improvements in treatment on a national scale, the United States also continues to chase an elusive goal of providing adequate sanitation for all of its residents.

Industrial Treatment

Also prompted by the specific industrial point source treatment requirements of the CWA, large expenditures for industrial water pollution controls had already been made in the United States by the time of the Rio Declaration, with significant accompanying reductions in industrial water pollution. Due in large part to the categorical effluent limitations imposed under CWA §§ 301 and 304,⁹² annual industrial pollution control costs rose from $ 1.8 billion in 1973 to almost $ 5.9 billion in 1986, with total expenditures over this period in excess of $ 57 billion. According to EPA estimates, by the early 1990s these expenditures resulted in reduced industrial discharges of millions of tons of conventional pollutants⁹³ and over a billion pounds of priority toxic pollutants⁹⁴ each year.⁹⁵

As with sewage treatment discharges, however, the industrial treatment glass was also half full. The list of pollutants addressed by many CWA permits are incomplete, and while many of those also are removed by treatment systems designed to address enumerated contaminants, the pollution left unaddressed is difficult to gauge. As measured by reportedreleases of the more inclusive (but still incomplete) list of chemicals covered by the toxic release inventory (TRI) under the Emergency Planning and Community Right-To-Know Act (EPCRA),⁹⁶ in 1990 U.S. industries released almost 200 million pounds a year of toxic pollutants into surface waters and another 450 million pounds a year into public sewers, although those reported releases reflected steady declines from 1987 to 1990.⁹⁷

Industrial water pollution control costs continue to rise, exceeding $ 9 billion in 1994 (the last year for which detailed Census Bureau data were published.⁹⁸ Reported industrial releases of toxics to surface waters have risen as well, to over 255 million pounds in 1999,⁹⁹ although trends in TRI releases must be viewed with caution due to changes in the scope of chemicals covered and other reporting requirements. Regardless of the details, however, while significant reductions have been achieved in industrial water pollution discharges, the zero discharge goal of the CWA obviously remains elusive.

Ambient Water Quality Trends

The significant reported or estimated reductions in point source discharges discussed above logically should translate to improvements in ambient water quality, i.e., levels of pollutants and other water quality parameters in rivers, lakes, and other water bodies as opposed to municipal and industrial waste streams. Unfortunately, ambient water quality trends do not follow such simple patterns for a number of reasons. Moreover, long-term water quality trends can be difficult to assess because of the relative paucity of consistent, long-term monitoring data (data for the same parameter, at the same site, using the same methods). As of the late 1980s, where such long-term ambient water information was available, for example from relatively stable monitoring stations run by the U.S. Geological Survey (USGS), more often than not they showed no clear trends in ambient water quality.¹⁰⁰ Where water bodies did improve, they were for pollutants associated largely with major point sources and in areas where contamination is dominated by those sources. Where no trends were apparent—including most water bodies measured—or where water quality deteriorated, it was for pollutants generated largely by nonpoint sources of pollution, such as farms or urban stormwater run-off, and largely in areas not dominated by point sources. Thus, while significant localized water quality improvements could be shown due to the systematic reduction in point source pollution during the first 20 years of CWA implementation, at a national level those gains were obscured by ongoing pollution from a range of largely uncontrolled urban and rural land uses.

In the past decade, significant improvements have been made in efforts to analyze, and to make available to the public, consistent, coordinated, long-term water quality information both on a national scale and for specific water bodies.¹⁰¹ [32 ELR 10178] Analysis of this more recent and more comprehensive information shows that significant water pollution remains in both agricultural and urban watersheds.¹⁰² In agricultural regions nutrients (nitrogen and phosphorus) routinely contribute to excessive algae, and synthetic agricultural chemicals (pesticides and herbicides) are reported as widespread. Similarly, USGS reports that urban watersheds remain plagued by fecal coliform in recreational waters at levels that threaten human health, and high concentrations of phosphorus, insecticides, herbicides, and other toxic chemicals in the water, sediment, and fish or urban waterways.

What remains most clear from the available ambient water quality information and analysis, however, is that despite recent improvements in our water quality monitoring networks and assessment, evaluation, and reporting capabilities, ambient water quality analysis remains highly complex and is confounded by a wide range of natural and anthropomorphic variables:

Contaminant concentrations vary from season to season and from watershed to watershed. Even among seemingly similar land uses and sources of contamination, different areas can have very different degrees of vulnerability and, therefore, have different rates at which improved treatment or management can lead to water-quality improvements.¹⁰³

For those reasons, evaluation of "real-world" indicators of the sustainability of aquatic ecosystems is all the more important.

Real-World Indicators

"Real-world indicators" of sustainability are data or even qualitative information that sheds more direct light on the degree to which fresh water resources are capable of meeting human and ecological needs. How safe is our water for human consumption and crop production? How safe are the fish taken from recreational and commercial fisheries? How healthy are populations of fish and other wildlife that rely on aquatic habitats, and on the assemblages of species that inhabit aquatic ecosystems? What is the physical, chemical, and hydrological condition of habitats necessary to support those populations?

Supportof Designated Beneficial Water Uses

The closest thing to a real-world "indicator" in the CWA regulatory system is the assessment of the degree to which various bodies of water attain the "designated uses" that comprise the first component of state water quality standards,¹⁰⁴ as reported in biennial state reports to EPA and the compilation of those reports by EPA into a biennial report to Congress known as the National Water Quality Inventory.¹⁰⁵ Designated uses might include fishing, swimming, public drinking water, protection of fish and wildlife populations, or agricultural or industrial use. Use of this information to evaluate trends in the health or sustainability of U.S. fresh water resources is limited by several factors. Although bounded by the minimum requirement that all waters be protected for recreational uses and healthy fish and aquatic life,¹⁰⁶ with limited exceptions,¹⁰⁷ and by minimal requirements of scientific defensibility, individual states are free to establish and define the uses for which individual waters will be protected,¹⁰⁸ and the specific water quality criteria deemed necessary to protect those uses.¹⁰⁹ Moreover, states have latitude to prescribe their own rules to decide when those criteria have been violated, state monitoring and assessment capabilities and methods have varied considerably through the history of the CWA program, and in any given biennial reporting cycle only a fraction of all waters are monitored or assessed.¹¹⁰ Nevertheless, the history of designated use support provides some useful information about the degree to which U.S. water pollution control programs have enhanced the sustainability of fresh water and aquatic resources.

In the decade prior to the Rio Declaration, EPA's biennial national water quality inventories actually showed a steady decline in the percentage of rivers, lakes, and estuaries that "fully support" their designated uses, with an accompanying increase in those waters that only "partially" meet or do not meet those uses.¹¹¹ While much of this reported decline undoubtedly reflects steady improvements in monitoring, assessment, and reporting methods, clearly the information from the 1980s suggested that considerably more work is needed to promote sustainable uses of U.S. waterways.

The five national water quality reports submitted since that time¹¹² show little overall change the levels of use supportin U.S. rivers and lakes. The percentage of U.S. rivers identified as impaired to some degree fluctuated only slightly over those five biennial reporting cycles, from 35% to 38%; similarly, lake impairment ranged from 38% to 45% [32 ELR 10179] (with the highest level of impairment for lakes in the most recent reporting cycle). Given the large inherent uncertainties and ongoing changes in monitoring, assessment, and reporting methods and programs, these fluctuations probably do not represent changes in the overall health of our waters. They do, however, show significant ongoing water quality problems. EPA's Index of Watershed Indicators, a compilation of information on the health of aquatic resources in the United States by watershed, with an interactive computer database, confirms this general conclusion. In those watersheds for which adequate data are available, EPA reports "more serious water quality problems" in 534 watersheds around the country, "less serious water quality problems" in 794 watersheds, and "better water quality" in only 339 watersheds.¹¹³

Thus, the picture presented by the most recent biennial report, which indicates that more than one-third of the nation's assessed rivers and 45% of all assessed lakes are use-impaired, meaning they do not support healthy fisheries or are unsafe for swimming or other uses,¹¹⁴ is not significantly different from that presented a decade ago. This ongoing harm is due not only to chemical pollution, which often receives an unfair rhetorical share of the blame, but also to widespread habitat loss and degradation, as discussed below.¹¹⁵ Almost 30 years after enactment of the modern CWA, the basic water quality goals of that law remain unfulfilled for a substantial percentage of the nation's waters. Consistent with the ambient water quality and other information suggested above, those failures stem largely—although not entirely—from nonpoint sources of pollution (including the widespread hydrologic and habitat modification and impairment discussed below) that have not received the same type of attention as have point sources.

Human Health Indicators

Pollutants released into the nation's waters through direct discharges, polluted runoff, air deposition, or other pathways can threaten human health in a number of ways. Bacteria and other pathogens from sewage discharges, agricultural runoff, stormwater, and other sources can cause illness to people who use waters for swimming, boating, and other recreational uses. Threats due to unsafe drinking water can occur from those pollutants as well as a range of toxic contaminants. Similar risks are posed due to contamination of fish, shellfish, waterfowl, and other food products.

When the Rio Declaration was signed, water quality problems in the United States did not pose the same kinds of acute public health threats as in many developing countries, in which, as noted at the outset of this chapter, thousands of people continue to die or become ill from infectious diseases every day. And health risks from water pollution in the United States clearly had improved from the more severe conditions that prevailed in the 1960s,¹¹⁶ before the gains made under the 1972 CWA and other laws and programs were realized.

Nevertheless, continuing water pollution posed sufficient levels of human health risk to preclude a finding that those essential water uses were fully sustainable.¹¹⁷ For example, despite large inconsistencies and gaps in monitoring of recreational waters, more than 2,000 beach closures or advisories were issued by various health authorities in the United States in 1991, and over 2,600 in 1992. Waterborne disease outbreaks related to public water supplies varied widely between 1972 and 1990, with a low of 1,650 in 1972 and a high of 22,149 in 1987. Other data indicated the significant presence of carcinogens and other toxic contaminants in public drinking water supplies, with large numbers of reported violations of Safe Drinking Water Act¹¹⁸ standards every year. In 1990, 31 states reported concentrations of toxics in fish at levels exceeding known or suspected human health risks, and 45 states issued almost 1,000 fish consumption advisories and 50 outright bans, with such warnings affecting over 7,000 river miles, almost 2.5 million lake acres, over 800 square miles of estuaries, and almost 5,000 miles of Great Lakes shorelines. While these and other data were plagued by gaps in coverage and other problems, they certainly suggested that additional preventive measures were warranted to ensure the safety of U.S. waters for recreation, drinking water, and food supply. Moreover, to the extent that the Rio Declaration focuses on the goal of equity to all segments of the population, some evidence suggested disproportionate health risks to minority populations in some of these areas of risk.¹¹⁹

While some progress continues to be made in reducing levels of pathogens and toxic pollutants in recreational and drinking waters as well as in fish, shellfish, and other water-dependent food sources, a decade later evidence shows that risks to these resources remain.¹²⁰ In 1998, there were over 2,500 fish and wildlife consumption advisories issued nationally due to toxics and other contaminants in waterways, with the majority caused by persistent contaminants such as mercury, polychlorinated biphenyls (PCBs), chlordane, dioxins, and DDT residues. In fact, available information shows a steady increase in the number of reported advisories and the scope of waters addressed by those warnings from 1993 to 2000, although those increases apparently reflect increased assessments and improved monitoring and data collection methods rather than exacerbation of actual conditions.¹²¹

Compared to much of the world, most Americans are fortunate to have relatively good access to safe water-based recreation. Not all U.S. waters, however, can be assumed to be "swimmable." While 16 states and tribes reported 240 sites at which recreation was restricted due to contamination problems, annual surveys by the Natural Resource Defense Council (NRDC) continue to document much higher levels of risks to recreational waters around the country.¹²² In fact, [32 ELR 10180] the NRDC reported over 11,000 beach closings or advisories in 2000, almost twice as many as in the prior year.

In its most recent national water quality inventory, EPA reported considerable progress in reducing health risks from contaminated drinking water due to a combination of source water protection efforts, new drinking water disinfection and other treatment requirements, and additional funding of local drinking water treatment facilities. Information from the Centers for Disease Control on waterborne disease outbreaks from 1971, while variable, show generally declining trends.¹²³ And virtually all U.S. residents have access to some form of adequate water supply, either from public systems, private wells, or other sources. Still, states report that 9% of rivers and 14% of lakes do not fully support public drinking water uses, and 11% of the U.S. population is served by drinking water systems with reported violations of standards. While those numbers are relatively small, they are obviously significant to those who are affected. In a comprehensive recent review of drinking water data in 12 states, EPA found a widespread presence of both biological and chemical contaminants in drinking water samples, although relatively few at levels in excess of drinking water standards.¹²⁴

Health of Aquatic-Dependent Species

While attainment of water quality criteria designed to protect fish and other aquatic-dependent species is an indicator of how well those species are protected, the wide range of physical, chemical, and biological habitat requirements that affect individual, species, and community survival, reproduction, and overall health renders those indicators inadequate. The real test of how well we are meeting the goal of protecting aquatic ecosystems is evidence of how well those species areactually doing. Unfortunately, both at the time the Rio Declaration was signed, and a decade later, the best available evidence indicates that fresh water aquatic species are in serious trouble despite gains in chemical water quality over the past several decades.

By the end of the 1980s, fish and other aquatic and aquatic-dependent species were faring worse than other types of animals, such as birds and marine mammals, which commanded more public attention.¹²⁵ In 1989, the American Fisheries Society reported that over 80% of the nation's rivers exhibit some adverse effects on fish populations, with a total 364 fish species imperiled in some way. According to a national survey by The Nature Conservancy, about 10% of bird, mammal, and reptile species are threatened or endangered, compared to about 30% for amphibians and fishes, and as high as 60% to 70% for fresh water crayfish and mussels. Experts believed that while chemical pollution contributed to these alarming statistics, factors such as habitat alteration, introduced species, overharvesting, and other factors not addressed by traditional water pollution control programs, were equally or more significant causes. Similar trends were apparent for many waterfowl species and other water-dependent birds. Duck breeding populations in North America dropped continuously from 1955 to 1985, and the 10 species with over 97% of North America's total breeding populations declined by 32% from 1972 to 1992. The breeding bird survey overseen by the U.S. Fish and Wildlife Service (FWS) since 1966 documented similar declines in other water-dependent birds, including species of cormorants, herons, ibis, storks, shorebirds, gulls, and terns.

Sadly, species that depend on fresh water aquatic ecosystems continue to show serious declines. In a comprehensive recent assessment of the state of U.S. plants and animals,¹²⁶ The Nature Conservancy concluded that "animals that depend on freshwater habitats—mussels, crayfish, fishes, and amphibians—are in the worst condition overall." The report found that fresh water mussel and fish species already have been the victim of disproportionately high extinction.¹²⁷ In addition, those categories as well as amphibians and crayfish have the highest percentages of species characterized as being "critically imperiled," "imperiled," or "vulnerable." Moreover, the status of individual species tells only part of the story. According to the WWF-United States, in many ecoregions sufficient numbers of species are at risk that entire "faunal assemblages are in a precarious state."¹²⁸ Breaking down The Nature Conservancy data by watershed, EPA found one aquatic species to be at risk in 403 watersheds, between 2 and 5 species at risk in 745 watersheds, and more than 5 species at risk in 422 watersheds around the country in 1996.¹²⁹

There is some good news, however, at least for North American waterfowl and other water-dependent bird populations. During the 1990s, populations of North American ducks in general increased dramatically following a precipitous decline during the 1980s, although selected duck species (such as canvasback, American black duck, scaup, Northern pintail, and American wigeon) continued to decline or remained stable.¹³⁰ Moreover, many species are near or above the population goals established in the North American Waterfowl Management Plan.¹³¹ Similarly, recent data from the North American Breeding Bird Survey shows that twice as many species of wetland breeding birds have significant positive population trends than those that have significant negative trends.¹³²

Loss and Impairment of Aquatic Habitats

There are many reasons for the ongoing losses in aquatic species discussed above, including water pollution, flow alteration and depletion, and the introduction of exotic [32 ELR 10181] (non-native) species that compete with or prey on native species.¹³³ Most experts agree, however, that the largest single cause of aquatic species decline is the massive destruction and alteration of all forms of aquatic habitats on a virtually nationwide scale.¹³⁴ At a rate unparalleled in human history, America's rivers, lakes, wetlands, and other aquatic habitats have been dammed, drained, diked, channelized, dewatered, and otherwise eliminated or changed. While those modifications have been made largely to promote human needs and economies—to facilitate navigation and commerce; to prevent floods; and to supply water and electric power for agriculture, industry, and urban growth—they have caused extinctions or severe declines in aquatic species and otherwise impaired the sustainability of aquatic ecosystems.

From a broad-scale structural perspective, the nation's rivers have been altered dramatically. The National Rivers Inventory conducted by the U.S. National Park Service found that only 2% of all U.S. rivers were sufficiently pristine or unaltered to qualify for inclusion in the national Wild and Scenic Rivers System.¹³⁵ In an extensive re-analysis of these data, Dr. Arthur Benke of the University of Alabama found that all but one single river segment longer than 1,000 kilometers (the Yellowstone in Montana) was substantially altered in some way. Of more than 100 river segments longer than 200 kilometers, only 42 remain free-flowing.¹³⁶ Similarly, a 1982 analysis by EPA and the FWS found that 81% of the nation's waters, including over one-half of all perennial waters, had fish communities adversely affected by various structural factors.¹³⁷

Other types of fresh water aquatic habitats have been the victim of similar impairment.¹³⁸ The Federal Emergency Management Agency reported that development in floodplains has destroyed roughly one-half of the nation's woody riparian habitat. In a 1991 report to Congress, the FWS found that more than one-half of the original wetlands in the coterminous states had been lost through draining, dredging, levying, and flooding, with continuing losses of 260,000 acres per year. The U.S. Army Corps of Engineers (the Corps) found that over one-half million stream miles are adversely affected by erosion. Many other stream miles have been inundated, dammed, channelized, dewatered, riprapped, and otherwise altered in ways that impair or destroy important habitat. Over 600,000 stream miles have been inundated by literally thousands of dams,¹³⁹ and diversions from those dams as well as irrigation canals and other structures have seriously altered natural stream flows and habitats, in some cases leaving little if any water available for fish and other aquatic species. Dams and reservoirs continue to be built in the United States, although at a much slower pace (both in number of structures and in storage volume) than in the past.¹⁴⁰

More recent information shows continued loss and impairment of aquatic habitats, although restoration and protection programs have succeeded in slowing the rate of those losses. Between 1986 and 1997, for example, the FWS estimates that an additional 644,000 acres of U.S. wetlands have been lost. The good news however, is that the rate of wetland loss has slowed from 458,000 acres per year between the mid-1950s and mid-1970s, to 290,000 acres per year from the mid-1970s to mid-1980s, and down to 58,500 acres per year from the 1986 to 1997.¹⁴¹ Showing some confidence that wetland declines can be reversed through both protection and restoration, the national Clean Water Action Plan issued in 1998 established a goal of a net increase in wetland acres by the year 2005.¹⁴²

The recent conservation assessment of fresh water ecosystems conducted by the WWF-United States¹⁴³ confirms these continuing trends, with a focus on the combined impacts of multiple sources of impairment. The WWF-United States found that overall, "few [U.S. fresh water aquatic] ecosystems remain intact. A relatively small number are currently so degraded as to be potentially beyond restoration."¹⁴⁴ Of the 76 major aquatic ecoregions in North America according to the classifications used in the study, only a handful were characterized as "relatively intact," or "relatively stable," and the vast majority of those are in Alaska and Northern Canada, places with relatively few anthropomorphic land use changes. The rest are assessed as "vulnerable," "endangered," or "critical."

The implications of this magnitude of "change" in America's river systems, of course, involves some value judgments, especially as applied to individual rivers or river segments. For example, whether the artificial blue ribbon trout fishery below the Glen Canyon Dam on the Colorado River is a "bad thing" is the subject of a legitimate, value-laden debate. While some may believe that we lost priceless treasures by damming and inundating Glen Canyon, others treasure the aesthetic and recreational opportunities that have resulted.

Clearly, however, much of the change has caused serious harm to aquatic ecosystems, as shown by just a few examples from individual river systems around the country. In the pre-dam era, the Columbia River salmon population was estimated at approximately 10 to 16 million; only about 2 million remain, most of which are hatchery fish. At the turn of the century the Illinois River supported a commercial carp fishery of about 15 million pounds per year; but the carp are virtually all gone.¹⁴⁵ When Europeans arrived in North America, the Susquehanna River supported a shad fishery that rivaled the Columbia River salmon. Reportedly it appeared as if one could walk across the river on their backs. Shad were caught by the ton in the 18th century in nets that [32 ELR 10182] blocked entire rivers. But harvests of up to 20 million pounds per year dropped to a "worrisome" 4 million pounds in 1876, according to the Maryland State Fish Commissioner, to less than 2 million pounds by 1922, to barely 50,000 pounds in 1978 before the harvest was banned.¹⁴⁶

Indeed, the plight of the shad poses some fundamental questions about how humans relate to rivers and the species that inhabit them. A 1953 study by the University of Maryland reported that "shad and civilization are not compatible."¹⁴⁷ Perhaps the authors of this study were correct, at least given the status of fishery restoration at the time. If we accept this idea, however, it is all to easy to say: "Colorado River pike minnow and civilization are not compatible"; and "Columbia River salmon and civilization are not compatible." Where do we stop?¹⁴⁸ Few environmental issues present so clearly the link between sustainable ecosystems and a sustainable human economy and quality of life.

Adequacy and Use of Water Supplies

Relative to many countries, on a national scale the United States is blessed with abundant supplies of fresh water. The long-term, renewable fresh water supply in the conterminous states is approximately 4 times larger than the amount withdrawn annually, and almost 15 times the amount consumed (withdrawn and not returned to the renewable water system).¹⁴⁹ On a per capita basis, North and Central America have about four times as much available fresh water as Europe and Asia, and about three times as much as Africa (although considerably less than South America and Australia).¹⁵⁰ The United States itself has more annual renewable fresh water than all but five other countries, and actually uses only about one-fifth of that supply.¹⁵¹ Clearly, then, fresh water resources in the United States are sustainable—and ample to meet both human and ecological needs—if used and distributed wisely.

Of course, Americans also use considerably more water than do people in most other countries. Per capita water use in the United States is higher, in most cases significantly so, than in all but five relatively small countries.¹⁵² Some of this high consumption is explained by the typical U.S. diet,¹⁵³ since much more water is needed to produce beef and other meat products than diets dominated more heavily by plants.¹⁵⁴ In North America, roughly three times as much water is used to support the average human diet than in much of Africa and South and East Asia; almost twice as much as in other parts of Asia, Latin America, and the Middle East; and significantly more than in eastern Europe, and the former Soviet Union; with only western Europe as a close competitor.¹⁵⁵

Moreover, on a regional and temporal basis misuse and misallocation of water supplies in the United States, along with natural climatic and hydrological variability, can result in too much or too little water for various purposes. Many areas of the country, historically in the West¹⁵⁶ but increasingly in the eastern states as well, face serious periodic water shortages during times of drought, especially given rapid urban growth and competition with agriculture and other traditional water users. Competition for water for traditional economic uses such as farming, and for environmental uses such as protection of endangered fish species, can lead to serious social conflict and political strife.¹⁵⁷ In most western states, surface water resources are fully allocated to specified uses,¹⁵⁸ which as a matter of law often cannot readily be changed to ecological and other uses that society now may think are more important.¹⁵⁹

On the other side of the hydrological coin, however, building in floodplains; construction of levies, dams, and modification of natural river channels; and other human changes in riparian ecosystems; has contributed to serious flood damage throughout the country.¹⁶⁰ Economic losses due to flooding in the United States amount to billions of dollars annually, and have been growing steadily.¹⁶¹

The regional water supply crisis, especially in the West, stems in part from a mismatch between water supplies and disproportionate water demands. While supplies are obviously more scarce in the arid West than in other areas, fresh water consumptive use, especially for irrigation, is considerably larger in that region than in the East.¹⁶² Per capita water use is considerably higher in western states generally than in the East and Midwest, and is higher in the arid Upper Colorado River basin than anywhere else in the country.¹⁶³ Aside from hydroelectric power (which is largely an instream use), irrigation is by far the largest consumer of fresh water on both a national and a regional basis,¹⁶⁴ despite growing demands for municipal and industrial water in rapidly growing metropolitan areas throughout the region.¹⁶⁵ In some regions, such as the Ogalalla aquifer in the high plains [32 ELR 10183] region, fresh water is being withdrawn from groundwater at rates significantly higher than the rate of natural renewal.¹⁶⁶ Obviously, this practice of "mining" groundwater cannot be sustained indefinitely. From both an economic and environmental perspective, critics assail the continued use of these huge amounts of water for traditional agricultural and other uses, protected by the rigid prior appropriation doctrine of western water law, particularly when those uses are fueled by federal water subsidies¹⁶⁷ in the face of higher-value economic and ecological uses.¹⁶⁸

These ongoing issues of water supply cannot be divorced from the serious physical and hydrological modifications of U.S. aquatic ecosystems discussed above, and the accompanying ecological damage that has resulted. Most of those changes, in the form of dams, reservoirs, diversions, irrigation ditches, channel dredging, canals, locks, levies, dikes, channelization, and other "water projects," were designed either to facilitate human water use for navigation, commerce, or consumptive uses, or to protect human development in floodplains from the natural effects of flooding and variable river courses. These structures, built in the name of water use and water "control," contributed heavily to both the serious habitat destruction or impairment and the reduction or, in some cases, elimination of instream flows that have resulted in the dramatic decline in fresh water aquatic species and ecosystems on a virtually continental basis. Thus, issues of water supply and water "pollution" (used in its broader sense), traditionally separated as a matter of law, policy, and politics, cannot remain so if this legacy of abuse is to be reversed.¹⁶⁹

On a more positive note, however, while U.S. water use grew steadily throughout most of the 20th century, on both an absolute and per capita basis, both total water withdrawals and per capita consumptive use have actually declined since 1980,¹⁷⁰ reflecting some improvements in water use efficiency. Reforms in water use laws and institutions, such as water marketing programs, water conservation and reuse, water banks, and other initiatives, discussed further below, show promise in reducing the inefficient, environmentally destructive, and unsustainable patterns of water use that have prevailed in the United States over the past century and a half.

Water and Rio Revisited—How Has the United States Fared?

The lengthy agenda established in the Rio Declaration and in Agenda 21 are in many ways so broadly stated and in others so detailed that a comprehensive assessment of how well the United States has met that agenda would be voluminous. Moreover, generally stated principles designed to apply at the international scale do not always fit neatly with any given country's laws and institutions. Nevertheless, based on the above assessment, it is useful to survey in broader terms the degree to which the United States has fulfilled the Rio agenda in the area of fresh water resources over the past decade; and to comment briefly on whether this progress has moved the United States in the direction of sustainability in this area.

Several Rio principles were singled out above as most relevant to fresh water law and policy. These included the precautionary principle, integrated decisionmaking, ecosystem protection, polluter pays, and equity in terms of access to fresh water resources and in sharing the risks and burdens of water pollution. Chapter 18 of Agenda 21, while extremely detailed in many respects, elaborates mainly on the focus of these principles, calling for fresh water programs to provide rural and urban populations with access to adequate supplies of safe water for human consumption and economic use, and on broader, watershed-based programs to restore and protect ecosystems.

To a large degree, the basic principles noted above were already embedded in the structure of U.S. water pollution law and policy even at the time of Rio. The CWA's technology-based approach to industrial and municipal water pollution control, which requires pollution reductions limited only by economic and technological feasibility rather than instream water quality goals, and which is designed to approach or to achieve zero discharge where attainable, typifies the precautionary principle. In theory if not in practice, the Act's goal to restore and maintain the chemical, physical, and biological integrity of the nation's waters, and to do so through integrated, watershed approaches embodied in several provisions of the law, matches the integrated decisionmaking and ecosystem focus aspects of Rio and Agenda 21. To the extent that U.S. water pollution law and safe drinking water laws and programs are designed to provide adequate sanitation and safe drinking water supplies to all U.S. communities regardless of size and economic status, they strive to achieve the equity and access to fresh water aspirations of the international texts. And both common-law and statutory approaches to water pollution seek to impose pollution control, damage compensation, and resource protection costs on those responsible for the harm, except to the degree that the federal and state governments choose to subsidize control efforts by entities who might otherwise lack the resources to do so.

Moreover, to the extent that fresh water law and policy in the United States has changed since Rio, even moderately, it has moved generally if slowly in the direction of further implementation of the Rio and Agenda 21 principles. Additional improvements have been made in the precautionary rules designed to move U.S. industry toward the elusive zero discharge goal of the statute. Recent efforts to implement the water quality-based TMDL provisions of the Act, even if slowed through the legal and political processes, further implement principles of integrated decisionmaking, equity, and polluter pays by ensuring that all sources of pollution within a watershed are considered, and by providing a process through which all responsible parties can be asked to implement their fair share of controls. The resurgence of watershed programs throughout the United States, whether [32 ELR 10184] fueled by federal statute or by local initiative, have moved us further in the direction of integrated decisionmaking and have helped broaden the focus of our efforts from chemical pollution alone to aquatic ecosystem restoration and protection.

Nevertheless, as evidenced by the significant remaining problems identified above, considerably more progress is needed if the Rio goals are to be addressed fully in the United States. While ideas such as the precautionary principle and polluter pays are embedded in U.S. water pollution policy, they apply only to the defined universe of point sources, leaving significant sources of water pollution, including nonpoint sources and major sources of physical and hydrologic impairment, subject to a fragmented, inconsistent, and largely inadequate set of laws and policies. While integrated watershed programs are blossoming throughout the country, with support and funding at the state and national levels, they are far from universal and highly variable in impact and effectiveness. Although scientists and policymakers increasingly recognize the pivotal role of habitat loss and impairment as causes of aquatic ecosystem decline, systematic approaches to addressing those concerns are lacking. And although even more of the U.S. population is now served by adequate sanitation and drinking water services than when the Rio documents were negotiated, many Americans remain threatened by contaminated drinking water, fish and wildlife, and swimming waters. Moreover, from an equity perspective there is evidence that minority and low-income communities face a disproportionate share of those risks.

As such, while the United States continues to move slowly toward the goal of sustainability in its use and protection of fresh water resources, in many that difficult goal remains quite elusive. Recommendations to move the United States even further in that direction are presented below.

Recommendations for a More Sustainable Water Future

If the United States is to make more progress in meeting the sustainable development goals for fresh water articulated in the Rio texts, a large number of specific but important changes are warranted in terms of implementation of the federal CWA¹⁷¹ and other statutes. For example, improvements are needed in federal and state wastewater treatment standards and ambient water quality standards, more and better-targeted funding is required for water quality monitoring and public treatment programs, and more effective enforcement efforts are necessary to ensure that existing programs are implemented effectively and that those responsible for ongoing water pollution all do their fair share to address those problems, consistent with the "polluter-pays" principle in Agenda 21. Similarly, literally dozens of specific reforms have been proposed in national water resource policies.¹⁷² Such a detailed assessment of specific statutory implementation problems and solutions is well beyond the scope of this general analysis. Instead, the following recommendations will focus on somewhat broader, more strategic proposals designed to address the most significant problems with U.S. laws and policies designed to protect fresh water resources identified above. For purposes of convenience and organization these proposals will be divided into those most closely related to water quality, water quantity, and aquatic ecosystem restoration and protection, although it should be clear from the above analysis that all three sets of issues are integrally interrelated. Key intersections between the three areas of reform will be highlighted.

Water Quality

The continued presence of toxic and other pollutants in U.S. water bodies, drinking water supplies, fish and other aquatic life, and elsewhere in the aquatic ecosystem strongly suggests that additional improvements are needed in industrial and municipal point source controls. Water pollution problems continue from major industrial sources, and significant construction and upgrades are needed in municipal sewage treatment collection and treatment facilities. More work is needed in establishing municipal and industrial wastewater treatment standards, and in writing and enforcing adequate permits. Those improvements, however, can be done largely within, or with minor modifications to, existing CWA programs. Moreover, none of those changes will redress the most significant remaining sources of water pollution in the United States—contaminated runoff from a wide range of urban and rural land uses. Nor will those changes alone facilitate major, nationwide changes in the quality of U.S. fresh water resources, or in the overall health of aquatic ecosystems. Without meaning to minimize the importance of those changes in specific regions, for particular industries and sources of pollution, and to some important aquatic resources, this section will focus on two areas of more strategic change in U.S. water pollution policy: (1) polluted rural and urban runoff; and (2) watershed protection programs.

Polluted Rural and Urban Runoff

By now, it is beyond dispute that polluted runoff and erosion from farms, grazing lands, logging, mining, and other intensive land uses (so-called nonpoint source pollution) is the most significant remaining source of pollution in rural waters, and that contaminated urban (stormwater) runoff is similarly responsible for a significant percentage of ongoing urban and suburban water pollution. It is equally clear that those sources of pollution have escaped the type of more rigorous controls to which point sources are subjected, and that existing "solutions" to the problem are not working.

For the past three decades, agricultural and other land use interests, as well as states and Congress, have resisted firmer polluted runoff controls at the national level for several related reasons. Opponents of stricter controls have argued that it is infeasible and inappropriate to "regulate" large numbers of small landowners, that such controls will be inflexible and ineffective because of wide variations in conditions and practices on different properties, that such wide-reaching controls will be impossible to enforce fairly and effectively, and that land use and related practices are more properly and effectively regulated at the state and local levels. While these arguments have some force, and while state efforts to control polluted runoff have increased in recent [32 ELR 10185] years,¹⁷³ the trend data reviewed above shows clearly that 30 years of state-dominated, largely voluntary measures to address this problem have failed.¹⁷⁴ Moreover, to the extent that the federal government continues to play a major role in agricultural policy through subsidies and price support, and despite recent reform efforts designed to encourage agricultural conservation,¹⁷⁵ federal subsidies continue to stimulate production of marginal crops on erodible and otherwise environmentally sensitive lands.¹⁷⁶

Within the existing national system of water pollution control, significant improvements might be possible if the watershed-based mechanisms discussed above and in the following section were implemented more creatively and effectively. Even those efforts, however, are hampered by the absence of comprehensive, enforceable mechanisms to ensure that all landowners responsible for nonpoint source water pollution do their fair share to protect shared public resources, consistent with the "polluter-pays" principle of Agenda 21.¹⁷⁷

Two major initiatives should be taken to address this problem. First and foremost, the time has come to overcome the political obstacles that have prevented the development and implementation of strategic but mandatory changes in farming and other land use practices designed to stem the tide of polluted runoff. Municipalities and major industries have been required to implement categorical, technology-based changes in treatment and production methods in order to restore and protect the integrity of U.S. waterways. Those changes have been made, by and large, without significant interruption of the economy or impairment of our quality of life. Indeed, there is considerable evidence that those investments have enhanced rather than impaired the U.S. economy.¹⁷⁸ The same can be true for agriculture and other sources of polluted runoff. While it is true that variations among tens of thousands of farms in different regions are likely to be greater than for hundreds of similar factories, a wide range of basic reforms are available—such as soil testing before application of fertilizers, conservation tillage, integrated pest management, buffer strips adjacent to waterways, etc.—that can be applied flexibly on a national basis.¹⁷⁹ Just as adequate flexibility has been provided in industrial and municipal pollution controls through state implementation of national programs, necessary variability can be provided in the realm of polluted runoff controls as well.

Second, from a more structural perspective, agricultural water pollution control demands more serious reevaluation of national agricultural policies.¹⁸⁰ So long as national farm policy continues to promote surplus crop production, excessive use of agricultural chemicals, and farming on wetlands, steep slopes, and other environmentally sensitive lands, efforts to control polluted runoff at the "edge of the field" will have only marginal success. Federal crop subsidies, price supports, and other programs need more comprehensive reassessment if those problems are to be addressed adequately.

Urban runoff poses equally serious threats to aquatic ecosystems. In some ways urban runoff is easier and in some ways more difficult to address than its rural counterpart. Because municipal stormwater is technically a point source,¹⁸¹ in theory it is subject to the same type of enforceable controls as are municipal sewage and industrial point sources. But because urban stormwater is characterized by the same type of variability in sources, widespread geographic scope, and hydrologic uncertainty as rural runoff, comprehensive and effective controls require different types of solutions. After long delays in implementation of the CWA's urban stormwater program,¹⁸² EPA is now in the process of developing and implementing a national program of urban runoff controls that rely heavily on municipal pollution prevention as opposed to prohibitively expensive end-of-pipe treatment systems.¹⁸³

While the new urban stormwater program has some promise, as with agricultural controls it will ultimately fail absent more systemic changes in the pattern of growth and development of urban America. Urban sprawl became an environmental cause celebre during the 2000 presidential election campaign. While much of the focus of this debate was on air pollution, loss of habitat and open space, and other environmental impacts, the massive paving of suburban America with roads, strip malls, parking lots, and housing developments has generated massive changes in the chemistry and hydrology of urban and suburban watersheds, which in turn contribute greatly to water pollution and aquatic ecosystem impairment in those areas.¹⁸⁴ It is not likely that changes in national policy will be politically acceptable in the realm of state and local land use laws and policies. There are, however, an increasing number of local tools to promote smarter, more environmentally sensitive growth patterns, including changes in transportation, zoning, and other policies.¹⁸⁵ "Smart growth" policies that include preservation of riparian zones, wetlands, and other open spaces to filter precipitation, slow runoff, and protect aquatic habitats will do more to prevent the polluting impacts of urban stormwater runoff than after-the-fact efforts to "control" excess runoff after urban watersheds have already been paved over.

Watershed Protection and TMDLs

One of the institutional goals set forth in Agenda 21 is to adopt an integrated, watershed-based approach to water quality. The U.S. CWA was designed in part as a watershed-based [32 ELR 10186] program in 1972, particularly through the inclusion of such provisions as CWA §§ 201 and 208, which directed states to adopt and implement comprehensive, coordinated pollution control plans on a basinwide basis.¹⁸⁶ While these provisions of the law technically remains in effect, however, for a number of reasons they largely failed to live up to their promise.¹⁸⁷

Moreover, despite the groundswell of local, state, and regional watershed programs described above, a huge number of rivers remain impaired or threatened over a quarter of a century after the modern version of the CWA was passed. Moreover, at least some environmental groups have been wary of watershed programs because they are perceived as fuzzy and unenforceable. In part, these problems stem from inadequate implementation of the TMDL process described above, or some other mechanism to translate watershed planning efforts into clear, and where necessary and appropriate enforceable, water pollution restoration and control actions.¹⁸⁸ Thus, because of political opposition to TMDLs and other more rigorous watershed programs, and uncertainty about the science of TMDL development,¹⁸⁹ the single CWA program with the rigor necessary to ensure that those programs will be implemented fully remains somewhat in limbo.

Efforts to protect water quality and to restore aquatic ecosystems cannot focus narrowly on individual sources of chemical discharges. The widespread impairment described above stems instead from a diverse range of activities that vary from watershed to watershed, and include municipal and industrial point sources, urbanization, erosion and runoff of agricultural chemicals, hydrological modifications, and other major physical alterations of water bodies and their adjacent aquatic and upland habitats. The resurgence of watershed programs around the country provides hope that these diverse problems can be addressed, because good watershed programs are designed to identify the full range of pollution sources within the watershed, to evaluate the full scope of possible solutions to those problems, and to target funding and resources to solve those problems in an integrated, iterative, and inclusive process. To be effective on a nationwide rather than isolated basis, however, these programs need a guiding focus and means of accountability and, ultimately, enforceability. The TMDL program or its equivalent, either through improved regulations or legislative changes, could provide such a focus.

Water Quantity

As shown above, while water quality and water quantity in the United States are governed by separate sets of laws and institutions, from a real-world perspective it is impossible to separate the two issues.¹⁹⁰ This fragmentation poses challenges for water resource management and protection.

First, the water quality standards aspects of the CWA necessarily link water quality and water quantity. Under the Act, the states and EPA are obligated to ensure that aggregate pollution from multiple sources does not exceed levels established in state or federal ambient water quality standards.¹⁹¹ This process is affected, however, both by the total amount of pollution reaching the water body, and by the amount of water present to "dilute" or to "assimilate" those wastes. The TMDL program, for example, which is designed to identify and allocate among various sources the maximum amount of pollution that can occur without causing violations of water quality standards, cannot work properly if the water quality agency limits pollution allocations while the water rights department simultaneously—and without coordination—allows more water withdrawals.

Second, water withdrawals and uses can result in significant amounts of chemical, physical, and biological water pollution. Justice Sandra Day O'Connor's rejection of what she described as an "artificial distinction" between water quality and water quantity¹⁹² reflects the fact that water withdrawals and other hydrological modifications can impair aquatic ecosystems as significantly as discharges of pollutants to water bodies.¹⁹³ Irrigation return flows can cause water body contamination by salts and toxic metals that dissolve into return flows and reach the water body via surface runoff or percolation.¹⁹⁴ Dams, diversions, flood control structures and other water resource management projects can cause significant physical, chemical and biological changes to riparian and instream habitats.¹⁹⁵ While the CWA definition of "pollution" is broad enough to cover these impacts, EPA and state implementation of the law traditionally has been restricted largely to pollutant discharges. Thus, a wide range of decisions by water resource agencies, made without consultation or coordination with EPA and state water quality agencies, can have significant implications for overall water body health.

These types of integrated water quality/water quantity issues could be addressed through more aggressive implementation of the broad "pollution" authority in the CWA, although such steps likely would generate significant political opposition. It can also occur through coordinated, watershed-based efforts to address aquatic ecosystem health in which water quality and water quantity officials work together, as is occurring in some places in the country, such as the San Francisco Bay Delta and the Everglades restoration programs. Other ongoing reforms in water law and policy designed to address these issues within the existing system of state water law are outlined below.

Protecting Instream Flows

Increasingly, states are recognizing the importance of protecting and enhancing instream flows for environmental benefits. Protecting stream flows is antithetical to at least [32 ELR 10187] one of the basic assumptions of prior appropriation mentioned earlier: water is best used out of a stream. Indeed, early appropriation laws only recognized a few instream uses as "beneficial." Today, however, most western states (and those Indian tribes with water management codes) include a variety of instream uses within their definition.¹⁹⁶ Among these, Alaska and Washington have the broadest definitions.¹⁹⁷ Wyoming is the narrowest, recognizing only the maintenance of fisheries.¹⁹⁸ Some functions of stream flows, such as riparian regeneration and channel maintenance, remain difficult to protect under most state systems. In other words, it is easier to recognize and protect specific quantities of water than particular flow patterns.

States have pursued various approaches to protect instream flows. Some recognize instream flow rights, treating them more or less like other appropriative rights. These new rights—acquired long after earlier appropriations were claimed—are quite junior in priority and may be little more than "paper rights." (Senior rights may be obtained by purchase or donation.) Only a few states allow private parties to hold instream flow rights, citing concern about speculation.¹⁹⁹ More typically, the rights must be held by a state agency. Another approach to protecting instream flows is to establish minimum flows on designated river stretches, or to reserve unappropriated flows—in either case, prohibiting further appropriations of streams not already fully claimed.²⁰⁰ Because most rivers in arid regions are fully (or even over-) appropriated, however, this approach only works in a few places.

Instream flows may be protected by state-run scenic rivers programs which prohibit dams or new diversions on designated waterways while protecting existing rights. Flows also may be protected through other administrative tools, such as public interest reviews in water rights proceedings, and the public trust doctrine.²⁰¹ In some cases, parties enter into private agreements modifying dam operations, opting to protect stream flows outside administrative channels. In a new and still-unproven approach, Oregon has established an "environmental tax" of up to 25% on transfers of "salvaged" water.

Encouraging Water Conservation

The demographic and economic changes discussed earlier, as well as environmental concerns about new dams and diversions and depleted instream flows, have increased pressures on managers to reduce waste, to use water more efficiently, and to meet new demands using existing supplies.

Inefficient use of water for irrigated agriculture, which as discussed above is the largest source of water use nationally and in the arid regions most strapped for water, is a particularly strategic target for water conservation efforts. The use of different crop types of rice for example, coupled with new irrigation and seeding methods, can reduce water needs by as much as 50%.²⁰² Improvements in irrigation methods more generally can dramatically reduce water use by as much as 60% to 65%, depending on the crop or region.²⁰³

Water conservation programs can be stimulated through reduction or withdrawal of water subsidies, new water pricing structures designed to encourage efficiency, public education, or through regulation. Different models and combinations of strategies are being used in different parts of the country. Washington, for example, enacted a statewide water conservation policy which requires that future water requirements must first be met through better use of existing water supplies. It includes urban water conservation programs, conservation guidelines for utilities, and a requirement that irrigation entities file conservation plans in order to receive grants.²⁰⁴ The Front Range Metropolitan Water Forum, established in 1993 by Gov. Roy Romer (D-Colo.) shortly after the federal EPA vetoed the Two Forks Dam, is intended to sort out projected demands of a variety of separate water systems serving Denver's sprawling metropolitan area.²⁰⁵

Facilitating Water Reallocation

Misallocation of water supplies typically locked into place by traditional water law doctrine is also being addressed through a variety of novel transfers of water and water rights.²⁰⁶ Permanent transfers occur when water rights are sold and a change of use is approved by state authorities. Many growing western cities (Denver and Phoenix, for example), have fed their growing populations by purchasing water from farmers.²⁰⁷

The impact of such water transfers, however, can have profound impacts on the economic sustainability of rural communities—as fallowed farms go to weeds and farming communities suffer the loss of producers. From the cities' perspective, purchasing water rights is an expensive proposition with high transaction costs, so they tend to make a few large purchases rather than many small ones. In short, water marketing can be a blunt instrument when only fine-tuning is necessary to move water from one use to another. To address this concern, we are increasingly recognizing that water transfers do not necessarily require drying-up of farmland. In some cases, urban water users finance conservation improvements on farms to allow agricultural activities to continue while making water available for new uses. Among the best-known examples of this approach: the Metropolitan Water District of Southern California paid farmers in the Imperial Irrigation District to line ditches and make other efficiency improvements.²⁰⁸

[32 ELR 10188]

More recently, urban water suppliers have explored temporary transfers: shorter term, flexible arrangements that might better be categorized as "rentals" rather than sales. For example, a drought-year option allows a farmer to continue farming but provides that a city (or other contracting party) may claim the right to use the farmer's water in a drought year. Rather than purchasing the farmer's water right, the city pays the farmer annual fees, along lines of an insurance policy.

On a larger scale, temporary transfers can be facilitated by third parties called water banks. In its 1994 report on water banks in the West, the Natural Resources Law Center concluded that water banks offer great promise for making water available for other uses in a more flexible way.²⁰⁹ For example, Idaho's Snake River irrigators operated an informal water bank since the 1930s, and became part of a formal state water bank in 1979.²¹⁰ These farmers make their surplus storage rights available for one-year rentals to other parties. Most of this water historically went to hydroelectric power generators, but in 1988-1989, environmental groups leased water through the bank to provide trumpeter swan habitat. More recently, the federal Bureau of Reclamation leased water from the Idaho bank to enhance stream flows for salmon habitat.

California established a water bank in 1991, and used it again in 1992 and 1994.²¹¹ The state set the purchase and sales price and restricted the use of land fallowing in response to concerns from neighboring farmers. In the lower Colorado River basin, states and Indian tribes are discussing the possibility of establishing an interstate water bank.²¹² The potential precedents of that proposal (states fear losing their compact entitlements and allowing off-reservation water leasing) have kept it from implementation, but it appears to be the kind of flexible, boundary-crossing solution that we'll see more of in the future.

Wastewater Reclamation and Reuse

A water efficiency reform that promises benefits on both the water quality and water supply front, and that can benefit agricultural economies, is wastewater reclamation and reuse.²¹³ By reclaiming and reusing water to irrigate crops, parks, golf courses, or to recharge groundwater supplies, less pollution is dumped into natural water bodies. Instead, the nutrients that otherwise would cause overenrichment of lakes, estuaries and other waters can replace expensive chemical fertilizers and enhance crop yields, and fresh water supplies otherwise used for irrigation can be diverted to more productive uses, including maintenance of instream flows. Use of recycled water in California almost doubled from 328 to 646 million cubic meters between 1987 and 2000. Some residential water users in Florida now receive some of their water supplies from recycled sources through the use of dual piping systems; and some residents in southern California now are using treated wastewater for nonpotable uses (such as toilet flushing) indoors.

Aquatic Ecosystem Restoration and Protection

Also based on the analysis of ongoing impacts set forth above, it is clear that efforts to reduce or even eliminate ongoing water pollution will not suffice to restore the health of aquatic ecosystems that have borne the brunt of decades or more of impairment. For example, while the rate of wetland loss in the United States has slowed in recent decades, the above analysis shows that we still have not achieved the "no net loss" goal for wetlands articulated by the Administration of George H. W. Bush a decade ago. As with the CWA, point source control program, clearly efforts are needed to strengthen implementation and enforcement of CWA § 404, the nation's principal tool for protecting wetlands from further losses.

More important, however, given the magnitude and intensity of past fresh water aquatic habitat degradation, affirmative efforts are needed to restore aquatic ecosystem health. For example, this will require efforts to remove or modify the major structural alterations that have blocked fish passage, changed basic habitat parameters, allowed exotic species to thrive, and otherwise impeded the survival of native species. Among the diverse restoration efforts proposed by the WWF-United States are natural protection areas; sustainable harvest levels; restoration of riparian habitats by establishing buffer strips and restricting development; reducing water use; modifying grazing, logging, and other erosion-prone activities; minimizing new water diversions; preventing the new introduction and spread of exotic species; reducing groundwater pumping near surface waters; restoring natural stream channels altered by artificial channelization; and restoring and protecting wetlands. Among the more fundamental approaches to restoring U.S. aquatic ecosystems, however, are removal of some of the major hydrologic modifications of those systems, including dams and similar structures, and better implementation of the federal Endangered Species Act (ESA)²¹⁴ and coordination of those efforts with water quality programs.

Dam Removal and Operational Changes

As discussed above, dams have resulted in some of the most dramatic and deleterious impacts on America's natural riparian and river ecosystems. Numerous proposals around the country—from Maine to Washington—propose to redress the adverse effects of some dams by draining or removing them.²¹⁵ Such proposals are often met with great skepticism. Surprisingly, however, some have now been accepted, such as the proposal to remove the Edwards Dam on the Kennebec River in Maine. Some dam removal proposals have been considered seriously through official channels, such as an ongoing study by the Corps to remove four dams on the Snake River in Idaho. Other proposals, like the one to drain Lake Powell behind the Glen Canyon Dam, still have advocates only in the private sector.

[32 ELR 10189]

Whether more dam removal proposals are viable or not, one impact is to force more serious consideration of how we operate those dams that we inevitably will keep. Recently, for example, major operational changes have been implemented for both the Flaming Gorge and Glen Canyon Dams on the Colorado River in efforts to restore endangered species and impaired riparian and aquatic habitat.²¹⁶ Multiple recovery efforts have been proposed in the Columbia basin, such as the massive reconstruction of fish ladders at the Bonneville Dam,²¹⁷ although the "right" solution to the plight of Pacific Northwest salmon stocks remains uncertain and elusive. Is the "correct" solution fish ladders or fish "busing" or augmented flows?²¹⁸ While precise solutions are debated heavily, the recent focus on efforts to remove dams or to amend substantially the operation of major dams reflects a major redirection in federal and state policy.

ESA Recovery Programs in Aquatic Ecosystems

Like the CWA, the federal ESA contains harsh federal regulatory tools that can apply to individual activities. It includes mandatory requirements that federal agencies consult with the FWS on any actions that may harm threatened or endangered species²¹⁹; strict prohibitions against "taking" of any threatened or endangered species²²⁰; and other provisions that can stop economic activities in their tracks. The law is despised by many; but also can be viewed as leverage to bring parties to the table to promote collective habitat protection programs.

Like the CWA, however, one problem with the ESA historically was its predominant focus on discrete individual actions rather than setting/implementing broader goals. And as with the CWA, this was due more to a lack of widespread implementation than deficiency in law itself. In recent years, however, we have seen a similar shift from individual project to ecosystem focus. This includes a shift to considering aggregate impacts and collective solutions; from single agency implementation to multijurisdictional cooperative management plans.

To be acceptable, however, there has been a trend to give up some of the harder edged enforcement options in the law to accommodate the overall species recovery plan. One prime example is the upper Colorado River basin endangered fish recovery programs. The programs include measures to preserve and augment instream flows, to restore habitat, to restock native fish, and to "manage" non-native fish species. To facilitate such efforts without restricting the ability of the upper basin states to develop their remaining water rights under the Colorado River Compact, new water users are required to pay fees for additional depletion rights, which are to be used in turn to buy more instream water rights.²²¹ Such an arrangement, of course, turns not on its design but its successful implementation. The agreement has been in force for some 15 years, but the affected species are still very much in trouble. According to one critic efforts to secure more water have "fallen far behind schedule."²²² So unless the money from new water depletion fees actually gets used to purchase water rights elsewhere, the fish will still lose. As with other aspects of aquatic ecosystem protection and restoration, actual attainment of sustainable development goals requires both proper program design and aggressive and appropriate program implementation.

Conclusion

The United States is fortunate to have abundant supplies of fresh water and the economic resources to use them and protect them with some degree of care. As a result, U.S. citizens avoid some of the acute human health and environmental threats due to water shortages or water contamination that exist elsewhere around the globe. Nevertheless, significant risks to human health remain due to water pollution around the country, even if on a more localized and less severe scale than elsewhere. And ironically, at least in large part due to past and ongoing technological efforts to harness fresh water resources for sustainable human uses, the health and integrity of U.S. aquatic ecosystems are even more threatened.

Fortunately, many of these remaining problems can be reduced through sensible changes in U.S. laws and policies, as well as practices at the governmental, private business, and individual levels. While some of these changes might be perceived as significant or politically problematic, none are radical in the sense that they would cause major changes in the U.S. economy or quality of life. Instead, they would promote more sustainable, reliable, and healthy water supplies for both human consumption and economic uses, while seeking to restore and sustain the health of aquatic ecosystems.

1. PETER H. GLEICK, THE WORLD'S WATER 2000-2001, at xvii (2000).

2. See id. at 73.

3. Id. at 1.

4. CARMEN REVENGA ET AL., PILOT ANALYSIS OF GLOBAL ECOSYSTEMS 4 (2000); see also JANET N. ABRAMOVTTZ, IMPERILED WATERS, IMPOVERISHED FUTURE: THE DECLINE OF FRESHWATER ECOSYSTEMS (Worldwatch Paper No. 128, 1996).

5. In 1970, 30% of U.S. drinking water supplies had levels of chemicals in excess of recommended standards; in a survey conducted in 1967-1968 dichlorodiphenyltrichloroethane (DDT) was found in fresh water fish samples at levels up to nine times established limits; in 1969 over 41 million fish were killed due to pollution; a 1968 survey found that pollution in the Chesapeake Bay caused $ 3 million in losses to the fishing industry annually, and an economist at the Federal Water Quality Administration estimated that water pollution cost the nation $ 12.8 billion per year. DAVID ZWICK & MARCY BENSTOCK, WATER WASTELAND (1971).

6. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

7. ROBERT A. ABELL ET AL., FRESHWATER ECOSYSTEMS OF NORTH AMERICA, A CONSERVATION ASSESSMENT 1 (2000).

8. Id. at 7.

9. These include the Universal Declaration on Human Rights; the International Covenant on Economic, Social, and Cultural Rights; and the International Covenant on Civil and Political Rights. See GLEICK, supra note 1, at 1-15; see also Stephen C. McCaffrey, A Human Right to Water: Domestic and International Implications, 5 GEO. INT'L ENVTL. L. REV. 1 (1992).

10. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992).

11. For example, intergenerational needs cannot be met without assuring sustainable sources of fresh water (id. princ. 3); the real effects of poverty cannot be eradicated if thousands still lack access to healthy water supplies (id. princ. 5); the "health and integrity of the earth's ecosystems" depends fundamentally on the protection of aquatic resources (id. princ. 7); adequate compensation for victims of pollution obviously includes the devastating effects of water pollution (id. princ. 13); and the "precautionary approach," the "polluter pays" principle, and the need for sound environmental impact assessments (id. princs. 15, 16, and 17) all apply clearly to water resource issues.

12. U.N. Conference on Environment and Development (UNCED), Agenda 21, ch. 18, U.N. Doc. A/CONF. 151.26 (1992) [hereinafter UNCED].

13. Id., including chapters 6 (human health conditions), 10 (planning and management of land resources), 11 (combating deforestation), 12 (combating desertification and drought), 14 (promoting sustainable agriculture and rural development), 17 (protection of oceans and seas), 19 (toxic chemicals), 20 (hazardous wastes), 21 (solid wastes and sewage), and 22 (radioactive wastes).

14. Id. (entitled Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources).

15. Id. §§ 18.6-18.22.

16. Id. §§ 18.35-18.46.

17. Id. §§ 18.23-18.34.

18. Id. §§ 18.47-18.55. This aspect of Agenda 21 references the New Delhi Statement adopted at the Global Consultation on Safe Water and Sanitation for the 1990s, held at New Delhi on September 10 to 14, 1990. Id. § 18.48.

19. Id. §§ 18.56-18.64.

20. Id. §§ 18.65-18.81.

21. Id. §§ 18.82-18.90.

22. See GLEICK, supra note 1, at 8.

23. See id. at 8-9.

24. See id. at 9. Ironically, however, the United States is one of two nations (along with Somalia) that have not ratified this agreement. See id.

25. See Trevor Turtle, Approaches to Enforcement of Water Pollution Control Regulations in the UK, in INTERNATIONAL BAR ASSOCIATION, WATER POLLUTION LAW AND LIABILITY 237, 250 (1992).

26. Other common-law doctrines used to redress water pollution include trespass, strict liability, and both the riparian and prior appropriation water rights doctrines.

27. In one famous public nuisance case in the United States, it was difficult for plaintiffs to prove that sewage from one city was causing harm to downstream cities, in the form of an increased incidence of typhoid fever, due to the distance between the two areas, similar discharges from other cities in between, periodic fluctuations in disease incidence independent of changes in water quality, and other scientific uncertainty, Missouri v. Illinois, 200 U.S. 496 (1906).

28. See generally David W. Moody, Freshwater Resources of the United States, NAT'L GEOGRAPHIC RES. & EXPLORATION, NOV. 1993, at 81.

29. WESTERN WATER POLICY REVIEW ADVISORY COMM'N, WATER IN THE WEST. THE CHALLENGE FOR THE NEXT CENTURY 3-6 (1998) (surface waters often fully appropriated under state water law) [hereinafter WATER IN THE WEST].

30. See Reed D. Benson, Recommendations for an Environmentally Sound Federal Policy on Western Water, 11 STAN. ENVTL. L.J. 247, 249-50 (1998).

31. Anglo-American statutes governing freshwater pollution date back at least six centuries. An early English statute prohibited "the throwing of dung, filth, garbage, etc. into ditches, rivers or other waters and places within, about or nigh to any cities, boroughs or towns under penalty." A.S. WISDOM, THE LAW ON THE POLLUTION OF WATERS 3 (1956) (citing 12 Ric. 2 c. 3 of 1388).

32. Earlier statutes in the United States, such as the Rivers and Harbors Act of 1899, included blanket prohibitions on the release of wastes into navigable waters without permission from the government 30 Stat. 1151, 33 U.S.C. §§ 401-413.

33. 33 U.S.C. § 1251(a)(1), ELR STAT. FWPCA § 101(a)(1).

34. Id. § 1311(a), ELR STAT. FWPCA § 301(a).

35. Discharges of most chemical and biological pollutants are governed by § 402 of the Act and issued by the U.S. Environmental Protection Agency (EPA) or individual states, id. § 1342, ELR STAT. FWPCA § 402, while discharges of dredged or fill material are governed by § 404 and are issued by the U.S. Army Corps of Engineers (the Corps) or individual states. Id. § 1344, ELR STAT. FWPCA § 404.

36. Id. § 1362(14), ELR STAT. FWPCA § 502(14) ("any discernible, discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged").

37. Id.

38. See United States v. Riverside Bayside Homes, 474 U.S. 121, 16 ELR 20086 (1985).

39. See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 531 U.S. 159, 31 ELR 20382 (2001).

40. See 42 U.S.C. § 6925, ELR STAT. RCRA § 3005 (Resource Conservation and Recovery Act).

41. 33 U.S.C. §§ 1311(b), 1314(b), ELR STAT. FWPCA §§ 301(b), 304(b). Somewhat different definitions of "best technology" apply to different pollutants and dischargers, but the basic principle of technology-based pollution control is the same.

42. See id. § 1342(a), ELR STAT. FWPCA § 402(a).

43. See ROBERT W. ADLER ET AL., THE CLEAN WATER ACT, 20 YEARS LATER 138-44 (1993).

44. 33 U.S.C. § 1314(m), ELR STAT. FWPCA § 304(m).

45. See Natural Resources Defense Council v. Reilly, No. 89-2980 (D.D.C. Jan. 31, 1992).

46. 33 U.S.C. § 1313(c), ELR STAT. FWPCA § 303(c).

47. Id. § 1313(c)(2)(A), ELR STAT. FWPCA § 303(c)(2)(A).

48. 40 C.F.R. §§ 130.1(b); 130.3; 131.2.

49. The national law does not apply to groundwater, but many individual states establish similar groundwater quality standards under state laws.

50. Reflecting the complexity of aquatic ecosystems and the diverse sources and types of impairment addressed by the CWA, WQC are adopted in different forms to serve different purposes. "Narrative criteria" are verbal descriptions of water quality and other conditions of aquatic ecosystems, such as "no toxics in toxic amounts," "no floatable wastes," or no "putrescible wastes." More precise "numeric criteria" establish limits on the concentrations of specific chemical pollutants or other numeric indicators of water quality, such as maximum permissible temperatures or minimum levels of dissolved oxygen. "Whole effluent toxicity" criteria measure the combined toxic effects of pollutants in a discharger's effluent, or in the water body itself, on individual test species. Biocriteria establish an affirmative statement of desired ecological attributes by reference to such indicators as species population, diversity, and trophic level structure and function. See Natural Resources Defense Council v. EPA, 915 F.2d 1314, 20 ELR 21372 (9th Cir. 1990) (describing WQC as "the maximum concentration of pollutants that could occur without jeopardizing the use"); Westvaco v. EPA, 899 F.2d 1383, 20 ELR 20816 (4th Cir. 1990) (describing WQC as the "amount of various pollutants" that may be present in a water body).

51. See ADLER ET AL., supra note 43, at 119-28.

52. See 62 Fed. Reg. 58114 (1997); U.S. EPA, CONTAMINATED SEDIMENT MANAGEMENT STRATEGY (1998) (EPA 823-4-98-001).

53. For a more complete description of the WQS and TMDL process, see generally OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION (1999), Robert W. Adler, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act, 23 HARV. ENVTL. L. REV. 203 (1999).

54. 33 U.S.C. § 1313(c), ELR STAT. FWPCA § 301(c).

55. 40 C.F.R. pts. 130, 131.

56. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 301(d).

57. Id. § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C). See also id. §§ 1312, ELR STAT. FWPCA §§ 302 (providing separate but heretofore unused procedure by which EPA may impose stricter water quality-based effluent limitations), 1313(e)(3)(A), ELR STAT. FWPCA § 303(e)(3)(A) (requiring water quality-based effluent limitations as part of the continuing planning process), 1341, ELR STAT. FWPCA § 401 (allowing states to impose additional conditions on any federal licenses or permits, including EPA-issued permits under the CWA, as necessary to implement WQS). EPA regulations prohibit the issuance of an national pollutant discharge elimination system permit when "conditions cannot assure compliance with applicable water quality requirements of all affected States," 40 C.F.R. § 122.4(d); and require permits to include conditions "necessary to . . . achieve water quality standards." Id. § 122.44(d).

58. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402 (requiring point source permits issued by states or EPA to meet "all applicable requirements" of § 301, among others).

59. Id. §§ 1319, ELR STAT. FWPCA § 309 (enforcement provisions generally) and 1365, ELR STAT. FWPCA § 505 (citizen suits).

60. See HOUCK, supra note 53; Adler, supra note 53.

61. See Adler, supra note 53, at 205 n.14.

62. 64 Fed. Reg. 46012 (Aug. 23, 1999) (proposed amendments to 40 C.F.R. Part 130); 64 Fed. Reg. at 46058 (proposed amendments to 40 C.F.R. Parts 122, 123, 124 and 131).

63. Following the recommendations of a federal advisory committee on TMDLs, U.S. EPA, REPORT OF THE FEDERAL ADVISORY COMMITTEE ON THE TOTAL MAXIMUM DAILY LOAD PROGRAM (1998) (EPA 100-R-98-006), EPA issued revised program regulations, only to have them stayed legislatively, challenged in court, and later withdrawn by the Agency itself pending further program review.

65. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

66. Katherine Ransell & Erik Myers, State Water Quality and Wetland Protection: A Call to Awaken the Sleeping Giant, 7 VA. J. NAT. RES. L. 339 (1988).

67. See Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.Q. 201 (1996).

68. 33 U.S.C. § 1362(19), ELR STAT. FWPCA § 502(19). This broad definition goes along with the stated purpose of the law, which is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a), ELR STAT. FWPCA § 101(a).

69. PUD No. 1, of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 24 ELR 20945 (1994).

70. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 28 ELR 21471 (9th Cir. 1998).

71. 33 U.S.C. § 1288, ELR STAT. FWPCA § 208.

72. Id. § 1288(b)(2)(F)-(K), ELR STAT. FWPCA § 208(b)(2)(F)-(K).

73. A somewhat harder edged program of nonpoint source controls in the coastal zone was later adopted in amendments to the Coastal Zone Management Act, and will be assessed in a forthcoming ELR article by Robin Kundis Craig.

74. See ENVIRONMENTAL LAW INSTITUTE, ENFORCEABLE STATE MECHANISMS FOR THE CONTROL OF NONPOINT SOURCE WATER POLLUTION (1997).

75. MD. CODE ANN., ENVIR. §§ 8-1801 to 8-1816 (2000); VA. CODE ANN. §§ 10.1-2100 to 2115 (2000).

76. See generally id.; NATIONAL RESEARCH COUNCIL, NEW STRATEGIES FOR AMERICA'S WATERSHEDS (1999).

77. For a review of these large watershed programs, see Robert W. Adler & Michele Straube, Watersheds and the Integration of U.S. Water Law and Policy; Bridging the Great Divides, 25 WM. & MARY ENVTL. L. & POL'Y REV. 1 (2000).

78. See WATERSHED '96: MOVING AHEAD TOGETHER, TECHNICAL CONFERENCE AND EXPOSITION (1996); WATERSHED '93: A NATIONAL CONFERENCE ON WATERSHED MANAGEMENT (1993); UNIVERSITY OF COLORADO, NATURAL RESOURCES LAW CTR., THE WATERSHED SOURCE BOOK (1996).

79. U.S. EPA, U.S. DEPARTMENT OF AGRICULTURE, CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS (1998).

80. 65 Fed. Reg. 62566-01 (Oct. 18, 2000). The agencies include the U.S. Departments of Agriculture (USDA), Commerce (DOC), Defense, Energy and the Interior (DOI), and EPA, the Tennessee Valley Authority, and the U.S. Army Corps of Engineers. The policy was proposed originally by the USDA and the DOI. 65 Fed. Reg. 8834-01 (Feb. 22, 2000). While the final policy was issued after an opportunity for public notice and comment, the agencies indicate specifically that it is not intended to be a rule.

81. Id. at 62569.

82. Id. at 62569-70.

83. Id. at 62571.

84. The glossary defines BMPs as:

"Methods, measures, or practices to prevent or reduce water pollution, including, but not limited to:

1. Structural and nonstructural controls,

2. Operation and maintenance procedures, and

3. Other requirements and scheduling and distribution of activities."

Id. at 62571.

85. ADLER ET AL., supra note 43.

86. Primary treatment involves mechanical screening and settling to remove solids and some organic matter. Secondary treatment uses bacteria in an aerated tank to further break down organic matter. See 40 C.F.R. pt. 133.

87. ADLER ET AL., supra note 43, at 14.

88. Id.

89. Id.

90. U.S. EPA, 1996 CLEAN WATER NEEDS SURVEY, available at http://www.epa.gov/owm/uc.htm (last visited June 18, 2001). The next national needs survey will not be available until March 2002. Id.

91. 33 U.S.C. § 1311(b)(1)(B), ELR STAT. FWPCA § 301(b)(1)(B).

92. Id. §§ 1311, 1314, ELR STAT. FWPCA §§ 301, 304.

93. "Conventional" pollutants include biological oxygen demand, suspended solids, fecal coliform, and pH. Id. § 1314(1)(4), ELR STAT. FWPCA § 304(1)(4).

94. The "priority pollutants" were identified in a 1976 Consent Decree between EPA and national environmental groups, and later ratified by Congress. See id. § 1311(b)(2)(C), ELR STAT. FWPCA § 301(b)(2)(C).

95. See ADLER ET AL., supra note 43, at 16.

96. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

97. See ADLER ET AL., supra note 43, at 16-18.

98. U.S. DOC, ECONOMICS AND STATISTICS ADMIN., BUREAU OF THE CENSUS, CURRENT INDUSTRIAL REPORTS, POLLUTION ABATEMENT COSTS AND EXPENDITURES (1994) (MA200(94)-1).

99. U.S. EPA, TRI 1999 Data Release (Apr. 11, 2001), at http://www/epa.gov/tri/tri99/index.htm (last visited June 13, 2001).

100. See ADLER ET AL., supra note 43, at 18-19.

101. See Richard B. Alexander et al., Data From Selected U.S. Geological Survey National Stream Water Quality Monitoring Networks, 34 WATER RESOURCES RES. 2401 (1998). Data from available U.S. Geological Survey (USGS) monitoring networks is available on CD-ROMs, see id., and on various websites, including http://water.usgs.gov/owq/data.html, and http://water.usgs.gov/nwis/qw. USGS is also in the process of publishing a series of detailed reports evaluating water quality trends in particular watersheds around the country. See, e.g., U.S. DOI, U.S. GEOLOGICAL SURVEY, WATER QUALITY IN THE UPPER TENNESSEE RIVER BASIN, TENNESSEE, NORTH CAROLINA, VIRGINIA, AND GEORGIA 1994-1998 (USGS Circular No. 1205, 2000).

102. See U.S. DOI, U.S. GEOLOGICAL SURVEY, SELECTED FINDINGS AND CURRENT PERSPECTIVES ON URBAN AND AGRICULTURAL WATER QUALITY BY THE NATIONAL WATER QUALITY ASSESSMENT PROGRAM (USGS Fact Sheet FS-047-01, Apr. 2001).

103. Id. at 1.

104. See 33 U.S.C. § 1313(c), ELR STAT. FWPCA § 303(c); 40 C.F.R. § 131.10.

105. See 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b). For the most recent compilation, see U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1998 REPORT TO CONGRESS (2000) (EPA 841-R-00-001).

106. See 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2).

107. See 40 C.F.R. § 131.10(g), (h).

108. See Mississippi Comm'n on Natural Resources v. Costle, 625 F.2d 1269, 10 ELR 20931 (5th Cir. 1980).

109. See Natural Resources Defense Council v. EPA, 16 F.3d 1395, 24 ELR 20496 (4th Cir. 1993).

110. See ADLER ET AL., supra note 43, at 24-28.

111. See id. figs. 2.1A-C, at 25-27.

112. U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1990 REPORT TO CONGRESS (1992) (EPA 503/9-92/006); U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1992 REPORT TO CONGRESS (1994) (EPA 841-R-94-001); U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1994 REPORT TO CONGRESS (1995) (EPA 841-R-95-005); U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1996 REPORT TO CONGRESS (1998) (EPA 841-R-97-008); U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1998 REPORT TO CONGRESS (2000) (EPA 841-R-00-001) [hereinafter 1990, 1992, 1994, 1996, AND 1998 NATIONAL WATER QUALITY INVENTORY, respectively].

113. U.S. EPA, Index of Watershed Indicators, at http://www.epa.gov/iwi/ (last visited Nov. 26, 2001).

114. 1998 NATIONAL WATER QUALITY INVENTORY, supra note 112, at 58, 84.

115. Id. at 15-16; WATER IN THE WEST, supra note 29, at 2-12.

116. See ADLER ET AL., supra note 43, at 5-6.

117. See id. at 32-57.

118. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465.

119. See ADLER ET AL., supra note 43, at 36-37, 56-58.

120. See 1998 NATIONAL WATER QUALITY INVENTORY, supra note 112, at 191-221.

121. See also U.S. EPA, National Listing of Fish and Wildlife Consumption Advisories, at http://fish.rti.org/; http://www.epa.gov/ost/fish (last visited Nov. 27, 2001); U.S. EPA, FACT SHEET, UPDATE: NATIONAL LISTING OF FISH AND WILDLIFE ADVISORIES (2001) (EPA-823-F-01-010).

122. The most recent NRDC report, Testing the Waters 2001, is available on the Internet at http://www.nrdc.org/water/default.asp.

123. RACHEL S. BARWICK ET AL., CENTERS FOR DISEASE CONTROL, MORBIDITY AND MORTALITY SURVEILLANCE SUMMARIES, SURVEILLANCE FOR WATERBORNE DISEASE OUTBREAKS (1998), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss4904a1.htm (last visited Nov. 26, 2001).

124. U.S. EPA, A REVIEW OF CONTAMINANT OCCURRENCE IN PUBLIC WATER SYSTEMS (1999) (EPA 816-R-99-006).

125. See ADLER ET AL., supra note 43, at 59-69.

126. THE NATURE CONSERVANCY, 1997 SPECIES REPORT CARD, THE STATE OF U.S. PLANTS AND ANIMALS (1997), available at http://www.abi.org/publications/97reportcard/.

127. Twenty-seven species of freshwater fish and 10 species of freshwater mussels are known to have gone extinct in the last 100 years. See ABELL ET AL., supra note 7, at 1.

128. Id. at 75.

129. U.S. EPA, supra note 113 (Aquatic WetlandSpecies at Risk).

130. U.S. FISH AND WILDLIFE SERVICE, WATERFOWL POPULATION STATUS 2000, at 10-11 (2000).

131. Id.

132. U.S. GEOLOGICAL SURVEY, NORTH AMERICAN BREEDING BIRD SURVEY SUMMARY RESULTS AND ANALYSIS, WETLAND BREEDING SPECIES 1966-2000 (2001), available at http://www.mbr-pwrc.usgs.gov/.

133. See ABELL ET AL., supra note 7, at 1.

134. See id. at 17-20 (reviewing various studies identifying wide range of factors impairing aquatic ecosystem health); 62-70 (explaining and assessing causes of impacts).

135. See ADLER ET AL., supra note 43, at 82.

136. Id. at 82-83. Even the Yellowstone River, however, has undergone enough changes due to flood control efforts that it was listed by the environmental group American Rivers as one of the top 10 "endangered rivers" in the United States in 1999. American Rivers, Most Endangered Rivers, 1986 to 2001, at http://www.americanrivers.org/mostendangered/riverlist.htm (last visited Nov. 26, 2001).

137. See ADLER ET AL., supra note 43, at 77.

138. See id. at 78-83.

139. See id. at 80-83.

140. See GLEICK, supra note 1, at 114.

141. THOMAS E. DAHL, STATUS AND TRENDS OF WETLANDS IN THE CONTERMINOUS UNITED STATES 1986 to 1997 (U.S. Fish and Wildlife Service 2000), available at http://library.fws.gov/pubs3.html (last visited Nov. 27, 2001).

142. CLEAN WATER ACTION PLAN, supra note 79, at vi.

143. ABELL ET AL., supra note 7.

144. Id. at 59.

145. ADLER ET AL., supra note 43, at 67-68.

146. TOM HORTON & WILLIAM M. EICHBAUM, TURNING THE TIDE, SAVING THE CHESAPEAKE BAY 104-05, 110 (1991); TOM HORTON, BAY COUNTRY, REFLECTIONS ON THE CHESAPEAKE BAY 41-48 (1987) [hereinafter BAY COUNTRY].

147. BAY COUNTRY, supra note 146, at 43. In statement of even greater hubris, a contemporaneous newspaper headline read: "Bay shad called too dumb to use fish ladders." Id. Maybe we were too dumb to figure out that shad are not biologically equipped to climb such unnatural passages.

148. Henry David Thoreau wrote more simply but with remarkable prescience: "Poor shad, where is thy redress?" Quoted in id. at 41.

149. Moody, supra note 28, at 81.

150. See GLEICK, supra note 1, at 26.

151. See id. at 199-202. Countries with more renewable fresh water are Brazil, Canada, China, Indonesia, and Russia.

152. See id. at 205-11. Countries that use more water per capita are Brunei and four of the republics in central Asia that broke from the former Soviet Union.

153. See id. at 65-72.

154. See id. at 78 (water required to produce a kilogram of beef is 30 to 40 times greater than for potatoes, 15 to 35 times greater than for most vegetables, including high protein sources such as soybeans, and 5 to 12 times greater than for chicken).

155. It is estimated that grain fed to livestock in the United States (supported by large amounts of irrigation water) is equivalent to that needed to feed 400 million people on a vegetarian diet. See id. at 68.

156. See id.; Sarah B. Van de Wetering & Robert W. Adler, New Directions in Western Water Law: Conflict or Collaboration?, 20 J. LAND RESOURCES & ENVTL. L. 15, 15-16 (2000).

157. See, e.g., Stuart Leavenworth, Fight Over Scarce Klamath River Water Heats Up, SACRAMENTO BEE, July 6, 2001, at B-1.

158. See WATER IN THE WEST, supra note 29, at 3-6.

159. See Benson, supra note 30, at 247.

160. See Moody, supra note 28, at 83-84.

161. See ADLER ET AL., supra note 43, at 98-99.

162. WAYNE B. SOLLEY ET AL., ESTIMATED USE OF WATER IN THE UNITED STATES 1995, at 1 (U.S. GeologicalSurvey Circular No. 1200, 1998).

163. Id. at 7, 17.

164. Id. at 6, 13.

165. See WATER IN THE WEST, supra note 29, at 2-14 et seq.

166. NATIONAL RESEARCH COUNCIL, A NEW ERA FOR IRRIGATION 133-35 (1996).

167. See TERRY L. ANDERSON & DONALD R. LEAL, FREE MARKET ENVIRONMENTALISM 91-94 (2001).

168. See generally Benson, supra note 30; Harrison C. Dunning, Revolution (and Counter-Revolution) in Western Water Law: Reclaiming the Public Character of Water, 8 FORDHAM ENVTL. L.J. 439 (1997); David H. Getches, Changing the River's Course: Western Water Policy Reform, 26 ENVTL. L. 157 (1996).

169. Cf. PUD No. 1. of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 24 ELR 20945 (1994) (separation of water quantity and water quality is "an artificial distinction").

170. See SOLLEY ET AL., supra note 162, at 1. Offstream water use continued to grow between 1950 and 1980; use dropped between 1980 and 1985 and has remained approximately level since then, despite continuing growth in the U.S. population. Id. at 63.

171. See, e.g., ADLER ET AL., supra note 43, at 227-57.

172. See, e.g., AMERICA'S WATERS: A NEW ERA OF SUSTAINABILITY, REPORT OF THE LONG'S PEAK WORKING GROUP ON NATIONAL WATER POLICY (1992).

173. See ENVIRONMENTAL LAW INST., ENFORCEABLE STATE MECHANISMS FOR THE CONTROL OF NONPOINT SOURCE WATER POLLUTION (1997).

174. See David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak and Present Future, 20 HARV. ENVTL. L. REV. 515, 528 (1996).

175. See USDA, NATURAL RESOURCES CONSERVATION SERV., AMERICA'S PRIVATE LAND, A GEOGRAPHY OF HOPE (1996).

176. See ANDERSON & LEAL, supra note 167, at 70.

177. See Adler, supra note 53, at 226-30.

178. See U.S. EPA, LIQUID ASSETS 2000: AMERICA'S WATER RESOURCES AT A TURNING POINT (2000).

179. See NATIONAL RESEARCH COUNCIL, ALTERNATIVE AGRICULTURE (1989).

180. See J. CLARENCE DAVIES & JAN MAZUREK, POLLUTION CONTROL IN THE UNITED STATES, EVALUATING THE SYSTEM 247-48 (1998).

181. 33 U.S.C. § 1342(p), ELR STAT. FWPCA § 402(p).

182. See Natural Resources Defense Council v. EPA, 966 F.2d 1292, 22 ELR 20950 (9th Cir. 1992).

183. See, e.g., 60 Fed. Reg. 40230 (Aug. 7, 1995) (urban stormwater "phase I" program).

184. See ADLER ET AL., supra note 43, at 193-98.

185. See JOHN R. NOLAN, WELL GROUNDED, USING LOCAL LAND USE AUTHORITY TO ACHIEVE SMART GROWTH (2001).

186. 33 U.S.C. §§ 1281, 1288, ELR STAT. FWPCA §§ 201, 208.

187. See Robert W. Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973, 1041-43 (1995).

188. See generally Adler, supra note 187.

189. See NATIONAL RESEARCH COUNCIL, ASSESSING THE TMDL APPROACH TO WATER QUALITY MANAGEMENT (2001).

190. See Adler & Straube, supra note 77, at 4-7.

191. 33 U.S.C. §§ 1311(b)(1)(C), 1313(d), 1341, ELR STAT. FWPCA §§ 301(b)(1)(C), 303(d), 401; see generally Arkansas v. Oklahoma, 503 U.S. 91, 22 ELR 20522 (1990); PUD No. 1, of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 24 ELR 20945 (1994).

192. PUD No. 1, of Jefferson County, 511 U.S. at 700, 24 ELR at 20945.

193. EPA identifies hydromodification as a leading source of impairment to rivers, streams, lakes, and reservoirs. 1996 NATIONAL WATER QUALITY INVENTORY, supra note 112, at 32-33, 50-51.

194. See NATIONAL RESEARCH COUNCIL, supra note 166, at 3-74.

195. See MICHAEL COLLIER ET AL., DAMS AND RIVERS, PRIMER ON THE DOWNSTREAM EFFECTS OF DAMS (U.S. Geological Survey Circular No. 1126, 1996).

196. See DAVID M GILLILAN & THOMAS C. BROWN, INSTREAM FLOW PROTECTION: SEEKING A BALANCE IN WESTERN WATER USE (1997).

197. ALASKA STAT. § 46.15.260(3) (1998); WASH. REV. CODE § 43.27A.020 (1998).

198. WYO. STAT. ANN. § 41-3-1001 (1999).

199. For a summary of who is allowed to participate in state instream flow protection programs, see GILLILAN & BROWN, supra note 196, [b], 5.1, at 121-22.

200. See id. at 138-40.

201. See National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 723-24, 13 ELR 20272, 20276-78 (Cal. 1983).

202. See GLEICK, supra note 1, at 78.

203. See id. at 81-87; NATIONAL RESEARCH COUNCIL, supra note 166, at 62-64, 134-36.

204. WATER IN THE WEST, supra note 29, at 28.

205. Id. at 25.

206. See, e.g., BRENT M. HADDAD, RIVERS OF GOLD, DESIGNING MARKETS TO ALLOCATE WATER IN CALIFORNIA (2000).

207. See NATIONAL RESEARCH COUNCIL, WATER TRANSFERS IN THE WEST, EFFICIENCY, EQUITY, AND THE ENVIRONMENT 45-50 (1992).

208. See MARC REISNER & SARAH BATES, OVERTAPPED OASIS: REFORM OR REVOLUTION FOR WESTERN WATER 149-66, at app. A (1990).

209. LAWRENCE J. MacDONNELL ET AL., WATER BANKS IN THE WEST 4-79 (1994) (Report of the Natural Resources Law Center, 1994).

210. Id. at 2-1 to 2-2. Rules were adopted in 1994 governing the operation of a Tribal Water Supply Bank for the Shoshone-Bannock Indian Tribes. Id.

211. Id. at 2-22.

212. Id. at 2-67.

213. See GLEICK, supra note 1, at 137-50; NATIONAL RESEARCH COUNCIL, USE OF RECLAIMED WATER AND SLUDGE IN FOOD CROP PRODUCTION (1996).

214. 16 U.S.C. §§ 1531-1544,ELR STAT. ESA §§ 2-18.

215. See GLEICK, supra note 1, at 112-19 and 113-34.

216. See Grand Canyon Protection Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600 (1992); U.S. DOI, OPERATION OF GLEN CANYON DAM, FINAL ENVIRONMENTAL IMPACT STATEMENT (1995).

217. See U.S. WATER NEWS, Sept. 1998, at 12.

218. See American Rivers v. National Marine Fisheries Serv., Civ. No. 94-940-MA, 1995 WL 464544 (D. Or. Apr. 14, 1995).

219. 16 U.S.C. § 1536, ELR STAT. ESA § 7.

220. Id. § 1538, ELR STAT. ESA § 9.

221. See Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species Act as Applied to Endangered River Ecosystems, 40 ARIZ. L. REV. 174, 229-30 (1998).

222. Id. at 249.

32 ELR 10167 | Environmental Law Reporter | copyright © 2002 | All rights reserved