The two lost books in the water quality trilogy: the elusive objectives of physical and biological integrity.
I. INTRODUCTION II. DEFINING THE WATER QUALITY TRILOGY: THE OBJECTIVE AND GOALS OF THE CLEAN WATER ACT A. What Did Congress Say? B. Did Congress Understand and Mean What It Said? 1. Textual Evidence a. Definitions b. Operative Provisions 2. Legislative 3. Tentative Conclusions III. ACHIEVING THE CLEAN WATER ACT OBJECTIVE AND GOALS--HAS THE TRILOGY BEEN WRITTEN? A. Progress in Controlling Pollutants B. Trends in Ambient Water Quality C. Trends in Physical and Biological Integrity D. Aquatic Ecosystem Integrity--An Historical Postscript IV. THE UNWRITTEN BOOKS IN THE WATER QUALITY TRILOGY--A SEARCH FOR EXPLANATIONS A. Federalism, Water Pollution, and Nonpoint Sources B. Knowledge, Uncertainty, and Pollution Control C. Aspirations and Reality D. Implementation: EPA as Reluctant Master E. Implementation: The Latent Potential of Biological Water Quality Standards V. CONCLUSION: TOWARD IMPROVED FOCUS ON PHYSICAL AND BIOLOGICAL INTEGRITY
The opening provisions of many federal environmental laws contain broad, laudable goals. (1) Saying and doing, however, are two entirely different matters. (2)
In the 1972 amendments to the Federal Water Pollution Control Act, now known as the Clean Water Act (CWA or the Act), (3) Congress articulated one of the broadest ecosystem restoration and protection aspirations in all of environmental law: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (4) Courts have referred to this broadly stated objective as the "guiding star" of the statute, (5) or otherwise invoked the language as the main starting point for their analysis. (6) But while progress has been made in moving toward "chemical" integrity, and while significant resources and programs have been directed at discharges of chemical pollutants, both the "physical" and "biological" integrity books in the trilogy have remained largely hortatory Empirical evidence shows measurable gains in reducing chemical pollution, but in the thirty years since the law was passed, the overall health of the nation's freshwater aquatic ecosystems has declined dramatically. (7)
Disturbing and ongoing trends in the health of our aquatic ecosystems, relative to the lofty objective announced by Congress three decades ago, suggest several threshold questions First, did Congress understand the implications of its tri-part "integrity" objective? It is possible, at least, that in 1972 Congress believed--erroneously but perhaps understandably--that "chemical, physical, and biological integrity" could be "restored and maintained" largely by stemming the flow of chemical pollutants from various sources. Perhaps Congress did not understand fully that by invoking physical and biological as well as chemical factors, it was implicating a far broader range of human insults to aquatic ecosystems, such as dams and diversions, channels and levies, bridges and culverts, and waterside construction of roads, homes, resorts, and other structures.
Second, if Congress did understand those implications of the Act's threshold objective, did it really mean what it said? It is all too easy for Congress to purport to address environmental problems in aspirational declarations, but either to leave the hard and important choices and details of implementation to the Environmental Protection Agency (EPA) and other federal and state entities, or to omit adequate implementation strategies altogether. Perhaps Congress intended to identify physical and biological integrity as desirable, if not essential, objectives; but recognizing the significant political and implementation barriers to achieving those objectives, intentionally failed to match them with effective implementation tools.
Third, if Congress both understood the implications of the Act's overarching objective and actually meant what it said, why have those objectives not been met? Are the statutory tools provided in the Act inadequate to the task, or have they been implemented poorly? Is EPA largely responsible for the failure, or do the states share a large portion of the blame? If the problem is the latter, should more authority in the realm of physical and biological integrity be shifted from the states to the federal government? In short, what can we do better or differently to reverse persistent declining trends in the health of aquatic ecosystems, and to move toward the goal of chemical, physical, and biological integrity of the nation's waters?
This Article is organized largely to track the questions stated above. Part II examines the text and legislative history of the Act to identify what Congress said about chemical, physical, and biological integrity, what it apparently meant that language to accomplish, and the real-world implications of those requirements, if fully and properly implemented. Part III reviews empirical evidence suggesting some progress toward the goal of chemical integrity but abject failure even to make serious progress toward the goals of physical and biological integrity. Part IV explores a series of possible explanations for those failures, and Part V concludes with proposed regulatory and legislative solutions.
This analysis finds that Congress did mean what it said in establishing the broad, tri-part aquatic ecosystem protection objective of the CWA. However, neither the federal nor the state agencies charged with implementing the CWA have taken full advantage of their existing legal authority to address the physical and biological books in the water quality trilogy. Of course, in the 1972 Act and later amendments, Congress did provide far more precise tools to address the chemical as opposed to the physical and biological integrity aspects of the water quality trilogy, entrusting authorship of the latter two books largely to the states. As a result of both factors--inadequate statutory authority and inadequate implementation of the authority that does exist--the health of the nation's aquatic ecosystems has continued to decline precipitously over the past three decades. It is time for EPA to revisit its virtually exclusive focus on chemical impairments to our aquatic ecosystems, and for Congress to revisit its policy of deference to the states in areas other than point source control of chemical pollutants.
II. DEFINING THE WATER QUALITY TRILOGY: THE OBJECTIVE AND GOALS OF THE CLEAN WATER ACT
A. What Did Congress Say?
Congress divided its CWA aspirations into a broadly defined, overarching objective, followed by a series of subsidiary or, sometimes, interim goals. In section 101(a), Congress announced boldly that "[t]he objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (8) "In order to achieve this objective," (9) Congress identified a list of seven goals, one of which is particularly relevant to this article: "[I]t is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983...." (10) As discussed below, it appears this "interim" water quality goal, often referred to by the misleadingly narrow shorthand "fishable and swimmable waters," (11) has become the de facto ultimate water quality objective in lieu of the broader objective defined by Congress. (12)
An obvious threshold question is whether and how Congress intended the broader statutory objective to be effectuated relative to the Act's subsidiary goals. (13) One potential answer is found in section 303(c) of the Act, which establishes minimum requirements for states (or EPA) (14) in adopting ambient water quality standards (WQS):
[R]evised or new water quality standard(s) shall consist of the designated uses of the navigable waters ... and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. (15)
Clearly, the reference to "propagation of fish and wildlife" alludes to a key portion of the interim water quality goal set forth in section 101(a)(2). (16) The requirement that WQS be adopted to "serve the purposes of the Act," however, goes further to require those standards to effectuate all of the statutory purposes, including both the subsidiary goals and the overarching objective. Thus, section 303(c) converts an advisory statement of legislative intent, which normally has no legal force and effect, (17) into an operative provision of substantive law As discussed below, however, EPA adopts this view only in part. (18)
Congress reinforced the distinction between the release of chemical pollutants and the broader notion of restoring aquatic ecosystem integrity by adopting different definitions of "pollution" and "pollutant" in the 1972 law. It defined "pollution" as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," (19) language obviously intended to embrace the full agenda articulated in the overall statutory objective. The term "pollutant," by contrast, is defined more narrowly as specified categories of discrete substances, (20) the discharge of which into water is either prohibited, allowed, or qualified according to various provisions of the Act. (21) The pollution/pollutant distinction, therefore, is a linguistic surrogate for the breadth of issues addressed in the overall objective of the CWA compared to its more finely focused subsidiary goals Indeed, of the seven subsidiary goals set forth in section 101(a) of the Act, only the last, which discusses nonpoint source pollution, (22) speaks in the broader language of pollution rather than pollutants. Again, the obvious threshold question is whether and how Congress intended to achieve the broader goal of pollution control as opposed to the more limited control of "pollutant" discharges.
B. Did Congress Understand and Mean What It Said?
The potential significance of the distinctions between pollution and pollutants, and between chemical as opposed to physical and biological integrity, is best appreciated by reflecting on the types of activities that might comprise each category of activity and its resulting harm. Setting aside for a moment the actual language of the CWA, the common understanding of the term "water pollution" typically involves images of chemical pollutants spewing out of factories and sewage treatment plants, along with the resulting odor, discoloration, and harm to fish, drinking water, and other downstream water uses. Fueled by contemporaneous reports of dangerous chemical contaminants in seafood and drinking water, fish kills due to chemical pollutants, and dramatic incidents such as the famous fire on the Cuyahoga River, (23) perhaps it was such images that influenced to enact the CWA in 1972. (24)
The statutory objective of the CWA and the definition of "pollution," however, suggest a far broader array of human activities not typically included in the lay understanding of water pollution. Both provisions apply the concepts of chemical, physical, and biological integrity to the words "the Nation's waters" and "water," respectively (25) Even this simple distinction within the statutory text suggests some potential ambiguity. Construing the statute most narrowly, one could determine that Congress was referring to the integrity of water itself, as opposed to the much broader concept of the aquatic ecosystems as suggested by "the Nation's waters." On its face, however, it appears nonsensical to speak of the biological integrity of water, unless Congress meant simply to exclude chemical pollution of such intensity that living organisms cannot be supported. More important, the legislative history outlined below indicates irrefutably that both the House and Senate Committees that sponsored the 1972 Act intended the phrase to apply to aquatic ecosystems and not just the integrity of the water within those systems. (26) Thus, the Supreme Court has recognized that Congress was concerned with the protection of both water quality and entire aquatic ecosystems. (27)
If so, what human activities other than discharges of pollutants are encompassed within the definition of "pollution," which applies to any human alteration of the chemical, physical, and biological integrity of the nation's waters (i.e., the nation's aquatic ecosystems)? Consider the following:
1. Common physical modifications to aquatic systems, such as armoring of river banks, channelization, levies, culverts, and other structural changes to rivers and lakes, which are designed to prevent erosion and flooding, radically alter the physical integrity and continuity of the nation's waters. (28)
2. Widespread human introduction of non-native species (e.g., the stocking of non-native rainbow trout in rivers and lakes or nonnative macroinvertebrates to augment the food supply for those populations) can radically alter the biological integrity of the nation's waters. (29)
3. The impoundment of rivers into reservoirs by hundreds of thousands of U.S. dams, both large and small, transforms entire aquatic ecosystem types. (30)
4. Substantial diminution of instream flows, which is virtually ubiquitous in the West and increasingly present in eastern systems as well, radically alters the hydrological integrity of the Nation's waters. (31)
These examples underscore the importance of Congress's intent when Congress established the ambitious goal of restoring and maintaining the "chemical, physical, and biological integrity of the Nation's waters." (32) Did Congress understand the full implications of the broad language it used, and if so, how did it intend those ambitions to be implemented? Obviously, this requires an inquiry into what Congress meant by the words "restore and maintain" and "integrity," as well as the different ways in which the statute addresses pollution and pollutants. Those questions, in turn, require a more detailed evaluation of the text and legislative history of the 1972 Act and relevant subsequent amendments.
1. Textual Evidence
The first approach to this issue is to explore the full text of the statute to identify additional evidence of how Congress intended the narrower issue of pollutants and the broader issues of pollution to be addressed. In particular, did Congress use the terms "pollutants" and "pollution" in a logical pattern, which would indicate a conscious design in the overall statutory regime as opposed to more casual or unintentional differences in language? (33) As discussed above, Congress distinguished between discharges of pollutants and the broader concept of pollution in stating the subsidiary goals of the Act, using the term "pollutants" largely for goals involving discharges and "pollution" in reference to nonpoint sources. (34) How Congress actually intended these distinctions to be addressed, however, requires a more detailed analysis of the operative provisions of the law Unfortunately, this exercise produces somewhat mixed results.
First, having established different statutory definitions of pollutant (narrower) and pollution (broader), Congress also defined other statutory terms selectively, in a pattern that appears to make sense Some of the other statutory definitions refer specifically to pollution while others speak in the language of pollutants and discharges Sections 502(1) and (2) define "state water pollution control agency" and "interstate agency," respectively, as having responsibilities to control pollution. (35) Sections 502(12) and 502(15), by contrast, which define the precise coverage and operation of the point source control provisions of the Act, use the narrower term "pollutants." (36) This usage seems to make sense to the extent Congress, as explained below, (37) intended the broader issues of pollution, with their greater implications for land and water use, to be addressed primarily by state and interstate agencies as part of their nonpoint source pollution control efforts, as opposed to EPA and other arms of the federal government. It is also consistent with Congress's use of the term "pollution" only in the subsidiary statutory goal aimed at controlling nonpoint sources. The contrasting definitions, therefore, again suggest Congress used the different terms intentionally, in ways that match the Act's overall allocations of responsibility in the statute.
Other uses of these terms, however, could suggest less precision and intentional design For example, in section 502(11), the term "effluent limitation" is defined as "any restriction ... on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources...." (38) Initially, this definition appears to conflate the notion of chemical, physical, and biological integrity associated with the broader definition of pollution, with the narrower definition of pollutants associated with discharges from point sources. On the other hand, the statutory definition of pollutant includes examples of chemical, physical, and biological constituents. (39) That explanation, however, begs an important question: Did Congress intend that chemical, physical, and biological integrity be limited to the discharge of chemical, physical, and biological pollutants; or, alternatively, did Congress simply recognize that the broader concept of chemical, physical, and biological integrity encompasses the discharge of these pollutants as well as other forms of human alteration? (40)
A similar issue is suggested by the definition of the term "discharge," which, "when used without any qualification includes a discharge of a pollutant." (41) This language suggests that the unqualified term "discharge" covers activities broader than those in the qualified phrase but does not expressly indicate how. In Oregon Natural Desert Association v. Dombeck, (42) the Ninth Circuit rejected the logical argument that, for purposes of applying the state water quality certification provision in section 401 of the Act, (43) the word "discharge" includes pollution from both point and nonpoint sources. (44) Instead, the Ninth Circuit panel accepted the government's alternative theory that the term "discharge" "is limited to point sources but includes both polluting and nonpolluting releases," a distinction that appears to makes little sense, or at least serves no apparent purpose in the statutory scheme. (45) Even the broader interpretation, of course, would encompass at most discharges from both point and nonpoint sources, as opposed to other types of alteration of aquatic ecosystem integrity.
b. Operative Provisions
More insight might be obtained by examining the operative provisions of the statute to determine whether use of the terms "pollution" and "pollutant," or any further reference to "chemical, physical, and biological integrity," suggest a logical and intentional distinction. Once again, however, such a pattern is reflected in some, but not all, of those provisions.
Some operative provisions of the CWA very clearly appear to acknowledge the precise distinction between pollutants and pollution, indicating Congress understood quite well the distinction between the narrower goal of reducing discharges of pollutants and the much broader goal of abating pollution to restore and maintain the chemical, physical, and biological integrity of the nation's waters. For example, section 105(c) provides for "contracts ... for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants." (46) This language suggests Congress understood, even with respect to industrial activities, that pollution encompasses more types of impairment than pollutant discharges alone. Similarly, in section 304(a) of the statute, (47) which requires EPA to develop criteria and information to guide states in the development of water quality standards under section 303(c) of the Act, (48) Congress plainly distinguished between the development of water quality criteria addressing the impact of "pollutants," (49) and "information" (50) on "the factors necessary to restore and maintain the chemical, physical, and biological integrity of all navigable waters." (51) Likewise, in section 510, Congress provided that nothing in the Act precludes or denies other rights of states with respect to "(A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution." (52) Obviously in this provision, Congress acknowledged the difference between programs to limit the discharge of pollutants and broader efforts to control other forms of pollution.
Other operative provisions of the statute, however, appear to confuse the issue hopelessly. In section 208, (53) and in a related provision directing EPA to provide information needed to implement section 208, (54) Congress identified as problems both the runoff of pollutants from agriculture, silviculture, mining, construction sources, and so forth as well as other types of pollution such as salt water intrusion and "changes in the movement, flow, or circulation of any navigable waters" due to hydrological modifications. (55) However, in section 319, (56) which is a nonpoint source pollution control initiative added in 1987 and designed, at least in theory, to redress the inadequacy of nonpoint source control programs in the previous fifteen years, (57) Congress again appears to have conflated the distinct ideas of pollution and pollutants. Some aspects of section 319 parallel Congress's recognition in section 101(a)(7) (which was also added in 1987 to establish a goal to control nonpoint source pollution), that nonpoint sources contribute broadly to the pollution of the nation's waters; that is, they alter chemical, physical, and biological integrity in ways that go beyond the runoff of pollutants. For example, section 319(a)(1)(A) directs states to develop reports identifying waters that "without additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain applicable water quality standards or the goals or requirements of this' chapter" (58)
Other subsections of section 319, however, seem to belie the distinction. Section 319(a)(1)(B), for example, requires states to identify categories of nonpoint sources or particular sources which "add significant pollution [to waters] in amounts which contribute to such portion not meeting such water quality standards or such goals and requirements." (59) Similarly, section 319(b)(1) requires states to develop management programs "for controlling pollution added from nonpoint sources to navigable waters." If the definitions and distinctions between pollutants and pollution are to be taken seriously, it makes no sense to discuss "additions of pollution" and "adding significant amounts" of pollution. (60)
Depending on how it is interpreted, section 303(d) creates similar confusion. This section is the once largely dormant and now famous Total Maximum Daily Load (TMDL) provision requiring states to allocate allowable control obligations among various sources such that aggregate impacts from multiple sources do not cause ambient water quality standards violations. (61) Section 303(d)(1)(A) requires states to identify waters for which the first round of technology-based effluent limitations are not adequate to implement "any water quality standard," (62) i.e., not just those standards involving chemical pollutants. By contrast, under section 303(d)(1)(C), states must establish and implement, for all of those listed waters, the "total maximum daily load ... for ... pollutants" (63) as a means of remedying the identified violation. If water quality standards are supposed to "serve the purposes of the Act," and hence to identify all types of conditions that impair chemical, physical, and biological integrity, then the listing provision in section 303(d) logically covers all forms of water body pollution. Moreover, as recently confirmed by the Ninth Circuit, (64) section 303(d) would make no sense if only point sources are included in the calculation of total pollutant loadings to an impaired water body. By limiting the effective control mechanisms to total maximum daily loads of pollutants, Congress included in section 303(d) no direct mechanisms to redress other sources of pollution.
A similar dichotomy between the breadth of impaired water body identification listing and the tools designed to address that impairment appears in section 304(1), the so-called "toxic hot spots" provision that was also added in 1987. (65) States are required to identify water bodies impaired specifically with respect to toxic pollutants, (66) and also, as expressly found by the Ninth Circuit, waters that fail to meet much more broadly defined water quality standards. (67) Yet the tools identified and required to redress those problems are limited to "individual control strateg[ies] [designed to] produce a reduction in the discharge of toxic pollutants from point sources ... through the establishment of effluent limitations ... and water quality standards ... which reduction is sufficient, in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard." (68) As with section 303(d), the reach of the remedial tools included in section 304(1) does not match the breadth of problems that must be addressed under the listing provision.
Again, apparent anomalies in the statutory text potentially can be reconciled through the statute's general allocation of responsibility for the control of point source and nonpoint source pollution. Under the plain language of sections 303(d) and 304(1), states are supposed to identify all impaired water bodies regardless of the nature and source of pollution: 1) point sources of pollutants, 2) nonpoint sources of pollutants, and 3) other sources of pollution. The TMDL provision in section 303(d) logically requires states to identify the maximum amount of pollutants from all sources consistent with applicable water quality standards for each impaired water segment, with an appropriate margin of safety, (69) and to allocate those allowable pollutant loadings among point and nonpoint sources. While the states are given the first crack at this mechanism, EPA is directed to correct deficiencies in state efforts. (70) Similarly, allowable loadings of pollutants from point sources can be imposed directly through NPDES permits, (71) which gives EPA direct implementing authority absent adequate state action. (72) Efforts to control other forms of pollution apparently are left to other portions of the law, resulting in EPA's ambiguous authority to act if a state fails to do so. (73) Likewise, states are directed to identify all sources of water pollution in the section 304(1) listing process. The specified control mechanisms in that provision ("individual control strateg[ies] [designed to] produce a reduction in the discharge of toxic pollutants from point sources") however, were intended to operate "in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard." (74)
Thus, in some respects, the statutory text provides evidence that Congress intentionally designed two sets of statutory purposes of disparate breadth. Ambiguities and inconsistencies in other provisions, however, cast some doubt on that design. Did Congress distinguish between these terms and ideas knowingly, but occasionally slip in the original text or in subsequent amendments; (75) or did Congress simply use the two terms carelessly and unknowingly, but through sheer statistical chance in ways that made sense in some provisions? In National Wildlife Federation v. Gorsuch, (76) which concluded that water quality changes induced by discharges of river water through dams did not constitute a "discharge of a pollutant" for purposes of the discharge prohibition in section 301(a) (77) and the permit requirement of section 402, (78) the D.C. Circuit found that courts should presume Congress distinguished between the terms "pollutant" and "pollution" intentionally. (79) However, to better understand Congress's intent in drawing these statutory distinctions, it is useful to explore the legislative history of the 1972 Act and relevant subsequent amendments.
2. Legislative History
Senator Edmund Muskie, the principal Senate architect of the 1972 Act, argued that the statute's goals should have more than the usual weight: "These are not merely the pious declarations that Congress so often makes in passing its laws; on the contrary, this is literally a life or death proposition for the Nation." (80) This rhetoric, of course, can be viewed as little more than a hortatory statement of the statute's hortatory objectives. Similarly, some statements in the legislative history suggest Congress understood its goal as restoring "natural" ecosystem conditions, but with language too general to be of much help. The 1972 Senate Report, for example, articulated "a clearly set goal of natural water quality" and a "restored and protected natural environment." (81) More specific indications are needed to determine what Congress understood or meant by "chemical, physical, and biological integrity," and by distinguishing "pollution" from "pollutants."
There is, however, significant legislative history indicating Congress gave the matter of aquatic ecosystem "integrity" more specific attention. The 1972 Senate Report, for example, evidences an intent to restore aquatic ecosystems to as close as possible to their natural state:
Maintenance of such integrity requires that any changes in the environment resulting in a physical, chemical or biological change in a pristine water body be of a temporary nature, such that by natural processes, within a few hours, days or weeks, the aquatic ecosystem will return to a state functionally identical to the original. In those water bodies which are not pristine, it should be the national policy to take those steps which will result in change towards that pristine state in which the physical, chemical and biological integrity of the water body can be said to exist ... an objective which minimizes the burden to man in maintaining a healthy environment, and which will provide for a stable biosphere that is essential to the well-being of human society. (82)
This relatively "purist" Senate position is confirmed by the legislative history of later amendments. The 1977 Senate Report, for example, explained: "A balanced, indigenous population is that which would naturally occur in those particular waters without the effect of man's activities." (83) The 1985 Senate Report went even further, linking the desired state to the absence of "pollution":
[T]he term "balanced indigenous population" is defined as the community that can reasonably be expected to occur in a given area absent pollution. Its existence is generally determined by comparing the ecological community in question to that of nearby healthy communities existing under comparable but unpolluted physical and environmental conditions. (84)
The House Committee articulated a more functional view of the term "integrity," based on the concept of preserving natural ecosystem structure and function as opposed to absolute original ecosystem conditions. Nonetheless, this legislative history clearly indicates that the sponsors gave the matter far more than casual thought. The 1972 House Report explains:
The word "integrity" as used is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is maintained[.] Although man is a "part of nature" and a product of evolution, "natural" is generally defined as that condition in existence before the activities of man invoked perturbations which prevented the system from returning to its original state of equilibrium.... This definition is in no way intended to exclude man as a species from the natural order of things, but in this technological age, and in numerous cases that occurred before industrialization, man has exceeded nature's homeostatic ability to respond to change. Any change induced by man which overtaxes the ability of nature to restore conditions to "natural" or "original" is an unacceptable perturbation. (85)
While one could conclude that the House interpretation of aquatic ecosystem integrity is less absolute and hence less "environmental" than that of the Senate, arguably the House Committee's explanation reflects a more sophisticated understanding of modern ecological science than did the Senate's report. (86) If so, perhaps it reflects even more conscious deliberation and intent that those words be taken seriously.
These statements from the 1972 House and Senate reports, while reflecting less than perfect agreement, nevertheless indicate that the meaning of the overarching statutory objective was the subject of considered congressional deliberation. Unfortunately, language in the 1972 Conference Committee Report reflects either an even more absolute interpretation than reflected in the Senate Committee report, or serious confusion about the difference between pollution and pollutants. In explaining section 102 of the Act, (87) the report asserts: "The term 'abating or reducing pollution' has been revised to read 'preventing, reducing, or eliminating pollution.'" (88) Similar explanatory language was offered with respect to section 103: "[T]he term 'abatement' of pollution has been stricken and replaced by the term 'reduction and elimination' of pollution." (89) This change from "abatement" to "elimination" could suggest the Conference Committee was confused and really intended to apply the concept of elimination to the "zero discharge goal" regarding the discharge of pollutants. If the Conference Committee did intentionally mean elimination of pollution as more broadly defined in the text, it would imply the elimination of every type of human alteration of the chemical, physical, and biological integrity of the nation's waters.
Language in the 1972 Senate Report reflects either similar confusion between the zero discharge goal established for discharges of pollutants and the broader but necessarily less absolute task of restoring natural aquatic ecosystem integrity, or a misunderstanding of the breadth of causes of water pollution and the steps needed to address them:
The "natural ... integrity" of the waters may be determined partially by consultation of historical records on species composition, partially from ecological studies of the area or comparable habitats; partially from modeling studies which make estimations of the balanced natural ecosystem based on the information available. It is expected that the ultimate mechanism for the restoration and maintenance of the natural integrity of the waters will be the complete cessation of discharge of pollutants into waters. (90)
3. Tentative Conclusions
This evaluation of the text and legislative history of the 1972 Act and relevant subsequent amendments suggests several conclusions regarding congressional intent. First, in the 1972 statute, Congress quite knowingly established a broader objective of "restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters," along with narrower, interim goals of water quality suitable for protecting and propagating fish and wildlife and public recreation. Other statutory goals, such as reducing or eliminating the discharge of pollutants and eliminating the discharge of toxic pollutants in toxic amounts, were designed to further those goals and objectives.
Relatedly, both houses of Congress seem to have given the concept of aquatic ecosystem integrity due deliberation, indicating that the Act's opening phrase was not intended as a mere rhetorical flourish. It does appear the Act's chief sponsors in the House of Representatives and the Senate disagreed on the precise meaning of the statutory objective, as is true of many other provisions of the Act. (91) The Senate Committee's understanding of the concept of integrity seems to suggest a return to pristine, natural ecological conditions, while the House Committee suggested that the concept of integrity implies a return to natural ecosystem structure and functions. Nevertheless, the very existence of that subtle debate suggests the sponsors on both sides of the Capitol took the overriding statutory objective quite seriously.
This apparent intent to take seriously the ecosystem integrity objective is matched by the statute's operative provisions. In particular, Congress clearly had some reason for enacting distinctly different definitions of a "pollutant" as a discrete substance discharged into water, and of "pollution" as all human activities that alter the chemical, physical, and biological integrity of water. Moreover, Congress's use of the terms "pollutant" and "pollution" in the 1972 text seems reasonably consistent (with some exceptions), again indicating the distinction was a considered one. In later amendments, Congress became somewhat less precise in its use of the terms "pollutant" and "pollution," perhaps reflecting that later members of Congress had lost focus on the original distinction between the terms. Congress's shift, however, may have been driven by the fact that EPA and state implementation of the Act had focused almost entirely on the discharge of pollutants, and very little on broader sources of water pollution. (92) This overwhelming focus on implementing the pollutant control aspects of the CWA at the expense of the statute's broader pollution control aspirations suggests it would be useful to examine the degree to which those distinct objectives have been achieved three decades after the 1972 law was adopted.
III. ACHIEVING THE CLEAN WATER ACT OBJECTIVE AND GOALS--HAS THE TRILOGY BEEN WRITTEN?
In evaluating the nation's progress under the CWA approximately a decade ago, two colleagues and I concluded that significant progress had been made in reducing discharges of pollutants from point sources, but that far less had been accomplished to reduce all forms of pollution from all sources. (93) Recently, as part of a broader effort to evaluate U.S. progress in meeting the sustainable development goal a decade after the 1992 Earth Summit, (94) I revisited those conclusions, and found--unfortunately--that little had changed. (95) The following summarizes briefly the results of that analysis.
A. Progress in Controlling Pollutants
Available empirical evidence shows significant progress in reducing discharges of pollutants to U.S. waters over the past thirty years, although major problems certainly remain. While there are many legitimate ways to assess effort and progress in this area, several indicators demonstrate the main point.
As of 1972, despite decades of significant federal, state, and local investment in public sewage treatment infrastructure, domestic sewage remained a major unaddressed source of water pollution. (96) Tremendous efforts were made and billions of public dollars were invested to address those problems under the 1972 CWA and its later amendments, (97) with dramatic evidence of improvement. As of 1996, approximately seventy-three percent of the U.S. population was served by public sewage treatment plants, with ninety-nine percent of plants providing secondary treatment or better. (98) Lest we be lulled into complacency, however, this aspect of water pollution control is far from over. According to EPA's most recent analysis, the nation faces estimated public sewerage needs of almost $140 billion by 2016, for new plants, collection systems, and efforts to control sewer system overflows. (99)
Similarly, from 1972 through the early 1990s, more than $57 billion was invested in industrial water pollution control, resulting in reductions of millions of tons of conventional pollutants and more than a billion pounds of priority toxic pollutants (100) per year. (101) As with municipal sewage, however, significant releases of industrial pollutants into U.S. waterways continue. For example, U.S. industries reported releases of almost 261 million pounds of toxics into surface waters in 2000, up from 200 million pounds in 1990. (102)
B. Trends in Ambient Water Quality
Despite significant progress in reducing the discharge of pollutants from municipal and industrial point sources, trends in ambient water quality, i.e., in the "chemical integrity" of U.S. waters, remain ambiguous and inconsistent. This is due in part to the ongoing releases of point source pollutants discussed above, runoff of pollutants from nonpoint sources, and other forms of pollution. Large numbers of urban watersheds remain chemically impaired because of pathogens, phosphorus, insecticides, herbicides, and toxics from municipal and industrial sources; and many rural watersheds remain chemically impaired as a result of nutrients, sediment, and agricultural chemicals. (103)
Long-term water quality trends can be difficult to assess because of data gaps, differences in methods of data collection and analysis, and other factors, although methods and information have improved in recent years. (104) Available evidence, however, indicates the nationwide reduction in releases of pollutants from point sources has not universally translated into improved ambient water quality. When consistent, long-term water quality data are available, more often than not they show no clear trends in ambient water quality, with improvements largely in areas associated with point sources, and declining or steady trends in areas associated with nonpoint sources. (105) EPA's Index of Watershed Indicators, a compilation of information on the health of U.S. aquatic resources by watershed, confirms these inconsistent trends. For watersheds for which adequate information exists, EPA reports "more serious water quality problems" in 534 watersheds, "less serious water quality problems" in 794 watersheds, and "better water quality" in 339 watersheds. (106)
Evidence of ongoing impairment of chemical water quality in some areas translates to documented harm to human health and aquatic ecosystems. More than a third of the nation's rivers and almost half of its lakes do not meet designated water quality uses (107) in whole or in part--trends that have not changed significantly over the past decade because of a combination of chemical pollution and other factors. (108) Moreover, disturbing but incomplete data indicate severe ongoing impairment of uses that implicate risks to human health, fish, and wildlife. For example, more than 2500 fish and wildlife consumption advisories were issued in 1998, and more than 2800 were issued in 2000, because of toxics and other contaminants in waterways (mercury, PCBs, chlordane, dioxins, DDT residues), reflecting a steady increase since 1993. (The increasing trend probably is due in part to improved monitoring and reporting.) (109) Similarly, at least 13,410 beach closings or advisories occurred in 2001, some due to heavy rainfall but most due to pathogens and other contaminants--a nineteen percent jump over the previous year and more than twice as many as in 1999 (again, in part due to improved testing and reporting). (110) Because many of these real world indicators relate to the presence of chemical pollutants and pathogens in aquatic ecosystems, they corroborate discharge data that indicate efforts to reduce discharges of traditional pollutants remain incomplete.
C. Trends in Physical and Biological Integrity
There is considerable and more consistent evidence that the "physical and biological integrity" of the nation's waters has been steadily and seriously declining, with few, if any, signs of better aquatic ecosystem health overall. While we hear a lot about wolves and spotted owls, and without suggesting that those biodiversity issues are not important, aquatic species are declining at a far more alarming rate than are terrestrial species. In a comprehensive analysis of biodiversity in the United States, the Nature Conservancy found that "animals that depend on freshwater habitats--mussels, crayfish, fishes, and amphibians--are in the worst condition overall," and those freshwater-dependent animals have the highest percentages of species characterized as "critically imperiled," "imperiled," or "vulnerable." (111) Breaking down the Nature Conservancy data by watershed, EPA found one aquatic species at risk in 403 watersheds, two to five species at risk in 745 watersheds, and more than five species at risk in 422 watersheds around the country in 1996. (112) The World Wildlife Fund-U.S. (WWF-U.S.) drew similar conclusions in its comprehensive analysis. Although extinctions of individual species are of concern in many ecoregions, WWF-U.S. concluded sufficient numbers of species are at risk that entire "faunal assemblages are in a precarious state." (113)
The fact that aquatic ecosystem health is declining so dramatically on a nationwide basis while evidence of chemical impairment shows inconsistent and ambiguous trends suggests strongly that other major sources of stress are at play. Most aquatic biologists agree that while chemical impairment contributes to the dramatic decline in aquatic ecosystem health, physical and biological impairment is, overall, a more significant factor. In particular, most experts agree 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. (114) Evidence of such habitat impairment is dramatic. For example, Dr. Arthur Benke of the University of Alabama found that all but a single river segment longer that 1000 kilometers (the Yellowstone River in Montana) was substantially altered in some way; of more than 100 river segments longer than 200 kilometers, only 42 remain free-flowing. (115) Similarly, a 1982 analysis by EPA and the U.S. Fish and Wildlife Service (FWS) found that 81 percent of the nation's waters, including more than half of all perennial waters, had fish populations adversely affected by various structural factors. (116)
Other agencies have identified similar levels of impairment of other aquatic habitats over a wider period of time. (117) For example, the Federal Emergency Management Agency reported that floodplain development has destroyed roughly half of the nation's woody riparian habitat. In a 1991 RePort to Congress, FWS found that more than haft 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. (118) The United States Army Corps of Engineers found that more than a half-million stream miles are adversely affected by erosion. (119) Many other stream miles have been inundated, dammed, channelized, dewatered, riprapped, and otherwise altered in ways that impair or destroy important habitat. (120) More than 600,000 stream miles have been inundated by literally thousands of dams. 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. (121)
While some of those evaluations are now decades old, physical impairment usually remains, absent affirmative restoration efforts. Chemical impairment, by contrast, in some cases will dissipate after the source of impairment ceases or subsides. Moreover, recent information shows continued loss and impairment of aquatic habitats, although some restoration and protection programs have succeeded in slowing the rate of those losses. For example, FWS estimates that between 1986 and 1997, 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 to 58,500 acres per year from 1986 to 1997. (122)
Similarly, according to the recent conservation assessment of freshwater ecosystems conducted by the WWF-U.S., trends in aquatic ecosystem health continue to decline dramatically. WWF-U.S. found that overall, "few [U.S. freshwater aquatic] ecoregions remain intact. A relatively small number are currently so degraded as to be potentially beyond restoration." (123) According to the classifications used in the study, of the seventy-six major aquatic ecoregions in North America only a handful were characterized as "relatively intact" or "relatively stable"; 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." (124)
Likewise, a recent assessment of riparian area health published by a committee of the National Research Council reported widespread hydrologic, geomorphic, and other impairment of riparian habitats, along with accompanying impacts to water quality and aquatic ecosystem health. (125) The report documents as much as ninety-five percent loss of natural vegetation in some riparian areas, "indicating that riparian areas are some of the most severely altered landscapes in the country." (126) As a result, the report concludes the "functions of these riparian areas are greatly diminished compared to what occurred historically." (127)
D. Aquatic Ecosystem Integrity--An Historical Postscript
The statistics reported above indicate rather irrefutably that the overriding objective of the CWA--to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters"--has not been met. Indeed, we appear to be moving swiftly and disturbingly in the opposite direction. However, a more pointed perspective on the issue can be provided by looking at several "then-and-now snapshots" of aquatic ecosystem health.
In the pre-dam era, the Columbia River boasted a salmon population approximately of 10-16 million; today, only about 2 million remain, most of which are hatchery fish. (128) As a result, many stocks of Northwest salmon have been listed as threatened or endangered under the Endangered Species Act. (129) The decline is blamed largely on a combination of habitat loss, timber harvesting, alteration of migration and spawning areas inducing temperature changes and other effects because of the region's massive combination of dams and hydroelectric facilities, and genetic modifications to fish populations as a result of the region's equally massive system of fish hatcheries. (130)
While Pacific Northwest salmon woes have attracted significant attention--perhaps because salmon are tasty, attractive, and symbolic (131)--other historical fish populations have fared even worse. At the turn of the twentieth century, for example, the Illinois River supported a commercial carp fishery of about 15 million pounds per year; today the carp are virtually gone. (132) 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 eighteenth century in nets that blocked entire rivers. But (according to the Maryland State Fish Commissioner) harvests of more than fifteen million pounds per year dropped to a "worrisome" four million pounds in 1876 to less than two million pounds by 1922, and to less than 55,000 pounds in 1978 before the harvest was banned. (133)
Based on these historical anecdotes and comprehensive information documenting serious and ongoing declines in U.S. aquatic ecosystems, the chemical, physical, and biological integrity of the nation's waters has neither been restored nor maintained. We turn next, therefore, to an evaluation of possible explanations for the dramatic gap between the overarching stated objective of the CWA and the stark reality of continuously declining aquatic ecosystem health.
IV. THE UNWRITTEN BOOKS IN THE WATER QUALITY TRILOGY--A SEARCH FOR EXPLANATIONS
While explanations alone will not solve the problem and reverse the dramatic negative trends in aquatic ecosystem health, it is essential to identify the most likely causes of the ongoing problem in order to design an effective remedial strategy. Possible explanations identified below (which overlap to some degree) include 1) Congress's policy decisions regarding allocation of responsibility for various aspects of water pollution control (federalism), 2) differences in the nature of point and nonpoint source pollution and their most likely control strategies, 3) lack of adequate knowledge and understanding of mechanisms to redress water pollution, as more broadly defined in the CWA, compared to the relatively more straightforward task of treating pollutants in municipal and industrial waste streams, 4) the major gap between the aspiration announced in the opening sentence of section 101(a) of the CWA and effective implementing tools in the rest of the law, and 5) inadequate implementation of the authority that does exist.
A. Federalism, Water Pollution, and Nonpoint Sources
There are several strong indications in the text of the CWA, some direct and some implicit, that while Congress designed a strong federal role in programs to reduce or eliminate the discharge of pollutants, including both oversight and direct action, it intended that states would be primarily responsible for the more broadly defined problem of pollution. (134) At the outset, two statements of policy in section 101 of the statute, one included in the 1972 law and a second added in 1977, suggest strong deference to states with respect to nonpoint sources and other sources of aquatic ecosystem "alteration." Section 101(b) of the Act proclaims:
It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.... It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide ... financial aid ... [for] the prevention, reduction, and elimination of pollution. (135)
Section 101(g) of the Act, added in 1977, adds:
It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. (136)
The broader statutory definition of pollution obviously implicates land use, water use, planning, and regulation to a far greater degree than does regulation of discrete discharges of pollutants from point sources. However, the Supreme Court has noted that while the "states' rights" provisions quoted above are intended to preserve state authority with respect to allocation of water rights and other matters, "they do not limit the scope of water pollution controls." (137) Moreover, other provisions in the law shed some doubt on this apparently clean division of authority. Section 102(a), for example, instructs EPA, along with other state and federal agencies, to "prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters." (138) Similarly, in section 104(a), Congress provides that EPA shall "establish national programs for the prevention, reduction, and elimination of pollution." (139) Assuming, as we must, that Congress intended "pollution" to have the same meaning in sections 101(b) and 101(g) as it does in sections 102(a) and 104(a), it would appear the states do not have exclusive jurisdiction over the broader issue of "pollution" control. (140)
Neither section 102(a) nor section 104 of the Act contains specific regulatory authority or other tools with which to address the full range of pollution sources directly. Section 102 in particular includes no specific restrictions on what EPA might, in the exercise of its broad, general authority to effectuate the purposes of the statute, include in such "comprehensive" water pollution control programs. (141) Apparently, EPA simply has not chosen to interpret this open-ended but vague provision expansively. Section 104, in turn, contains very specific areas of EPA authority, but those are limited to such non-regulatory activities as research, training, pollution control demonstration projects, technical assistance, expert committees, information dissemination, monitoring, and surveillance. (142) Again, EPA has not chosen to implement this provision broadly. (143)
EPA's reticence to adopt broader pollution control programs under sections 102 and 104 undoubtedly is explained by the contrast between these somewhat vague provisions and more precise parts of the CWA in which EPA's authority is not only specific but mandatory. EPA has direct and exclusive authority in certain aspects of point source pollutant control, such as the establishment of categorical effluent limitations for industrial point sources and secondary treatment, and analogous requirements to control point sources of municipal storm water. (144) In other areas of point source control, such as the issuance of permits to govern otherwise prohibited discharges of pollutants, (145) EPA and the Army Corps of Engineers have direct regulatory authority absent delegation of that responsibility to qualified states with approved programs. (146) Likewise, section 309 of the Act confers on EPA a broad range of enforcement powers relating to violations of point source control obligations, even with respect to requirements imposed by states. (147)
By contrast, programs directed specifically at nonpoint source pollution control--which as argued above encompass a broader range of impairment types as well as different sources of pollutants than those addressed in the point source control provisions of the Act--are ceded more clearly to the states. In section 208 of the Act (included in the 1972 statute) and in the more specific section 319 added in 1987, EPA is given supervisory and program approval authority; but unlike the permitting and enforcement provisions for point sources, EPA lacks direct implementation or regulatory authority in the face of nonexistent or inadequate state implementation. (148) At most, under the nonpoint source control provisions, EPA is authorized to withhold grant funding for delinquent states. (149) This policy judgment appears consistent with Congress's reluctance, as expressed in sections 101(b) and (g) of the Act, to allow extensive federal intrusion into areas of regulation that might implicate land and water uses in individual states. The limited sanction of grant withdrawal, of course, would most likely result in less pollution control rather than more.
The water quality standards (WQS) provisions of the Act occupy a curious middle ground in this spectrum of relative federal and state authority. Consequently, they represent a potential untapped source of federal authority to stimulate better pollution control efforts. As with the point source permitting and enforcement programs, EPA is given clear authority--indeed a nondiscretionary mandate to step in and promulgate legally enforceable water quality standards where states fail to do so, or to do so adequately. (150) This meshes with the allocation of authority discussed above to the extent that the point source control requirements of the Act are designed in part to implement ambient WQS. (151) Implementation of WQS, however, applies to nonpoint as well as to point sources, (152) especially given the reality that the majority of remaining violations of WQS nationally are caused largely or entirely by runoff rather than point source pollution. (153) Violation of a WQS should trigger the listing of impaired waters under the TMDL provision in section 303(d), whether or not that water body is impaired by point or nonpoint sources, (154) and under the nonpoint source assessment provision in section 319(a), (155) which triggers state obligations to develop nonpoint source management programs for those waters under section 319(b). (156)
Thus, EPA's authority to adopt enforceable WQS clearly can trigger nonpoint source control obligations, even if EPA lacks the authority to implement those obligations itself. This does not contradict the congressional policy expressed in sections 101(b) or (g), however broadly or narrowly those limitations may be construed. In establishing water quality standards where states fail to do so adequately, EPA's role is merely to set the standards by which impaired waters are identified, and the definition of water quality necessary to meet the statutory objective and goals. It is not to make basic policy decisions about land and water use that may be necessary to adopt and implement a nonpoint source pollution control program. Likewise, while EPA may have authority to adopt and implement TMDLs under section 303(d) for those waters identified as impaired in whole or in part due to nonpoint sources, and while EPA clearly has the authority to implement those TMDLs with respect to point sources via the point source permitting program, (157) EPA's authority to do so with respect to nonpoint sources is unclear, and the subject of heated dispute. (158)
Of course, the federalism policy of the CWA alone does not explain why large numbers of aquatic ecosystems remain physically and biologically impaired, and appear to be declining further, three decades after the 1972 CWA. It is also necessary to conclude that Congress's experiment of deferring largely to the states to address broader issues of pollution has failed because the states have failed to get the job done absent a stronger federal presence. (159) Indeed, the very contrast between the degree of progress made in controlling discharges from point sources over the past thirty years, compared to the relative lack of success in controlling other forms of pollution, is evidence of the potential merits of a stronger federal-state partnership in the area of water pollution control more generally. (160) If so, it is time for Congress to revisit the allocation of power between EPA and the states with respect to nonpoint source pollution control programs specifically and comprehensive pollution control efforts more generally. (161)
B. Knowledge, Uncertainty, and Pollution Control
There is little doubt that Congress understood reasonably well in 1972 that the nation's waters were impaired by activities other than traditional municipal and industrial point source discharges. The 1972 Senate Report acknowledged, at least with respect to runoff pollutants from nonpoint sources:
One of the most significant aspects of this year's hearings on the pending legislation was the information presented on the degree to which nonpoint sources contribute to water pollution. Agricultural runoff, animal wastes, soil erosion, fertilizers, pesticides and other farm chemicals that are a part of runoff, construction runoff and siltation from mines and acid mine drainage are major contributors to the Nation's water pollution problem. Little has been done to control this major source of pollution.... It has become clearly established that the waters of the Nation cannot be restored and their quality maintained unless the very complex and difficult problem of nonpoint sources is addressed[.] (162)
It is not clear, however, whether Congress specifically addressed, or even considered, the many other ways in which aquatic ecosystem integrity is altered by human activity, despite the fact that such activities fall within the plain meaning of the statutory objective and the related definition of pollution. Nor is it clear whether Congress considered very carefully how those forms of pollution might be addressed by state or federal control programs. (163)
What is relatively clear, however, is that in 1972 Congress understood quite well how much was not understood about some of the broader challenges in pollution control. The 1972 Senate Report admonished: "In order to restore the natural chemical, physical, and biological integrity of the nation's waters, a great deal more must be learned about the nature and functioning of aquatic ecosystems and the impact of improper land use development." (164) Likewise, the Report noted:
In view of the objective of the Act to restore the natural integrity of the nation's waters, the Committee has included a new subsection 104(m) authorizing the designation of River Study Centers ... [that] could apply existing and developing knowledge to the problem ... of growth and development within river basins and the impact of that development on the best use of water resources.... (165)
By that time, the science of water pollution control engineering and technology as applied to municipal and industrial point sources was well established, although significant improvements were still to come. Far less was known, however, about methods to control nonpoint source runoff and other forms of pollution as defined in the new law. To address these gaps in information and understanding, the 1972 Act and later amendments included numerous provisions aimed simply at basic and applied research and development, demonstration projects, and education and training. (166)
It is entirely possible that Congress elected not to adopt more prescriptive provisions to control sources of water pollution other than discharges of pollutants because it lacked information about the nature of various sources of pollution, their impacts on aquatic ecosystems, how such programs might be structured, and what restoration and control methods would be used. If that is the case, however, given another three decades of research under myriad CWA and other programs, and given our substantially increased information at least about the significant harm that continues to occur because of those pollution sources, it is time for Congress to revisit that judgment.
C. Aspirations and Reality
As noted at the outset, in passing environmental statutes Congress sometimes articulates lofty aspirations but fails to provide EPA or other agencies with adequate authority to accomplish those goals. (167) Alternatively, in some statutes Congress provides such a wide range of discretion that the difficult decisions are left to the agencies. In both cases, Congress can proclaim publicly that it has addressed an important environmental issue but has delegated to the agencies the difficult judgments about who must bear the costs or benefits of action or inaction.
In the CWA, Congress suggested to the American public thirty years ago that the chemical, physical, and biological integrity of the nation's waters would be restored and maintained. At a minimum, through the CWA goals Congress intimated that all waters would be protected for healthy fish, aquatic life, and public recreation by no later than 1983. Based on the available empirical information outlined above, however, the statute's interim water quality goal has been met only in part, while for most aquatic ecosystems the overriding ecosystem integrity objective of the law seems to be just a fading dream. One possible explanation for this failure is that Congress simply failed to match its laudable rhetoric with adequate implementation tools and authority.
This theory has significant support in the text of the statute, which suggests a decided pattern in how the distinct issues of pollution and pollutants are addressed. Throughout much of the statute, the broader issue of pollution is addressed in the comprehensive but largely unenforceable, voluntary planning provisions. (168) By contrast, most of the more precise, enforceable provisions of the Act apply to discharges of pollutants. (169)
A particularly interesting example of this distinction appears in section 304(a), under which EPA develops the background information used by states and EPA to adopt enforceable water quality standards. Section 304(a)(1) directs EPA to develop and publish water quality "criteria" regarding "the kind and extent of all identifiable effects on health and welfare ... from the presence of pollutants in any body of water," along with the "concentration and dispersal of pollutants, or their byproducts, through biological, physical, and chemical processes," and on the "effects of pollutants on biological community diversity, productivity, and stability." (170) Section 304(a)(2), by contrast, instructs EPA to
develop and publish ... information (A) on the factors necessary to restore and maintain the chemical, physical, and biological integrity of all navigable waters ... (B) on the factors necessary for the protection and propagation of shellfish, fish, and wildlife ... and to allow recreational activities in and on the water.... (171)
Why was EPA instructed to produce "criteria" for the effects of pollutants but "information" regarding the "factors necessary" to attain the ultimate aquatic ecosystem integrity objective of the CWA and the interim goal of protecting aquatic life and public recreation? One possible explanation, consistent with the inadequate information theory presented in Part IV.B, supra, is that Congress assumed pollutant discharges were amenable to quantifiable criteria, while the broader objective of chemical, physical, and biological integrity could be addressed largely or entirely through more qualitative information. Water quality criteria themselves, however, can be expressed in narrative as well as numeric forms. (172) It is also possible that this distinction reflects the pattern discussed above, in which Congress intended point source discharges of pollutants to be regulated via relatively precise, enforceable technology-based and water quality-based effluent limitations, and that the latter would be driven by specific, enforceable water quality criteria adopted by the states or by EPA. (173) Pollution, by contrast, was to be addressed in planning programs designed to be more comprehensive in the sense that they would address a broader set of issues but with states rather than EPA deciding the key policy decisions regarding who, what, and how to regulate. The appropriate role for EPA in the latter process, perhaps, would be to provide information rather than more specific criteria.
There are, however, several exceptions to this apparently sharp line between precise, enforceable provisions to address discharges of pollutants and the generally fuzzier programs to address broader issues of pollution. These exceptions suggest other sources of untapped statutory authority for the states, EPA, or both to address issues of pollution more widely and more effectively.
Section 401 of the statute, for example, which authorizes states to impose a broad range of water quality conditions on activities subject to federal licenses and permits, has been interpreted in a manner that could help bridge the gap between regulation of pollutants and pollution. Pursuant to section 401(a)(1), water quality certification authority applies to "[a]ny applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters." (174) As discussed above, this authority could be interpreted to apply to activities other than point source discharges because of the statutory distinction between "discharge" and "discharge of a pollutant," although that reading was rejected--in my view incorrectly--by one court of appeals. (175)
Perhaps more important, in PUD No. 1 of Jefferson County v. Washington Department Ecology (Jefferson County), (176) the U.S. Supreme Court interpreted section 401(d) (177) to allow states, once a discharge is found, (178) to impose requirements designed to address water pollution, and not just those related to the discharge of pollutants. (179) Indeed, in upholding conditions of a state water quality certification that established minimum instream flow conditions for a proposed hydroelectric facility, the Court specifically invoked the statutory objective of "chemical, physical, biological and radiological integrity," (180) and relied expressly on the broader statutory definition of pollution:
[T]he Act's definition of pollution as the "man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water" encompasses the effects of reduced water quantity. 33 U.S.C. [section] 1362(19). This broad conception of pollution--one which expressly evinces Congress' concern with the physical and biological integrity of water--refutes petitioners' assertion that the Act draws a sharp distinction between the regulation of water "quantity" and water "quality." (181)
Moreover, the Court reasoned that certification requirements were valid if designed to ensure compliance with any valid state water quality standards, including designated uses and antidegradation requirements as well as specific numeric water quality criteria. (182) While the Court indicated that state authority under section 401 "is not unbounded," (183) apparently this provision can be used by states, through enforceable conditions on federal licenses and permits, to address any form of pollution as broadly defined in the Act, and to ensure compliance with any aspect of a valid water quality standard, including those designed to effectuate the broadly stated statutory objective of "chemical, physical, and biological integrity." (184) It is significant, of course, that this specific, enforceable authority to redress pollution in addition to pollutants is given to the states rather than the federal government. Moreover, section 401 allows states to address broader sources of pollution related to federal licenses and permits only where that authority is triggered initially by a discharge of some kind. However, once such a condition is included in a water quality certification, it is independently enforceable in a citizen suit brought under section 505. (185)
Another significant provision of the statute confers direct authority to federal agencies to address physical and biological integrity with respect to some types of activities with the potential for severe "alteration" of the aquatic environment. Section 404 (186) authorizes the Secretary of the Army to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." (187) Disposal sites are to be selected in accordance with criteria issued by EPA under section 404(b)(1), (188) based on similar criteria issued for discharges to coastal waters. (189) Moreover, EPA is authorized to prohibit such discharges of dredged or fill material, in consultation with the Secretary, upon finding "that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." (190)
The authority provided in section 404, of course, in one sense continues the general pattern in the rest of the statute because it confers direct federal authority only with respect to discharges into waters of the United States of a specified category of pollutants (dredged and fill materials). However, compared with its sister permitting provision in section 402, which applies to discharges of other types of pollutants, section 404 more expressly directs the agencies to consider potential impacts on aquatic ecosystem health. Moreover, because discharges of dredged or fill material requiring a section 404 permit often are necessary to conduct other activities that cause pollution of aquatic ecosystems more broadly defined, such as the creation of a reservoir, diversion of water from a river, or channelization or armoring of stream banks, that provision provides direct federal agency jurisdiction and approval or veto authority over those activities as well.
The focus of section 404 relative to section 402 probably reflects the realization that such discharges--unlike liquid waste streams from most municipal and industrial point sources--are inherently more likely to affect the physical integrity of aquatic ecosystems on a broad scale. Indeed, such discharges often eliminate portions of the aquatic ecosystem entirely, by converting wetlands and other bodies of water--or portions thereof--into dry land. (191) It is hard to conceive of a more serious "man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water" than complete physical elimination; thus, such activities appear to constitute pollution per se. The extent to which the federal agencies have actually implemented this authority is addressed in the following section. (192)
Latent but potentially broader-reaching federal authority over issues involving pollution may reside in EPA's authority to provide water quality criteria guidance under section 304(a) and to adopt water quality standards under section 303(c) of the Act. As discussed earlier, because WQS are supposed to "serve the purposes of this chapter," it is certainly permissible if not mandatory that they address the full range of chemical, physical, and biological impairments addressed in the Act's opening objective, as well as the policies articulated in its subsidiary goals. Where a state fails to adopt WQS adequate to address all of those purposes, such as the biological standards for which EPA has adopted significant guidance under section 304(a), (193) EPA has the authority, if not the duty, to step in and do so for the state.
Adoption of WQS, of course, does not directly redress water pollution problems. However, WQS that address the full range of chemical, physical, and biological impairment causing serious aquatic ecosystem declines can be extremely useful in driving other CWA programs. More comprehensive WQS, including biocriteria, can be implemented and enforced directly with respect to point source permits issued under sections 402 and 404 by the states, EPA, and the Army Corps of Engineers, (194) and enforced independently via citizen suits. (195) They can also be used by states to condition federal licenses and permits for discharges under section 401(a), (196) the full scope of which will turn on the debate about whether that provision encompasses both point and nonpoint sources of pollution. Moreover, under section 313 of the CWA all federal agencies must comply with WQS with respect to "any activity which may result in the discharge or runoff of pollutants." (197) Actions can be brought under section 706 of the Administrative Procedure Act (198) alleging that federal agency actions would cause or contribute to violations of water quality standards. (199)
Water quality standards are also relevant to identifying and listing impaired waters under sections 303(d), 305(b), and 319 of the Act, and of the accompanying programs to redress that impairment. EPA, in turn, must adopt TMDLs for all waters identified under section 303(d) where the state fails to do so, regardless of the nature of the impairment leading to that listing. While the extent to which EPA has the authority to implement those TMDLs remains a subject of heated debate, and while EPA lacks authority to implement nonpoint source pollution management plans under section 319(b), it does have the authority to disapprove state plans under sections 303(e) and 319(b), and to withhold federal grant funding as a result. Thus, EPA's authority to adopt state WQS that address a broader range of chemical, physical, and biological impairment issues has the potential to assert a strong influence on relevant state programs. (200)
In short, while EPA and other federal agencies have some statutory authority to address issues of pollution directly, that authority is limited to particular sources of pollution or to specific steps in the overall statutory program. Accomplishing the statutory objective may have been, as proclaimed by Senator Muskie, a "life or death proposition for the Nation," (201) but Congress provided EPA with few direct lifesaving tools. Instead, much of the rescue effort was left to the states. However, given that EPA does have some statutory authority to act directly, or at least to prod the states more effectively, it is useful to evaluate the extent to which this authority has been used.
D. Implementation: EPA as Reluctant Master
Despite EPA's mandate in section 102 of the CWA to "prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters," (202) it is commonly recognized that EPA has devoted the vast majority of its time, effort, money, and regulatory clout to point sources as opposed to nonpoint sources; pollutants as opposed to pollution; chemical as opposed to physical and biological integrity; and technology-based as opposed to water quality-based programs. (203) While there is evidence in the legislative history that some of the statute's chief sponsors intended that EPA focus initially on implementation of technology-based limitations on point sources, (204) it is hard to imagine that "initially" meant thirty years. In fact, evidence--and perhaps an expression of impatience--that Congress imagined swifter action with respect to other areas of pollution appears in the last articulated statutory goal, added in 1987, that nonpoint source pollution control programs "be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution." (205)
Perhaps the best indication of EPA's relative lack of focus on physical and biological integrity is that, in hundreds of pages of EPA implementing regulations, concepts of physical and biological integrity, and requirements to control pollution as opposed to discharges of pollutants, are barely present. EPA does reiterate the statutory definition of pollution in its rules, (206) but no regulatory implications appear to attach to that definition. Moreover, EPA affirmatively removes the full water quality trilogy from the operative language of its water quality regulations. EPA rules define "serve the purposes of this Act" as restoring "wherever attainable ... water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water," (the interim "fishable and swimmable" goal) without any reference to restoring and maintaining the "chemical, physical, and biological integrity of the Nation's waters" (the overriding objective of the statute). (207)
Whether or not this omission was intentional, (208) it is significant in terms of the potential scope of the WQS program. As discussed above, if WQS are required to "serve the purposes of this Act," and if those purposes logically encompass the overriding aquatic ecosystem integrity objective of the law, then WQS are required to address all parts of the CWA trilogy. By extracting the statutory objective out of the definition of "serve the purposes of this Act," EPA has weakened the required scope of the program, and all of the statutory and regulatory ramifications that flow therefrom.
EPA's relatively narrow traditional and ongoing CWA focus is probably explained in part by sheer history and inertia, and in part by the magnitude and complexity of the point source problem itself. While Congress may have intended that EPA focus initially on technology-based approaches to controlling point sources programs, the entire structure of EPA's CWA programs were shaped accordingly. It is, after all, often difficult for massive bureaucratic ships to change direction. Moreover, any illusions that the point source problem would be tackled quickly and successfully were grossly optimistic. Those efforts turned out to be vastly more complex, time-consuming, and contentious than the sponsors of the 1972 Act may have believed. (209)
EPA's relative inattention to the broader issue of pollution is also explained in part by the agency's actual lack of statutory authority to address pollution as opposed to discharges of pollutants, but may also be explained in part by EPA's exaggerated perception of its lack of statutory authority, fueled by obvious political barriers to taking on the even more difficult and even more contentious issues of pollution. This explanation is supported by the fact that even where it has some lifesaving tools, by and large EPA has been afraid to jump into the water.
For example, EPA could expand the focus of the point source program itself. Federal courts have indicated repeatedly that, to fulfill the remedial purposes of the statute, the statutory definition of point source should be interpreted broadly. (210) When EPA originally attempted to exclude entire categories of point sources from the NPDES program, environmental groups successfully challenged that practice. (211) The D.C. Circuit Court of Appeals suggested, however, that EPA has limited authority to determine the proper scope of the NPDES program through its regulatory interpretation of the terms "point source" and "nonpoint source." (212) EPA has used that technique to "define" away a large number of agricultural, silvicultural, aquacultural, and other activities that otherwise would constitute point sources under the plain language of the CWA. (213) EPA could pull more polluting activities within the more rigorous control of the point source program by revisiting those definitions.
Similarly, while National Wild life Federation v. Gorsuch upheld EPA's decision not to regulate discharges from dams under the NPDES program, the D.C. Circuit indicated quite clearly that it did so only in deference to EPA's interpretation of an ambiguous statute and legislative history. (214) In fact, the court signaled that had EPA reached the opposite conclusion, that result likely would have been upheld as well. EPA's direct authority under NPDES, of course, is to regulate the discharge of pollutants. However, just as the activities regulated under section 404 also happen to cause significant pollution more broadly defined, the types of pollution sources that might be embraced by a broader EPA definition of point sources also contribute heavily to the types of physical and biological impairment that have escaped significant attention under the CWA.
Federal agencies also have been reluctant to take full advantage of their relatively clear authority to protect aquatic ecosystem integrity under section 404 of the CWA. In its section 404(b)(1) guidelines, EPA did promulgate rather extensive regulations defining the circumstances under which proposed discharge sites should be accepted or rejected. (215) Moreover, those regulations deal extensively with the types of physical and biological integrity that are given far less attention in implementation of other parts of the statute, (216) and could perhaps serve as a model starting point for more extensive attention to those issues in other programs. However, there is serious doubt as to the effectiveness with which those requirements have been implemented in the section 404 program. While the Corps of Engineers has certainly denied fill applications in some cases based on the EPA regulations, (217) the vast majority of requested fill activities under section 404 have been authorized (218) notwithstanding the fact that the discharge of dredged or fill material not only impairs chemical integrity but most often destroys entirely the physical and biological integrity of the affected waters. (219) As a result, while the acreage of wetlands filled has slowed in recent years, it still continues at a disturbing rate. (220) EPA, in turn, has exercised its authority under section 404(c) to veto section 404 discharge sites in some cases. (221) However, that authority has been exercised on only a handful of occasions in the thirty-year history of the CWA. (222)
Even in those areas in which the federal role is primarily one of oversight and approval rather than direct authority to implement, EPA has been relatively timid. Despite three decades of state implementation of nonpoint source pollution control programs under sections 208 and 319, through which Congress presumably intended the states to address broader issues of pollution and not just runoff of chemical pollutants, (223) progress has been slow to nonexistent. Evidence from thirty years of water quality monitoring indicates that water quality in areas impaired largely by nonpoint sources has not improved measurably. (224) The fact that the physical and biological integrity of the nation's waters continues to decline severely, as measured by indicators of habitat loss and degradation as well as by direct effects on aquatic and water-dependent wildlife species, (225) indicates that under existing state programs even less progress is being made to address issues such as hydromodification, instream flow depletion, channelization, and other activities that severely alter the physical and biological integrity of aquatic ecosystems.
EPA has a clear statutory duty to disapprove state programs that fail to address those problems, based on continued violations of water quality standards and other requirements of the Act. Most notably, if EPA determines that a state nonpoint source pollution management program under section 319 "is not likely to satisfy, in whole or in part, the goals and requirements of this Act," (226) or if "the practices and measures proposed in such program ... are not adequate to reduce the level of pollution in navigable waters," (227) EPA must notify the state of necessary program improvements, and approve or disapprove those changes. (228) Despite the general failure of state programs to meet these basic requirements on a national scale, all fifty states are proceeding happily under EPA-approved programs. While the solitary formal penalty for disapproval may be the withdrawal of relatively small program grants, EPA has not even resorted to this remedy. At a minimum, such action by EPA would highlight more clearly to Congress and the public that the current, decades-old, largely state-driven process for addressing water pollution in the United States is not working. Moreover, the strategic use of EPA's disapproval authority, beginning with the most obviously deficient programs, might stimulate somewhat better state efforts through sheer stigma.
Thus, even where statutory authority exists, in many areas of CWA implementation EPA has given the issues of physical and biological integrity little serious attention compared to its extensive efforts to address chemical pollution. However, one encouraging area in which EPA has moved more decidedly in the direction of improving efforts to focus on physical and biological integrity of the nation's waters has been in the development of biological water quality standards and criteria (biocriteria), discussed in the following section.
E. Implementation: The Latent Potential of Biological Water Quality Standards
Biological water quality standards and criteria (biocriteria) define the biological health of aquatic ecosystems by comparing the biota in a given system with those in the least-altered natural system of the same or similar type, using data from multiple trophic levels. (229) More specifically, EPA defines biocriteria as "narrative or numeric expressions that describe the reference biological integrity (structure and function) of aquatic communities inhabiting waters of a given designated aquatic life use. Biocriteria are based on the numbers and kinds of organisms present and are regulatory-based biological measurements." (230)
EPA explains further that biocriteria are "derived from biological assessments involving integrated measures--indices--of the composition, diversity, and functional organization of a reference aquatic community," which ideally reflect "unimpaired or minimally impaired conditions." (231) Notably, this focus on the natural structure and function of aquatic ecosystems directly parallels the manner in which the House Committee explained what it intended by "integrity" in the original 1972 Act. (232) Thus, efforts to develop, adopt, and implement biological standards and criteria reflect the most serious work to date to address directly this major aspect of the overarching goal of the 1972 CWA.
EPA itself underscores the fact--argued implicitly throughout this Article--that a focus on chemical and physical water quality parameters alone cannot meet the goals and requirements of the CWA fully:
[B]iological assessments and adoption of biological criteria must become an equal component of water quality management programs along with chemical, physical, and toxicity based water quality standards. By themselves, traditional chemical, physical and toxicity assessments cannot fully answer questions about the ecological integrity of a water body, or determine whether aquatic resources are being protected. (233)
EPA's conclusion results from the fact that other types of criteria, such as numeric criteria for individual pollutants and even whole effluent toxicity criteria, are designed to identify (and prevent) discrete impacts from particular causes, while biological assessment methods measure the overall health of the resident biological community in response to all sources of impairment combined. (234) Those states that have used biocriteria in conjunction with other forms of water quality criteria have detected ecosystem impairment in situations where using traditional measures alone would have indicated full use attainment; (235) thus indicating that many existing state monitoring and assessment efforts--and accompanying listing efforts under sections 303(d), 319(a), and other provisions of the Act--likely understate the nature and magnitude of the problem.
Unfortunately, as with other CWA efforts to address aquatic ecosystem integrity, progress in this initiative has been slow, although steady. The pioneering scientific research that underlies the development of biological standards is more than two decades old. (236) Some states, Ohio in particular, began to develop and use biological indicators in their water quality programs in the mid-1980s, and EPA began developing guidance for other states by the late 1980s. (237) By 1991, when EPA published its first assessment of the degree to which other states were following suit, relatively few had done so. (238) By 1995, when EPA conducted its first comprehensive survey of state bioassessment programs and uses, forty-one states used bioassessments for some purposes, twenty-nine had developed narrative biocriteria, but only one state had adopted numeric criteria. (239) EPA's most recent and more comprehensive survey, conducted in 2000 and 2001, indicates that fifty-seven out of sixty-five entities (including states, tribes, and interstate agencies) use some form of bioassessments, but still only twenty-nine have now adopted narrative biocriteria, with eleven more "in a development phase," and still only four states have adopted numeric criteria, with another nine "under development." (240) Absent development and use of such methods, states and EPA cannot even determine fully and adequately the degree to which the biological integrity of waters being maintained and protected, as required by several of the Act's assessment, reporting, and listing provisions, (241) much less devise and implement actions to protect biological integrity. (242)
This slow rate of state adoption of biocriteria is explained in part by EPA's strategy of encouraging rather than requiring state action in this area. (243) But EPA has the legal authority, if not the duty, to require state adoption of biological water quality standards as it has done for other forms of water quality standards, (244) to effectuate the CWA properly, (245) and to adopt federal standards for states that fail to do so. (246) As discussed above, water quality criteria are required to protect all designated uses in the WQS, including aquatic life uses, and more broadly to "serve the purposes of" the Act, which include restoring and protecting aquatic ecosystem integrity. (247) Moreover, the statute provides that EPA "shall promptly [promulgate WQS] ... in any case where ... a revised or new standard is necessary to meet the requirements of [the Act]." (248) And as noted above, EPA has expressly concluded that other forms of WQS alone are not sufficient to measure and define the aquatic ecosystem integrity objective of the Act. (249) To fulfill the requirements of the statute properly, especially given slow movement in many states, EPA should require rather than encourage the development and adoption of biological water quality standards. (250)
Even slower progress is apparent in the use of biocriteria for purposes other than monitoring and assessment. In its initial program guidance, EPA indicated that biocriteria also could be used for program planning and management and for regulatory purposes. (251) Better information on the location and sources of water body impairment can be used to design and implement more effective watershed protection and nonpoint source pollution control programs, and trend information using those tools can be used to assess the effectiveness of those programs over time. (252) For example, EPA could use improved information from biomonitoring and assessment to determine whether state nonpoint source management programs are serving the purposes of the Act, (253) and to disapprove or require modification of inadequate programs. Moreover, biological water quality standards can be used, and have been used, to justify permit denials; (254) support the development and application of NPDES permit limits; (255) enforce permit requirements through citizen suits or otherwise; (256) challenge federal agency decisions under section 313 and the APA; (257) and support CWA enforcement actions. (258) Indeed, once biocriteria are adopted as enforceable state water quality standards, NPDES permits must ensure that such standards are met just like any
other WQS. (259)
While EPA has articulated a goal of using biocriteria for program implementation and enforcement as well as in regulatory programs, (260) where they exist at all biocriteria have been used largely for assessment and listing purposes, (261) and only sporadically for more specific regulatory tasks. Thus, there is significant untapped potential for adopting and using biocriteria in ways that could significantly fill the gap between the aspirations for biological integrity and the sad reality of ongoing and worsening aquatic ecosystem impairment over the past thirty years since Congress first proclaimed the 1972 anti-pollution objective.
V. CONCLUSION: TOWARD IMPROVED FOCUS ON PHYSICAL AND BIOLOGICAL INTEGRITY
The text and legislative history of the CWA make clear that Congress intended to address not only chemical water quality, but also the ecological integrity of the nation's aquatic ecosystems. At least in principle, Congress meant what it said when it established, as the overarching objective of the Act, the restoration and protection of the chemical, physical, and biological integrity of the nation's waters. The actual history of CWA implementation, however, along with overwhelming evidence that the integrity of our aquatic ecosystems continues to decline dramatically, suggests that attainment of this objective requires a serious change in direction.
In large part, this serious failure to meet the basic ecosystem integrity goal of the CWA may be attributed to Congress's assignment to the states of the primary responsibility for controlling pollution from activities other than point source discharges of pollutants. Stated differently, by and large Congress simply failed to match its ecosystem integrity aspirations with sufficient, hard legal mandates for EPA and other federal agencies to ensure states address the full range of impairments to the ecological integrity of our waters--or, alternatively, to do so through direct federal action. This failure is demonstrated by the wide gap between the success of point source control programs, over which the Act provides significant federal oversight and direct implementing authority when states fail to get the job done, and the relative failure of state-driven nonpoint source pollution control programs. Moreover, after thirty years, it is naive to expect that this problem will be solved simply by exhorting states to do a better job, whether through the broader state authority suggested by the Supreme Court in Jefferson County, (262) additional grant funding, better technical assistance, or other incentives. Thus, if we are serious about meeting the Act's ecosystem integrity objective, relief must come from one of two sources, or both.
First, the above analysis identified a number of ways in which EPA could make better use of its existing authority to control pollution as opposed to just pollutants, and to control some pollutant discharges more directly. For example, EPA could exercise its authority under sections 403 and 404 more comprehensively to protect a broader range of important habitats from physical and biological impairment (or outright destruction). It could modify its past regulatory interpretations to expand the scope of activities regulated as point sources. EPA could also require states--rather than merely encourage them--to strengthen biocriteria programs and means to translate those criteria into enforceable, regulatory programs. In particular, EPA has legal authority under section 303(c) to mandate, rather than encourage, state adoption of biocriteria, and to adopt federal standards where states fail to do so; or to do so adequately. In turn, EPA can use improved biocriteria to expand the impaired water body listing programs under sections 303(d), 305(b), and 319(a) of the Act, and to guide programs to remedy those problems more effectively. EPA has the legal authority, if not the mandate, to require that biocriteria be enforced with respect to all point source discharges through NPDES permits; and states could also use biocriteria more effectively and expansively in section 401 water quality certifications.
However, even with these regulatory changes it is unlikely that efforts to restore and maintain the physical and biological integrity of the nation's waters will improve comprehensively. For example, statutory authority is sparse for implementing and enforcing biocriteria with respect to activities other than point source discharges. Thus, in addition to changes at the administrative level, it is likely that statutory amendments are needed as well to close the serious gap between aspirations and reality.
A number of potential amendments come readily to mind. For example, Congress could amend the statute to provide more direct regulatory authority to control pollution as opposed to discharges of pollutants. Congress could amend section 319 to look more like other CWA programs, giving EPA the authority to adopt and implement nonpoint source pollution control programs when states fail to do so. Congress could modify section 303(d) to clarify EPA authority to include implementation plans in TMDLs when states fail to do so, or to do so adequately. Similarly, it could amend section 303(d) to clarify that when waters are listed because of pollution as opposed simply to pollutants, TMDLs should include metrics designed to address those problems. The definition of discharge could be amended to include forms of pollution other than discharges of pollutants, and section 401(a) could be expanded to apply to all federal licenses and permits for activities that cause or contribute to pollution.
Other possible statutory amendments could apply with even greater breadth. For example, Congress could amend section 301(a) to provide: "Except as in compliance with this section and sections 302, 303, 304, 306, 307, 318, 402, and 404 of this Act, the pollution of any water of the United States, including by the discharge of any pollutant, by any person, shall be unlawful." Similarly, sections 309 (enforcement) and 505 (citizen suits) could be expanded to allow suits to enjoin any person from conducting any activity that "causes or contributes to pollution of any water of the United States."
In 1977, only five years after articulating the objective of the 1972 Clean Water Act, Congress speculated that "[i]t may be that the States will be reluctant to develop [adequate] control measures ... and it may be that some time in the future a Federal presence can be justified and afforded." (263) Now, another twenty-five years later, the time is long overdue for Congress to revisit that prediction. Indeed, based on the trends in aquatic biodiversity and other factors, if serious action is not taken soon to reverse the decline in U.S. aquatic ecosystems, it does not seem unduly hyperbolic to suggest it may well be too late to do so. The appropriate question is not whether a stronger federal government can be "justified and afforded," but whether we can afford not to adopt and implement more serious federal efforts to address all forms of water pollution, and in short, to write all three books in the water quality trilogy that Congress outlined thirty years ago.
(1) See, e.g., National Environmental Policy Act (NEPA), 42 U.S.C [subsection] 4321, 4331 (2000); Endangered Species Act of 1973 (ESA), 16 U.S.C. [section] 1531 (2000)
(2) See Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir 1982) (explaining, "[A]s any student of the legislative process soon learns, it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal").
(3) Federal Water Pollution Control Act of 1972, Pub. Law No 92-500, 86 Stat. 816 (1972), (codified as amended at 33 U.S.C [subsection] 1251-1387).
(4) 33 U.S.C. [section] 1251(a). A similarly broad ecosystem protection goal is included in the Endangered Species Act, in which Congress articulated as one of its purposes "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," in addition to conserving the species themselves 16 U.S.C. [section] 1531(b).
(5) Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1028 (10th Cir 1976); Kennecott Copper Corp. v. EPA, 612 F.2d 1232, 1236 (10th Cir. 1979).
(6) See, e.g., PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology (Jefferson County), 511 U.S. 700, 703 (1994); Arkansas v. Oklahoma, 503 U.S. 91, 101, 105-06 (1992); United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985)
(7) See discussion infra Part III.
(8) Federal Water Pollution Control Act, 33 U.S.C [section] 1251(a) (2000)
(10) Id. [section] 1251(a)(2). The remaining goals are:
(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; ...
(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;
(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;
(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each state;
(6) it is the national policy that a major research and demonstration effort, be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans; and
(7) it is the national policy that programs for the control of nonpoint source pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution
Id. [section] 1251(a)(1), (3)-(7)
(11) See, e.g., Homestake Mining Co. v. EPA, 477 F. Supp. 1279, 1284 (D. S.D. 1979) The statutory text implies much more than the existence of fish that can be caught--a goal that can be accomplished in an artificially created and stocked trout pond. As explicated below with the help of legislative history, the text implies the restoration and maintenance of an indigenous, naturally reproducing community of species.
(12) See infra Part IV.D.
(13) Among the remaining six subsidiary goals in section 101(a), five refer specifically to the control of pollutants, rather than the broader concept of chemical, physical, and biological integrity. See 33 U.S.C. [section] 1251(a)(1), (3), (4), (5), (6)(2000).
(14) EPA is obligated to promulgate WQS for states that fail to do so, or to do so adequately. Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(c)(3), (4) (2000)
(15) Id. [section] 1313(c)(2)(A) (emphasis added). Ambient water quality standards define the desired or target quality of the waterways themselves, as distinct from applying effluent limitations to individual dischargers. See 33 U.S.C [section] 1313 (2000); Arkansas v. Oklahoma, 503 U.S. 91, 101 (1991).
(16) 33 U.S.C [section] 1251(a)(2) (2000) ("protection and propagation of fish, shellfish, and wildlife").
(17) Gorsuch, 693 F.2d 156, 178 (D.C. Cir 1982)
(18) See infra notes 206-08 and accompanying text.
(19) 33 U.S.C. [section] 1362(19) (2000).
(20) Id. [section] 1362(6). More specifically, "pollutant" includes a curiously specific but simultaneously broad list of materials, including "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water" The main sense of this definition is that it covers "things" or "substances" that are discharged into navigable waters See Gorsuch, 693 F.2d at 171-72 (distinguishing between water "conditions" and "substances added to water").
(21) E.g., 33 U.S.C. [subsection] 1311, 1342, 1344 (2000).
(22) The term "nonpoint source pollution" is not defined in the Act, and therefore is most logically characterized as any type of pollution that is not caused by a point source, essentially "any discernable, confined and discrete conveyance," albeit subject to certain exclusions. Id. [section] 1362(14). See Nat'l Wildlife Fed'n. v. Consumers Power Co., 862 F.2d 580, 587 (6th Cir 1988) (identifying nonpoint source pollution as any pollution not subject to the point source permitting requirement of section 402). With respect to pollutants, nonpoint source pollution includes pollutants in unchannelized runoff as opposed to pollutants that reach waters of the United States via discrete point sources. As discussed below, however, nonpoint source pollution, because the provision employs the broader term, could also include forms of "pollution" other than the runoff of pollutants.
(23) See ROBERT W. ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 5-6 (1993).
(24) See Gorsuch, 693 F.2d 156, 175 (D.C. Cir 1982) (speculating that Congress focused in 1972 largely on municipal and industrial wastes).
(25) 33 U.S.C [subsection] 1251(a), 1362(19) (2000).
(26) See infra Part II.B.2.
(27) Riverside Bayview, 474 U.S. 121, 133 (1994); see also Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 181 (2001) ("[T]he interests served by the statute embrace the protection of "'significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites'" for various species of aquatic wildlife.") (Stevens, J., dissenting, quoting Riverside Bayview, 474 U.S. at 134-35)
(28) See, e.g., United States v. Weisman, 489 F. Supp. 1331, 1348 (C.D. Fla. 1980) (stating that a culvert system would alter "normal sheet flow which is critical to the maintenance and biological functioning of the wetland system"); ADLER ET AL., supra note 23, at 80-83.
(29) See, e.g., W.L. Minckley & Michael E. Douglas, Discovery and Extinction of Western Fishes: A Blink of the Eye in Geologic Time, in BATTLE AGAINST EXTINCTION: NATIVE FISH MANAGEMENT IN THE AMERICAN WEST 7, 17 (W.L. Minckley & James E. Deacon eds., 1991) (asserting that the presence of exotic species is increasingly important in native fish decline, and once established, may be permanent).
(30) See Nat'l Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 585 (6th Cir 1988) (concluding that "[s]torage dams ... actually transform the essential character of the water for its biological inhabitants"); ADLER ET AL., supra note 23, at 82-83.
(31) See Jefferson County, 511 U.S. 700, 719 (1994) ("a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses...") EPA reports "hydromodification" is the second leading source of impairment of designated uses in rivers nationally. EPA, No. 841-R-00-001, NATIONAL WATER QUALITY INVENTORY, 1998 REPORT TO CONGRESS 62 (2000).
(32) Federal Water Pollution Control Act, 33 U.S.C. [section] 1251(a) (2000).
(33) In finding that water quality changes induced by dams within a body of water do not constitute an "addition" of pollutants for purposes of triggering the Act's point source permitting requirement, Gorsuch indicated that courts should presume Congress intended two different meanings by using two different terms, especially when those terms were defined distinctly. See Gorsuch, 693 F.2d 156, 172 (D.C. Cir 1982).
(34) The statutory goals focus on pollutants in section 101(a)(1) (zero discharge goal by 1985); section 101(a)(3) ("toxic pollutants in toxic amounts" prohibited); section 101(a)(5) (areawide waste treatment programs to control pollutants); and section 101(a)(6) (major research and demonstration efforts to eliminate discharge of pollutants); but on pollution in section 101(a)(7) (national policy to establish programs "for the control of nonpoint sources of pollution, to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution") Federal Water Pollution Control Act, 33 U.S.C. [section] 1251(a)(1), (3), (5)-(7) (emphasis added).
(35) See id. [section] 1362(1) ("'State water pollution control agency' ... [with] responsibility for ... the abatement of pollution") (emphasis added); id. [section] 1362(2) ("'interstate agency' ... having substantial powers or duties pertaining to the control of pollution") (emphasis added).
(36) See id. [section] 1362(12) ("The term 'discharge of a pollutant' ... means ... any addition of any pollutant to navigable waters from any point source...."); id. [section] 1362(15) ("The term 'biological monitoring' shall mean the effects on aquatic life, due to the discharge of pollutants....")
(37) See discussion infra Part IV.A.
(38) 33 U.S.C. [section] 1362(11) (2000) (emphasis added).
(39) Id. [section] 1362(6). Most of the constituents included in the statutory definition are chemical pollutants. However, the list expressly includes biological material, and heat, which is a physical constituent.
(40) This ambiguity in the statutory text has generated some confusion in the case law as well. See, e.g., Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 566 (5th Cir. 1996) ("That the definition of 'pollutant' is meant to leave out very little is confirmed by the statutory definition of 'pollution'...."); Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 217-18 n. 148 (5th Cir. 1989) (finding that algae is a pollutant, in part because it is encompassed within definition of pollution); United States v. Earth Sciences, 599 F.2d 368, 373 (10th Cir 1979); FMC Corp. v. Train, 539 F.2d 973, 983 (4th Cir. 1976) (finding that chemical oxygen demand constitutes a pollutant because of the statutory definition of pollution); S.C. Wildlife Fed'n v. Alexander, 457 F. Supp. 118, 125 (D.S.C. 1978) ("No reasonable purpose would be served by admitting pollution while denying the existence of a pollutant.")
(41) 33 U.S.C. [section] 1362(16) (2000) (emphasis added). The term "discharge of a pollutant," in turn, means "any addition of any pollutant to navigable waters from any point source." Id. 1362(12).
(42) 172 F.3d 1092 (9th Cir. 1998).
(43) 33 U.S.C. [section] 1341(2000). As discussed infra at notes 170-185 and accompanying text, a state water quality certification is triggered by "any activity ... which may result in any discharge into the navigable waters." Id. [section] 1341(a).
(44) Dombeck, 172 F.3d at 1093-94. Dombeck involved a dispute about whether water quality certification is required for the issuance of federal grazing leases, which involve nonpoint source pollution but no point source discharges. See also Conservation League v. Caswell, 1996 WL 938215 (D. Idaho 1996).
(45) Dombeck, 172 F.3d at 1096. To give full effect to Congress's definitions, the government had to provide an alternative explanation of how the term "discharge" could include something other than point source discharges of pollutants. Rather than distinguishing point source from nonpoint source discharges of pollutants, it distinguished point source discharges of pollutants from nonpolluting point source discharges. Because the narrower definition applies to the discharge of any pollutant, and because "pollutant" is defined so broadly, it is not clear how any point source discharge could fit into this second category, and no examples are provided in the court's opinion. A discharge of pure, distilled water, absent any pollutant whatsoever, by definition would not be a discharge of a pollutant. In my view, no logical purpose is served by construing Congress's distinction this way. Indeed, the federal government's (and the court's) distinction is circular because the very purpose of section 401 is to allow a state the opportunity to determine whether a discharge causes sufficient pollution to warrant further regulation, or to be prohibited. For my further critique of this opinion, see Robert W. Adler, Controlling Nonpoint Source Water Pollution: Is Help on the Way (From the Courts or EPA)?, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,270, 10,276-79 (2001).
(46) Federal Water Pollution Control Act, 33U.S.C. [section] 1255(c) (2000) (emphasis added).
(47) Id. [section] 1314(a).
(48) Id. [section] 1313(c).
(49) Under section 304(a)(1) EPA is required to develop and publish:
[c]riteria for water quality accurately reflecting the latest scientific knowledge (A) on the kind and extent of all identifiable effects on health and welfare ... from the presence of pollutants in any body of water ...; (B) on the concentration and dispersal of pollutants, or their byproducts, through biological, physical, and chemical processes; and (C) on the effects of pollutants on biological community diversity, productivity, and stability....
33 U.S.C. [section] 1314(a)(1) (2000) (emphasis added).
(50) See infra notes 170-73 and accompanying text for a discussion of the possible significance of the distinction between criteria for pollutants and information for other forms of impairment.
(51) 33 U.S.C. [section] 1314(a)(2) (2000).
(52) Id. [section] 1370 (emphasis added).
(53) Id. [section] 1288. (This is the Act's original nonpoint source pollution control authority.)
(54) Id. [section] 1314(f)
(55) Id. [subsection] 1288(b)(2)(F)-(K), 1314(f)(F).
(56) Id. [section] 1329.
(57) ADLER ET AL., supra note 23, at 185-86.
(58) 33 U.S.C. [section] 1329(a)(1)(A) (2000) (emphasis added).
(59) Id. [section] 1329(a)(1)(B) (emphasis added).
(60) If the definition of pollution were inserted into these provisions, nonsensical text results. Section 319(a)(1)(B) would require states to identify categories of nonpoint sources or particular sources that "add significant ['man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water' to waters] in amounts which contribute to such portion not meeting such water quality standards or such goals and requirements." 33 U.S.C. [subsection] 1329(a)(1)(B), 1362(19) (2000) (emphasis added). Similarly, section 319(b)(1) would require states to develop management programs "for controlling ['man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water'] added from nonpoint sources to navigable waters." Id. [subsection] 1329(b)(1), 1362(19) (emphasis added).
(61) 33 U.S.C. [section] 1313(d)(1)(C). See OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION (1999).
(62) 33 U.S.C. [section] 1313(d)(1)(A) (2000).
(63) Id. [section] 1313(d)(1)(C); see also 33 U.S.C. [section] 1313(d)(1)(B), (D) (2000) (same dichotomy for heat).
(64) Pronsolino v. Nastri, 291 F.3d 1123, 1138 (9th Cir. 2002).
(65) 33 U.S.C. [section] 1314(1) (2000).
(66) Id. [section] 1314(1)(1)(A)(I), (1)(1)(B).
(67) Id. [section] 1314(1)(1)(A)(ii); NRDC v. EPA, 915 F.2d 1314 (9th Cir. 1990).
(68) Federal Water Pollution Control Act, 33 U.S.C. [section] 1314(1)(1)(D) (2000).
(69) Id. [section] 1313(d)(1)(C).
(70) Id. [section] 1313(d)(2), (3).
(71) Id. [subsection] 1342(a), 1311(b)(1)(C).
(72) Id. [section] 1342(d).
(73) In Pronsolino the court intimated in dictum that those aspects of TMDLs that cannot be effectuated with point source discharge limitations must be addressed by states in the comprehensive planning provision of section 303(e). Pronsolino, 291 F.3d 1123, 1128-29, 1138 (9th Cir. 2002); see also Arkansas v. Oklahoma, 503 U.S. 91, 108 (1992) (identifying sections 208 and 303 as the appropriate mechanisms to address aggregate pollution from multiple sources). I and others have argued, however, that under section 303(d), EPA has the authority to implement as well as promulgate TMDLs. See Robert W. Adler, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 290-91 & n.504 (1999).
(74) Federal Water Pollution Control Act, 33. U.S.C. [section] 1314(1)(1)(D) (2000).
(75) It is certainly possible that in later amendments, such as sections 101(a)(7), 304(1), and 319, all of which were added in 1987, members of Congress or their staff had lost sight of some of the original subtleties in the 1972 law.
(76) 693 F.2d 156 (D.C. Cir. 1982).
(77) 33 U.S.C. [section] 1311(a) (2000).
(78) Id. [section] 1342.
(79) Gorsuch, 693 F.2d at 172. In so ruling, the D.C. Circuit asserted that the Supreme Court had reached the same conclusion in Train v. Colo. Pub. Interest Research Group, 426 U.S. 1 (1976). That citation, however, is not accurate. In Train, the Supreme Court held that nuclear materials are not pollutants for purposes of the CWA, based largely on legislative history indicating Congress intended to exclude nuclear materials regulated under the Atomic Energy Act. In the case below, the Tenth Circuit had found that such materials were regulated under the CWA, in part based on the assertion that such materials were covered under the broader statutory definition of pollution. Train, 426 U.S. at 9. The Supreme Court, however, never expressly addressed that logic.
(80) 118 CONG. REC. 33,693 (daily ed. Oct. 4, 1972) (statement of Sen. Muskie).
(81) S. REP. NO. 92-414, at 12 (1972), reprinted in 1972 U.S.C.C.A.N. 3678-79.
(82) Id. at 76, reprinted in 1972 U.S.C.C.A.N. at 3742 (emphasis added).
(83) S. REP. No. 95-370, at 51 (1977), reprinted in 1977 U.S.C.C.A.N. 4376 (emphasis added).
(84) S. REP. No. 99-50 at 15 (1985) (emphasis added).
(85) H.R. REP. No. 92-911 at 76-77 (1972) (emphasis added).
(86) The idea that ecosystems are static, and that we should strive to restore aquatic and other systems to that single, "table," "natural" state, has been replaced by a view that ecosystems are dynamic, changing constantly with a range of influences and variable conditions. What makes an ecosystem relatively more "healthy" is preserving its natural structures and functions, which in turn enable it to respond with resilience to those changes. Indeed, noted aquatic ecologists have defined biological integrity in much the same way as the House Committee, ie., as "the [aquatic ecosystem's] capability of supporting and maintaining a balanced, integrated, adaptive community of organisms having a species composition, diversity, and functional organization comparable to that of the natural habitat of a region." Robert W. Adler, Filling the Gaps in Water Quality Standards: Legal Perspectives on Biocriteria, in BIOLOGICAL ASSESSMENT AND CRITERIA: TOOLS FOR WATER RESOURCE PLANNING & DECISIONMAKING 347 (Wayne S. Davis & Thomas P. Simon eds., 1995) (citing J.R. Karr & D.R. Dudley, Ecological Perspectives on Water Quality Goals, 5 ENVTL MGMT. 55 (1981)).
(87) Federal Water Pollution Control Act, 33 U.S.C. [section] 1252 (2000).
(88) S. REP. No. 92-1236, at 101 (1972), reprinted in 1972 U.S.C.C.A.N. 3778.
(89) Id. at 101, reprinted in 1972 U.S.C.C.A.N. 3779.
(90) S. REP. No. 92-414, at 50 (1972), reprinted in 1972 U.S.C.C.A.N. 3716 (emphasis added).
(91) See WILLIAM H. RODGERS, ENVIRONMENTAL LAW 259-62 (2d ed. 1994) (discussing the compromise between the water quality standards approach favored by the House sponsors and the technology-based effluent limitations advocated by the Senate sponsors).
(92) See Pronsolino, 291 F.3d 1134, 1136 (9th Cir. 2002) (pointing out that until 1990, EPA focused primarily on point source controls rather than the water quality-based requirements of section 303(d)); Envtl. Def. Fund v. Costle, 657 F.2d 275, 279 (D.C. Cir. 1979); see also discussion on EPA's implementation, infra Part IV.D.
(93) See generally ADLER ET AL., supra note 23.
(94) Officially, the United Nations Conference on Environment and Development (UNCED). See STUMBLING TOWARD SUSTAINABILITY 1 (John C. Dembach ed., 2002).
(95) Id. at 197-225.
(96) ADLER ET AL., supra note 23, at 6-7.
(97) Federal Pollution Control Act, 33U.S.C. [subsection] 1281-1301 (2000).
(98) 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. EPA regulations define the amount of waste removal necessary to qualify as secondary treatment. 40 C.F.R. [section] 133.102 (2002).
(99) OFFICE OF WATER, EPA, 1996 CLEAN WATER NEEDS SURVEY, available at http://www.epa.gov/OW-OWM.htm/mtb/cwns/1996rtc/toc.htm (last visited January 18, 2003).
(100) Conventional pollutants include biological oxygen demand, suspended solids, fecal coliform, and pH. Federal Water Pollution Control Act, 33 U.S.C. [section] 1314(a)(4) (2000). The toxic "priority pollutants" were identified in a 1976 Consent Decree between EPA and national environmental groups, and later were ratified by Congress. Id. [section] 1311(b)(2)(C).
(101) ADLER ET AL., supra note 23, at 16.
(102) EPA, TRI 2000 DATA RELEASE, at http://www.epa.gov/triinter/tridata/tri00/index.htm (released May 23, 2002). Trends in TRI data must be evaluated with some caution, because of changes in the scope of chemicals covered and other changes in reporting requirements. Details aside, however, the data clearly indicate significant continued discharges of toxic pollutants from industrial sources.
(103) U.S. GEOLOGICAL SURVEY, U.S. DEPARTMENT OF THE INTERIOR, SELECTED FINDINGS AND CURRENT PERSPECTIVES ON URBAN AND AGRICULTURAL WATER QUALITY BY THE NATIONAL WATER-QUALITY ASSESSMENT PROGRAM (USGS FS-047-01, Apr.2001), available at http://water.usgs.gov/pubs/FS/fs-047-01 (last updated Aug. 10, 2001).
(104) Richard B. Alexander et al., Data from Selected U.S. Geological Survey National Stream Water Quarry Monitoring Networks, 34 WATER RESOURCES RES. 2401 (1998).
(105) ADLER ET AL., supra note 23, at 18-19.
(106) OFFICE OF WATER, EPA, INDEX OF WATERSHED INDICATORS (2001)(on file with author). Similar information is available in OFFICE OF WATER, EPA, INDEX OF WATERSHED INDICATORS, AN OVERVIEW, available at http://www.epa.gov/iwi/iwi-overview.pdf (last visited November 26, 2002).
(107) State water quality standards adopted under CWA section 303(c) are composed of beneficial "designated uses" of waters, such as propagation of fish and wildlife, public water supply, recreational purposes, agricultural water use, and so forth, along with water quality criteria deemed necessary to support and protect those uses. Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(c)(2)(A) (2000). Thus, the degree to which waters support their designated uses is a major "real world" indicator of whether the Act's goals have been met.
(108) OFFICE OF WATER, EPA, NO. 841-R-02-001, 2000 NATIONAL WATER QUALITY INVENTORY, 2000 REPORT TO CONGRESS (Aug. 2002) available at http://www.epa.gov/305b/2000report/index.html (last updated Oct. 7, 2002).
(109) OFFICE OF WATER, EPA, No.841-R-00-001, 1998 NATIONAL WATER QUALITY INVENTORY, 1998 REPORT TO CONGRESS 191-221 (June 2002); 2000 NATIONAL WATER QUALITY INVENTORY, supra note 108, at ES-4; see also EPA, NATIONAL LISTING OF FISH AND WILDLIFE CONSUMPTION ADVISORIES (2001)(on file with author).
(110) See NATURAL RESOURCES DEFENSE COUNCIL, TESTING THE WATERS 2002: A GUIDE TO WATER QUALITY AT VACATION BEACHES, available at http://www.nrdc.org/water/oceans/ttw/titinx.asp (last visited Nov. 26, 2002).
(111) BRUCE A. STEIN & STEPHANIE R. FLACK, 1997 SPECIES REPORT CARD: THE STATE OF U.S. PLANTS AND ANIMALS, (on file with author).
(112) OFFICE OF WATER, EPA, AQUATIC/WETLAND SPECIES AT RISE (1996), at http://www.epa.gov/iwi/1999sept/iv8_usmap.html.
(113) ROBIN A. ABELL ET AL., FRESHWATER ECOREGIONS OF NORTH AMERICA, A CONSERVATION ASSESSMENT 1, 75 (2000). Seven species of freshwater fish and ten species of freshwater mussels are known to have gone extinct in the last 100 years. Id. at 1.
(114) Id. at 17-20 (reviewing various studies identifying a wide range of factors impairing aquatic ecosystem health); id. at 62-70 (explaining and assessing causes of impacts); see also infra Part IV.E (evidence from state bioassessment programs confirms that stressors other than pollutants are responsible for more damage to aquatic ecosystem integrity).
(115) ADLER ET AL., supra note 23, at 82-83.
(116) Id. at 77.
(117) Id. at 78-83 (EPA, FWS, United States Water Resource Council, and Soil Conservation Service have conducted studies).
(118) Id. at 79.
(119) Id. at 81.
(120) Id. at 82.
(121) American Rivers, About Rivers: River Facts, at http://amrivers.org/aboutrivers/riverfacts.htm (last visited Nov. 26, 2002).
(122) THOMAS E. DAHL, STATUS AND TRENDS OF WETLANDS IN THE CONTERMINOUS UNITED STATES 1986 TO 1997 9 (2000), available at http://training.fws.govflibrary/Pubs9/Wetlands70s80s.pdf (last visited Nov. 26, 2002).
(123) ABELL ET AL., supra note 113, at 59.
(124) Id. at 60-61.
(125) NATIONAL RESEARCH COUNCIL, RIPARIAN AREAS, FUNCTIONS AND STRATEGIES FOR MANAGEMENT 8-13 (2002).
(126) Id. at 12.
(127) Id. at 13.
(128) ADLER ET AL., supra note 23, at 68; see also Willa Nehlson et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, FISHERIES, Mar.-Apr. 1991, at 4 (discussing the decimation of salmon stocks and the negative impacts of hatcheries).
(129) See, e.g., Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons From the Columbia Basin, 74 WASH. L. REV. 519, 525-48 (1999).
(130) Id. at 521.
(131) Id. (referring to salmon as "the Northwest's signature natural resource").
(132) See, e.g., ADLER ET AL., Supra note 23, at 68 (noting that the carp fishery dropped to 213,000 pounds in 1973).
(133) TOM HORTON & WILLIAM M. EICHBAUM, TURNING THE TIDE, SAVING THE CHESAPEAKE BAY 107, 110 (1991); TOM HORTON, BAY COUNTRY 44-46 (1987). Henry David Thoreau wrote with remarkable prescience: "Poor Shad, where is thy redress?" Id. at 44.
(134) See Pronsolino, 291 F.3d 1123, 1128 (9th Cir. 2002); Gorsuch, 693 F.2d 156, 176 (D.C. Cir. 1982).
(135) Federal Water Pollution Control Act, 33 U.S.C. [section] 1251(b) (2000) (emphasis added).
(136) Id. [section] 1251(g) (emphasis added).
(137) Jefferson County, 511 U.S. 700, 720 (1994).
(138) 33 U.S.C. [section] 1252(a) (2000) (emphasis added).
(139) Id. [section] 1254(a) (2000) (emphasis added).
(140) This, of course, is facially consistent with the text of section 101(b), which provides only that states have the "primary responsibilities ... to prevent, reduce, and eliminate pollution." Id. [section] 1251(b) (emphasis added). This implies that EPA and other federal agencies have "secondary" responsibility in this arena. Similarly, section 101(g) provides on its face only that any federal activities or requirements under the CWA not "super[c]ede," "abrogate," or "otherwise impair " state authority with respect to water allocation, and expressly envisions federal-state cooperation in the field. Id. [section] 1251(g). As noted above, the Supreme Court in Jefferson County stated expressly that the reservation language in section 101(g) does not limit the scope of water pollution programs. See supra note 137 and accompanying text.
(141) See 33 U.S.C. [section] 1251(d) (except as expressly provided, the Administrator of EPA administers the CWA); id. [section] 1361(a) (authority of Administrator to "prescribe such regulations as are necessary to carry out his functions under this [Act]"); Am. Paper Inst. v. EPA, 996 F.2d 346, 348 (D.C. Cir. 1993) (upholding EPA authority to develop whole effluent toxicity criteria as "necessary gap-filling in the CWA statutory scheme").
(142) 33 U.S.C. [section] 1254 (2000).
(143) The potential scope of EPA's pollution control authority under section 104 is even more ambiguous. The exclusive list of activities identified for EPA in section 104(b) to be conducted in "carrying out the provisions of subsection (a)," could be viewed, under the principle of ejusdem generis, as excluding other authority. Id. [section] 1254(b). Subsection 104(a), however, identifies a similar list of activities to be conducted by EPA as part of "national programs for the prevention, reduction, and elimination of pollution." Id. [section] 1254(a).
(144) Id. [subsection] 1311(b), 1314(b), 1342(p).
(145) Id. [section] 1311(a).
(146) Id. [subsection] 1342, 1344.
(147) Id. [section] 1319. But see Id. [section] 1319(g)(6)(A) (limiting certain types of federal enforcement where certain types of state enforcement have already occurred).
(148) Id. [subsection] 1288, 1329.
(149) Id. [subsection] 1288(f), 1329(h); Pronsolino, 291 F.3d 1123, 1126-27 (9th Cir. 2002); Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998).
(150) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(c)(3),(4) (2000). See generally Miss. Comm'n on Natural Res. v. Costle, 625 F.2d 1269 (5th Cir. 1980).
(151) 33 U.S.C. [section] 1311(b)(1)(C) (2000).
(152) Pronsolino, 291 F.3d at 1132; Consumers Power, 862 F.2d 580, 587 (6th Cir. 1988).
(153) STUMBLING TOWARD SUSTAINABILITY, supra note 94, at 218-20.
(154) Pronsolino, 291 F.3d at 1138.
(155) 33 U.S.C. [section] 1329(a) (2000).
(156) Id. [section] 1329(b).
(157) Id. [subsection] 1311(b)(1)(C), 1342.
(158) See discussion supra note 73 and accompanying text.
(159) While apparently reluctant to endorse the federal intrusion into state and local affairs needed to support a strong federal role in this field, Congress obviously intended the problems of nonpoint source pollution and physical and biological integrity be addressed in some ways, through some combination of state programs supported and assisted by EPA oversight, grant funding, technical assistance, and so forth. Otherwise, the most basic objective of the Act, along with all other references to pollution in the statute and specific control provisions, such as sections 208 and 319, would be essentially meaningless. See Pronsolino, 291 F.3d 1123, 1126 (9th Cir. 2002) ("Congress decidedly did not in 1972 give up on the broader goal of attaining acceptable water quality.") Id. (emphasis in original).
(160) An alternative explanation for the difference between the relative effectiveness of control efforts in the two areas, of course, might be differences in the difficulty of the problems.
(161) As the court noted in Gorsuch, as early as 1977 Congress recognized that its experiment with purely state-driven nonpoint source pollution control programs might not succeed, and that a stronger federal role might be appropriate. Gorsuch, 693 F.2d 156, 176 (D.C. Cir. 1982).
(162) S. REP. NO. 92-414, at 39 (1972), reprinted in 1972 U.S.C.C.A.N. 3705.
(163) See Gorsuch, 693 F.2d at 166, 179 (observing relative Congressional inattention to dams and other sources of nonpoint source pollution in the 1972 Act).
(164) S. REP. NO. 92-414 at 13 (1972), reprinted in 1972 U.S.C.C.A.N. 3680 (explaining CWA section 104).
(165) Id. at 15, reprinted in 1972 U.S.C.C.A.N. 3682.
(166) 33 U.S.C. [subsection] 1254, 1255, 1257, 1257a, 1259, 1261, 1263, 1266, 1271, 1274, 1300 (2000).
(167) See discussion supra notes 1-2 and accompanying text.
(168) See, e.g., 33 U.S.C. [section] 1252(a) (2000) (urging but not requiring a comprehensive [but unspecified] programs for "preventing, reducing, or eliminating the Pollution of the navigable waters and ground waters") (emphasis added); id. [section] 1253 (urging but not requiring interstate cooperation for "the prevention, reduction, and elimination of pollution") (emphasis added); id. [section] 1254(a) (requiring EPA to "establish national programs for the prevention, reduction, and elimination of pollution" (emphasis added), but including as implementing tools only nonregulatory programs such as research, technical assistance, expert committees, monitoring, etc.); id. [section] 1256 (providing for state program grants "for the prevention, reduction, and elimination of pollution") (emphasis added); id. [section] 1288(b)(2)(G), (H) (establishing a process for states to identify sources of nonpoint source pollution and methods to control them to the extent feasible, and same for "mine-related sources of pollution," and "construction activity related sources of pollution" (emphasis added), but withholding any effective EPA enforcement authority for delinquent states).
(169) Id. [section] 1311(a) (prohibiting "the discharge of any pollutant by any person"); Id. [section] 1311(b) (providing for legally enforceable effluent limitations applicable to point sources); id. [section] 1319(a)-(g) (enforcement provisions applicable to violations of permit requirements or other point source discharge prohibitions); id. [section] 1342(a) (requiring permits for "the discharge of any pollutant"); Id. [section] 1365(a) (allowing citizen suits for violations of any "effluent standard or limitation").
(170) Id. [section] 1314(a)(1) (emphasis added).
(171) Id. [section] 1314(a)(2) (emphasis added).
(172) 40 C.F.R. [section] 131.3(b)(2002); id. [section] 131.11(b)(2); Jefferson County;, 511 U.S. 700, 715 (1994); Envtl. Def. Fund v. Costle, 657 F.2d 275 (D.C. Cir. 1981) (holding numeric criteria are not needed in each state); but see Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1317 (9th Cir. 1990) (narrative criteria harder to enforce than numeric criteria). More recently, biological criteria have been developed in both narrative and numeric forms (see infra Part IV.E) but that process is relatively new and obviously was not known by Congress in 1971 and 1972, as it considered the new statute.
(173) See Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992) (holding as proper EPA's conditioning NPDES permits to achieve state water quality standards); Trustees for Alaska v. EPA, 749 F.2d 549, 556-57, 561 (9th Cir. 1984) (holding EPA must adopt effluent limitations for turbidity rather than adopting quality-based state standards).
(174) 33 U.S.C. [section] 1341(a)(1) (2000) (emphasis added).
(175) See supra notes 41-45 and accompanying text.
(176) 511 U.S. 700 (1994).
(177) Section 401(d) provides that any certification shall set forth requirements necessary to ensure compliance with specified enforceable CWA requirements "and any other appropriate requirement of State law." 33 U.S.C. [section] 1341(d) (2000).
(178) The Supreme Court did not have before it the issue of what constitutes a discharge for purposes of section 401, because since the parties agreed that discharges existed in that case. Jefferson County, 511 U.S. at 711.
(179) Id. at 714-21.
(180) Id. at 714.
(181) Id. at 719; see also id. at 714. The Court also invoked the breadth of nonpoint source pollution issues included in section 304(f). Id. at 720.
(182) Id. at 713-16.
(183) Jefferson County, 511 U.S. 700, 712-13 (1994). The Court declined to "speculate on what additional state laws, if any, might be incorporated by this language." Id. at 713.
(184) Id. at 714; Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.Q. 201, 217 (1996).
(185) 33 U.S.C. [section] 1365(a)(1) (2000) (allowing citizen suits against persons "alleged to be in violation of ... an effluent standard or limitation"); id. at [section] 1365(f) (defining "effluent limitation" to include a water quality certification under section 401). Cf. Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 987 (9th Cir. 1995), cert. denied, 518 U.S. 1018 (1996) (holding that citizens had standing to enforce state water quality standards included in NPDES permit even though standards were not translated into numeric effluent limitations). The holding in Northwest Environmental Advocates was based in large part on the Supreme Court's ruling in Jefferson County that states could enforce the designated use and other narrative components of water quality standards independent of numeric water quality criteria. Id. at 981 (accepting rehearing in light of the Jefferson County decision); id. at 987-88 (explaining applicability of that decision).
(186) 33 U.S.C. [section] 1344 (2000).
(187) Id. [section] 1344(a), (d).
(188) Id. [section] 1344(b)(1). The criteria, known colloquially as the "404(b)(1) guidelines," are published in 40 C.F.R. pt. 330.
(189) 33 U.S.C. [section] 1343(c) (authorizing EPA to "promulgate guidelines for determining the degradation of waters of the territorial seas, the contiguous zone, and the oceans").
(190) Id. [section] 1344(c).
(191) See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927, 945 (S.D.W. Va. 2002) (noting that filling of rivers and streams, which essentially converts them to dry land, cannot be sanctioned).
(192) See infra Part IV.D.
(193) See, e.g., EPA, BIOLOGICAL CRITERIA: TECHNICAL GUIDANCE FOR STREAMS AND SMALL RIVERS, EPA DOC. 822/B-06-001 (1996) available at http://www.epa.gov/bioindicators/ pdf/biocrit_front.pdf; EPA, LAKE AND RESERVOIR BIOASSESSMENT AND BIOCRITERIA TECHNICAL GUIDANCE DOCUMENT, EPA DOC. 841-B-98-007 (1998) available at http://www.epa.gov/owow/monitoring/tech/lakes.html.
(194) 33 U.S.C. [section] 1311(b)(1)(C) (2000); Arkansas v. Oklahoma, 503 U.S. 91 (1992); Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984). Even where permits are issued by the states, EPA has the authority to impose additional requirements as necessary to implement WQS and other requirements. 33 U.S.C. [section] 1342(d) (2000). Conversely, states may impose WQS obligations in permits issued by EPA under their water quality certification authority. Id. [section] 1341.
(195) Id. [section] 1365(a)(1) (allowing citizen suits against persons "alleged to be in violation of ... an effluent standard or limitation").
(196) Id. [section] 1341(a)(3). Conditions in section 401 certifications are also enforceable via citizen suits. Id. [section] 1365(f)(5).
(197) Id. [section] 1323(a).
(198) 5 U.S.C. [section] 706 (2000).
(199) See, e.g., Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688 (9th Cir. 1986).
(200) See Pronsolino, 291 F.3d 1123, 1132 (9th Cir. 2002) (holding that WQS are designed to provide federally approved goals that can be achieved by state controls and federal strategies other than point source technology-based limitations); cf. Natural Res. Def. Council v. EPA, 915 F.2d 1314 (9th Cir. 1990) (finding that state water body listings under the analogous provision of section 304(1) needed to address violations of all WQS provisions).
(201) See accompanying text at note 80, supra
(202) 33 U.S.C. [section] 1252(a) (2000) (emphasis added).
(203) Pronsolino, 291 F.3d at 1134.
(204) Id. at 1136.
(205) 33 U.S.C. [section] 1251(a)(7) (2000) (emphasis added).
(206) 40 C.F.R. [section] 130.2(c) (2002).
(207) Id. [subsection] 130.3, 131.2.
(208) The preambles to both the proposed and final regulations in which EPA added this language provide no explanation for the inclusion of the interim goal in section 101(a)(2) but not the overall objective in section 101(a). See Water Quality Standards Regulation, 48 Fed. Reg. 51,400, 51,400 (Nov. 8, 1983); Water Quality Standards Regulation, 47 Fed. Reg. 49,234, 49,234 (Oct. 29, 1982) (merely restating the language of the final and proposed rule, respectively).
(209) For example, by 1987 Congress realized that EPA still had not promulgated any effluent limitations for many major industries and adopted remedial legislation requiring swifter action. See 33 U.S.C. [section] 1314(m) (2000). For a discussion of the complexities of regulating industrial point sources, see Oliver A. Houck, The Regulation of Toxic Pollutants under the Clean Water Act, 21 Envtl. L. Rep. (Envtl. L. Inst.) 10,528 (1991).
(210) See, e.g., Miccosukee Tribe of Indians v. S. Fla. Waste Mgmt. Dist., 280 F.3d 1364 (11th Cir. 2002); Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114 (2d Cir. 1994); Quivira Mining Co. v. EPA, 765 F.2d 126, 129-30 (10th Cir 1985); Sierra Club v. Abston Constr., 620 F.2d 41 (5th Cir. 1980); Earth Sciences, 599 F.2d 368, 373 (10th Cir. 1979); Cmty. Ass'n For Restoration of the Env't v. Sid Koopman Dairy, 54 F. Supp. 2d 976, 981 (E.D. Wash. 1999). But see United States v. Plaza Health Labs., 3 F.3d 643 (2d Cir. 1993), cert. denied, 512 U.S. 1245 (1994).
(211) NRDC v. Costle, 568 F. 2d 1369, 1382 (D.C. Cir. 1977).
(212) Id., see also Gorsuch, 693 F.2d 156, 173 n. 54 (D.C. Cir. 1982); Consumers Power, 682 F.2d 580, 587-88 (6th Cir. 1988)
(213) 40 C.F.R. [subsection] 122.23, 122.24, 122.25, 122.27 (2002).
(214) Gorsuch, 693 F. 2d at 174-75; see also Michael C. Blumm & William Warnock, Roads Not Taken: EPA v. Clean Water, 33 ENVTL. L. 79 (2003). More recent decisions in other circuits have noted that under more recent Supreme Court decisions such deference is probably not appropriate, especially because EPA never decided not to regulate dams in a formal rulemaking or other transparent, public process. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481,489-91 (2d Cir. 2001).
(215) 40 C.F.R. pt. 230 (2002).
(216) See, e.g., 40 C.F.R. [section] 230.20 (2002) (substrate); id. [section] 230.23 (current patterns and water circulation); id.[section] 230.24 (water fluctuations); id. [section] 230.25 (salinity gradients); id. [section] 230.30 (threatened and endangered species); id. [section] 230.32 (aquatic species); id. [section] 230.32 (other wildlife); id. [section] 230.40-45 (particular "special aquatic sites," including sanctuaries and refuges, wetlands, mud flats, vegetated shallows, coral reefs, and riffle and pool complexes). An analysis of the degree to which the 404(b)(1) guidelines fully meet the requirements of the statute is beyond the scope of this article.
(217) See, e.g., Fox Bay Partners v. U.S. Army Corps of Eng'rs, 831 F. Supp. 605, 610 (N.D. Ill. 1993).
(218) See ADLER ET AL., supra note 23, at 210.
(219) Such ecosystem harm theoretically must be mitigated through the restoration and protection of other wetlands, preferably of similar type and function and preferably proximate both physically and ecologically to those destroyed. While the efficacy of mitigation is beyond the scope of this article, there are serious questions about the effectiveness of mitigation overall. See generally NATIONAL RESEARCH COUNCIL, COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT (2001).
(220) Id. at 16-20.
(221) See, e.g., James City County v. EPA, 12 F.3d 1330 (4th Cir. 1993).
(222) EPA reports that it has completed only 11 veto actions under section 404(c) out of an estimated 150,000 permit applications. See EPA's Clean Water Act Section 404(c): Veto Authority, at http://www.epa.gov/owow/wetlands/facts/fact14.html (last visited January 18, 2003). EPA has initiated action under section 404(c) in a number of other cases, many of which resulted in permit withdrawal or modification. Ann Williams, Senior Associate Regional Counsel, EPA Region I, remarks at The Clean Water Act Turns 30, Celebrating its Past, Predicting its Future, Oregon Law Institute, Lewis & Clark Law School (Oct. 18, 2002).
(223) This is implicit in Congress's use of the term "pollution," and in the chosen allocation of authority between the federal and state governments discussed above.
(224) See discussion supra Part III.B.
(225) See discussion supra Part III. C.
(226) 33 U.S.C. [section] 1329(d)(2)(A) (2000) (emphasis added).
(227) Id. [section] 1329(d)(2)(D) (emphasis added).
(228) Id. [section] 1329(d)(2).
(229) EPA, Water Quality Criteria Standards, at http://www.epa.gov/ost/biocriteria/programs (last visited Jan. 18, 2003). See generally BIOLOGICAL ASSESSMENT AND CRITERIA, supra note 86.
(230) EPA, Basics: What are Biocriteria and Bioassessment Data?, at http://www.epa.gov/ost/ biocriteria/basics/(last visited Jan. 18, 2003).
(231) Id. "Biological Assessments are an evaluation of the biological condition of a waterbody using biosurvey data and other direct measurements of resident biota in surface waters." Id.
(232) See supra note 85 and accompanying text.
(233) See EPA, Basics: What are Biocriteria and Bioassessment Data?, supra note 230.
(234) Id. According to EPA, in fact, use of biocriteria confirms that "[s]tressors such as poor habitat quality, altered stream flows, high turbidity and sedimentation, low dissolved oxygen concentrations, eutrophication, and contaminated sediments are proving more important than typically regulated pollutants." Id.
(235) For example, in a 1988 survey of 431 sites in Ohio, use impairment was detected by biological but not chemical criteria at 36 percent of the sites assessed. See Adler, supra note 86, at 345, 354. Just two years later, Ohio reported that twice as many impaired waters were identified using biological criteria compared to chemical assessments alone. See EPA, No. 440/5-91-003, STATE DEV. AND IMPLEMENTATION EFFORTS IX, at 6 (July 1991) [hereafter STATE DEV. & IMPLEMENTATION EFFORTS]. Similar situations have been identified in Maine. Id. at 20.
(236) See, e.g., Adler, supra note 86, at 347 (referring to a seminal article published by independent researchers who in a 1981 study called for water quality standards to address biological data as well as physical and chemical data). Others note that efforts to develop biological assessment methods for protecting water resources date back at least to the 1960s, if not much earlier. See Davis, Biological Assessment and Criteria supra, note 228 at 15.
(237) See BIOLOGICAL ASSESSMENT AND CRITERIA, supra note 86, at 24. EPA formally recommended the expanded use of biomonitoring in the 1987 report Surface Water Monitoring: A Framework for Change. See STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235, at 6.
(238) STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235.
(239) EPA, No. 230-R-96-007, SUMMARY OF STATE BIOLOGICAL ASSESSMENT PROGRAMS FOR RIVERS AND STREAMS 6 (1996).
(240) OFFICE OF WATER, EPA, NO. 822-R-02-048, SUMMARY OF BIOLOGICAL ASSESSMENT PROGRAMS AND BIOCRITERIA DEVELOPMENT FOR STATES, TRIBES, TERRITORIES, AND INTERSTATE COMMISSIONS: STREAMS AND WADABLE RIVERS 2-1 to 2-3 (Nov. 2002) (prepress version on file with author).
(241) Clean Water Act provisions for which such applications of biocriteria are relevant include sections 303(d), (pertaining to TMDLS); 305(b), (requiring biennial water quality inventory); 319(a), (addressing nonpoint source assessment); and 320(b), (concerning National Estuary Program assessments).
(242) States report that the use of biocriteria has demonstrably led to the identification of environmental impairment that would have gone undetected using other existing methods. See, e.g., STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235, at 14-17 (referring to Ohio), 18-21 (referring to Maine), 21-25 (referring to North Carolina).
(243) Id. at 2 (discussing the April 1990 EPA "policy statement encouraging states to develop biological criteria").
(244) 40 C.F.R. [subsection] 131.10-131.12 (2002).
(245) Cf. Am. Paper Inst. v. EPA, 996 F.2d 346, 348 (D.C. Cir. 1993) (upholding EPA development of toxicity criteria as "necessary gap-filling in the CWA statutory scheme").
(246) 33 U.S.C. [section] 1313(c)(3), (4) (2000).
(247) See discussion supra, Part II.A.
(248) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(c)(4)(B) (2000).
(249) See supra note 233 and text accompanying note 234. To avoid confusion, it should be noted that the reference in section 303(c)(2)(B) of the Act to "biological monitoring or assessment methods" is not the same thing as the broader forms of biocriteria addressed here. 33 U.S.C. [section] 1313(c)(2)(B) (2000). The methods identified in section 303(c)(2)(B) are one possible means of meeting the statutory requirement for states to adopt water quality criteria for toxic pollutants. Id.; see also id. [section] 1314(a)(8).
(250) See also Adler, supra note 86, at 352-53.
(251) EPA, BIOLOGICAL CRITERIA: NATIONAL PROGRAM GUIDANCE FOR SURFACE WATERS (EPA 4405-90-004) (1990), available at http://www.epa.gov/bioindicators/html/biolcont.html (last updated Aug. 2, 2002). As early as 1991, several states indicated that such applications of biocriteria either were in place or were potential future uses. See STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235, at 1-2 (discussing state biological criteria development programs); see also Adler, supra note 86, at 355-58.
(252) See Adler, supra note 86, at 355-56.
(253) 33 U.S.C. [section] 1329(d)(2) (2000).
(254) See, e.g., STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235, at 26 (indicating that in Florida biocriteria are useful to support permit denials).
(255) See, e.g., EPA, CASE STUDIES: MULTIPLE BENEFIT IN A COUNTY'S STORMWATER CONTROL PROGRAM, available at http://www.epa.gov/ost/biocriteria/casestudies/npdesmaryland.html (last visited Nov. 19, 2002) (describing use of biocriteria in Maryland stormwater permit development and assessment); EPA, BIOCRITERIA CASE STUDIES: SUPPORT FOR PERMIT LIMITS IN OHIO, available at http://www.epa.gov/ost/biocriteria/casestudies/npdesohio.html (last visited Nov. 19, 2002) (describing use of biocriteria in Ohio to support permit limits).
(256) See Northwest Envtl. Advocates, 56 F.3d 979, 987 (9th Cir. 1995) (holding that citizens had standing to enforce state water quality standards included in NPDES permit even though standards were not expressed in numeric effluent limitations).
(257) See supra notes 197-99 and accompanying text.
(258) See, e.g., STATE DEV. & IMPLEMENTATION EFFORTS, supra note 235, at 26 (discussing the use of biological criteria in enforcement actions in Florida); EPA, BIOASSESSMENT AND ENFORCEMENT: BIOASSESSMENT AS EVIDENCE OF DAMAGE AND RECOVERY FOLLOWING A PESTICIDE SPILL, at http://www.epa.gov/ost/biocriteria/casestudies/enforcement.html (discussing use of bioassessment methods in federal criminal prosecution); see also Adler, supra note 86, at 358 (discussing the usefulness of the application of biocriteria to support enforcement actions); Chris O. Yoder & Edward T. Rankin, Biological Criteria Program Development and Implementation in Ohio, in BIOLOGICAL ASSESSMENT AND CRITERIA, supra note 86, at 109, 133 (discussing the applications of biocriteria in the enforcement of NPDES permits in Ohio).
(259) Federal Water Pollution Control Act, 33 U.S.C. [section] 1311(b)(1)(C) (2000); 40 C.F.R. [subsection] 122.4, 122.43, 122.44 (2002); Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992) (holding that EPA regulations requiring compliance with state water quality standards were within agency discretion); Northwest Envtl. Advocates, 56 F.3d at 986 (holding that citizen's group had standing to sue to enforce state water quality standards as conditions of NPDES permit); Trustees for Alaska v. EPA, 749 F.2d 549, 557 (9th Cir. 1984) (holding that CWA "requires the Administrator to include in placer mining permits whatever effluent limitations it determines are necessary to achieve state water quality standards"); Adler, supra note 86, at 356-58 (discussing controversy likely to surround the use of biocriteria in NPDES permits). Admittedly, translating the types of metrics included in biocriteria into enforceable permit conditions is not nearly as straightforward as it is for numeric criteria for chemical pollutants. Cf. NRDC v. EPA, 915 F.2d 1314, 1317 (9th Cir. 1990) (narrative water criteria are difficult to enforce). But see 33 U.S.C. [section] 1342(a)(2) (2000) (in issuing NPDES permits, EPA Administrator can impose "such other conditions as Is]he deems appropriate").
(260) See, e.g., EPA, ABOUT THE PROGRAM: BIOCRITERIA IN THE WATER QUALITY CRITERIA AND STANDARDS PLAN, available at http://www.epa.gov/waterscience/biocriteria/programs/plan.html (outlining the goals of the bioassessment and biocriteria program).
(261) See EPA, BIOCRITERIA FACT SHEET: BIOLOGICAL CRITERIA NATIONAL PROGRAM GUIDANCE FOR SURFACE WATERS (1999), available at http://www.epa.gov/bioindicators/html/biofacts.html (discussing who is using bioassessment and for what purposes).
(262) 511 U.S. 700 (1994). See supra notes 176-85 and accompanying text.
(263) S.REP. No. 95-370, at 10 (1977), reprinted in 1977 U.S.C.C.A.N. 4327, 4336.
ROBERT W. ADLER *
* [c] Robert W. Adler, 2003 James I. Farr Professor of Law, Wallace Stegner Center for Land, Resources, and the Environment, S.J. Quinney College of Law, University of Utah. I am extremely grateful for research assistance provided by Jeremy Eyre, J.D. candidate, S.J. Quinney College of Law, University of Utah. I would also like to thank the students and others who organized the conference at which this Article was first presented, sponsored by Lewis & Clark Law School and the Northwest Environmental Defense Center, as well as the editors and staff at Environmental Law who assisted with this Article.