Addressing barriers to watershed protection.
A. Searching for Scheherezade
B. The Resurgence in the Watershed Approach
C. Where Do We Go From Here? II. Imperatives for Watershed-Based Restoration and Protection
A. Ecological Imperatives for Watershed Programs
1. The Nature of Aquatic Ecosystem
2. The Status of Aquatic Species and Ecosystems
3. The Major Causes of Aquatic Ecosystem Impairment
B. Institutional Imperatives for Watershed Programs
1. Political Fragmentation of Water Programs
2. Issue Fragmentation of Water Programs
3. Gaps in Program Design and Implementation
C. Economic Imperatives for Watershed Programs
1. Equity in Water System Protection and Restoration
2. Efficiency in Protection and Restoration Efforts
D. Sociological Imperatives for Watershed Programs--Bioregionalism
and the Conservation Ethic III. A History of U.S. Watershed Programs and Proposals
A. The Watershed Legislation Graveyard
1. Progressive Era Watershed Proposals
2. New Deal and Post-War Watershed Proposals
3. The Water Resources Planning Act of 1965
B. The Stolen Legacy of Watershed Management for Water
Resources Use and Development
1. The Reclamation Act of 1902
2. The Federal Power Act of 1920
3. Federal Flood Control Laws
a. Historical Background
b. The 1936 Flood Control Act
c. The 1954 Watershed Protection and flood
Prevention Act and Its Antecedents
d. The Legacy of Flood Control and the National
Flood Insurance Program
4. Federal Navigation (Rivers and Harbors) Laws IV. Emerging and Latent Authority for Watershed Protection
A. The Clean Water Act
B. Other National Environmental Protection Statutes
1. Information and Analysis Laws: The, Fish and
Wildlife Coordination Act and National
Environmental Policy Act
2. The Endangered Species Act
3. The Safe Drinking Water Act
C. Regional Watershed Protection Statutes
1. The Tennessee Valley Authority Act
2. Interstate Water Compacts
3. The Colorado River Salinity Control Act
4. The Coastal Zone Management Act
5. Place-based Provisions of the Clean Water Act
a. The Chesapeake Bay Program
b. The Great Lakes Program
c. Long Island Sound and Lake Champlain
d. The Clean Lakes and National Estuary Programs
6. The Pacific Northwest Electric Power Planning and
Conservation Act (Northwest Power Act)
D. Federal Land Management Statutes V. Conclusions and Recommendations: Moving Toward a
Workable Model for Watershed Protection and Restoration
A. Paradoxes in Watershed Program Design and
B. An Evolving Standard Model for Watershed Programs VI. Postscript. A Thousand and One Watersheds
A. Searching for Scheherezade
Diverse interest groups have recently called for watershed-based protection and restoration of aquatic ecosystems, paralleling a broader trend toward ecosystem approaches to environmental protection in general.(1) Ecosystem approaches address environmental issues by focusing on the health of whole ecosystems and on multiple sources of harm, rather than the effects of individual impairments. While this perspective may be obvious to ecologists, there are significant legal, technical, and institutional barriers to ecosystem and watershed protection.(2)
Referring to incessant calls by water resource professionals for rational, integrated approaches to water resources management and protection, a noted water scholar and historian, Dr. Martin Reuss, recently wrote:
Since before the Civil War, every few years some professional, private, or public
organization sponsors a water policy conference. The flurry of recommendations
following each conference, often ending in bureaucratic oblivion rather
than in substantive change, reflects futility as much as ambition. The United
States seems historically incapable of establishing a water policy and certainly
has not found the key to reconciling rational natural resource administration
with its pluralist, federalist system of government.(3)
The myriad of proposals alluded to by Reuss, while differing in many ways, shared a dominant theme: they called for decisions based on the integrated or holistic analysis of whole watersheds or river basins. However, these proposals all shared a similar fate. They were either ignored, adopted in name but not in reality, or adopted only. to fail during implementation.
The search for a stable water resource policy in the United States is like the tale of Scheherezade. In The Arabian Nights' Entertainments,(4) the Sultan of the Indies, furious at the infidelity of his queen, takes a new bride each night, and then sentences each to death. Enter Scheherezade, daughter of the Grand Vizier, whose stories so entrance the Sultan that he spares her each night so that the tales may continue.(5) Comprehensive water resource proposals in the United States historically met the same fate as the Sultan's brides. Proposal after proposal surfaced but died, regardless of merit. The result is a void in rational decision making, with major environmental and economic consequences.
Recently, there has been a resurgence of watershed proposals from a diversity of sources, and from equally diverse perspectives. Hydrological definitions of "watershed," "river basin," "drainage basin," and "catchment basin" are fairly consistent.(6) Watershed has been defined as "[t]]he entire surface drainage area that contributes water to a lake or liver."(7) Views of the broader concept of "watershed management," "watershed protection," or "watershed-based approaches," however, vary considerably and reflect diverse governmental and interest-group perspectives. As a result, some question whether the term "watershed management" is too vague or rhetorical to be of significant use.(8)
Yet the ongoing watershed revival is too broad-based, and its underlying rationales too compelling, to dismiss so readily. The question is whether, like Scheherezade, the watershed movement of the 1990s can capture the attention of the "sultans of water" long enough to produce the results that will ensure its longevity. This Article seeks to identify and propose ways to overcome the core barriers to watershed protection programs.
B. The Resurgence in the Watershed Approach
The most recent formal (legislative) revival of watershed management came in the 1960s and 1970s, especially in the Water Resources Planning Act of 1965(9) and in section 208 of the 1972 Clean Water Act (CWA).(10) With the political demise (but not repeal) of those national programs, watershed protection programs subsided for a time, but have returned in force in recent years. This most recent revival of watershed thinking has three major sources.
First, water resources professionals continue to emphasize the futility of trying to solve complex, interrelated water problems through individual decisions on thousands of discrete but connected activities. These persistent reminders have led to a series of renewed proposals for watershed programs from diverse and broadly representative sources, including Water Quality 2000,(11) the Long's Peak Working Group,(12) politicians,(13) a working group of the National Academy of Sciences,(14) the Association of Metropolitan Sewerage Agencies (AMSA),(15) the Environmental Protection Agency (EPA),(16) and private individuals.(17) While each proposal differs to some degree, all promote the theme of restoring and protecting the nation's aquatic resources on a holistic basis, taking into account all causes of impairment to the connected land and water resources of target watersheds.(18)
Second, members of Congress took this advice to heart in unsuccessful efforts to reauthorize the CWA during the 103d Congress.(19) Two of the central bills in the reauthorization debate reflected the reliance on watershed approaches to CWA reauthorization, and this reliance was linked most clearly (but not exclusively) to the unresolved and controversial question of how to address nonpoint source pollution ("polluted runoff" in more recent parlance).(20) The major Senate reauthorization bill,(21) introduced by Senators Max S. Baucus (D-Mont.) and John H. Chafee (R-R.I.),(22) included a title on "Watershed Planning and Nonpoint Pollution Control," plus other watershed concepts in other parts of the bill.(23) Watershed protection was also a centerpiece of the Clinton Administration's approach to reauthorization.(24)
Perhaps most important, the quiescence of mandatory national watershed programs has not deterred the development and implementation of watershed programs at the local, state, and regional levels. In March 1993, more than eleven hundred experts from around the country convened in Alexandria, Virginia to share ideas and information about ongoing watershed management projects.(25) The large number of individual watershed management and protection projects described at the conference, along with other compilations of ongoing watershed programs,(26) suggests that watershed protection requires no congressional resurrection at all. Of course, numbers alone say nothing about the quality of current watershed-based approaches.
C. Where Do We Go From Here?
Congress's focus on amending the CWA to incorporate new authority for watershed management and protection suggests that current law is not adequate for this purpose. Yet the CWA and other federal statutes include a multitude of watershed protection provisions. Some of these provisions are mandatory, while others are discretionary; some are plainlay relevant to watershed protection, while others provide latent but potentially potent authority; some are tailored to specific water bodies or watersheds, while others are generic.
The focus on watershed protection in CWA reauthorization efforts poses apparent paradoxes from both a legal and practical perspective. Additional authority is proposed even where multiple layers of watershed authority already exist. The stated purpose of this added language is to promote watershed-based approaches when, apparently, such approaches already abound. These inconsistencies pose several questions. First, is additional statutory authority necessary or desirable to promote or coordinate watershed-based protection and restoration of aquatic ecosystems and resources? Second, if new watershed language is added to the law, what lessons should be drawn from past and ongoing proposals and approaches? Moreover, general agreement on the virtues of "watershed something" is hardly synonymous with Consensus on what that "something" is, or should be, much less on the harder question of how watershed-based approaches should be implemented. As discussed below, various proponents of watershed programs throughout the past century and in the present have failed to agree on the desired results.
Part II of this Article describes the impetus for watershed-based approaches. The Article first discusses ecological imperatives, including the nature of aquatic ecosystems and the ongoing pollution and impairment of these systems. Institutional imperatives are discussed second, including program gaps and fragmentation, inadequate implementation of current law, and interjurisdictional conflicts that impede watershed management. Economic imperatives are discussed next, including questions of economic fairness and efficiency inherent in the existing system by which certain sources of pollution face expensive and rigorous controls, while other sources that cause as much or more harm face weaker or nonexistent controls. Cultural imperatives are discussed last, including the theory that bioregionalism--the motivation to protect places such as the Great Lakes, Chesapeake Bay, and the Columbia River, rather than the environment in the abstract--could help to provide the evasive conservation ethic needed to protect aquatic ecosystems from the discrete actions of millions of individuals who cannot be subject to traditional regulation.
Part III provides a history of watershed "management" in the United States, along with an analysis of why previous efforts to establish watershed programs at a national scale have failed. This section explains how previous proposals, while often well-intentioned, gave way to single-purpose or "multi-objective" statutes and programs to optimize the use and development of water resources, ultimately subverting the goal of comprehensive watershed protection and restoration. Part IV evaluates existing federal authority for watershed protection and restoration, including the CWA and other statutes.
Part V identifies and recommends ways to overcome past impediments to watershed approaches. This section identifies flaws in previous efforts that should be avoided, discusses new tools and approaches that could be used to overcome these conflicts and impediments, and suggests an overall approach that could, like Scheherezade, finally overcome the ingrained, institutional resistance to a broader and better-coordinated application of watershed principles.
The fate of CWA reauthorization during the 104th Congress and beyond is uncertain. Reauthorization during the 103d Congress failed not because of time pressures, but because of substantial political barriers such as controversies over private property rights, risk assessment, and unfunded federal mandates.(27) Such issues will likely receive even more emphasis in the 1995-96 sessions of Congress, given the massive political shift that occurred during the 1994 election.(28) If Congress continues to defer reauthorization, or reauthorizes the law absent significant new watershed provisions, this analysis will address how existing law could be used more effectively to promote watershed goals. If Congress reauthorizes the law with new or improved watershed authority, this review may provide some insights on how to emulate the best aspects of past and ongoing watershed programs and how to avoid past (and possibly ongoing) mistakes and failures.
II. IMPERATIVES FOR WATERSHED-BASED RESTORATION AND PROTECTION
A. Ecological Imperatives for Watershed Programs
The declining health of aquatic species and ecosystems in the United States indicates that something is dramatically wrong with our water resources policies. This evidence alone does not prove that one solution, such as watershed-based protection and restoration, is warranted. The need for watershed-based remedies is strongly suggested, however, by a synthesis of three factors: 1) the basic nature of aquatic ecosystems, including the interaction between land and water resources, the links between water quantity and quality, the connections between groundwater and surface water, and the heterogeneity (variability) of aquatic ecosystems; 2) the ongoing decline of aquatic species and ecosystems despite the implementation of point source pollution control programs and other "engineered" solutions; and 3) the nature of the principal remaining sources of impairment, including habitat alteration and loss, polluted runoff (nonpoint source pollution), and declining instream flows, none of which are addressed well by existing source-specific programs.
I. The Nature of Aquatic Ecosystems
The ecological imperative for a watershed approach derives first from the nature of aquatic ecosystems. The hydrologist's definition of "watershed" mentioned in the introduction--"[t]he entire surface drainage area that contributes water to a lake or river"(29)--contains two important defining characteristics. First, watersheds include not just water bodies but the associated land mass (and thus, all that occurs on that land).(30) Second, watersheds reflect topographic drainage patterns rather than political borders, leading to the "web known lack of correspondence between political and physical boundaries."(31)
The broader definition of watershed ecosystems conveys an even more compelling picture of the need to integrate water policies. To an ecologist, drainage basins or catchments are "ecosystems composed of a mosaic of terrestrial `patches' that are connected (drained) by a network of streams."(32) Under this view of riparian ecosystems as linear systems of water flow connected by mosaic patches of habitats, river systems are four-dimensional in nature: 1) longitudinal (upstream-downstream); 2) lateral (floodplain-uplands); 3) vertical (groundwater-surface water); and 4) temporal (all three spatial dimensions change over time).(33)
The longitudinal dimension suggests that actions and decisions affecting the headwaters of a watershed cannot be divorced from impacts downstream (and vice versa).(34) The lateral dimension reinforces the principle-derived from the purely hydrological definition of watershed--that water bodies cannot be viewed simply as the water within the banks of a river or the shores of a lake, but are connected ecologically to the immediate floodplain and riparian ecosystem(35) and to natural or artificial land conditions further upland. The vertical dimension identifies the fallacy of separating efforts to allocate and protect groundwater and surface water. The temporal dimension advises that water resource decisions must be dynamic, reflecting changes in land and water conditions and interactions across all three of the previous dimensions.
Scientists also criticize artificial divisions between programs that address particular types or components of aquatic ecosystems, such as rivers, lakes, wetlands, and estuaries, as separate rather than connected ecosystems.(36) According to the Natural Research Council Restoration Committee, "[l]akes, streams, rivers, ponds, ground water, estuaries, and wetlands are interconnected parts of larger landscapes,(37) and restoration programs must be coordinated on a regional or watershed scale.(38) The Committee emphasized the need to restore aquatic ecosystem structure and function on a watershed or ecosystem basis, and not simply to address symptoms of harm through isolated projects.(39)
A third characteristic of aquatic ecosystems that supports watershed-based decision making is heterogeneity, or variability. In many water pollution programs, most notably technology-based controls for point source pollution, Congress chose uniformity as a strategy to achieve the greatest total reductions in chemical pollutants across broad groups of dischargers.(40) While criticized by some as economically inefficient,(41) this strategy has worked well when measured by pounds of reductions in chemical pollutants over time.(42) By contrast, water quality standards(43) theoretically reflect differences among aquatic ecosystems as they allow for both different uses,(44) and for different criteria to protect uses, based on the needs and characteristics of various ecosystems, although differences in water quality criteria often reflect political better than ecosystem differences.(45) Ecologists and EPA and state water quality officials, however, question the narrow focus of existing water quality standards on chemical-specific, numeric water quality criteria or toxicological factors related to the impacts of individual chemicals on human health and fish and wildlife, to the exclusion of ecological integrity and health.(46) To supplement chemical and toxicological water quality criteria, biologists and agencies are developing biological water quality criteria (biocriteria) to measure the overall health of aquatic ecosystems based on the degree to which the structure and function of the target ecosystem matches what is expected in similar but relatively unimpaired ecosystems.(47)
The increasing use of biocriteria has two major implications for watershed approaches. First, by measuring overall ecosystem integrity and health, attention can be given to the cumulative impacts of multiple stresses in an entire watershed (identified in the following two subsections). Second, biocriteria address the inherent variability of aquatic ecosystems, paralleling the trend of recognizing and addressing the unique needs, potential, and characteristics of all ecosystems.(48) Taken to extremes, virtually unlimited variability between ecosystems could lead to management anarchy. Fortunately, as shown in the use of biocriteria, ecologists are developing methods to organize similar areas into "ecoregions" distinguished by common characteristics and behavior.(49)
Addressing variability among ecosystems through biocriteria and other modifications to water quality standards has significant advantages for a watershed approach. These include an improved ability to tailor water quality standards, restoration, and protection efforts for the needs and characteristics of the target ecosystem. For example, one might choose to spend less on point source controls directed at increasing levels of dissolved oxygen (DO) if regional analysis shows that natural DO levels are higher than required by national or statewide water quality criteria, but to spend more on stream-bank restoration where investigation shows that loss of riparian habitat is more responsible for ecosystem degradation. States and localities bothered by the inefficient, "one-size-fits-all" nature of national standards should find this approach appealling, although state adoption of the biocriteria approach has been slow.(50) Representatives of dischargers, however, will question the legality of biocriteria when additional requirements are imposed,(51) and environmental groups may fear that biocriteria will be used to weaken existing numeric water quality criteria and associated point source controls.(52)
Ironically, the concept of ecoregions also poses a challenge to the idea of watershed management. Recent ecoregion research challenges the idea that the hydrological watershed is the only or best unit within which to address aquatic ecosystem health: "[W]aterbodies, especially streams, reflect the landscapes they drain. This characteristic of rivers that drain[s] both mountains and plains makes river basins too heterogeneous for establishing regional expectations or for reporting regional condition."(53) Because river basins drain so many habitats, ecoregions that distinguish among areas using multiple variables in land and water characteristics better represent differences in ecological variability. As several commentators noted, "an ecoregion map provides geographic classes that are more ecologically based than are hydrological units or political boundaries."(54) Thus, comparison of a map of United States river basins (hydrological watersheds)(55) With a map of United States ecoregions(56) shows rough correlations, but many differences as well. These differences parallel the distinction between a strictly hydrological definition of watershed and the related concept of riparian ecosystems as linear water systems flowing though mosaic patches of different habitats.(57) This inconsistency could be addressed by using the watershed as the focus of land use and pollution controls (because all land disturbances in the watershed can have an impact on downstream and down-gradient aquatic ecosystems), while using ecoregions to identify and measure attainment with appropriate goals (which would be based on the expected natural conditions for those ecoregions). This, of course, would complicate further the already difficult task of matching political with hydrological or ecological watershed management units.
2. The Status of Aquatic Species and Ecosystem
Freshwater and coastal aquatic ecosystems in the United States remain severely imperiled and, in many cases, continue to degrade further, despite over twenty years of implementation of the CWA and other environmental laws and programs.(58) Point sources(59) controls have succeeded in reducing some of the most severe forms of chemical pollution, especially from industrial and municipal sewage plants.(60) Yet substantial human health risks from chemical pollutants and pathogens remain in many parts of the country, in the form of swimming hazards and beach closures,(61) and contamination of drinking water(62) and fish and shellfish.(63) More notable than ongoing chemical pollution, however, is the rapid and unchecked decline in the health of aquatic and aquatic-dependent species and ecosystems.(64) Many more aquatic species are threatened and endangered than their terrestrial cousins: 73% of mussels, 65% of crayfishes, 34% of fishes, and 28% of amphibians are jeopardized, compared to 13% of mammals, 11% of birds, and 14% of reptiles.(65) While the decline of commercially important and recreationally popular stocks of anadromous fishes along the Pacific Coast has received the most attention,(66) the disturbing trend extends across the ecosystems of North America. Between 1979 and 1989, the American Fisheries Society added 139 and removed 26 categories from its list of threatened and endangered fish species, for a total of 364 fish categories that warrant protection due to rarity.(67) In fact, "[n]ot a single species was removed ... due to successful recovery efforts, while ten were dropped because they had become extinct."(68) Even short of extinction, many aquatic and water-dependent populations are plummeting.(69)
3. The Major Causes of Aquatic Ecosystem Impairment
The dramatic declines in individual species and ecosystems identified above stem from a range of impairments not addressed by existing, narrow pollution control programs that focus primarily on point sources and chemical pollutants.(70) These include habitat alteration and loss, polluted runoff, and declining (and in some cases nonexistent) instream water flows.
Pristine water quality does little for declining fish and aquatic wildlife populations that lack the food, shelter, spawning and rearing habitats, and other key conditions necessary for their survival and successful reproduction. Yet massive habitat loss and degradation in United States aquatic ecosystems remains largely unchecked.(71) Aquatic ecosystems continue to be altered or destroyed at a rate greater than any time in history.(72) At the time of European colorlization, the coterminous United States had an estimated 221 million acres of wetlands.(73) More than half have been lost through draining, dredging, filling, and flooding.(74) Twenty-two states have lost fifty percent or more of their original wetlands acreage; ten have lost over seventy percent; and the United States continues to lose an average of 260,000 acres of wetlands a year.(75) By the end of the 1970s, at least half of America's original riparian habitat had been destroyed.(76) A detailed 1992 assessment of floodplains found that of 75 to 100 million acres of indigenous, woody riparian habitat in the United States, less than half remains in nearly natural condition.(77) The rest is inundated, channelized, dammed, riprapped, farmed, overgrazed, or altered by other land uses.(78)
Significant additional habitat loss and degradation is caused by a number of factors. First is the massive alteration of America's rivers and streams by dams, diversions, levees, channelization, and other structural water projects. While estimates vary greatly, there are thousands of major reservoirs and millions of smaller dams and diversions in the United States, leaving "only a small probability ... that a drop of water could make its way from its cloud of origin, over the land surface, through the drainage system, and back into an ocean without passing through a manmade structure."(79)
The second problem is the widespread failure to address polluted runoff from agriculture, silviculture, grazing, mining, urban development, and other sources. Polluted runoff is the largest source of water pollution in the United States and a major source of physical and hydrological impairment and habitat loss.(80)
Finally, mainly in the West but elsewhere as well, the nation's thirst for and inefficient use of water leaves rivers, stream, lakes, and estuaries short of flows necessary to support healthy fish and wildlife populations.(81) Also, as noted by legal and other commentators,(82) the "artificial distinction"(83) between laws and regulations designed to protect water quality and to allocate water flows has contributed greatly to, this problem.
The decline in aquatic species and ecosystems does not derive from chemical pollution alone, but from this broader array of chemical, physical, and hydrological stresses.(84) Moreover, the combination of impairments causing harm varies significantly from watershed to watershed. While in theory all forms of impairment could be addressed by existing legal authorities,(85) the predominant focus of pollution control programs on the discharge of chemical pollutants from point sources has diverted the resources (financial, personnel, and political) needed to support a broader approach. This narrow focus provides a compelling rationale for the watershed-based approach to aquatic ecosystem protection. Rather than control discrete sources of pollution, managers under the watershed approach identify the full range of conditions and activities that impair the ecological integrity of a watershed, and then develop and implement a plan to address that combination of problems.
B. Institutional Imperatives for Watershed Programs
It is difficult to imagine a political and institutional system as complicated and as fragmented as that used for protecting and managing water resources in the United States--a system that has been described as "similar to a marbled cake, with several levels of government intermingled in an irregular pattern."(86) Scholars and managers from virtually every relevant field have noted the resulting anarchy in water programs.(87) Thus, several institutional imperatives support the need for watershed-based approaches: 1) political fragmentation--the overlapping and conflicting division of responsibilities among multiple levels of government and agencies; 2) issue fragmentation--the artificial division of related water issues into separate programs (such as water quality and quantity, land and water use, and surface and groundwater); and 3) gaps in program design and implementation.(88)
1. Political Framentation of Water Programs
Based on the hydrological and ecological factors described above, water resource programs logically should be organized according to watershed boundaries. Politically, however, this has been difficult because each level of government guards its authority jealously.(89) Instead, control over water resources is divided between federal, state, and local governments. These levels of government also have control over the related issues of land use and natural resources management, as described by the Natural Research Council Restoration Committee:
Fragmentation of ecosystem management is common in U.S. governmental
organizations and in industry. Watershed and political boundaries often
overlap. Furthermore, different components of a watershed are usually administered
by different agencies.... The politics and consensus building required
for integrated resource management of the resource are often as complex as
the ecosystem itself.(90)
For example, while the federal government plays a major role in water pollution control, it shares authority and implementation with states and cities in an often rocky system of cooperative federalism.(91) Control over water quantity is left largely to the states, leading to frequent conflicts between the federal and state governments and between individual states.(92) The same is true for land use, control of which is left largely to states and localities, except on federal lands. Rarely is land ownership, much less control, vested in a single entity within an entire major watershed,(93) further complicating water resource control.
Moreover, both across and within the various levels of government, responsibility for water resources is divided among a multitude of agencies and entities. According to one estimate, there are well over 100,000 public entities involved in water resources in the United States.(94) To some, the horde of entities assigned to solve a problem is as much of a threat as the problem itself.(95) As of 1973, the last time a comprehensive inventory was taken, the U.S. Water Resources Council identified twenty-two major federal or interstate agencies, commissions, or other entities, and twenty-six subentities within them, involved in implementing various federal water resource programs under hundreds of separate federal laws and programs, not including the additional layers of state and local laws and regulations.(96) Added to the sheer numbers are inevitable conflicts between agency goals, missions, and methods.(97)
2. Issue Fragmentation of Water Programs
More often than not, agencies address water quality and quantity,(98) land use and water resource protection,(99) and surface and groundwater(100) as separate rather than related problems. Even within a supposedly integrated statute like the CWA, agencies often address stream "reaches" and "segments" rather than whole river systems.(101)
The fragmentation of water resource issues is illustrated by the existence of so many entities designed to address only a single water resource issue, or single-purpose entities that have evolved to "address" multiple uses and purposes, but that are still driven by single-minded goals. For the most part, these single-purpose or "multiple-purpose" entities are driven by water resource use and development, rather than water resource restoration and protection, missions.(102) For example, "BLM 'produced' animal grazing units; the Forest Service produced timber; the Fish and Wildlife Service produced deer and ducks. Water and related lands under the control of these agencies were managed to achieve these resource goals."(103) Use and development of multiple resources, all of which affect watershed health, are managed independently.(104) And the largest federal water agencies--such as the U.S. Army Corps of Engineers, the Bureau of Reclamation, and the Federal Power Commission (FPC)--were, at least until recently, driven by missions to build large water projects regardless of the impact on aquatic ecosystems as a whole.(105)
In addition to issue fragmentation, intentional competition and conflict between various water resource entities leads to a piecemeal approach to watershed protection. Even commentators who believe that the division of authority among multiple agencies is better than vesting responsibility single, all-powerful entities agree that water resource programs have been characterized by competition rather than cooperation, and that multiple agencies would work better if they had a "shared understanding of the shared system."(106)
3. Gaps in Program Design and Implementation
Multiple gaps and inadequacies in water resource protection leave many of the most serious causes of water body impairment either poorly addressed or unaddressed altogether. The most frequently cited example is the failure of programs to control polluted runoff.(107) While Congress tried to address polluted runoff with sections 208 and 319 of the CWA,108 these programs have not achieved significant results.109 One reason for this failure is the lack of tough, enforceable requirements for polluted runoff control programs.(110) The intractable nature of polluted runoff, however, also stems from the number and diversity of activities that must be controlled, and variability in the sources, nature, and severity of polluted runoff. A watershed approach would allow programs to target the worst causes of polluted runoff in, and to implement the combination of solutions best tailored to the conditions of, each watershed.
More generally, critics assail the narrow focus of CWA programs addressing chemical pollution from point sources to the exclusion of the broader array of physical, hydrological, and habitat assaults identified above. A watershed focus could facilitate increased attention to physical and biological, as opposed to purely chemical, impairment; and to prevention and restoration of all causes of watershed impairment, rather than mere mitigation of ongoing harm.
Even point source control efforts have suffered due to the absence of watershed programs. For the most part, water-quality--based controls on point sources have lagged far behind technology-based requirements. There has been widespread failure by EPA and states to calculate the total maximum daily loads (TMDLs) and wasteload allocations (WLAs) required to write water-quality-based permits under section 303 of the CWA and 40 C.F.R. parts 130 and 131.(111) While watershed programs would not eliminate this problem, they could facilitate water-quality--based permitting by allowing permit writers to coordinate the issuance and reissuance of CWA National Pollutant Discharge Elimination System (NPDES) permits on a watershed-by-watershed basis, and to integrate point source permitting with an evaluation of nonpoint source loads.(112)
C. Economic Imperatives for Watershed Programs
Given the current and foreseeable fiscal climate in the United States, resources for water system protection and restoration are inadequate and increasingly scarce.(113) While protection of water resources deserves increased financial attention,(114) political realities suggest that more must be done with less, at least in the near--term. Point-source--dominated programs continue to be challenged on grounds that they impose "treatment for treatment's sake" and that point sources have borne the lion's share of the water pollution control burden, while other significant causes of impairment escape with few or no requirements.(115) In fact, there have been increased calls to prove that the benefits of investments in water protection exceed the costs, and that the most cost-effective solutions to water protection are being chosen.(116) This suggests that restoration and protection programs be chosen to obtain the greatest results per dollar of private and public investment.(117) The result is two economic imperatives for watershed programs: 1) equity between point sources, nonpoint sources, and other sources of harm; and 2) efficiency in the use of scarce public and private resources.
1. Equity in Water System Protection and Restoration
Billions of dollars have been spent on point source water pollution controls, and future expenditures are expected to continue at similar rates.(118) By contrast, funding for polluted runoff control has been minuscule.(119) EPA estimates that, if trends continue, the ratio of public and private expenditures for point source versus nonpoint source controls will increase, further exacerbating the imbalance between the two programs.(120)
Some types of point source dischargers, especially municipal sewerage agencies, propose watershed management to redress the imbalance between expenditures for point sources and nonpoint sources and other forms of impairment.(121) Watershed approaches identify and prioritize all problems in a watershed, so that incremental expenditures are targeted to achieve the greatest results.(122) While this does not guarantee that point sources will get a break on additional controls,(123) a strong possibility exists for such relief. For example, in a watershed where nutrient discharges from sewage plants are controlled extensively, and where most remaining pollution is from fertilizer runoff, a watershed-based WLA that includes both point and nonpoint sources(124) Could dictate strengthened controls on farm runoff in lieu of additional advanced treatment requirements for sewage treatment plants.
Such proposals stem both from the view that increasing costs for point source controls are not fair while larger amounts of pollution from nonpoint sources remain unabated and from the more pointed concern that municipal point source controls are becoming unaffordable to many communities.(125) They may also stem from frustration on the part of municipal treatment officials, who view their expenditures and efforts as producing fewer real-world environmental benefits absent accompanying controls on polluted runoff and other sources of impairment to aquatic ecosystems. Environmental groups may pause at the risk that point source controls will be weakened in return for strengthened controls on polluted runoff. But those groups should support watershed approaches to correct the imbalance between point source and nonpoint source controls if the latter are strengthened while the former remain at least constant.(126)
2. Efficiency in Protection and Restoration Efforts
Funds for water resource protection should be allocated efficiently so as to achieve the greatest environmental benefits per dollar. Watershed-based decisions provide one logical way to tailor resource allocation decisions to the needs and conditions of specific watersheds.(127) As stated by one local official, "[w]hat is missing is a way to prioritize problems oil a watershed basis, establish goals and objectives that consider cost effectiveness, identify the various pollutant sources and their impact, and evaluate various approaches that consider available resources and cost effectiveness."(128)
The implications of such statements and specific proposed mechanisms to achieve them, however, are more controversial. This same official, for example, wrote on the preceding page of his article:
[U]rban stream corridors have a unique value in an urban context and provide
important character to the urban environment. They need to be preserved and
enhanced for what they are. It is not practical to think in terms of restoring
their physical, chemical, and biological integrity to some predevelopment conditions.
They are forever changed.(129)
Such statements are difficult to interpret. It is true that urban streams cannot be restored to "predevelopment conditions." But many examples exist of ongoing efforts to restore the chemical, physical, and biological integrity of urban waters, as envisioned by the CWA.(130) Environmental groups and citizens who use urban waters (and other water bodies perceived to be too expensive to restore) will not view watershed management with favor if it is used as a form of environmental triage to decide, for each watershed, whether the goals of the CWA should be achieved.(131) Such views raise concerns about environmental justice because many city residents must swim in polluted city waters or not at all,(132) and must choose between eating contaminated fish and shellfish caught in polluted city waters and foregoing needed food.(133)
Proposals to use economic incentives to achieve greater environmental results at lower costs are less provocative but still controversial.(134) These proposals include point-nonpoint source pollution trading,(135) water marketing,(136) wetlands mitigation banking,(137) and other proposals to "trade" development rights(138) for either direct restoration of previously degraded areas or cash to allow the government to engage in restoration efforts.139 Developers favor such ideas because they allow otherwise prohibited activities so long as offsetting gains elsewhere are realized. Some agency officials support these ideas because they reduce backlash from strict enforcement of laws and regulations that require flat prohibitions on new development, and because they may provide the resources and tools needed to restore degraded ecosystems. Environmental groups fear these approaches may allow continued declines in degraded ecosystems without real offsetting gains.
A detailed evaluation and critique of such proposals is beyond the scope of this Article. If one agrees with such proposals philosophically, however, and if adequate safeguards ensure real net environmental gains, one could reasonably conclude that watershed-based restoration and protection programs would facilitate such an approach. For example, point-nonpoint source trading is more feasible if TMDLs and WLAs are prepared for sources in a target watershed. Further, agencies could help facilitate mitigation banking and other ecosystem restoration by identifying the best opportunities for restoration in each watershed.
D. Sociological Imperatives for Watershed Programs--Bioregionalism and the Conservation Ethic
Lurking behind these scientific, institutional, and economic rationales for watershed-based programs is a more profound imperative: the idea that people are more willing to take actions and to make sacrifices to protect and restore a special place--like the Great Lakes, Chesapeake Bay, or the Columbia River--than to promote some abstract idea of environmental quality. As explained by one U.S. Senate staffer, "[p]eople love their streams, lakes and bays. They don't necessarily love permits, regulations, or even the Clean Water Act."(140) This tendency, more than any technical reason, may explain the groundswell of "place-based" initiatives identified, by EPA,(141) "river-oriented community revitalization projects" lauded by citizen activists,(142) and regional coalitions rallying around the protection of particular water systems.(143)
This trend can be explained as a manifestation of the evolving concept of bioregionalism--an increased allegiance to specific places(144)--the energy of which can be harnessed to overcome two frequent obstacles to watershed programs. One obstacle is the parochial tendency to resist regional cooperation to protect and restore watersheds and other ecosystems. A second hurdle is the gap between the theory of a conservation ethic in the United States and its practice (or absence thereof) by individuals in homes and workplaces.
In her seminal 1973 paper explaining the failure of previous regional water management efforts, Dr. Helen Ingram observed that "[t]he extent of regional consciousness on regional interest is a significant variable."(145) She found, however, "no solid evidence that social awareness of regions is on the increase" and water in particular "has not been a subject which raises the level of regional cohesiveness."(146) As a result, Ingram expressed a pessimistic view about regional watershed management.(147) Around the same time, however, community and environmental activists were developing the idea of the "bioregion" as a "deepening attachment to place"(148) and a "way of of thinking about land and life within a framework,"(149) with a "strong emphasis on regional culture and regional autonomy in decision making."(150)
Because of its diverse origins, the definition of a "bioregion" varies. According to one founder of the movement, Peter Berg, a bioregion is "a geographical province of marked ecological and often cultural unity, its subdivisions ... often delimited by watersheds (water divides) of major streams."(151) Another prominent writer described a bioregion as "a place defined by its life forms, its topography and its biota, rather than by human dictates; a region governed by nature, not legislature."(152) Boundaries of bioregions involve subjective decisions and vary considerably(153) and, thus, cannot be defined precisely like watersheds or ecoregions.
The idea of bioregions, however, adds an interesting and potentially important third layer to the hierarchy of complexity begun with our exploration of watersheds and ecoregions. Under the pure hydrological definition, "watershed" encompasses the land mass drained by a water body (the water plus the associated land). The definition of "ecoregion" adds the idea of patches of habitat within the flowing linear stream systems draining the watershed (water plus land plus associated biological communities). Berg's definition of "bioregion" adds a third idea of human cultures living within a watershed or ecoregion (water plus land plus associated biological and human communities). From this integration of human cultures living within biologically, rather than politically, delineated boundaries flows the link between bioregionalism and Aldo Leopold's evasive land ethic.(154)
Thus, bioregionalism adds two compelling sociological reasons to support watershed protection and restoration. In contrast to traditional loyalties to geopolitical boundaries,(155) organizing efforts around bioregions defined by the watersheds of important bodies of water can provide the regional identity needed to overcome political parochialism.(156) Notions of bioregionalism can overcome the tendency of political jurisdictions to guard their power base. For example, constituencies "must perceive that the basin is a shared, finite resource and that they share responsibility for its stewardship."(157) This shared sense of "place" can also be used to provide public support for funding,(158) strengthen water resource protection and restoration programs, and encourage citizens to devote personal time to grass-roots watershed restoration.(159)
Second, many causes of water resource impairment result from the cumulative impacts of large numbers of people across the full spectrum of human activities. It is these activities, "[t]he way we farm, produce, consume, transport people and goods, and plan for the future," which are the fundamental causes of water quality degradation.(160) Because the actions of so many individuals defy traditional regulatory approaches,(161) this source of "people pollution" arguably can be overcome only through the attainment of Leopold's "land ethic," which extends the social conscience "from people to the land" and instills in the public at large "individual responsibility for the health of the land."(162) While the writings of Leopold and others generated the idea of a conservation ethic, there is a "great disparity between the idealistic commitment to conservation and the actual behavior of people who managed natural resources.(163) Just as individuals are more likely to spend money and time to protect and restore a special local or regional water body than an abstract concept of environmental quality, harnessing bioregionalism may be useful in transforming the nation's theoretical but largely unrealized conservation ethic into changes in the behavior of individuals within their own watersheds.(164)
III. A History OF U.S. Watershed Program and Proposals
"I realize that for many, watershed management represents a new way of thinking."
--Vice-President Al Gore(165)
Watershed management may represent new thinking to some, but the concept has a long history in the United States.(166) Early watershed proposals died outright. Other watershed statutes, discussed in part III, were intended as, or were transformed into, utilitarian programs to optimize use and development of water resources in ways that did far more to degrade than protect aquatic ecosystem health. The most recent set of watershed authorities, discussed in part IV, grew largely out of the environmental era of the 1960s and 70s, and it provides an emerging but inadequate basis for true watershed protection and restoration programs.(167)
A. The Watershed Legislation Graveyard
Many credit John Wesley Power, who recommended that new states be organized around watershed boundaries and that Congress help to maximize the development of land and water resources to promote settlement of arid lands in the West, for giving birth to the idea of comprehensive watershed or river basin management.(168) Powell's ideas led in two apparently related--but ultimately antithetical--directions. The first direction moved toward adoption of comprehensive, integrated approaches to watershed management remarkably similar to those being proposed today. The second promoted massive federal spending on large, structural water projects to optimize and "manage" the use and value of water for human benefits, reflected in laws such as the Reclamation Act of 1902,(169) the Federal Power Act of 1920,(170) and the Flood Control Act of 1936.(171) The failure of the former (integrated, basinwide planning) is discussed in this section; the triumph of the latter (programs to optimize water use and development) is described in the following section.
1. Progressive Era Watershed Proposals
The idea of integrated river basin water policy was developed during the Progressive Era in a series of reports issued by various commissions under Theodore Roosevelt's Administration: the 1908 Inland Waterways Commission, the 1909 National Conservation Commission, the 1912 National Waterways Commission, and the authorized but never formed 1917 Newlands Commission.(172) All proposed many of the same elements present in today's watershed proposals, such as coordination of the goals and functions of federal water agencies, comprehensive water quality and quantity planning, cost-sharing tied to the benefits received from water projects, the; linking of land and water uses, and comprehensive evaluation of afl issues from a basinwide perspective.(173)
It would be inaccurate and naive, however, to suggest that the Progressive Era watershed proposals would have produced watershed restoration and protection as envisioned today.(174) Consistent with the philosophy of the times, proposals were aimed not at watershed-based protection, but at the "comprehensive development of river basins for multiple purpose use of water resources,"(175) With the purposes being largely utilitarian: navigation, irrigation, flood control, and hydropower.(176) But early adoption of such approaches might have prevented the water management anarchy in existence today. And at least some Progressive Era proposals included such new ideas as water pollution control among the water policy goals that were to be coordinated within comprehensive river basin plans.(177)
Progressive Era river basin proposals were never adopted by Congress, for reasons ranging from inattention, to a lack of willingness to cede congressional authority to the Executive, to the development-oriented sources of support.(178) Instead, individual federal agencies, including the Bureau of Reclamation (BOR), the U.S. Army Corps of Engineers (Corps), and the Federal Power Commission (FPC), proceeded (with more competition than coordination) with the construction and licensing of mission-oriented water development projects.
The "comprehensive" (but single-agency) basin plans required by section 10(a) of the Federal Power Act,(179) for example, were never prepared.(180) The Corps, however, was authorized by section 3 of the 1917 Newlands Act to undertake, in connection with surveys for flood control improvements, a "comprehensive study of the watershed or watersheds" involved.(181) While initially limited to flooding in the Mississippi and Sacramento River basins, the Corps used this authority to prepare detailed surveys of water resources and water projects (with cost estimates) for virtually every river basin in the country (except those already claimed by BOR).(182) Known as "308 reports"(183) these proposals "placed the Corps at the center of multipurpose river development,"(184) and became the "basic river basin planning documents for the next several decades."(185) But while the Corps acclaimed the plans as comprehensive information to guide river development,(186) critics deride them as single-minded.(187) The following description is instructive:
These basinwide plans addressed hydropower, navigation, flood control, and
irrigation potential and defined benefit-cost analysis for evaluation of proposed
water resources development projects. The 308 reports reflected the shift in
emphasis to engineering control of whole river systems rather than targeting
flood control measures to the location of flood damages.(188)
Thus, while the plans addressed whole basins rather than single projects, they remained focused on structural, engineered solutions to water basin control and development.
2. New Deal and Post-war Watershed Proposals
A broader view of comprehensive river basin planning returned during the New Deal, in proposals by the National Planning Board, the Water Resources Committee of the National Resources Commission (NRC), and the National Resources Planning Board (NRPB).(189) As with Progressive Era proposals, the New Deal agencies suggested a "comprehensive approach integrating all resources into a unified, balanced program,"(190) or in the,words of President Franklin D. Roosevelt, "a thoroughly democratic process of national planning for the conservation and utilization of the water and related land resources of our country."(191) These proposals resembled today's watershed proposals somewhat more closely than Progressive Era versions with their increased recognition of the link between land development (including deforestation) and water resources degradation caused by increased erosion and runoff.
Like the Progressive Era proposals before them, however, the New Deal watershed proposals were fundamentally rooted in human use of water and econoic,development. In addition to traditional outputs such as flood control, navigation, irrigation, and hydropower, and consistent with New Deal programs as a whole, these proposals sought to use comprehensive river basin planning and development to provide jobs and promote regional economic development.(192) Moreover, like Progressive Era antecedents, the New Deal proposals were rejected by Congress; with the notable exception of the Tennessee Valley Authority (TVA).(193) Nevertheless, this time river basin management was rejected for a more pointed reason--basic disapproval of the idea of central planning for water resources or any other issue.(194)
In light of such strong opposition to centralized planning during the Franklin D. Roosevelt Administration, especially to planning by the federal government and particularly in the political context of the McCarthy Era, the continued promotion of river basin planning by the Truman and Eisenhower Administrations is striking.(195) These efforts resulted in the Hoover Commission proposal in 1949 to combine most federal water programs into a single cabinet-level department; Truman's 1950 Water Resources Policy Commission report, which proposed joint federal-state river basin commissions to address both water quality and quantity planning and management;(196) and Eisenhower's Presidential Advisory Commission on Water Resources policy, which, in an effort to scale back federal water projects, proposed independent project review through plans prepared by basin-level committees.(197) Also from the Eisenhower Administration came OMB Circular A-47, the first uniform set of objective federal standards for the evaluation of water projects.(198) These proposals mirrored their predecessors' focus on river basins and basin drainage areas as logical-planning entities, but continued as well the underlying purpose of basin planning-to promote the development of water projects.(199) Like their cousins, these proposals were uniformly rejected by Congress, which preferred to continue approving individual projects on a case-by-case basis.
3. The Water Resources Planning Act of 1965
Perhaps due to the embryonic cooperative federalism of the 1960s and the growing recognition of water pollution as a major national concern, or perhaps due to the sheer persistence of its proponents, river basin planning finally attracted Congress's attention with the formation of the Senate Select Committee on National Water Resources in 1959.(200) The Committee's 1961 report proposed the now-familiar formula of comprehensive plans for the development and management of all major river basins, coordination of all federal water programs, increased federal-state cooperation, and consideration of both water quantity and water quality.(201) The Senate Committee recommendations were embraced by both Presidents Eisenhower and Kennedy,(202) but perhaps what distinguished this round of river basin proposals politically from all others was that they came from Congress--even if Congress simply borrowed freely from over a half century of previous ideas.(203) This joint push by Congress and both a republican and a democratic President, led to the first "comprehensive" national river basin legislation, the Water Resources Planning Act of 1965 (WRPA).(204)
The 1965 law begins with a broad statement of policy:
[I]t is hereby declared to be the policy of Congress to encourage the conservation,
development, and utilization of water and related land resources of the
United States on a comprehensive and coordinated basis by the Federal Government,
States, localities, and private enterprise with the cooperation of all
affected Federal agencies, States, local govemments, individuals, corporations,
business enterprises, and others concerned.(205)
Thus, the stated purpose of the law includes most of the themes promoted by river basin proponents since the turn of the century: planning for conservation, use, and development; a comprehensive approach to water policy; and improved cooperation and coordination among all levels of government and the private sector.(206)
Following these laudable goals of improved cooperation and coordination, however, came disclaimers and savings clauses that minimized substantially the promise of the law. In section 3, Congress prohibited any construction of the law that would a) expand, diminish, or otherwise modify the rights or responsibilities of any existing federal, state, or interstate water entity; b) alter the authority or responsibility of federal officials except to perform the planning functions of the law; or c) supersede, modify, or repeal any existing federal laws related to land and water development.(207) From the outset, Congress pronounced that this was a planning effort--not a change in the legal status quo.
Title I of WRPA created the Water Resources Council (WRC), comprised of the heads of federal departments and agencies,(208) to study national water requirements and supplies and the relationship of regional or river basin plans to the requirements of larger regions and the nation;(209) and to review and make recommendations to the President, for submittal to Congress, on the efficacy and effects of river basin plans submitted by the river basin commissions convened under Title II of the law.(210)
Title II authorized the President to establish river basin and related land resources commissions recommended by WRC or a state, with concurrence of half of the states within that basin.(211) Each commission was to develop "to the extent practicable, a comprehensive, coordinated, joint plan for Federal, State, interstate, local and nongovernmental development of water and related resources," with consideration of "all reasonable alternative means of achieving optimum development of water and related land resources of the basin or basins," and to transmit the plans to WRC for review and approval.(212) The commissions were composed of a federal chair appointed by the President, one member from federal agencies identified by the President, one member from each basin state (appointed by the Governor of that state), and members from relevant interstate or international agencies. Seven commissions were established for the following basins: the Pacific Northwest, Great Lakes, Souris-Red-Rainy, New England, Ohio, Missouri, and Upper Mississippi.(213)
Several aspects of WRPA are striking. As with earlier proposals, the Act was justified as a comprehensive approach to address all aspects of water policy, but focused primarily on optimum water resource use and development, with only passing mention of conservation or protection.(214) While the law purported to integrate and coordinate federal, state, and local water resource policies and decisions, it expressly declined any impact on existing federal, state, or interstate laws, compacts, or other authorities, regardless of consistency with the goals of the law or the outputs of the planning process.(215) While seeking to establish cooperative federal-state planning, the law's structure dealt all of the trump cards to the federal government.(216) Finally, while the law adopted WRC's Principles and Standards and their accompanying cost-benefit analysis (CBA) as a way to standardize the economic evaluation of water projects, many courts have refused to review agency CBAs under this authority,(217) and for many projects the result was "fixed" in any event by Congress's arbitrary adoption of a single discount rate in the Water Resources Development Act.(218)
These statutory flaws and other reasons have been cited to explain the failure of WRPA, WRC, and the Title II River Basin Commissions to induce significant change in national water po]icy.(219) The last WRC director bemoaned the reluctance of state and local governments and federal agencies to cede authority to regional or river basin entities, inadequate funding and commitment to implementation of the resulting basin plans, and the absence of basin commissions for many large areas of the country.(220) Others, however, realized that the development-oriented purposes of the law, carried over from the Progressive and New Deal Eras, made the "very purposes to be served by the [Act] obsolete or inadequate" due to the growing environmental concerns of the time.(221)
WRPA was never repealed. To the contrary, in section 209 of the CWA, the discretionary authority of the President to designate river basin commissions became mandatory for all basins in the country, with a statutory deadline of 1980.(222) Instead, WRC and all of the Title II Commissions were disbanded by President Reagan in 1981, more for reasons of fiscal qqqq
Region, in Watershed '93, supra note 2, at 873, 873. Similar citizen monitoring efforts are in place around the country. See Karen Firehock, The Save Our Streams (SOS) Program, in Watershed '93, supra note 2, at.447, 447-50. (160) WATER Quality 2000, supra note 11, at 5; see also Rubin, supra note 99, at 234. (161) In contrast to implementation of command and control principles, "there is far less need for coercion and formal social control when people voluntarily, or habitually, adhere to patterns of behavior." Robert G. Lee, Ecologically Effective Social Organization as a Requirement for Sustaining Watershed Ecosystems, in Watershed MANAGEMENT, supra note 7, at 73, 80. (162) LEOPOLD, Supra note 114, at 246, 258. The concepts of "individual and collective responsibility for water resources" and pollution prevention by all sectors of the economy were imbedded in the Water Quality 2000 recommendations in concert with watershed-based approaches. WATER Quality 2000, supra note 11, at 15-32. (163) Lee, supra note 161, at 79. (164) In a wonderful essay, Professor Eric Freyfogle described "place people" as individuals who
have roots to a particular spot, people who have the knowledge and sensitivity to note
evidence of illness and to challenge claims that degradation will bring overall good.
People who know a place intimately develop an emotional bond that transcends the
personal and the temporary. . . . Place people are most likely to sense that the land is
not simply a tool, not simply something to put to use according to our latest economic
Eric T. Freyfogle, Ownership and Ecology, 43 CASE W. RES. L. Rev. 1269, 1291 (1993). (165) Introductory Letter from Vice-president Al Gore to the Participants of Watershed '93 (Mar. 24, 1993), in Watershed '93, supra note 2, at xxi. (166) A number of histories have been written on water resource programs in the United States. Among the most detailed accounts are BEATRICE HORT Holmes, U.S. DEP'T OF AGRIC., Pub. No. 1233, A History oF FEDERAL WATER RESOURCES PROGRAMs, 1800-1960 (1972) [hereinafter HOLMES, 1800-1960 History], and BEATRICE HORT HOLMES, U.S. DEP'T oF Agric., PUB. No. 1379, HISTORY OF FEDERAL WATER RESOURCES PROGRAMS AND Policies, 1961-1970 (1979). Many more concise versions e3dst as well. See Norman Wengert, A Critical Review of the River Basin as a Focus for Resources, Planning, Development, and Management, in Unified MANAGEMENT I, Supra note 3, at 9, 9-24; Warren D. Fairchild, A Historical Perspective on Watershed Management in the United States, in Watershed '93, supra note 2, at 5, 5-10; Amy Doll, Evolution of Watershed Planning and Management in National Water Policy, in WATERSHED '93, supra note 2, at 107, 107-113; Aquatic RESTORATION, supra note 2, at 41-54; Allee et al., supra note 89, at 11, 11-17; ARNOLD, Supra note 96; Ingram, supra note 31, at 10-11; Theodore M. Schad, Past, Present, and future of Water Resources Management in the United States, in WATER MANAGEMENT, supra note 86, at 1, 1-8. Former Water Resources Council Director Theodore Schad relates how interstate agreements to resolve disputes over interstate waters predate the Constitution. Schad, supra, at 1. George Washington-retired from public service after the war for independence-invited representatives from Maryland and Virginia to Mount Vernon to resolve disputes over tolls levied by Maryland against navigational users of the Potomac River. The ensuing compact was the "first institutional manifestation of water resources management in the United States." Id.; see also WATER QUALITY 2000, supra note 11, at 13 (historical overview of water resources planning in the United States).
Early federal water projects were controversial and the federal role in water policy expanded only gradually. Many believed that the federal government was prohibited from spending funds that would provide benefits only to discrete populations. See Schad, supra, at 2; Dworsky & Allee, supra note 87, at 31; ARNOLD, supra note 96, at 4. The Supreme Court resolved this constitutional dispute by ruling that Congress could regulate navigation as part of its authority to regulate interstate and foreign commerce. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 216 (1824) (construing Article I, section 8 of the U.S. Constitution). The federal role was limited during the 19th century mostly to regional flood control programs, including the Swamp Lands Acts, 43 U.S.C. [subsections] 981-994 (1984), in which Congress ceded lands to states for reclamation and sale for private use, with proceeds to be used to build flood controls. See Leovy v. United States, 177 U.S. 621 (1900); Schad, supra, at 2-3; Dworsky Allee, supra note 87, at 32; Aquatic RESTORATION, supra note 2, at 41; ARNOLD, supra note 96, at 3, 5-6, 8-9. These laws began a long history of programs to "develop" water resources at the ultimate expense of aquatic ecosystem health. Some still laud the Swamp Lands Act for putting millions of acres of swamp lands to "productive agricultural use," ARNOLD, supra note 96, at 5-6, not realizing that filling these wetlands would exacerbate--not prevent--flooding, and destroy other environmental values as well. (167) The three categories of watershed programs borrow from, but for various reasons are organized and analyzed differently than, Wengert's "three eras" of water resource management. See Wengert, supra note 166, at 9-24 "identifying the "three eras" as 1900-1933, 1933-1965, and 1965-1990). Wengert's "three eras" are borrowed thereafter by many analysts, including Professor Goldfarb. See Goldfarb, supra note 8, at 486-89. (168) Schad, supra note 166, at 3; Wengert, supra note 166, at 11; Rutherford H. Platt, Geographers and Water Resource Policy, in WATER ADMINISTRATION, Supra note 3, at 36, 37-38. Platt credits George Perkins Marsh as well, but notes that Marsh championed a preservation ethic while Powell promoted what would become the Progressive Era's conservation doctrine of "wise use" of land and water resources. Platt, supra, at 37. For a more colorful account, see REISNER, supra note 105, at 34-51. (169) 43 U.S.C. [subsections] 372-600e (1988 & Supp. V 1993). (170) 16 U.S.C. [subsections] 791a-823b (1994). (171) 33 U.S.C. [subsections] 701-709b (1988 & Supp. V 1993). (172) Schad, supra note 166, at 3; Wengert, supra note 166, at 1 1; ARNOLD, supra note 96, at 12; WATER Quality 2000, Supra note I 1, at 13; Doll, supra note 166, at 107; Aquatic RESTORATION, supra note 2, at 42-43. Congress authorized but never organized the Newlands Commission--named after Nevada's Senator Francis Newlands, author of the 1902 Reclamation Act--because World War I preoccupied President Wilson and Senator Newlands died shortly thereafter. ARNOLD, Supra note 96, at 15; WATER QUALM 2000, supra note 11, at 13; Don, supra note 166, at 107. (173) Though developed in the early 1900s, "[m]any of the recommendations of the reports of the Inlands Waterways Commission in 1908 and the National Conservation Commission in 1909 are as pertinent today as when they were first released. . . ." Schad, supra note 166, at 3. These proposals would have put us "well on the way to a comprehensive water resources management program." Id. (174) The argument for a basin planning approach is not new; what is new is the goal of comprehensive aquatic ecosystem restoration and protection. AQUATIC RESTORATION, supra note 2, at 356-57. (175) Schad, supra note 166, at 3. (176) Id.; Doll, supra note 166, at 107; ARNOLD, supra note 96, at 12; Wengert, supra note 1661 at 11. One proponent of watershed planning was Senator Newlands, who was described as "the indefatigable proponent of a multipurpose inland waterways program that would encompass flood control, navigation, water power, and irrigation." ARNOLD, supra note 96, at 11. (177) Schad, supra note 166, at 3; Doll, supra note 166, at 107; see also WATER QUALITY 2000, supra note 11, at 13. (178) ARNOLD, supra note 96, at 11-13; Schad, supra note 166, at 3-4; Wengert, supra note 166, at 11. (179) 16 U.S.C. [sections] 803(a) (1994). (180) Schad, supra note 166, at 4; ARNOLD, supra note 96, at 15. (181) 33 U.S.C. [sections] 701 (1988) (repealed 1994). (182) Schad, supra note 166, at 4; ARNOLD, supra note 96, at 15-16, 80-82; Wengert, supra note 166, at 11; Doll, supra note 166, at 108. (183) Congress received the reports and recommendations in H. TAYLOR & O.C. MERRILL, ESTIMATE OF COST OF EXAMINATIONS, Etc., oF STREAMS WHERE POWER DEVELOPMENT APPEARS FEASIBLE:, H.R. Doc. No. 308, 69th Cong., 1st Sess. (1926). Holmes, 1800-1960 HISTORY, supra note 166, at 11. (184) ARNOLD, supra note 96, at 17. (185) Doll, supra note 166, at 108. (186) ARNOLD, supra note 96, at 16. Arnold acknowledges that other water resource professionals dispute this view. Id. at 81-82. (187) Schad, supra note 166, at 4 (asserting the plans "could hardly be considered as advancing the science of water resources management as they focused almost entirely on structural water resources development projects"). Schad acknowledges that the 308 reports led to basinwide approaches in the Tennessee River Basin, through the Tennessee Valley Authority, and in the Columbia River Basin. Id. Of course, the massive programs of dam construction and resulting. environmental alteration in those basins hardly stand as a testament to the ultimate wisdom of those approaches. (188) Doll, supra note 166, at 108. (189) Schad, supra note 166, at 4; Wengert, supra note 166, at 12-13; Aquatic RESTORATION, supra note 2, at 4243; Dworsky & Allee, supra note 87, at 37-39; Doll, supra note 166, at 108. (190) Wengert, supra note 166, at 12. (191) President Franklin Roosevelt, Message to Congress (June 3, 1937), quoted in Dworsky & Allee, supra note 87, at 38. (192) Wengert, supra note 166, at 12-13, 18-19; ARNOLD, Supra note 96, at 23-24; Doll, supra note 166, at 108. (193) See infra notes 511-21. (194) The NRPB itself was attacked as "un-American" and was eliminated in 1942. Wengert, supra note 166, at 13. TVA, by contrast, succeeded because it "managed the politics of support well." Id.; see also Ingram, supra note 31, at 15 (explaining TVA's strategy of catering to local and private interests to muster support for its programs). Similarly, Congress abandoned the NRC in 1943 as "part of a general reaction against the whole concept of centralized federal planning in which the rivers-harbors-flood control bloc was only one factor." ARNOLD, supra note 96, at 92 (footnote omitted). (195) One observer described the increased attention given to river basin planning as the "flowering of the river basin focus" following World War II. Wengert, supra note 166, at 13. (196) This proposal is particularly notable for its introduction of a cooperative federal-state planning process, rather than one dominated by federal agencies or commissions. Doll, supra note 166, at 109; Schad, supra note 166, at 4. (197) Doll, supra note 166, at 109i WATER QUALITY 2000, supra note 1 1, at 13; Schad, supra note 166, at 4; Wengert, supra note 166, at 13-14. (198) Doll, supra note 166, at 109; Schad, supra note 166, at 4. (199) Wengert, supra note 166, at 14 ("No talk here of environmental preservation, of ecological balance, of optimization, of B/C ratios, just maximum development!"). The possible exception was the Eisenhower Committee, which for reasons of fiscal conservatism wanted to use basin planning to reduce federal water project spending. (200) WATER Quality 2000, supra note 11, at 13. (201) Id.; Doll, supra note 166, at 109; Schad, supra note 166, at 7; Allee et al., supra note 89, at 23. (202) Allee et al., supra note 89, at 23; WEATHERFORD, supra note 3, at 8 (noting that John F. Kennedy proposed 150 comprehensive river basin studies and comprehensive plans); Doll, supra note 166, at 109. (203) As noted in the Senate Report on S. 1111, the Water Resources Planning Act of 1963, the "Nation had for 55 years unsuccessfully sought a formula for comprehensive river basin planning." S. REP. No. 668, 88th Cong., 1st Sess. 3 (1963), quoted in Allee et al., supra note 89, at 23. (204) Pub. L. No. 89-80, 79 Stat. 244 (1965) (codified as amended at 42 U.S.C. [sections] 1962 (1988 Supp. V 1993)). (205) 42 U.S.C. [sections] 1962 (1988). (206) A 1970 amendment to the Flood Control Act of 1970 added the following statement of Congressional objectives:
It is the intent of Congress that the objectiv-es of enhancing regional economic development, the quality of the total environment, including its protection and improvement, the well-being of the people of the United States, and the national economic development are the objectives to be included in,federally financed water resource projects, and in the evaluation of benefits and cost attributable thereto, giving due consideration to the most feasible alternative means of accomplishing these objectives. Pub. L. No. 91-611, [sections] 209, 84 Stat. 1818, 1829 (1970) (codified at 42 U.S.C. [sections] 1962-2 (1988)). (207) 42 U.S.C. [sections] 1962-1(a)-(c) (1988). This section also prohibits the use of the law to study interbasin transfers. Id. [sections] 1962-1(d), (208) Membership in WRC originally included the Chairs of the FPC and the Secretaries of the following Departments: Interior; Agriculture; Army; and Health, Education, and Welfare (HEW). Later, Congress added the Secretaries of Housing and Urban Development; Commerce; and Transportation. Congress also substituted the EPA Administrator for the Secretary of HEW, and the Secretary of Energy for the FPC Chairman. See id. [sections] 1962a, see also 42 U.S.C.A. [sections] 1962a Historical and Statutory Notes (West 1988). (209) 42 U.S.C. [sections] 1962a-l (1988). (210) Id. [sections] 1962a-3. Title I also directed WRC to establish the "principles, standards, and procedures" for federal participation in the pr-eparation of comprehensive regional or river basin plans, and standards and criteria for economic evaluation of water projects similar to those introduced in OMB Circular A47. Id. [sections] 1962a-2. For a brief history of the "Principles and Standards," see Doll, supra note 166, at 111-12. (211) 42 U.S.C. [sections] 1962b (1988). (212) Id. [subsections] 1962b(b)(2), 1962b-3. (213) Doll, supra note 166, at 111. (214) The hortatory statement of policy identifies the following as goals: "conservation, development, and utilization." 42 U.S.C. [sections] 1962 (1988). The plans themselves, however, were to achieve "optimum development of water and related land resources," id. [sections] 1962b(b)(2), and WRC was to review each plan "with special regard to" this utilitarian goal as well as the effect of the plan on "other programs for the development" of national resources, id. [sections] 1962a-3. (215) See supra text accompanying note 207. (216) Federal officials chaired the commissions and federal agency members dominated. In addition, the plans themselves needed approval first by WRC, then by the President, and then finally by Congress. 42 U.S.C. [sections] 1962a-3 (1988). Note, though, that Executive Order delegated that presidential function to the Chairman of WRC. Exec. Order No. 11,747, 38 Fed. Reg. 30,993 (Nov. 9, 1973), amended by Exec. Order No. 12,608, 52 Fed. Reg. 34,617 Sept. 14, 1087). (217) The rationale typically was that Congress accepted the results of a CBA when it authorized funding for the project-another manifestation of the distortions caused by Congress's project-specific approval process. See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 380 (D.C. Cir. 1981) (denying review under WRPA but allowing review under the National Environmental Policy Act (NEPA)), cert. denied, 454 U.S. 1092 (1981); Environmental Defense Fund v. Marsh, 651 F.2d 983, 1001 (5th Cir. 1981) (holding that EDF could not challenge the accuracy of the Corps's CBA for a navigation project). (218) 42 U.S.C. [sections] 1962d(17)(b) (1988) (legislatively ratifying previous administrative interest rate for projects authorized before January 3, 1969, if nonfederal interests agreed to pay the relevant local share of costs). For cases consistent with this view, see Environmental Defense Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 492 F.2d 1123, 1134 (5th Cir. 1974); Enos v. Marsh, 616 F. Supp. 32,49 CD. Haw. 1984), affd, 769 F.2d 1363 (9th Cir. 1985); Mardis v. Big Nance Creek Water Mgmt. Dist., 578 F. Supp. 770, 776 (N.D. Ala. 1983), affd, 749 F.2d 732 (11th Cir. 1984); Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp. 742, 760 (N.D. buss. 1980). However, for cases holding that realistic interest rates must be included for purposes of NEPA, see Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1499 (9th Cir. 1987), rev'd in part on other grounds, 490 U.S. 360 (1989); Johnston v. Davis, 698 F.2d 1088, 1092 (10th Cir. 1983); Environmental Defense Fund v. Marsh, 651 F.2d 983, 1001 (5th Cir. 1981); Atchison, T. & S.F. Ry. v. Callaway, 480 F. Supp. 972, 978 (D.D.C. 1979); see also Alabama ex rel. Baxley v. Corps of Eng'rs of the U.S. Army, 411 F. Supp. 1261, 1267 (N.D. Ala. 1976) (applying larger interest rate identified by WRC when project not authorized on time). One analyst noted that the Principles and Standards required more extensive project scrutiny "in theory if not in fact." Viessman, supra note 87, at 42. (219) Allee et al., supra note 89, at 25. While the Act attempted "to give a degree of unity and consistency to the river basin concept. . . ., the processes of disintegration and fragmentation" began almost immediately after enactment and thus WRPA "did not measurably improve regional integration and coordination." Wengert, supra note 166, at 21-22. An analyst who worked with the New England River Basin Commission agreed, but also made a broader point, noting that the commissions were responsible for linking basin managers with basin constituencies, although the practice was more limited to attempted coordination between managers. Harrison, supra note 156, at 436. (220) Eisel, supra note 3, at 45-46; see also Allee et al., supra note 89, at 25 (claiming all levels of government are reluctant to relinquish authority to regional river basin entities "for the purpose of unified river basin management and planning"); Harrison, supra note 156, at 429 (discussing how efforts to achieve better integrated watershed management in the Connecticut River Basin and Chesapeake Bay "have been thoroughly frustrated"). Ironically, just one year before WRC and the Title II River Basin Commissions were disbanded, Eisel continued to express optimism that "we will continue to do planning in the 1980's and . . . we will attempt more comprehensive unified river basin management than in the past." Eisel, supra note 3, at 46. (221) Allee et al., supra note 89, at 24; Aquatic RESTORATION, supra note 2, at 44 (discussing WRPA's exclusive focus on hydrology and water supply rather than broader environmental concerns). (222) Section 209 states: "The President, acting through the Water Resources Council, shah, as soon as practicable, prepare a Level B plan under the Water Resources Planning Act for afl basins in the United States. All such plans shall be completed not later than January 1, 1980. . . ." 33 U.S.C. conservatism than because of perceived policy flaws.(223) Some suggest that WRC or something like it be resurrected as the framework for a renewed watershed management program in the 1990s.(224) However, given the flawed language and structure of WRPA and its virtually complete failure to achieve its stated objectives, it probably deserves to be buried gracefully in the "watershed legislation graveyard" along with the earlier Progressive and New Deal Era proposals.
This does not mean that WRPA served no useful purpose. In 1973, WRC issued a report lauded to this day for its reiteration of previous watershed proposals, for its new ideas that still continue to invigorate watershed programs, and for its changes to antiquated water policies.(225) The report found, for example, that 1) many current water programs had out-lived their usefulness and needed significant changes, 2) water project users (including irrigation and navigation users) should pay full costs, 3) responsibility for flood control should shift to beneficiaries, 4) increased future water demand was not inevitable, but could be addressed through water use efficiency, 5) priorities should shift from water resources development to restoration 6) water resources planning should be tied more closely to land use planning, and 7) the development, management, and protection of water resources should be controlled by the level of government closest to the problem and most capable of representing the interests involved.(226)
B. The Stolen Legacy of Watershed Management for Water Resources Use and Development
Perhaps more harmful than the rejection of basinwide planning was the abduction of the watershed concept to justify mission-oriented water development programs, as reflected in statutes such as the Reclamation Act, the Federal Power Act, and federal navigation and flood control laws. In part, this history is explained by the prevailing Progressive Era view that we could build our way out of almost any problem, with engineers revered in American society then as only rock stars and sports heroes are today.(227) The Corps and BOR filled an open niche because they developed a cadre of trained irrigation and civil engineers.(228) Purported watershed efforts were driven by agency missions,(229) leading to the triumph of such utilitarian goals as navigation, irrigation, water supply, flood control, and hydropower.(230)
In part, this result is explained by raw politics. The earliest federal water programs were dominated by log-rolling and pork-barrel politics,(231) a trend that permeated water policy throughout the century(232) and continues to this day.(233) The pork-barrels held massive water project subsidies, often with questionable economic merit,(234) a phenomenon that was not checked by the imposition of CBA or other facially objective methodologies.(235) As a result, water decisions have been made neither by "objective" scientists or engineers nor through comprehensive basinwide or watershed planning. Instead, "[w]ater management policies are inextricably linked to politics. They are the products of political dynamics. On the federal side, the iron triangle of agencies, Congressional Committees, and local interests, has long been a political force in water resources decision making."(236)
Due both to fiscal realities and increased environmental concerns, many agencies now claim to have reformed.(237) Some of the mission-oriented federal water statutes have been modified to give increased attention to environmental concerns. While this trend is promising, given differences in administration policies, its longevity is hardly guaranteed absent fundamental changes in the laws that have driven utilitarian water programs. It is useful, then, to examine the major water resource development laws for two reasons: 1) to evaluate whether past reforms have been substantial or cosmetic, and which reforms hold some promise for watershed restoration and protection programs; and 2) to identify additional changes necessary to ensure that future watershed restoration and protection programs are not subverted as they have been in the past.
1. The Reclamation Act of 1902
The Reclamation Act of 1902(238) epitomizes the legislative manifestation of the Progressive Era philosophy of maximizing the use and development of water resources.(239) The Act was passed to "open the arid west to irrigated farming and the accompanying economic development," and its "overriding goal ... was to foster the creation of small, family-sized farms in areas irrigated by federal projects."(240) The original "bargain" created by the Act was that the federal government would finance and build dams and diversions for irrigation purposes that local settlers or states could not otherwise afford, but would "get out" after the project was paid off.(241) This temporary arrangement became permanent, however, because payback schedules were extended repeatedly(242) and the law was expanded to include other purposes, such as hydropower and municipal and industrial water supply, which ensured continuing BOR participation in project operation.(243)
The Act has been widely criticized for failing to achieve its goal of supporting only small family farms,(244) promoting inefficient water use because of the highly subsidized water prices,(245) and causing extensive environmental damage.(246) Several key features of the law adopted the Progressive Era concept of maximum water resource development while shunning the related idea of comprehensive, integrated planning. From the start, the purposes of the law were stated in utilitarian terms.(247) The Act also announced the federal version of the beneficial use tenet in western water law,(248) one aspect of the prior appropriation doctrine believed by many to be responsible for a wide range of water resource problems in the West, including inefficient use and widespread dewatering of aquatic ecosystems.(249) This federal statement of the beneficial use doctrine was amplified by the Act's express reservation of individual state law as governing the "control, appropriation, use, or distribution of water,"(250) given that all western states use the prior appropriation doctrine in some form.(251) This decision(252) to leave water allocation in state control of traditional beneficial users the presumptive winners in the allocation of water from federal reclamation projects, leaving instream uses(253) well behind. Finally, Congress announced that projects would be selected by Congress on a case-by-case basis.(254) This statutory articulation of the pork-barrel method of water project approval spumed the notion that water resource decisions should be made based on comprehensive, integrated planning. Indeed, the Reclamation Act itself was followed by a large number of program-specific statutes designed to authorize construction of individual reclamation projects throughout the West.(255) Like their parents, these progeny were characterized primarily by utilitarian missions(256) and expressly reserved state water rights.(257)
Over time, given increased opposition to expensive water projects and growing concern over the environmental impacts of existing projects, Congress added provisions to various reclamation laws to mitigate environmental impacts and add recreation and fish and wildlife, benefits as legitimate project purposes and uses.(258) These changes have promised to mitigate some of the environmental harms from past projects.(259) There are several obstacles, however, to the use of these provisions as adequate vehicles for watershed restoration and protection. Environmental amenities generally appear to be subsidiary to primary project purposes.(260) Aquatic restoration biologists criticize general requirements for fish and wildlife "mitigation," and especially "recreation," because they are typically implemented by water development agencies with discrete structural fixes such as hatcheries, artificial habitat "improvements," and recreational fishery or fishing access projects, none of which restore the hydrological and biological integrity of the ecosystem.(261) Finally, so long as reclamation projects operate under the constraints of state water law, which favor existing offstream water uses, instream aquatic restoration efforts will suffer.
2. The Federal Power Act of 1920
Congress's next major foray into water resources management came with the Federal Power Act of 1920 (FPA),(262) which created the Federal Power Commission (now the Federal Energy Regulatory Commission (FERC))(263) to Consolidate the licensing of water projects on navigable waters and federal lands for purposes of hydroelectric power or navigation.(264) Like the Reclamation Act before it, the FPA was a development-oriented, utilitarian statute.(265) While navigation is mentioned with apparently equal standing, the main purpose of the law was to promote and regulate the development of water power.(266)
In one sense, the FPA was the first statutory embodiment of the idea that water resources should be planned and managed comprehensively and not on a project-by-project basis. As originally written in section 10(a) of the law, the basic criterion for issuance of an FPA license was that a proposed project "in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes.(267) This view is undercut, however, by a number of factors. Congress enacted the FPA instead of the far more comprehensive Newlands Commission proposal,(268) and the "comprehensive plans" envisioned by section 10(a) never materialized.(269)
The lack of a truly comprehensive approach is reflected in several aspects of the law. Congress assigned the envisioned, comprehensive planning to a single entity whose predominant mission was power development.(270) In addition, the FPA did not provide for coordination with other agencies or uses.(271) While the law plainly states that projects must be licensed in accordance with comprehensive plans for river-wide development, it does not establish a comprehensive planning process to consider the full range of potential river uses and values, except for a vague call for the Commission "[t]o make investigations and to collect and record data concerning the utilization of the water resources of any region to be developed."(272) As a result, the Commission has operated in a project-by-project mode, only considering the impacts of single projects on whole river basins under rare circumstances or when forced to do so by litigation.(273)
Like the Reclamation Act, the FTA reserves issues involving proprietary water rights to the states.(274) This poses a potential conflict between the authority of the Commission to provide for the "comprehensive" development of a waterway and the concurrent authority of a state to allocate water rights. Notably, however, the Supreme Court has interpreted the nearly identical savings provisions of the two laws as having different breadth,(275) and recently reached still a different conclusion in the context of the CWA.(276) Even if the different results under the three federal statutes can be reconciled based on differences in statutory language and intent, the resulting system--under which federal and state authority depend on the nature of the water project and the law in question--hardly promotes the idea of "comprehensive" or unified river basin management.
Until recently, the criteria used to judge projects included scant reference to environmental values, including only "other beneficial uses, including recreational purposes."(277) Only rarely has this language been used to require consideration of environmental values in deciding whether to license a project. The most notable example is Justice William Douglas's opinion in Udall v. Federal Power Commission,(278) but this case appears to have had little impact on the success of hydropower applicants in obtaining licenses under the FPA, and only minimal impact on the ability of environmental groups and states to impose environmental conditions on FERC licenses.(279)
Congress in 1986 amended the FPA to enhance consideration of fish and wildlife and environmental values.(280) In particular, Congress added a "parity" provision to FPA's section 4(e):
In deciding whether to issue any license under this Part for any project, the
Commission, in addition to the power and development purposes for which
licenses are issued, shall give equal consideration to the purposes of energy
conservation, the protection, mitigation of damage to, and enhancement of,
fish and wildlife (including related spawning grounds and habitat), the protection
of recreational opportunities, and the preservation of other aspects of environmental
The full impact of these amendments is not yet clear. Apparently, this language has neither helped states to impose additional environmental conditions on FERC licenses under the FPA,(282) nor environmental groups to oppose projects on environmental grounds.(283) According to some commentators, similar "parity" language in the Pacific Northwest Power Planning and Conservation Act (Northwest Power Act)(284)--with far stronger implementing procedures--has not produced expected gains for fish and wildlife relative to power production.(285)
3. Federal Rood Control Laws
a. Historical Background
Federal flood control legislation provides perhaps the best example of how efforts to promote comprehensive basin planning were kidnapped and converted into single-agency, mission-driven construction programs. Most analysts agree that Congress's response to the flood control issue resulted in an expensive, poorly-coordinated program of questionable effectiveness.(286) Congress's efforts focused on engineered river control over watershed protection and hardly serve as a model for watershed-based management.
A detailed history of the original Flood Control Act of 1936,(287) written by an historian for the Corps, reports constant feuding between various federal agencies, boards, and commissions--including the Corps, Soil Conservation Service (SCS), and New Deal entities like the National Resources Commission (NRC), Water Resources Commission (WRC), and NRPB--over flood control policy, authority, and funding.(288) The primary dispute was whether to base flood control policy on comprehensive river basin management, continue the single-purpose approach begun with the Reclamation and Federal Power Acts, or "combin[e] watershed soft conservation programs with the more traditional structural approaches to flood control."(289) Related conflicts arose over control of the program and how costs should be divided among federal, state, and local interests.(290) President Franklin Roosevelt agreed with advocates of a comprehensive, multipurpose approach, based on his belief that soil conservation and reforestation were linked to, and could significantly reduce, flooding.(291) Others in the executive branch resisted, arguing that the Corps's 308 reports were sufficient, with some supplementation, to support a national flood control program administered by the Corps.(292) Based on these reports, the Corps fed Congress proposals for numerous water projects, complete with cost-benefit ratios.(293)
The Corps was successful in its dealings with Congress for several reasons. First, consistent with earlier actions, "Congress showed little interest in a coordinated multipurpose water resources program."(294) Second, an increased frequency and severity of floods during the 1930s (and related loss of life and property damage) generated massive public pressure for federal action.(295) Third, the Corps's project-by-project approach was consistent with Congress's propensity to dole out money for individual projects benefitting specific regions.(296)
NRC and WRC, true believers in comprehensive water planning and management, urged the President to oppose single-purpose flood control bills as "thoroughly rotten" pork-barrel legislation.(297) SCS Was also among the strongest proponents of a comprehensive, watershed-based approach that combined structural flood control measures with "upstream engineering"--the the so-called "little waters" approach.(298) SCS, however, sought a middle ground. And rather than opposing the bill outright, U.S. Department of Agriculture (USDA) Secretary Henry Wallace pushed for inclusion of erosion control and reforestation efforts, with joint study and control by the Corps and SCS.(299) On the strength of this compromise, and given the intense grass-roots lobbying for immediate flood control, a bill passed both houses easily and was signed by the President.(300)
Congress divided flood control authority between the Corps for structural flood control and SCS for investigation of watersheds and implementation of erosion and runoff control measures.(301) But SCS largely converted even this effort into its own construction program.(302) Douglas Helms, chief historian for SCS, explains how SCS, unsure of its legal authority to build even small retarding structures, lobbied Congress for construction authority by downplaying the value of land treatment measures relative to structural flood controls.(303) Ultimately, this shift and additional program delays led to passage of the Watershed Protection and Flood Prevention Act of 1954,(304) under which SCS was given separate authority to build flood control projects in small watersheds.(305) While the 1954 law included far more watershed focus than the 1936 Act, SCS nevertheless shifted from watershed planning and management to flood control engineering and construction.(306)
The results of this historical treatment of water policy included the segregation of flood control from other aspects of water policy, another victory for water project construction over comprehensive watershed management, and the division of federal flood control authority between two poorly coordinated agencies. The specific provisions and workings of the two laws are explored below.
b. The 1936 Flood Control Act
The 1936 Flood Control Act provided to some degree for comprehensive watershed study and planning.(307) The purposes of this supposedly comprehensive analysis, however, were limited to the 'extent and character' of the area of project impact, the "probable effect upon any navigable water or waterway," the potential for hydropower and other economic development, and "such other uses as may be properly related to or coordinated with the project."(308) Aside from the narrow statement of purposes, earlier implementation of this provision in the Corps's 308 reports led not to comprehensive watershed analysis, but to the identification of discrete projects.
The Act permitted, but did not require, interagency coordination and cooperation.(309) Even when this provision caused the agencies to consult, it did not force consensus. Instead, the Corps was simply required to forward the views of other agencies to Congress along with the Corps's recommendations.(310) This began a period of similar "consultation" provisions under which the Corps (or other project proponent agencies) was required to attach dissenting views along with the main report.
Aside from these small concessions to comprehensive planning, the 1936 Act included most of the utilitarian features of the Reclamation Act and the Federal Power Act. The purposes of section 1 of the Act underscore the fundamental engineering philosophy of the law.(311) Consistent with the belief that natural problems could be solved through engineering, the law called for flood protection by "improving" waterways; it did not promote modification of land uses that exacerbate erosion and runoff, much less restoration of natural land and water functions and interactions.(312)
Section 1 also embraced legislatively, for the first time, a specific requirement that project benefits exceed project costs.(313) Despite the necessity for the Corps to perform a cost-benefit analysis (CBA), Congress retained principal authority to decide on a case-by-case basis which projects should be funded.(314) And, as discussed above, CBA did not, in the view of many experts, ensure that only "beneficial" projects were built.(315) The accountability provided by this requirement was further limited because courts refused to review CBAs under the Flood Control Act after Congress approved a project.(316)
Finally, Congress retained some, but not all, of the aspects of federal-state relations included in the Reclamation and Federal Power Acts. As amended in 1944, the law provides that it is "the policy of the Congress to recognize the interests and rights of the States in determining the development of the watersheds within their borders and likewise the interests and rights in water utilization and control."(317) While stating this general goal of preserving state water and land use rights, however, the express reservation of water rights in the Flood Control Act is limited to states west of the ninety-eighth meridian.(318) The mechanism for addressing state concerns is similar to that afforded federal agencies--if the Corps disagreed with a state concern, it merely transmitted the state views to Congress along with its own report.(319)
Departing from the strict subsidized nature of previous federal water project legislation, however, the Flood Control Act introduced the concept that state and local beneficiaries should pay a fair share of project costs tied to the value of benefits received.(320) In theory, this would reduce the incentive for purely pork-barrel project construction. Congress quickly repealed this provision in 1938, however, thus providing one hundred percent federal funding for flood control projects.(321) The pendulum per-day shifted in 1941, but in a way that did more harm than good. Congress restored the cost-share requirement only for channel improvements,(322) which in effect gave local interests a bias towards reservoir plans."(323)
c. The 1954 Watershed Protection and Flood Prevention Act and Its Antecedents
The SCS "small watersheds program" grew out of USDA's role in implementing the watershed component of the 1936 Flood Control Act. The evolution and implementation of the 1954 law, however, must be understood in the context of SCS's origins. SCS was created first as a temporary New Deal agency, the Soil Erosion Service, in 1933, but was established permanently in 1935 by the Soil Conservation and Domestic Allotment Act.(324) Finding that the massive soil erosion of the dust bowl era posed a "menace to the national welfare," Congress authorized USDA (through SCS) to conduct a national program of soil erosion prevention through "engineering operations, methods of cultivation, the growing of vegetation, arid changes in use of land."(325)
SCS was given authority to develop erosion controls on federal lands and on private lands with the consent of the landowner.(326) The Act authorized SCS to award grants to landowners on condition that certain land use and erosion control practices were observed.(327) While the program is complex and has been amended repeatedly,(328) its basic nature has not changed in six decades. Areas are eligible for benefits based on demonstrated soil erosion problems(329) and are distributed through local committees which, although not necessarily organized on a watershed basis, operate cooperatively at the local level.(330)
Thus, from the outset, the SCS legislative mandate, outlook, and mode of operation were fundamentally different from that of the Corps or BOR. While SCS's authority included engineering, it also embraced revegetation and land use controls as equal partners. Perhaps more important, the basic manner in which SCS was to operate created a far different type of program and a lasting SCS culture based on ground-level cooperation at the local level, largely through voluntary participation encouraged by cost-sharing and technical assistance. As noted recently by a representative of the National Watershed Coalition, "[t]his is probably the strongest feature of the [small watershed] program. It is a locally sponsored and developed program, not a federal program where government engineers come in and tell the local people what they need.... Being locally sponsored, corrective measures can be installed voluntarily."(331) The efficacy of voluntary programs, of course, depends on the amount of funding available, voluntary participation rates, and actual compliance with, and effectiveness of, the management measures required as a condition of grant assistance.(332)
Experience with this land-based program led to SCS's early support, during the flood control debates of the 1930s, for watershed-based, non-structural approaches to flood control.(333) Early SCS officials believed strongly in the link between erosion and flooding.(334) As a result, SCS developed a series of practices called "land treatment," which included terraces, grassed waterways, contour plowing, stripcropping, longer crop rotations, and improved pastures and woodlands with controlled grazing to maintain healthy ground cover.(335)
The 1954 Flood Control Law incorporated many of these ideas, giving it and SCS a broader scope and somewhat more of a watershed focus than the 1936 Act. This moderately different emphasis is reflected in the law's statement of policy:
Erosion, floodwater, and sediment damages in the watersheds of the rivers and streams ... constitute a menace to the national welfare ... [and) the Federal Government should cooperate with States and their political subdivisions, soil or water conservation districts, flood prevention or control districts, and other local public agencies for the purpose of preventing such damages, of furthering the conservation, development, utilization, and disposal of water.(336) Similarly, the purposes of the authorized "works of improvement" are stated broadly as: "(1) flood prevention (including structural and land treatment measures), (2) the conservation, development, utilization, and disposal of water, or (3) the conservation and proper utilization of land."(337) As of 1993, SCS reported that programs authorized under the small watershed program exhibited a diverse range of objectives, although flood control remains predominant.(338)
A second difference between the Corps's authority under the 1936 Act and the SCS watershed program is that rather than just "consulting" state and local governments, the 1954 law emulates the soil conservation program by working formally through local organizations(339) to plan and implement watershed flood control programs approved by the state,(340) although subject to federal program conditions.(341) Combined with the limited size of watershed programs and structural projects,(342) this means that SCS implements the 1954 law on a much smaller and inherently more cooperative basis than the larger Corps flood control projects.(343)
In contrast to the 1936 Act, the quid pro quo for this enhanced state and local role was the express adoption of state and local cost-sharing as a tenet of the small watershed program.(344) Because they rely less on federal subsidies, this positive feature presumably helps to assure that small watershed programs are designed efficiently and effectively. On the other hand, the antithetical approaches to cost-sharing in the two laws may present an inherent bias in favor of the Corps's structural engineering approach to flood control. Faced with a choice between nearly one hundred percent federal funding for Corps dams and channelization projects, and fifty percent funding for SCS watershed programs, a state or locality might balk at adopting the SCS program, however preferable it may otherwise be.
d. The Legacy of Flood Control and the National Flood Insurance Program
Advocates cite massive benefits that have accrued from structural flood controls around the country.(345) An Assistant Secretary of the Army for Civil Works wrote:
The hundreds of reservoir, levee, and channelization projects that resulted from the 1936 act and subsequent amendments have literally changed the face of the nation. The projects have contributed to both the growth of towns and the protection of rural farmlands. Secondary purposes, such as recreation and water supply, have become more important to an increasingly urbanized nation. There are few areas of the United States that have not received the benefits of these flood control projects.(346) undoubtedly, it is true that federal flood control efforts have saved many lives and much property, especially for communities already established in flood-prone areas.(347)
However, many experts take a far less rosy view of the program. The massive number of dams, reservoirs, and impoundments, and thousands of miles of levees and channelization projects have severely impaired the hydrological and biological integrity of the nation's rivers, streams, lakes, and estuaries.(348) The 1936 Flood Control Act and, to a lesser extent, the 1954 watershed law, have contributed substantially to this wholesale structural re-engineering of the nation's waters.
Even for purposes of flood control, in many cases these laws did more harm than good. By straightening channels and building reservoirs, the agencies addressed the symptoms but not the causes of flooding. The riparian vegetation and wetlands that served as the best natural line of defense against flooding were destroyed by hastening the flow of water down the channel. In the meantime, this legislation did not address the root causes of increased flooding, such as the filling of wetlands, deforestation, and the development and management of farms, cities, and suburbs, all of which cause increased volumes and velocities of runoff from storms. By providing the illusion of safety in flood-prone areas, flood control laws encouraged rather than discouraged additional settlement in floodplains. When structures failed, or when storms raged larger than those for which the structures were built, more rather than fewer people were killed or injured, and more property was damaged or destroyed than before our flood control efforts began.(349)
An alleged lack of adequate knowledge and understanding during the early years of flood control rings hollow as an excuse for these failures. As early as 1953, Aldo Leopold wrote:
The government tells us we need flood control and comes to straighten the creek in our pasture. The engineer on the job tells us the creek is now able to carry off more flood water, but in the process we have lost our old willows where the owl hooted on a winter night and under which the cows switched flies in the noon shade. We lost the little marshy spot where our fringed gentians bloomed.
Hydrologists have demonstrated that the meanderings of a creek are a necessary part of the hydrologic functioning. The flood plain belongs to the river. The ecologist sees clearly that for similar reasons we can get along with less channel improvement on Round River.(350)
Geographer Gilbert White predicted in the 1940s that purely structural flood controls would result in additional damage, and that nonstructural controls would be more effective in the long run.(351) White turned out to be correct,(352) and many experts now repeat his cry for nonstructural flood controls.(353)
It took many years for these warnings to be heeded. In 1974, Congress amended the Flood Control Act to require consideration of nonstructural flood control alternatives, although the law stopped short of requiring the adoption of nonstructural methods.(354) Moreover, this provision appears to have included a built-in economic disincentive to nonstructural controls by capping federal spending for nonstructural controls at twenty percent of project Costs.(355) Areas were thus given a choice between one hundred percent federal funding of flood control structures or twenty percent federal funding for potentially politically unpopular land use controls. Empirical evaluations of flood control efforts since 1974 believe the impact of this provision (and the National Environmental Policy Act (NEPA)) in promoting nonstructural over structural Controls.(356)
Major federal studies of the flood control issue continued to demonstrate the inadequacy of purely structural approaches.(357) Congress responded with enactment of the National Flood Insurance Program (NFIP),(358) Which in theory represented a quantum shift in federal flood control policy. The Program provides federally subsidized flood insurance not available from the private insurance industry, but is conditioned on the adoption and enforcement of local land use controls (consistent with federally-promulgated requirements) to restrict additional development in river floodplains" and flood-prone coastal areas.(359) Participation in NFIP has been high,(360) yet still many experts believe that the results have been minimal.(361) Amual flood damage continues to grow,(362) and construction in floodways continues.(363)
4. Federal Navigation (Rivers and Harbors) Laws
The Corps's authority to build and maintain navigation "improvements" predates the other statutes discussed above.(364) The navigation statutes began, and are the most extreme example of, Congress's method of approving water projects on a case-by-case basis. The evolution of the navigation statutes shares the same general plot, and many of the same features, as the reclamation, power, and flood control laws.
Historically, the Army was responsible for regulating the use of the' navigable waters(365) and the construction of various obstructions over navigable waters.(366) The Army was also responsible for implementing the predecessor to the water pollution permitting and control provision of the CWA, embodied in section 13 of the 1899 River and Harbor Act (known popularly as the Refuse Act).(367) A basic part of the Corps mission, however, has been dredging, channel engineering, harbor construction, and other "improvements" to rivers and harbors to facilitate navigation.(368) This history should be considered in two broad periods--the traditional regime and the period including significant reforms adopted in 1986 and later.
Before 1986, Corps authority for river and harbor control and improvement fit the general paradigm described above; the Corps had a primary utilirarian mission of protecting and "improving" waterways for purposes of navigation.(369) The Corps alone had authority for comprehensive river planning, although this was generally limited to navigation.(370) The only other uses of waterways recognized by the legislation included a vague reference to wildlife,(371) discretionary authority (but no additional funds) to build artificial fish passages where projects obstructed fish migration,(372) and similar discretionary authority to bund facilities to make possible future use of navigation projects for power development.(373) As with the reclamation and flood control laws, Congress authorized projects individually based on project-specific reports and recommendations.(374) No specific cost-sharing requirements applied, although the Corps was required to identify the state, local, and national benefits expected from each project and recommend what local cooperation should be required.(375) However, Congress left open the possibility of local cost-share requirements.(376)
The Corps river and harbor program was a casualty of the combined environmental and fiscal concerns of the 1970s axid 80s.(377) As a result, there was a twelve-year. gap, from 1974 to 1986, in congressional authorizations for water projects.(378) This dry spell was broken by the Water Resources Development Act of 1986,(379) which (along with later amendments in 1990 and 1992) renewed project funding in return for certain reforms, including environmental protections,(380) mandatory cost-sharing requirements,(381) and at least a preliminary shift to funding of water body restoration rather than engineering "improvement" projects.(382)
Whether these reforms will produce significant results is uncertain; while some are promising, some include vague and discretionary or outright disturbing aspects. For example, the Corps's study of fish and wildlife conservation is phrased in terms of the traditional engineered approach to fish and wildlife mitigation that has been criticized by restoration ecologists.(383) While the cost-benefit assessment requirement clearly improves existing law, it at best simulates the "parity" approach in the Federal Power Act.(384) And while feasibility studies must describe nonstructural alternatives, there is no preference for nonstructural approaches.(385) Fish and wildlife mitigation provisions for new projects and restoration for existing projects leave much to the Corps's discretion.(386)
IV. Emerging and Latent Authority For Watershed Protection and Restoration
While many past watershed proposals failed or were subverted to promote water resource development, significant federal statutory authority for watershed-based restoration and protection remains. Some authority exists in predictable laws, while some is concealed in surprising places. Some provisions are implemented actively, while others sleep. Existing federal authority includes the Clean Water Act,(387) other environmental protection statutes,(388) a large number of regional watershed protection or management programs,(389) and federal land management statutes.(390) Each of these is addressed below.
A. The Clean Water Act
The CWA is schizophrenic in many ways, most notably in its bifurcated technology-based (reducing pollution as much as possible with available technology)(391) and water quality-based (reducing pollution as much as necessary to protect health and the environment)(392) approaches.(393) The law is also inconsistent in its focus on watershed protection. Ecological restoration is the Act's primary goal, yet the narrower task of controlling chemical pollution received far more specific remedies and the overwhelming majority of dollars. Though Congress did address comprehensive planning and management, the Act's provisions addressing point source discharges were sharper and have been better implemented.
The CWA begins with one of the best declarations of an ecosystem based aspiration in any federal environmental law--to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(394) Similarly, "pollution" is defined broadly as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," as distinct from the narrower definition of "pollutant."(395) Thus, the law's overriding purpose is not just to reduce chemical pollution, but to restore ecosystem integrity.(396) Moreover, by incorporating ecosystem integrity principles into the minimum requirements for state water quality standards under section 303, EPA correctly gave two ecosystem protection goal legal force and effect.(397)
Ironically, however, like the Reclamation Act and the flood control and navigation laws, the CWA began as a public works construction program (although one based on federal grants rather than federal or joint federal-state-local construction) and remained that way for a quarter of a century.(398) The purpose was pollution control rather than water resources development, but the means--federal dollars for constriction of engineered solutions--were the same. The practice continued and expanded in the construction grants program in the 1972 amendments,(399) and in the state revolving loan fund of the 1987 Water Quality Act.(400) The funding programs achieved a great deal in pollution control,(401) although they have been criticized for promoting treatment facilities that were too big and too costly.(402) Commentators also criticize the programs for fueling suburban growth and development that offset some of the gain in sewage control by exacerbating the problem of stormwater runoff.(403) The authors of the 1972 CWA recognized clearly that the goal of restoring and maintaining aquatic ecosystem integrity would not be realized solely by controlling industrial and municipal point sources.(404) Thus, Congress structured the law in principle to foster comprehensive planning and coordination, along with control of point source and nonpoint source pollution. But many of the provisions designed to, achieve two goal were hortatory rather than prescriptive, or were internally inconsistent. Section 101(g), for example, exhorts federal agencies to "cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce, and eliminate pollution in concert with programs for managing water resources."(405) language, however, adopts Congress's traditional policy of leaving land and water use planning to the states.(406)
Still, the 1972 CWA contained provisions which, if fully and properly implemented, could have generated comprehensive watershed-based restoration and protection. These included calls in little I for comprehensive, basinwide federal-state water pollution control plans that recognized the link between land use and water quality.(407) The Act also encouraged interstate cooperation and uniformity as well as interstate compacts.(408) The heart of the comprehensive planning focus of the 1972 law was in Tittle H, with the goal of comprehensive planning articulated clearly in section 201(c): "To the extent practicable, waste treatment management shall be on an areawide basis and provide control or treatment of all point and nonpoint sources of pollution, including in place or accumulated pollution sources.1409 Two mandate incorporated many key principles of watershed protection. The term "areawide," of course, is not synonymous with "watershed," and could be implemented within political rather than hydrological boundaries.
The central component of Title II's planning structure was the requirement in section 208 for "areawide waste treatment management plans."(410) Section 208 can be described as a "mandatory-voluntary" program. States were required to develop plans(411) to address a laundry list of land-use-based pollution sources.(412) However, the contents of the plans were left largely to state discretion.(413) Moreover, several key aspects of integrated watershed protection were not addressed in section 208, or were given only faint mention, such as the links between water quantity and quality(414) and between surface and groundwater.(415)
While the analogy is not precise, the section 208 program had much the same fate as the roughly contemporaneous process under the 1965 Water Resources Planning Act. Many plans were written, but few actual achievements are claimed.(416) In addition, Congress eliminated section 208 grants in 1981.(417) And while the provision technically remains on the books, it is given little attention by EPA and is used only rarely by the States.(418) Serious problems exist with the implementation of the requirements for water-quality-based permitting in section 363(d)(419) and the requirements for comprehensive water-quality program planning in section 303(e).(420)
Many reasons are cited for the failure of section 208: One reason was a lack of Administration support, leading to delay in issuing the regulations and guidance. A second was the absence of a link between planning and implementation. A third was the lack of financial assistance or other incentives to link planning to implementation.
A fourth was the gap between the authorization and appropriations. In 1972 Congress authorized $1.1 billion for the section 208 program but appropriated only $540 million; Federal funding ended in 1981. Without Federal funding, States were forced to use their own resources if they wanted to continue the program.(421) By contrast, state and local officials charged with implementing the program cite intergovernmental problems that have far deeper roots, including the basic resistance of local governments to federal efforts to dictate planning structures and results, however flexibly those programs are designed.(422)
In 1987, Congress took another run (or perhaps a jog) at a planning-based approach to polluted runoff by adding CWA section 319.(423) However, while section 319 has some notable watershed components, it does not envision a comprehensive watershed protection program.(424) Section 319 does include an express but equivocal call for states to develop a watershed-based approach to polluted runoff.(425) Some states heeded this call, but most of the state 319 programs lacked a watershed focus.(426) Most observers believe-that section 319 has not made significant progress in curbing runoff pollution, although analysis of the reasons for this failure vary.(427) And the relative failure of the Act's polluted runoff control provisions is all the more disturbing given court decisions that have relegated some activities with dramatic water quality impacts, especially dams, to the nonpoint as opposed to the point source arena.(428)
Finally, sections 403 and 404 of the Act(429) provide authority for watershed protection due to their broad focus on biological impairment, as opposed to discrete chemical impacts alone. Section 403 prohibits the issuance of National Pollutant Discharge Elimination System (NPDES) permits for ocean discharges except in compliance with ocean discharge criteria issued by EPA.(430) The 403 guidelines must also be based on a broad range of effects on the marine ecosystem.(431) In addition, the statute itself imposes a strict mandate to prohibit discharges "where insufficient information exists ... to make a reasonable judgment" on compliance with the guidelines(432) (basically taking the position, "If you don't know, don't act'), although EPA (arguably illegally) has tempered this prohibition by rule.(433) EPA's report to Congress on section 403 implementation refers to this program as ecosystem-based.(434) However, it is unclear whether this characterization is implemented in practice, especially given that most 403(c) determinations have been made under the "irreparable harm" regulatory exception.(435)
Permitting of discharges of dredged and fill material under section 404 of the Act(436) is also supposed to be based on ecosystem criteria similar to those issued under section 403.(437) In United States v. Riverside Bayview Homes, Inc.,(438) the Supreme Court, relying on principles of ecological integrity, confirmed the applicability of the CWA to wetlands that are connected hydrologically to surface waters.(439) Application of the ecological criteria under section 404(b) is supposed to be tempered based on economic factors only when such application would affect navigation and anchorage.(440) The section 404(b) guidelines, however, provide ample room for broader economic balancing, especially as applied through the Corps's related permitting regulations.(441) This leads to significant doubt about the effectiveness of section 404 in protecting wetlands and related aquatic ecosystems.(442)
One major criticism of the 404 program is that wetlands have been lost through large numbers of discrete permit decisions resulting from inadequate consideration of cumulative effects.(443) Recently, the implementing agencies have increased efforts to achieve more ecologically meaningful. wetlands protection through the use of mitigation banks. While controversial, these mitigation banks seek to restore wetlands using ecologically based watershed approaches rather than through discrete, unrelated mitigation efforts tied to individual permits.(444)
Ironically, despite this history of sporadic implementation of the watershed-based requirements of the law, the Supreme Court apparently believes that the CWA remains a fundamentally watershed-based law.(445) The assumed death, or at least retirement, of section 208 may be one reason why members of Congress and various interest groups believe that additional legal authority is needed to revitalize watershed protection efforts. From a strict legal perspective, however, while section 208 has received no grant funding for over a decade, it was never formally repealed.(446) The Supreme Court in Arkansas v. Oklahoma ruled that new or expanded point sources are not necessarily prohibited in waters that currently violate ambient water quality standards.(447) As support, the Court cited EPA's and the states' continuing obligations under section 208 to adopt a comprehensive approach to water pollution control, so that the burdens of redressing ongoing pollution do not fall on any single existing or new entity.(448) From a practical perspective, the absence of widespread section 208 implementation makes the Court's reasoning dubious. A recent, groundbreaking Supreme Court decision provides greater potential impetus for watershed protection. In PUD No. 1 of Jefferson County v. Washington Department of Ecology,(449) the Court upheld a state water quality certification under section 401 of the Act(450) that imposed minimum streamflow requirements on a proposed hydroelectric project. After a period of uncertainty regarding the scope of section 401,(451) the Court in Jefferson County confirmed that states may use section 401 expansively to protect not just a limited range of chemical water quality parameters but the designated uses of the aquatic ecosystems.
Viewed even in its narrowest sense, that is, in the context of the specific holding that water quality certifications may address minimum stream flows, the case refutes any notion that the law addresses only water quality (as opposed to quantity), calling the difference an "artificial distinction":
In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In any, event, there is recognition in the Clean Water Act itself that reduced stream flow, i.e., diminishment of water quantity, can constitute water pollution. First, the 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. SS 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."(452)
More broadly, the decision indicates that, for purposes of section 303 as well as section 401, states may enforce compliance not just with discrete water quality criteria, but with the designated use component of water quality standards.(453) The implications of this broader holding are profound, as they may authorize states to protect aquatic ecosystems by imposing conditions on such factors as riparian habitat, charmelization and other physical or hydrological impairments, and impediments to water flow and fish passage.(454)
B. Other National Environmental Protection Statutes
1. Information and Analysis Laws: The Fish and Wildlife Coordination Act and National Environmental Policy Act
The Fish and Wildlife Coordination Act (FWCA)(455) and National Environmental Policy Act (NEPA),(456) adopted nearly three decades apart, are designed to ensure adequate consideration of environmental issues and values before federal agency decisions are made. Because they are largely decision-making tools to guide substantive decisions made under other statutes, they cannot fairly be characterized as watershed protection laws per se. However, both have played a role in injecting additional consideration of environmental impacts into water resources decisions, and NEPA has been specifically identified as a legal tool for watershed analysis and planning.(457)
FWCA(458) was Congress's first effort to provide "parity" to the consideration of fish and wildlife impacts in the planning, construction, and operation of water resource development programs.(459) The language of the statute, however, does not require consideration of fish and wildlife protection as an alternative to the development of water resources, but instead requires consideration of fish and wildlife impacts when developing water resources.(460) Thus, the law requires nonbinding consultation about mitigation of adverse impacts and not evaluation of the wisdom of proceeding in light of those impacts. Moreover, because the consultation provisions apply only during evaluation of individual projects by proponent agencies, it can hardly be viewed as a watershed-based effort. Given the development philosophy of the time, this approach was perhaps the best that could be expected and served at least to require some consideration of environmental factors in traditional water resource development programs.(461) As cases decided under FWCA make clear, however, this consultation process was hardly adequate to give true "parity" to protection of aquatic ecosystem resources in the context of the prevailing water resource development programs.(462) Moreover, even this limited role became largely moot, since compliance with NEPA has consistently been held adequate per se for purposes of compliance with FWCA.(463)
NEPA forced federal agencies to evaluate more comprehensively the environmental impacts of proposed federal actions.(464) As Construed by the courts, NEPA is also a process statute that forces decision-making procedures rather than substantive results.(465) Nevertheless, NEPA and its implementing requirements adopted by the courts and in the Council on Environmental Quality (CEQ) regulations include several traits that qualify it, more than FWCA, as a potential watershed protection tool. First, NEPA demands not just consideration of mitigation, as with FWCA, but requires full evaluation of all reasonable alternatives to the proposed action, including a `no action' alternative under which an agency might decide not to proceed at all with a water project or other action that might affect aquatic ecosystem integrity.(466) Second, NEPA requires comprehensive interagency and public discourse and consultation,(467) instead of the single-agency limited consultation provided in FWCA.(468) While the project agency need only consider such input, as under FWCA, the duty to consider and to respond to all relevant comments is more rigorous.(469) Third, as interpreted by the courts and CEQ, the environmental consequences that must be addressed in an Environmental Impact Statement (EIS) are not limited to the direct consequences of the proposed action, but include a potentially wide range of indirect or secondary effects.(470) Thus, for example, NEPA may require evaluation of the impacts on aquatic ecosystems of entirely land-based actions (and vice versa), on water quality of water storage and allocation decisions, and on impacts far down- or upstream of the actual action. Finally, and perhaps most importantly, NEPA compels consideration of the cumulative impacts of diverse but related actions through programmatic EISs, tiering, and cumulative impacts analysis within individual statements.(471) Thus, NEPA can be used to evaluate combined watershed-wide impacts of related proposals.
Because of these characteristics, NEPA has been touted by agency officials as a useful watershed protection tool: "Recognizing the mutual goals of NEPA and watershed planning, the NEPA process can facilitate watershed planning and management .... Using the NEPA environmental impact assessment process as a bridge, individual federal actions and responsibilities can be linked with comprehensive watershed planning."(472) Advocates of using NEPA for watershed planning cite its flexible process, emphasis on public participation and interagency coordination, and integrated approach.(473) They also identify examples in which NEPA has been used for watershed planning and protection.(474)
NEPA also has a number of clear limitations, however, which make it more of a potential supplementary tool to facilitate watershed protection initiatives than an independent mandate for watershed protection. First, while NEPA imposes clear, enforceable decision-making requirements in many instances,(475) agencies have considerable discretion to decide when,(476) and how,(477) to implement NEPA. Thus, while a programmatic EIS with tiered statements for individual projects might facilitate watershed-based planning and aquatic resource restoration and protection, it may not be required. And viewed in the most cynical light, NEPA is often criticized as simply a "paper tiger," requiring agencies to do, a little extra homework to justify decisions already made.(478) Second, NEPA is triggered only by specific actions; it applies only to federal activities and only to activities that "significantly" affect the quality of the human environment.479 This has obvious drawbacks in watersheds that are impaired by a diversity of sources. Finally, NEPA is inherently limited in time to particular decisions and, thus, does not serve as a comprehensive, iterative planning process.
For these reasons, NEPA has a checkered record in protecting aquatic resources. Many individual water projects and other federal actions that affect water resources have been challenged under NEPA with primarily unsuccessful results.(480) And NEPA cases brought to force agencies to consider the cumulative impacts of water resource decisions within a whole watershed in a programmatic EIS show a similar mixture of success.(481)
2. The Endangered Species Act
Like NEPA, the Endangered Species Act (ESA)(482) has been hailed as a potential watershed protection tool.(483) Whereas NEPA and FWCA require consultation, analysis, and disclosure but no specific substantive results for a broad range of impacts and proposed actions, the ESA mandates specific substantive environmental protection results, but only where an activity threatens federally listed threatened or endangered species.(484) Thus, the ESA has both relative strengths and weaknesses as a watershed protection tool.
Several aspects of the law give it an ecosystem focus. First, the law is designed not just to protect species per se, but to identify, restore, and protect the habitat necessary for species survival.(485) Second, given its role as the last line of defense against species' extinction, the ESA is perhaps the most absolute of the nation's environmental laws.(486) Cases addressing the relationship between the ESA and water projects show the wide range of aquatic ecosystem impacts that can be addressed under the Act and the potential stringency of the resulting requirements.(487)
However, the ESA has several serious limitations as a watershed protection law.(488) First, the ESA is reactive rather than preventive; without a listed species the law simply does not apply. And even if listed, the agencies are given at least some discretion on whether to issue protective regulations and species recovery plans, and such actions have not been taken for the majority of listed species.(489) Even if consultation is triggered, actions are generally limited to those necessary to protect the listed species. While other species may receive incidental benefits and watershed protection strategies may be chosen to protect a species and its habitat, such expansive approaches are not pre-ordained. For example, the "critical habitat" for a listed species could overlap other watershed habitat only in part.(490) Second, consultation under the ESA is required only for discrete federal agency actions.(491) While conditions imposed during consultation may extend temporally and geographically as necessary to protect the species, the law still largely governs the impacts of discrete actions on individual species. Finally, even the strict consultation requirements and the prohibitions against the unlawful "taking" of listed species have numerous exceptions.(492)
The potential uses and limitations of the ESA in protecting whole aquatic ecosystems are illustrated by cases involving the protection of Pacific Northwest salmon stocks.(493) A series of cases have been brought challenging the impact of a wide range of federally approved activities in the Columbia River watershed on the continued existence of Pacific salmon stocks.(494) These cases highlight the degree to which the depletion of salmon stocks cannot be linked to single causes and single activities. Instead, a watershed approach to species recovery is necessary.(495) The ultimate success of this litigation in prompting watershed-wide salmon protection is an open question, however, with some notable successes(496) and some failures.(497) This illustrates the difficulty of promoting programmatic change (as opposed to specific results in discrete cases) through litigation.(498) On the other hand, prompted either by litigation or by ongoing declines in salmon stocks, or both, the agencies seem to be responding with broader listings and watershed-based protection efforts.(499) Meanwhile, environmental groups continue to press for expanded species listings,(500) which could precipitate watershed protection efforts of even broader scope and effect. Not surprisingly, ESA litigation continues from all sides.(501)
3. The Safe Drinking Water Act
The Safe Drinking Water Act (SDWA),(502) while largely designed to protect the quality of drinking water when it leaves the tap, provides limited but potentially useful authority to promote watershed protection.(503) Two provisions of the Act are relevant. First, "sole source aquifer" programs are required to include a comprehensive aquifer protection plan 'to maintain the quality of the ground water in the critical protection area in a manner reasonably expected to protect human health, the environment and ground water resources."(504) This program has some components of comprehensive watershed protection, such as a focus on all water pollution sources within a given area.(505) However, the program itself and key elements of the program are voluntary,(506) and federal grant funding is extremely limited.(507) Moreover, the geographic scope of a sole source aquifer demonstration program is obviously limited to the boundaries of a critical aquifer, which is not likely to overlap watershed boundaries.
The second and more important impetus in the SDWA for watershed protection is in remarkably sparse statutory language. As part of its responsibility to issue national public drinking water standards, EPA was directed to specify 'criteria under which filtration ... is required as a treatment technique for public water supplies supplied by surface water sources."(508) In issuing these rules, EPA was to consider, inter alia, "protection afforded by watershed management."(509) Filtration of public drinking water is expensive(510) and, therefore, controversial, with some arguing for watershed protection as a cost-effective strategy and others questioning its efficacy.(511) As a result, EPA regulations allowed drinking water systems to choose between filtration and the implementation of adequate watershed protection plans.(512)
Like the sole source aquifer demonstration program, this impetus for watershed protection is voluntary,(513) but high costs of filtration may provide substantial economic incentives for more communities to adopt watershed protection approaches. Moreover, communities have a strong incentive for SDWA watershed programs to succeed--to avoid much higher filtration costs. Thus, these plans may move beyond planning to implementation and enforcement. However, SDWA watershed plans are largely single-purpose; while aquatic ecosystems may receive incidental benefits, the driving force is water supply protection. Moreover, the geographic scope of SDWA watersheds can vary dramatically, from the large regional Catskill and Adirondack Mountain watersheds from which New York City derives its drinking water, to a small watershed of a single community reservoir. As such, the value of the SDWA to broader watershed programs may vary significantly.
C. Regional Watershed Protection Statutes
As discussed above, proposals and authorities to promote comprehensive watershed protection at a national scale have largely failed. By contrast, efforts to legislate and to some degree implement regional watershed programs have been somewhat more successful.(514) Because these laws were passed at different times, they provide a diversity of approaches to cooperative aquatic ecosystem management. These regional programs are discussed below in the order in which they were enacted, as they reflect some evolution in policy and approach.
1. The Tennessee Valley Authority Act
The proposal to create the Tennessee Valley Authority (TVA) was the one major component of the New Deal era watershed proposals enacted by Congress;(515) apparently Congress accepted this regional experiment in comprehensive watershed planning and economic development while rejecting the idea on a nationwide basis.516 Because TVA was created in the era of full-scale water resources development, but at the behest of progressive forces who urged comprehensive, multipurpose approaches to planning and management, TVA's history and record in protecting and managing the area's water resources is complex.(517)
On the one hand, TVA has been controversial and notorious for its history of breakneck dam construction at almost any cost, leaving the Tennessee River in close competition with the Columbia and the Colorado for the ignoble status as the most heavily engineered water body in North America.(518) Because the TVA Act was passed in the same economic and political climate as the Federal Power Act and flood control laws, its statutory purposes were (and remain) largely utilitarian: navigation, flood control, agricultural and industrial development, and, if consistent with those goals, hydropower production.(519) Through most of its history, TVA followed this statutory lead.
On the other hand, TVA's authorizing statute provides remarkably little in the way of policy guidance or statutory mandates, leaving much to the discretion of TVA's directors. This open-ended authority left TVA free to alter its mission and objectives to meet changing environmental and societal needs, values, and conditions. At least by the early 1980s, TVA's managers realized that the era of construction was largely over(520) and that they faced a new set of problems, including water pollution, water supply shortages, and the environmental effects of TVA dams and reservoirs.(521) TVA also realized that its purely engineered approach to flood control had not eliminated flooding and that nonstructural approaches were needed as well.(522)
As a result of this changed vision, TVA has implemented new programs designed to focus on watershed protection rather than additional development.(523) Aided by a detailed, participatory NEPA process, in 1991 TVA approved changes to its reservoir operating plan, including such protective measures as minimum stream flows to improve aquatic habitat.(524) TVA also initiated a comprehensive, watershed-based approach to restoration and protection known as the "Clean Water Initiative."(525) This program contains many key elements of comprehensive watershed protection and restoration, including clear establishment of goals;(526) use of coordinated, multidisciplinary teams of experts;(527) focused assessment of existing watershed conditions and resource impacts;(528) targeting and ranking of restoration and protection projects to maximize the use and effectiveness of available resources;(529) public communication and participation;(530) implementation (as opposed to study and planning);(531) and monitoring and accountability.(532) A team of experts assembled by Water Quality 2000 critiqued the program while giving it general approval.(533) Based on this evaluation, this program has many strengths and much promise. Ultimately, however, Water Quality 2000's most significant criticism is the program's focus (to date) on site-specific mitigation projects that can be implemented by TVA with selected cooperating entities. Ideally, the program would involve comprehensive land use planning and management in cooperation with the area's state and local government. Such an approach is essential to successful watershed protection efforts.
The most interesting aspect of TVA's history--with potential lessons for future watershed programs--has been its success in achieving the goals it set at any given time (whether or not one agrees with those goals as a matter of economic or environmental policy). To some, this success has been based on TVA's political savvy in mustering political support for its activities,(534) allowing a comprehensive federal planning entity to control so much activity in a region not known for trusting the federal government. To others, however, the very process of seeking grass-roots support, while effective in keeping TVA alive and active, historically restricted if not subverted TVA's mission as a "fully integrated water resource management agency." TVA has thus focused "on a narrow range of problems related to flood control, power production, and navigation."(535) Perhaps TVA's ability to move beyond successful water resources development, which is generally supported by local political powers, to its current environmental protection and related land use management initiatives, will be the true test of TVA's ability to manage the "politics of support."
2. Interstate Water Compacts
Because most major watersheds cross state borders, interstate water disputes in the United States are common.(536) Interstate compacts created to resolve such disputes also have a long history.(537) Some compacts attempted to resolve disputes over allocation of interstate (and international) rivers.(538) Others focused on water quality protection, including the Ohio, Potomac, Delaware, and Susquehanna River Compacts.(539) Thus, interstate water compacts are diverse in scope, subject, and approach.(540) No compact comprehensively addresses all water resources issues in a river's watershed, although the Delaware River Compact, implemented by the Delaware River Basin Commission (DRBC), comes closest.(541)
Some compacts, such as the Ohio River Sanitation Compact (ORSANCO),(542) have little regulatory authority and instead focus on interstate coordination and cooperation.(543) Under this type of arrangement, individual states remain in complete control of their own water quality standards (which may vary considerably), NPDES programs and procedures, and enforcement mechanisms. Moreover, ORSANCO focuses only on the Ohio River mainstem rather than the entire watershed.(544) Even such modest efforts, however, provide benefits in the form of coordinated monitoring and assessment programs.(545)
Some later compacts, in particular the Delaware Compact, contain more substantial regulatory powers, including authority to adopt uniform water quality standards and implementing mechanisms, issue permits, and take enforcement actions for the whole river.(546) For example, DRBC recently adopted antidegradation requirements to protect the relatively pristine upper reaches of the watershed.(547) DRBC's actual effectiveness is the subject of considerable controversy, however,(548) and state squabbling over funding and support for the Compact and Commission continues to this day.(549) Thus, even the best, most comprehensive interstate agreements are vulnerable to changes in political winds and can lose some of their potential effectiveness.
3. The Colorado River Salinity Control Act
Despite the fact that disputes over implementation continue, the Colorado River Compact (and years of litigation over its meaning and implementation)(550) "solved" the immediate problem of interstate allocation of the river. The resulting environmental impacts of Colorado River development have been dramatic, however, including widespread destruction arid alteration of fisheries habitat(551) and major water quality problems in the form of excess salinity from irrigation return flows and other sources.(552) Congress only recently launched an effort to address at least some of the habitat problems caused by the river's dams.(553) Congressional efforts to address the salinity problem, however, date back two decades to the Colorado River Salinity Control Act (CRSCA).(554)
Congress passed CRSCA primarily to honor treaties with Mexico and not as an ideological move toward watershed protection.(555) As a result, the law lacks many of the elements of a comprehensive watershed approach. CRSCA is not only single-issue (water pollution) but single-pollutant salinity) in focus; it relies primarily on expensive engineered solutions, with land use controls playing a secondary role.(556) In fact, some commentators describe the program as exalting expensive engineered treatment of symptoms over measures to address the root causes of the problem, such as federally subsidized irrigation of salt-laden lands.(557) Further, the law cannot serve as a model for generic watershed programs because k is unrealistic to expect such high levels of federal funding(558) for watershed programs lacking such international treaty imperatives.
Despite these criticisms about costs and methods, the program has achieved some success in numeric terms by removing large amounts of salt from the river, although the Department of Interior, (DOI) acknowledges that the CRSCA program still requires additional measures to maintain salinity within acceptable levels.(559) Moreover, the law does have a number of components capable of application to broader watershed protection efforts. For example, CRSCA's design addresses a wide range of salinity sources within the entire watershed, not just those from the mainstem.(560) Congress authorized DOI to address the salinity problem in part through nonstructural controls such as reduced return flows and water conservation.(561) In addition, the U.S. Department of Agriculture (USDA) can establish programs to reduce salinity through on-farm water management and erosion control on nonfederal lands in the watershed, by using USDA's traditional voluntary methods of technical assistance and cost-sharing.(562)
4. The Coastal Zone Management Act
The Coastal Zone Management Act (CZMA)(563) is a national law but provides for state environmental planning, protection, and restoration programs for the coastal zone.(564) The law. is place-based, as opposed to individual source-based, because it provides federal grants(565) for the development and implementation of plans to address the cumulative effects of a range of activities on the uses and resources of a defined region. This place-based statute is not necessarily watershed-based, however, because state boundaries artificially divide the "coastal zone" and the statute limits "coastal zones" to include only coastal waters and lands that have a direct and significant impact" on those waters.(566) In addition, CZMA excludes lands owned or held in trust by the federal government.(567) Nevertheless, the law still provides some useful elements for watershed protection.
For example, state CZMA plans(568) must link land use and water quality--this gap is currently perhaps the most important gap in aquatic ecosystem protection efforts nationally.(569) Also, CZMA requires that plans be adopted and implemented with public participation to ensure consideration of all relevant interests; the planning process provides detailed rules for intergovernmental consultation at the local-state and state-federal levels.(570) Perhaps most distinctive, though, is the Acts requirement that federal activities, including federal licenses or permits, obtain state approval for consistency with the CZMA program, subject to federal override under certain circumstances.(571) This quid pro quo provides an incentive for states to participate in the program, because federal activities that might otherwise be immune from state land use controls fall within the CZMA net.(572)
Despite these strong program components, however, it is difficult to conclude that the Act as a whole has succeeded in preventing the ongoing decline of coastal resources.(573) The program status report of the National Oceanic and Atmospheric Administration (NOAA) provides little useful empirical data by which to judge program success.(574) Other information, however, shows that construction and population growth continue at a pace far more rapid in the coastal zone than inland and that coastal and estuarine water quality, along with the health of coastal species and ecosystems, continues to degrade severely.(575)
The best explanation for CZMA's ineffectiveness is perhaps its lack of significant substantive requirements--such that actual land use and other requirements remain largely in the states' discretion.(576) While the CWA includes a clear, ecosystem-based statement of goals and purposes,(577) CZMA provides a stronger model for planning to link land use and water quality.(578) Thus, ironically, while these two laws passed in the same year, they appear to have complementary flaws. While the CWA successfully includes a clear, substantive mandate, it lacks firm implementing requirements with respect to land-based sources of pollution; while CZMA created a more rigorous and comprehensive planning process, it lacks a staunch, substantive command.(579)
Nonetheless, CZMA includes at least one important feature--the federal consistency mandate--which could prove extremely useful in constructing a sounder watershed protection framework that addresses both state and federal needs. States otherwise resistant to watershed programs might see offsetting benefits if they receive additional control over federal activities in return.
Finally, as part of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA),(580) Congress enacted a new coastal zone nonpoint source pollution control program.(581) Compared to the weak national paradigm for polluted runoff control, this provision is quite promising. Unlike CWA sections 208 and 319,(582) state CZARA runoff programs may not rely on purely voluntary approaches. Instead, after identifying land uses contributing to water body degradation,(583) states with CZMA programs must adopt enforceable management measures applicable to those land uses, consistent with EPA and NOAA guidance,(584) "that are necessary to achieve and maintain applicable water quality standards . . . and protect designated uses."(585) Runoff programs under CZARA must be coordinated with existing programs under the CWA.(586)
Significantly, the CZARA runoff program defines "management measures" not in the fuzzy "Best Management Practice" language of CWA sections 208 and 319, but in the language of technology-based requirements for point sources.(587) State management measures must be based on measures identified in guidance issued by EPA and NOAA.(588) This feature may sharpen the teeth of the CZARA mandate. On the other hand, it is inherently more difficult to identify a single "best" technology for nonpoint sources than for categories of point sources, and landowners strongly resist the concept of one-size-fits-all land use regulations. EPA and NOAA interpreted their charge to require the identification of a menu of possible management measures from which to choose for each type of nonpoint source, rather than a single prescriptive measure.(589) State management measures, in turn, need only be "consistent with" (not "identical to") the EPA/NOAA guidance, providing flexibility to address differences in land uses, hydrology, soft conditions, topography, and other variables among (and within) states.(590) The final guidance fails to adopt sufficient objective, measurable criteria by which to gauge the adequacy of state management measures,(591) but perhaps this compromise will convince skeptics that a reasonable balance is possible between entirely rigid regulation of land-based pollution sources and the unacceptable status quo of no regulation at all.
5. Place-based Provisions of the Clean Water Act
Congress augments the generic watershed provisions of the CWA with specific regional programs.(592) Some address individual water bodies, while others create programs for types of water bodies.(593) Certain common themes nm through these regional programs, but. what is most noticeable is their dissimilarity. One principal benefit of place-based programs is their ability to address the disparate problems, conditions, and solutions appropriate to different areas. Still, the statutory provisions in the CWA differ more fundamentally in approach, expectations, and substance than can be explained by the need to provide regional flexibility. The history of the programs and other legal or quasi-legal sources of program authority and requirements explain some of these fundamental differences.
The presence of specific regional protection programs in the CWA also poses the problem of environmental triage. While the CWA has National Estuaries and Clean Lakes Programs, there is no similar program for comprehensive river protection.(594) Why is there a Great Lakes Program but not a Mississippi River Program? Why should we focus only on particular types of water bodies (likes lakes and estuaries) rather than all hydrologically connected waters within a rationally defined aquatic ecosystem? The answers may have more to do with political initiative than with comprehensive watershed protection. And while the existing place-based programs in the law clearly benefit the covered water bodies, they draw available federal funding and other EPA resources from some water bodies and redirect them to others. A valid policy question is whether k is better to focus watershed protection efforts and resources on a smaller number of water bodies deemed most important by Congress (implicitly leaving the rest to states and localities), or to spread :funding and other resources across a more comprehensive, nationwide watershed program.
These general critiques aside, it is useful to examine the specific assets and flaws of the CWA's place-based provisions. Four major CWA program address interstate (and sometimes international) water bodies: Chesapeake Bay, the Great Lakes, Long Island Sound, and Lake Champlain.(595) EPA and five Gulf states orchestrated at least one other similar program, for the Gulf of Mexico, but it lacks specific CWA statutory authority.(596) All of these programs provide for intergovernmental coordination and cooperation, public participation, and targeted federal funding. All adopt, to some degree, a watershed or ecosystem approach.
a. The Chesapeake Bay Program
CWA section 117(597) and pre-existing interstate agreements help define the Chesapeake Bay Program.(598) Section 117 itself is sparse and lacks significant substantive authorities or requirements.(599) However, the lack of substantive mandates in the CWA may be explained by the level of detail included in the Chesapeake Bay Agreements of 1983(600) and 1987.(601) These include a series of goals, each with an accompanying set of objectives and commitments.(602) The most notable goal is the specific commitment by the signatories to reduce nutrient inputs into the Bay by forty percent by the year 2000,(603) because it sets a clear numeric target rather than a vague goal like those so often included in environmental planning documents.(604) Many of the other elements of the plan, however, either use vague terms or commit only to the development but not necessarily the implementation of various plans.(605) A second commendable aspect of the program is its clear acknowledgement of both the link between land use and water quality, and the need to manage and control regional growth and development in order to restore and protect the Bay's ecosystem.(606) This connection between land use and water quality received attention in a landmark report by a panel of experts-known as the 2020 Commission--on growth and development in the Bay watershed.(607)
Commitments negotiated by the participating jurisdictions, rather than imposed by Congress or a federal agency, are desirable because they may move more readily beyond planning to implementation. The Bay Program's implementation also involves massive amounts of public participation, which further enhances opportunities for political acceptance of potentially unpopular actions.(608) At bottom, however, the program is voluntary, a feature identified as "its greatest strength and weakness."(609) As a result, while commentators acknowledge some significant program accomplishments, they also agree that most of the program's achievements remain on the drawing board.(610) Perhaps the most significant example is the implementation status of the 2020 Report growth control recommendations. While the report itself is visionary, implementation remains up to the states, "thus foreclosing any truly regionwide solutions."(611)
b. The Great Lakes Program
In contrast to the Chesapeake Bay Program provisions, the statutory provision governing the Great Lakes Program(612) is far more comprehensive and substantive, even though both programs followed prior cooperative interjurisdictional agreements. U.S.-Canada cooperation on border waters, including the Lakes, dates back at least to the establishment of the International Joint Commission (IJC) in 1909.(613) TWS cooperation led to the signing of the U.S.-Canada Great Lakes Water Quality Agreement (GLWQA) in 1972,(614) followed by a more comprehensive agreement in 1978(615) and further amendments in 1987.(616) United States implementation of GLWQA relies on the Great Lakes Program under CWA section 118.(617)
The 1972 Agreement focused on severe oxygen depletion and other imminent threats to the health of the Great Lakes, an effort that most consider largely successful.(618) The 1978 and 1987 Agreements addressed a broader range of threats using a whole ecosystem approach.(619) The most noted aspect of the international program, however, is its bold program for the "virtual elimination" of the release of persistent toxic pollutants into the Great Lakes ecosystem, including the recommendation that Lake Superior be designated as a demonstration zero discharge zone.(620) This exemplifies the potential for watershed or ecosystem-based programs to establish an overriding environmental goal for a region.
Section 118 of the CWA follows suit with a detailed and prescriptive recipe for comprehensive watershed restoration and protection, creating a Great Lakes National Program Office (GLNPO) with research, surveillance, and coordination functions similar to those of the Chesapeake Bay Program Office.(621) Unlike the Chesapeake Bay Office, however, GLNPO has additional implementing duties as well.(622) Further, the statute includes a number of specific programs and substantive mandates that may help to translate the rhetoric of watershed and ecosystem protection into reality.
First, section 118 required EPA to promulgate, by June 1992, detailed guidance to establish minimum water quality standards, antidegradation policies, and implementing procedures for all U.S. jurisdictions in the Great Lakes region, in an effort to promote consistent if not uniform standards for waters within the Great Lakes ecosystem.(623) The establishment of consistent goals and standards is one hallmark of comprehensive watershed management. EPA delayed issuing guidance until 1995, and it comprises only the first set of proposed guidance.(624) However, the guidance covers a wide range of pollutants, a broad scope of impacts, and comprehensive implementing procedures.(625) Section 118 requires states to adopt, within two years, standards, policies, and procedures that are "consistent with such guidance," and further mandates EPA promulgation by the end of the two-year period for any state that fails to do so.(626)
Second, the law provides for U.S. implementation of targeted "remedial action plans" (RAPs) to restore the most acutely polluted areas in the Great Lakes on both sides of the border.(627) RAPs must use a "systematic and comprehensive ecosystem approach to restoring and protecting the beneficial uses of areas of concern."(628) Identification of areas in need of restoration, targeting of resources to the highest priority restoration sites, and the development and implementation of comprehensive restoration plans are other key elements of watershed management.
Third, the Act provides for the development of "Lakewide Management Plans (LaMPs) which, like RAPs, must employ a "systematic and comprehensive ecosystem approach to restoring and protecting the beneficial uses of the open waters of each of the Great Lakes."(629) LaMPs wi]l "look at the lake ecosystem as a whole and identify a set of critical pollutants," and then "propose a tiered concept for developing management actions' to address that pollution.(630) The Act only requires a LAMP for Lake Michigan, but it allows the development of plans for the other lakes as well.(631) EPA recently requested public comment for the revised draft LAMP for Lake Michigan.(632)
c. Long Island Sound and Lake Champlain
The provisions for Long Island Sound and Lake Champlain parallel the skeletal Chesapeake Bay provision more closely than the substantive Great Lakes Program. The Long Island Sound Program creates an EPA office, responsible both for studies and coordination of the Long Island Sound Management Conference, and provides federal grants to implement the Long Island Sound Comprehensive Conservation and Management Plan.(633) The Lake Champlain provision is nearly identical,(634) but specifies the breadth of interest group participation in the management conference to assure an adequate balance of interests.(635) Moreover, the CWA provision guides the substance of the program to some degree, because it directs specifically that the Conference adopt a pollution prevention, control, and restoration plan for Lake Champlain.(636)
Skeletal statutory authority, however, should not necessarily be confused with a skeletal program. The Long Island Sound Management Conference, for example, apparently identified specific goals and implementing actions similar to those adopted under the more precise statutory authority of the Great Lakes Program and the more formal interstate agreement that governs the Chesapeake Bay Program. The overall program goals use only very general terms,(637) but the plan identifies a wide range of impairments to the health of the Sound638 and includes a detailed characterization of each priority problem, specific recommendations, and commitments, including the necessary funding levels to accomplish each action.(639) For example, the plan establishes numeric goals for reductions in specific pollutants that are even more precise than the forty percent nutrient reduction target in the Chesapeake Bay Program.(640) Evaluation and planning related to the control of toxics and land use are less developed than those in the Great Lakes and Chesapeake Bay Programs.(641) This may, however, simply reflect a strategy decision to focus first on the most pressing and recognized problem, aquatic ecosystem impairment due to hypoxia.(642) Indeed, most watershed programs will likely face a key dilemma in deciding whether to try to address all sources of harm simultaneously, which could result in little progress over a wide spectrum of problems, or to focus resources on the most pressing problems first.(643)
d. The Clean Lakes and National Estuary Programs
The second type of place-based provision in the CWA provides for watershed programs in specific types of water bodies. The Clean Lakes Program,(644) while providing some additional attention to the declining health of U.S. lake ecosystems,(645) largely focuses on studies and reports, grants for state lake management programs and activities, and demonstration projects.(646) The program supports a broad survey approach to the status of lakes in a state rather than an integrated, watershed-based approach to individual lake restoration and protection, and it lacks adequate funding to address the vast majority of impaired lakes in the country.(647)
The National Estuary Program (NEP),(648) on the other hand, comes closer to obtaining status as a comprehensive watershed-based program for a select group of estuaries around the country.(649) In addition to estuaries identified specifically in the statute,(650) NEP also allows any governor to nominate estuaries of "national significance" for eligibility for a "management conference to develop a comprehensive management plan for the estuary."(651) Upon approval by EPA, the program provides for grant funding,(652) as well as a management conference to collect data and assess trends, identify sources of impairment, recommend "priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution," and coordinate and monitor implementation.(653) The most successful NEP applications demonstrate the tremendous potential of the program in general,(654) although its inherent flexibility suggests that levels of success will vary significantly around the country.
As with all of the regional initiatives in the CWA, the key to NEP success will be implementation. The NEP provision includes a firm command that conservation and management plans must be implemented.(655) The only apparent enforcement tool, however, is grant funding withdrawal. As of EPA's 1992 status report to Congress, only two of the original seventeen estuaries in the NEP actually moved from planning to implementation.(656)
6. The Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act)
While the CWA programs discussed above focus primarily on traditional sources of pollution,(657) the Pacific Northwest Electric Power Planning Act (Northwest Power Act)(658) addresses squarely the tension between watershed health and the effects of construction and operation of the massive system of hydroelectric dams and other water projects in the Columbia River watershed.(659) In the words of Professor Michael Blumm, one major purpose of the Northwest Power Act was to provide "parity" to fish and wildlife protection in the implementation of the Pacific Northwest Power System.(660) To some, the Act constitutes the nation's "most ambitious and inspiring" experiment in comprehensive watershed management and protection, an "impressive regional initiative to correct an imbalance among multiple purposes in furtherance of sustainability."(661) To others, though, however promising the law appeared as written, its potential faded in the politics of implementation, leaving more endangered species listings in its wake.(662)
The Northwest Power Act creates the Pacific Northwest Electric Power and Conservation Planning Council as a comprehensive regional planning agency with a dual charge to develop "(A) a regional conservation and electric power plan and (B) a program to protect, mitigate, and enhance fish and wildlife."(663) Two representatives of the basin states of Washington, Oregon, Idaho, and Montana comprise the Council, each appointed by the governors of their respective state.(664) The energy plan must give priority to "cost-effective" resources,(665) with "due consideration" for environmental, fish and wildlife, and other factors.(666) The Act also directs the Council to develop and adopt an alternative fish and wildlife plan on a watershed basis:
The Council shall promptly develop and adopt ... a program to protect,
mitigate, and enhance fish and wildlife including related spawning grounds and
habitat, on the Columbia River and its tributaries. Because of the unique history,
problems, and opportunities presented by the development and operation
of hyroelectric facilities on the Columbia River and its tributaries, the program,
to the greatest extent possible, shall be designed to deal with that river
and its tributaries as a system.(667)
While the plan's design clearly provides "parity" to fish and wildlife, parity does not mean precedence: "The program shall consist of measures to protect, mitigate, and enhance fish and wildlife affected by the development, operation, and management of such facilities while ensuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply."(668) Finally, the Act includes a "consistency" provision similar to that in CZMA, with comparable discretion to the relevant federal agencies to avoid compliance where inconvenient, but without a specific consistency review process as in CZMA.(669)
The innovative nature of this program, coupled with the extreme controversy over the plight of Pacific Northwest salmon in a region also beset by related disputes over the impacts of logging on salmon, spotted owls, and other species and habitats, sparked much litigation.(670) As a watershed protection initiative, the law contains mixed features. The statutory link between the major source of ecosystem degradation--hydroelectric power generation and use--along with the progressive idea that those conflicts may be resolved through better energy conservation and planning, makes giant leaps over traditional programs that divorce the sources of resource degradation from programs for resource protection. Firm mandates for programs to address specifically identified conflicts appear to produce more focused attention than open-ended planning mandates such as section 208 of the CWA.(671) Congress clearly envisioned that comprehensive watershed planning would address these conflicts rather than leave them up to isolated project decisions.
Placing responsibility for implementation in a politically appointed management council and providing only an advisory role for the resource agencies best equipped to judge salmon impacts(672) may best explain the failure of the program (short of litigation) to provide adequate ecosystem protection.(673) Unlike CZMA, however, the Northwest Power Act contains substantive law as well as process, allowing citizen groups, Indian tribes, and resource agencies to challenge unacceptable results of the planning process.(674) Perhaps the court's decision in Northwest Resource Information Center v. Northwest Power Planning Council,(675) invalidating the Council's fish and wildlife plan as inadequate to protect dwindling salmon stocks, will catalyze more vigorous attention to the concept of parity in future Council actions.(676)
D. Federal Land Management Statutes
The fourth major potential source of authority for watershed-based protection and management arises from federal land management statutes.(677) This set of laws and regulations is particularly important in the West, where large portions of major watersheds, and some entire sub-basins, are largely or entirely under federal ownership.(678) In addition, in many areas of the West a large proportion of the major land use activities that contribute to watershed impairment fall within federal, as opposed to state, land use controls. This is complicated, because federal lands fall under a number of different types of management units and are thus subject to diverse and often inconsistent requirements.
Existing literature already discusses the potential for public land laws to help promote ecosystem management in general and watershed protection in particular.(679) Thus, the following discussion will be relatively brief and borrows heavily from these earlier sources.(680) The discussion is organized by management agency rather than individual statutes, with the exception of the Wild and Scenic Rivers and Wilderness Acts, which cut across agency jurisdictions. Also important is the degree to which federal land managers must comply with independent environmental laws and requirements, especially the CWA.
National Park System watersheds face both internal and external threats.681 Development within National Parks generally is not likely to present the same type of severe threat to watershed health outside the unit as, for example, logging or grazing on National Forest or Bureau of Land Management (BLM) lands. However, protection of ecologically important park waters can play an important role in the protection and restoration of larger watersheds, as exemplified by the extensive efforts to protect the Everglades aquatic ecosystem.(682)
The National Park Service Organic Act(683) establishes a firm protective mandate for National Park System resources.(684) While this mandate sets a strict standard for protecting National Park lands and other resources, including water resources, nothing in the law demands that this be accomplished on an ecosystem or watershed basis.(685) Professor Robert Keiter argues that the so-called "Redwoods Amendment," which requires that the Service protect the Park system as opposed to individual units, infuses an ecosystem management responsibility on Park Service officials when external activities threaten Park Service resources, but acknowledges that the courts largely defer to the Service in interpreting this charge.(686) Another relatively recent amendment to the Act requires the Service to develop "general management plans" that address each system unit in an integrated fashion.(687) Clearly, the Park Service has discretion to develop and implement these plans on an ecosystem or watershed basis, but the provision on its face does not actually specify this approach.(688)
Far more serious threats to the integrity of major watersheds result from activities such as large-scale logging, grazing, and mining on "multiple use" lands managed by the U.S. Forest Service and BLM.(689) Each agency must adhere to a series of statutory requirements that provide some basis for watershed protection, but only in the context of an overall scheme that requires environmental protection to be "balanced" against other uses of these public lands.
A series of management laws that evolved considerably over time govern Forest Service activities.(690) The Forest Service Organic Act of 1897,(691) as noted by Professor George Cameron Coggins and others, included "one of the first explicit congressional recognitions of the value of watershed,"(692) because national forests were to be "established . . . to improve and protect the forest . . . or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber."(693) While Coggins and others are that securing water flows is "synonymous, or nearly so, with `watershed," it is doubtful that Congress meant "watershed" in the context of comprehensive protection of watersheds as aquatic ecosystems in the sense used in this Article.(694) The Multiple-Use Sustained Yield Act of 1960 (MUSYA)(695) augmented the statutory basis for management of Forest Service lands and was the first statutory embodiment of the multiple use concept.(696) While the Forest Service had broad discretion to interpret this po]icy,(697) and while many commentators criticize multiple use as implemented as a largely utilitarian doctrine,(698) at least "watershed" and "fish and wildlife" are among the multiple uses listed in the Jaw.(699)
The National Forest Management Act of 1976 (NFMA)(700) contains a more detailed and potentially useful impetus for watershed (and ecosystem) management. Section 6 of NFMA requires the Forest Service to develop and implement comprehensive management plans for National Forest System units, with substantial elements that are consistent with principles of watershed and ecosystem protection, including attention to biodiversity conservation and other environmental values.(701) Among the substantive requirements for these management plans is a specific mandate to protect water resources from the effects of logging activities.(702) These provisions give the Forest Service ample authority to engage in watershed protection efforts.(703) Most courts have been reluctant, however, to read NFMA as imposing significantly stricter boundaries than MUSYA on the Forest Service's discretion to balance environmental requirements against timber harvest and other goals.704
BLM lands are subject to similar requirements in the Federal Land Policy and Management Act (FLPMA),(705) which mandates adoption of comprehensive plans for the management of BLM land units(706) and requires that those plans consider environmental values in the context of BLM's overall multiple-use mission.(707) NFMA includes a less specific reference to water resources protection than NFMA.(708) However, the law does require BLM to coordinate with plans of other federal agencies and state and local governments, but only for consistency with other federal land laws.(709)
Because they impose requirements for presumptively protected lands and waters, the Wilderness Act(710) and the Wild and Scenic Rivers Act(711) provide additional authority for watershed protection, although neither was enacted as a watershed protection statute per se. As with National Parks, the Wilderness Act imposes a strict nonimpairment requirement for wilderness lands and, hence, for water resources within designated wilderness areas.(712) What is less clear is the extent of the government's duty to protect waters flowing through wilderness lands from external threats.(713)
The Wild and Scenic Rivers Act(714) Constitutes an overt federal legislative effort to preserve the free-flowing status of designated waters(715) and remains the surest tool to prevent the construction of dams and other major hyrological modifications.(716) A 1986 amendment requires the preparation for each segment of a "comprehensive management plan . . . to provide for the protection of river values," which must consider a range of land use and other activities and be coordinated with planning for adjacent federal lands.(717) If implemented fully,(718) this planning and coordination function could be used as a powerful watershed protection tool.
Finally, federal agencies have an independent duty to comply with the substantive requirements of the CWA for activities on federal lands.(719) Some federal courts have imposed watershed protection requirements on federal land managers through application of the CWA, the Administrative-Procedure Act, and NEPA, although the ultimate success of these cases in protecting water quality varies.(720)
In sum, a broad range of legal tools exists for federal land managers to engage in comprehensive watershed planning, restoration, and protection. Such authorities apply to watersheds largely or entirely within federal boundaries, independent of water resource protection on state and private lands. The more difficult question, however, largely unanswered, is whether these laws can help leverage more comprehensive watershed protection on nonfederal lands within a major watershed.
V. CONCLUSIONS AND RECOMMENDATIONS: MOVING TOWARD A WORKABLE MODEL FOR WATERSHED PROTECTION AND RESTORATION
A. Paradoxes in Watershed Program, Design and Implementation
Based on the foregoing inquiry, the resolution of several key issues is crucial to the success of future watershed programs. These questions involve 1) scale, 2) boundary, 3) control, 4) mission, and 5) consistency.(721) Unfortunately, each has a series of accompanying paradoxes that make solutions elusive. Without suggesting that a magic bullet can slay any of these demons, this analysis seeks to identify the most important issues and paradoxes, discusses certain elements of comprehensive watershed programs proposed over the past several years, such as Water Quality 2000,(722) Long's Peak,(723) Senate bill 2093,(724) and the AMSA bill,(725) and suggests at least some potential solutions.
Serious disagreement arises over the appropriate scale for watershed programs, reflecting a tension between ecological and political considerations. A related debate (also considered as an issue of control)(726) is whether watershed program organization and management should be from the "bottom up" or "top down."
The existence of hydrological. and ecological connections and interactions between various components of aquatic ecosystems over large geographic areas suggests that watershed programs should proceed at the scale of whole river basins or other broadly defined hydrological regions, such as the Ohio River Basin or Chesapeake Bay.(727) Watershed programs at broad, regional scales can more readily account for connections between headwaters and higher order streams and rivers (and vice versa), or between hydrologically connected types of water bodies (such as the impacts of wetlands on associated rivers, lakes and coastal waters; or the impacts of rivers on the lakes and estuaries they feed).(728) Similarly, regional-scale watershed programs can address the basinwide impacts of many human activities and viable alternatives to those actions.(729) Moreover regional programs can take advantage of larger economies of scale in program design and implementation and enjoy a larger funding base, both of which allow for the use of more staff and better technology.(730) Watershed programs of broad regional scale, however, face significant political and institutional problems. Large watersheds usually cross more political boundaries (local, state, or national), resulting in greater need for intergovernmental coordination.(731) While there are increasing examples of cooperation between jurisdictions within watersheds,(732) each new player complicates institutional and political problems and increases the possibility of turf battles, conflicting goals and values, and other parochial behavior. Problems range from the logistical challenge of coordinating a large number of governmental and nongovernmental entities,(733) to the more fundamental difficulty of identifying and accommodating the needs of many regional interests, including diverse social, economic, and environmental interests. Large watersheds also face increased technical challenges, such as inconsistent water quality standards.(734) It is ironic to cite these problems as impediments to regional programs, however, because their resolution is one of the primary benefits of the watershed approach.
Proponents of smaller-scale watershed programs, such as devotees of the Soil Conservation Service (SCS) small watershed program, cite a range of social, political, and practical benefits.(735) Those closest to the problem can take into account the physical and sociopolitical conditions of the particular area to design and implement goals, methods, and solutions. These solutions might be more cost-effective than those painted with a broader brush, because they tailor to the area's specific problems and conditions. In theory, regulated entities and the public will be more willing to participate in voluntary programs (including individual behavior modification as well as hands-on involvement in restoration projects), and to comply with regulatory requirements if they participate to a greater degree in the formulation of programs and standards and understand the link between observing those norms and the health of their watershed (bioregionalism applied).(736)
On the other hand, small watershed programs by definition lack the scope necessary to address expansive hydrological and ecological linkages over space and time. Small programs might solve local problems while ignoring, or in some cases exacerbating, conditions in other areas, resulting in geographic externalities.(737) Dividing watersheds into smaller units for purposes of setting key goals (such as water quality standards) could subject water body protection efforts to the very type of political pressures and competition that led to the enactment of a national clean water program, leading to standards and requirements that vary significantly in stringency and effectiveness.(738) Thus, there is a tension between the practical goals of efficiency and flexibility and the equally important objectives of equity and accountability.
There is no clear, correct answer to the problem of watershed scale. The answer "it depends," either on the region or the issue to be addressed, is not satisfactory. Patchwork programs based on different scales to address different issues are antithetical to comprehensive watershed planning and management, which envisions protection and restoration of aquatic ecosystems by addressing all relevant problems and sources of impairment in a watershed through a single, holistic effort.(739) Allowing scale to vary regionally(740) would lead to an inconsistent system of overlapping and incomplete programs, again the antithesis of a comprehensive approach.
The solution to the paradox of scale is not "any of the above," but "all of the above." Suggesting that watershed restoration and protection programs be designed at a single scale--small, medium, or large--is like asking physicists whether they should study and explain the universe at the subatomic, atomic, molecular, systems, or cosmic scale. Knowledge of all levels, as well as the interaction between these different scales, is essential to comprehensive understanding of the universe. The same is true for watersheds.. As suggested by Water Quality 2000, watershed programs require planning and implementation at multiple, nested scales,(741) allocating roles and responsibilities as appropriate to each scale.(742)
Thus, the largest watershed units, probably at the basinwide scale, should address issues of regional planning, assessment, and coordination,(743) to ensure that the program properly acknowledges and addresses regional impacts and connections, and to establish the broadest level of regional goals and objectives.(744) The smallest watershed units--analogous to those in the SCS small watershed program or some grass-roots river restoration projects--should focus more on design and implementation of on-the-ground controls, under the principle that those closest to the source of a problem can fashion more specific, effective solutions and are more likely to implement those solutions willingly.(745) Depending on the size and complexity of the basin, various intermediate scales of organization may be appropriate as well.
If they are to be effective, it is critical that these nested scales of watershed organization operate in cooperation rather than in isolation or in competition.(746) The broadest level of organization should include representatives of each lower scale of organization, to communicate and accommodate local needs and goals. Personnel from regional levels should participate in and observe first hand the methods and problems of implementation. To avoid the "top down" versus "bottom up" paradox, information and decisions should flow in both directions. Determining overall goals at the regional (and in some cases national) level serves the goals of accountability, equity, and consistency.(747) Full participation in the goal-setting process by representatives of those who must implement the goals, however, can help avoid the perception that distant bureaucrats who lack sufficient practical understanding to design effective and workable programs are the ones imposing requirements. A local-level focus may best accomplish flexibility, cost-effectiveness, and practicality, but open participation by regional officials can avoid inconsistent implementation in local watersheds or the sacrifice of overall program goals due to local economic or other interests.(748)
Closely related to the problem of scale is the question of boundary. Traditional water programs organize according to geopolitical boundaries. Those arranged by state or locality are generally too small, while national efforts are generally too large, to address adequately many watershed or ecosystem concerns. Aquatic ecosystem restoration and protection programs should organize according to natural rather than artificial boundaries.(749) However, because natural boundaries vary significantly depending on the resource at issue, the task of boundary delineation is not as simple as it seems, at least not without creating a confusing array of overlapping programs.
As noted at the outset, the recent renovation of watershed protection parallels a broader trend toward ecosystem protection and management, including both terrestrial and aquatic ecosystems. Both ideas involve identification of resources, problems, and solutions within natural ecosystem boundaries. Both address the cumulative and synergistic impacts of diverse human activities on biological communities and their habitats. In addition, both innovations confront the relationship between human uses of land and environmental change. To meet these challenges, these plans rely on consultation, coordination, and cooperation between all relevant governmental and nongovernmental organizations as well as the general public. To accomplish this Herculean feat, both require a new management structure and the development and implementation of management plans using a wide range of legal and technical tools and practices--all of which pose significant demands on scarce public and private financial, human, and other resources.
Such efforts are already complex if conducted for just a single watershed or ecosystem using a common set of boundaries. But no agreement yet exists on a single framework for environmental boundaries. Hydrological purists continue to advocate programs based on watershed boundaries,(750) While aquatic ecologists now suggest that watershed ecosystems reflect more accurate ecological boundaries. But ecological boundaries often cannot be identified with precision,(751) and depending on the aquatic resource of greatest concern, a variety of potential aquatic ecosystem boundaries exists--"salmonsheds" versus "ducksheds," for example.(752) After adding terrestrial ecosystems, the situation becomes even more complex. Should programs focus on the boundaries of aquatic ecosystems (watersheds, ducksheds, or salmonsheds), on plant ecosystems (forestsheds), or on the range of key terrestrial species (bearsheds)?(753)
If time, money, and patience to sit through meetings and conference calls were infinite, these conflicts would not be of such great concern. But these resources are not boundless, and neither is the tolerance of program participants, affected resource users, or the public for growing and overlapping government institutions. A farmer legitimately might lose patience with watershed and ecosystem management if that individual's same set of activities faced regulation through conflicting rules to manage waterfowl within a flyway ecosystem, to control runoff to a riparian basin, and to protect the habitat of wolves migrating across his land.(754) A federal land manager may have no time to manage if she needs first to coordinate with multiple watershed and ecosystem efforts, such as the Greater Yellowstone ecosystem for some activities and the overlapping Yellowstone-Missouri and Snake-Columbia River watersheds for others. The public, in turn, may quickly lose confidence as the number of management plans increase but the level of resource protection continues to decline.
There is probably no single answer to this paradox, as is illustrated by the fact that no single ecosystem delineation is more "correct" than others. As suggested above, one possible approach is to use hydrological watersheds to organize land use and pollution controls, but to set and measure attainment with goals on an ecoregion basis. What is clear, however, is that unless all involved parties reach agreement on some consistent framework for watershed and other ecosystem-based programs, management anarchy may well result.(755)
Related closely to both scale and boundary is the pivotal and contentious matter of control. This issue of control divides further into two related issues: 1) allocation of power among levels of government,(756) and 2) distribution of power between government and people (or managers and constituents).(757)
One principal advantage of watershed (or ecosystem) approaches is that they can coordinate the efforts of multiple levels of government as they affect an ecologically defined region.(758) A second major benefit is that watershed approaches provide flexibility to account for regional variables, so long as they meet legitimate regional and national goals.(759) Ironically, however, a major source of opposition to comprehensive watershed planning and management comes from lower levels of government who fear potentially losing control over water use, land use, and economic and environmental policies.(760) Moreover, hydrological units generally lack independent political power.(761) Thus, a paradox exists between the U.S. tradition of state and local rule within geopolitical boundaries and the need to coordinate efforts within watershed or ecological boundaries.(762)
The history of past watershed program failures, such as the rejected New Deal programs, the WRPA, and CWA section 208, strongly suggests that efforts to control watershed programs too tightly out of Washington, D.C. may exacerbate this tension. This is especially true in the current political climate with its momentum back toward state and local rule. History provides equally clear lessons, however, that leaving water policy decisions entirely to states and localities results in geographic externalities, economic inequities, and programs often too weak to make a real difference.
Any watershed program must strike a balance between these two extremes to make progress in restoring and protecting aquatic ecosystems.(763) When aquatic ecosystems cross so many state and international boundaries, a strong federal presence is essential to ensure that progress and goals are reasonably equal around the country. Yet uniform federal regulation of land use will continue attracting significant opposition, and is not appropriate in all cases. Nor is it feasible to design aquatic ecosystem restoration efforts from Washington when the appropriate actions depend on so many local variables. The National Estuary Program and the Coastal Zone Management Act (CZMA) Coastal Nonpoint Source Runoff Program suggest that such a balance is possible, but achievement of this balance must be at a national scale and not just in the coastal zone.
A reasonable compromise on this issue should incorporate the following basic principles: First, activities amenable to uniform controls, and for which variations would produce economic and environmental externalities, should remain subject to national source controls.(764) Second, establishment of overall environmental goals should remain at the national level(765) to avoid the problem of interstate or regional competition for economic growth at the expense of the environment. Variations that account for legitimate differences in environmental variables are appropriate,(766) but allowing state or regional standards to differ substantially in the resulting degree of protection would undermine the goal of equity. Moreover, for ecosystems that cross political borders, consistent if not uniform environmental goals and standards are essential. Third, especially for land use, runoff pollution, and other sources of impairment that vary significantly in operation and impact, states and localities should retain some flexibility to adopt their own appropriate requirements. However, this approach is viable and fair only if such standards provide approximately equal levels of control, using objective performance criteria, and if they achieve equivalent levels of compliance, as provided in the Coastal Zone Runoff Program.(767)
The second control issue beyond division of power involves government versus people (or managers versus constituents). Local, state, interstate, and federal agencies control traditional water resource programs. However, private landowners initiate and control many activities that affect water resources, including land and water use. Finally, the primary beneficiaries of aquatic ecosystem values are members of the general public. The constitutional issue of takings and other government-private conflicts can pose serious barriers to sound environmental planning and management.(768) Even short of direct legal conflicts, many landowners argue that they know best what management practices are feasible, economically viable, and necessary to protect water resources--the sound stewardship approach. Transferring governmental control over water resources to those with the greatest economic interest in the issue is not viable, however, for two reasons. First, however appealing the idea of the "land ethic" is in theory, large numbers of landowners limit or ignore its application in practice, as discussed above. Second, given the complex relationship between actions on private lands and those of other landowners in a large watershed, collective actions and decisions are necessary to restore and protect watersheds. Government intervention must facilitate this process.(769)
Ironically, however, citizen activists working to design and implement restoration programs in their local watersheds also advocate increased transfer of control over watershed programs from government to people.(770) This manifestation of bioregionalism, or "watershed democracy," is desirable because it involves increasing numbers of citizens in successful grass-roots watershed programs, from monitoring and enforcement to hands-on restoration.(771) To some degree, this "watershed democracy" may reflect healthy cynicism in the face of a century of government programs that relied on structural engineering to the exclusion of land control and that often served more to degrade than to protect aquatic ecosystem health. While some water resource professionals may (with equal but less appropriate cynicism) question the ability of citizens to address complex issues of science and engineering, there exists ample precedent for the use of trained citizens to conduct successful monitoring and restoration programs.(772) Moreover, the best grass-roots restoration efforts involve citizens fully in decisions and rely on volunteer labor, but make use of scientific expertise available through government agencies and universities.(773)
Inherently, there is some conflict between the need to promote and coordinate complex activities within large-scale watersheds, using sophisticated technical tools and expertise, and the benefits of involving citizens in the actions and decisions that affect their local environment. Grassroots restoration efforts with direct citizen involvement can play a strong role in the design and implementation of overall watershed restoration, but these efforts cannot substitute for coordinated planning and implementation at a broader regional scale. Just as watershed institutions must accommodate programs at different, nested scales, they also must embrace with equal respect, and coordinate, both citizen and government decision making and implementation.(774)
Finally, related to both the allocation of control among governments and between governments and people is the question of whether a single entity or an aggregate of more diverse groups should govern watershed programs. It is easier to run watershed programs through unitary rather than composite entities. Unitary control simplifies logistics and decision making and can use existing personnel and hierarchies. Yet these very efficiencies produce unilateral decisions that might profess to address multiple interests, but in reality promote pre-existing missions. Historical experience suggests that monolithic watershed institutions will likely either fail or produce results that are inimical to watershed restoration and protection, while composite entities will more likely accommodate diverse interests and hence succeed. Thus, historically, when legislators delegated watershed management to agencies such as the Federal Power Commission, the Bureau of Reclamation, and the U.S. Army Corps of Engineers, comprehensive planning gave way to mission-oriented resource development. Laws requiring full consultation and analysis of alternatives, such as the National Environmental Policy Act (NEPA) and the Fish Wildlife Coordination Act (FWCA), did little to change the direction of agencies whose focus was inherently single-purpose. Even so-called "multiple use" agencies tend to have a dominant mission that promotes one use over most others.(775) Traditional provisions for access to decisions, such as notice and comment and judicial review under the Administrative Procedure Act,(776) alter results only in individual cases and only at the margins, due to deferential standards for judicial review and superior access and power by discrete, economically powerful interest groups.(777)
Efforts to address this problem through regional river basin commissions under WRPA failed as well, although for more complex reasons. Earlier efforts to promote national river basin planning failed due to inherent political opposition to central planrdng, especiauy at the federal level. The fact that federal votes dominated the WRC and the WRPA river basin commissions did little to assuage concerns about ceding state and local control to Washington. As a result, many experts advise against a return to a national system of watershed planning based on centralized, uniform, federally managed commissions or similar permanent entities.(778)
Nevertheless, the absence of some coordinating institution will doom watershed protection to equally undesirable problems of fragmentation and ineffectiveness. The more successful, though still imperfect, models involve aggregations of multiple levels of government and diverse interest groups in a representative (rather than simply public notice and comment) process.(779) Each entity retains independence but participates fully in relevant decision making. Obviously, the larger the unit of watershed scale, the more difficult it becomes to involve all players--as opposed to representative players--in each decision. Moreover, a consensus process that gives affected interest groups veto power can stop watershed protection in its tracks. While alternative dispute resolution has promise to facilitate decisions that accommodate diverse interests,(780) at some point responsible watershed agencies must be free to break an impasse and adopt and implement watershed programs that meet prescribed national, state, regional, and local goals.
A fourth paradox arises over the fundamental nature of watershed programs. Is the purpose of a comprehensive watershed approach largely procedural or substantive? To some, the basic purpose of watershed programs should be to ensure that the correct players from diverse locations and interests have adequate opportunity to interact, express their views, and reach consensus on watershed goals and actions to meet those goals.(781) This reflects an optimistic view that process alone will sufficiently resolve intractable conflicts within and among watersheds.
History suggests that this optimism may be misplaced. CZMA, for example, requires rigorous efforts to ensure intergovernmental coordination and public participation.(782) NEPA and FWCA also require intergovernmental consultation and public process.(783) None of these process laws alone, however, significantly reduced the impairment of aquatic ecosystems at large,(784) although they undoubtedly helped to mitigate impacts from some individual activities.
When federal watershed programs included substantive mandates, however, in many cases they effected more harm than good on watershed health. The substantive mandates of federal water programs such as the Reclamation Act, the Federal Power Act, and the various water resource development and flood control laws, as well as the "multiple use" doctrine in most of our public lands statutes, actually impair rather than restore or protect our aquatic ecosystems.(785) The same is true for state water laws and systems. For example, so long as the doctrines of prior appropriation and beneficial use dominate western water law, with instream uses taking a back seat (if any), even the best watershed protection programs will fail in areas where water is scarce. The CWA, in turn, with due respect to sections 208 and 319, lacks an adequate planning and management framework to address pollution from diverse land uses. Some watershed "management" proposals would even facilitate the weakening of CWA requirements, such as efforts to downgrade designated water uses and weaken point source permits in return for stricter controls on polluted runoff.(786)
Comprehensive watershed "planning and management," an historical euphemism for maximum water resource use and development, must give way to watershed restoration and protection. To achieve this change, true watershed restoration and protection programs cannot be substance-neutral. Programs must follow clear, enforceable substantive mandates to restore and protect aquatic ecosystems; perhaps clarifying the underlying objective of the CWA as tramping other water resource laws would start the process.(787) Moreover successful watershed restoration and protection requires more than just enactment of a new statutory mandate for watershed restoration and protection. WRPA was flawed, for example, because while promoting integrated watershed procedure, it still retained the legal status quo that caused much aquatic ecosystems degradation.(788) In concert with ongoing restoration efforts, legislators should modify or repeal existing federal and state laws and programs that do more to degrade than protect aquatic ecosystem integrity, such as the Federal Power Act (FPA), the Reclamation Act (and its regional variations), remaining water project subsidies, and the project-by-project authorization process. Otherwise, efforts to stabilize the patient will fail because the sources of illness will remain.(789)
Finally, watershed programs must have broadly defined missions. Past programs charged to adopt watershed approaches, such as the FPA mandate to plan for the comprehensive development of whole rivers, focused only on a narrow range of watershed uses and values. Yet some proposals for watershed management continue to focus on single issues or sets of issues, such as water quality.(790) Clearly, in planning wetlands restoration efforts, it is better to plan on a watershed rather than a single-project basis. Similarly, water quality programs work better if agencies coordinate the issuance of all NPDES permits on a watershed basis. Each of these efforts still may fail, though, if not conducted, for example, in concert with watershed-based efforts to assure minimum streamflows, or with related land use controls. Thus, watershed programs ideally should address, in concert, all related activities that affect the integrity of the aquatic ecosystem within a defined watershed.(791) Programs must encompass all aspects of the hydrological cycle, including links between land and water, water quality and quantity, and groundwater and surface water.(792) They also must involve all chemical, physical, and biological factors related to aquatic ecosystem health, including aquatic and related terrestrial habitat.
The final set of issues requiring resolution before designing watershed programs is the degree to which programs should be consistent on a national and regional scale. This includes related questions of whether programs should be mandatory or voluntary, universal or limited to areas in which perceived need and support exist, and relatively uniform or flexible. One approach promotes or requires a comprehensive national system of nested watershed programs (as proposed by Water Quality 2000), with programs in every major watershed in the country. A second approach (as proposed in S. 2093) uses incentives to encourage and facilitate the development of watershed programs of widely varying types, and at various scales and in various regions around the country, with the aspiration but no mandate to create a comprehensive program of watershed protection and restoration.(793) Again, the resolution of this paradox involves conflicting factors.
Historical precedent, along with increasing opposition to anything federal in scope or origin, tends to suggest that watershed programs should be voluntary and flexible. Previous efforts to establish a nationwide system of watershed management failed, in part due to strong resistance to mandatory federal programs in the areas of land and water use and also to perceived federal control over these domains.(794) Moreover, the ongoing resurgence of watershed programs around the country in the absence of a national mandate(795) Suggests, perhaps, that people and institutions may be willing to act when asked (or even act on their own), while they would oppose the same actions if required to do so. Finally, however, even with the best intentions to allow flexibility, some believe that almost inevitably a national program will become encased in rules that tend to stifle flexibility and innovation.(796) Yet, the ability to address water resource problems by evaluating the unique needs and conditions of specific watersheds, as opposed to the use of a rigid uniform formula, is one of the primary strengths of the watershed approach.
An entirely voluntary, ad hoc system of watershed programs, however, suggests other, equally disturbing problems. The purely voluntary approach almost certainly will result in wide disparities between watershed protection and restoration around the country, a variant on the problem of accountability suggested above.(797) Some regions will have excellent programs, others mediocre ones, and others none. This in turn suggests problems of environmental justice. Areas with adequate political clout, funding, and other resources may benefit from watershed restoration and protection, while others remain polluted.(798) Yet it is in some of the regions least likely to attract "voluntary" watershed programs where many of our most pressing water quality and aquatic ecosystem health problems remain.(799) Thus, a nationwide program would better fulfill the national commitment to meeting the goals of the CWA and other watershed protection and restoration goals.
Second, some standardization would help avoid the very confusion, gaps, and conflicts that watershed programs are designed to address. Disparate watershed programs around the country likely would adopt divergent approaches to the issues of scale, boundary, mission, and control addressed above. Programs could overlap, conflict, or seek conflicting goals. Inefficiencies could occur due to overlapping jurisdictions, and individual programs would lose economies of scale. While flexibility is desirable to foster creative solutions appropriate to individual sites, management anarchy can be counterproductive.
At bottom, these inconsistencies result from the paradoxical nature and benefits of watershed management itself. Watershed approaches are desirable because they are comprehensive and flexible, and because they are universal but still allow for grass-roots involvement and innovation. Thus, selecting either the mandatory-universal-uniform approach or the, voluntary-limited-flexible approach alone results in the loss of some of the key advantages of watershed programs. To avoid this loss at either end of the spectrum, any program must strike a balance that ensures universal watershed restoration and protection without setting inappropriately rigid national requirements.
Planners might work toward this elusive balance by first distinguishing between those components of watershed management that profit most from consistency, and those that benefit from flexibility. The broad issues of scale, boundary, and overall mission and goals may benefit most from relative uniformity, while matters of method, implementation, and specific management structure may profit more from flexibility. Thus, effective watershed programs would require a uniform general method to delineate program boundaries with nested scales. While there may be no single "best" system for delineation, one system is better than many conflicting ones. Planners should establish programs for all major watersheds around the country. At the broadest scales, a nationwide system of watersheds could incorporate wholesale programs such as the Chesapeake Bay and Great Lakes programs. Regions that lack such broad initiatives, such as the Mississippi River watershed, are most in need of new umbrella programs. However, the precise management structure for each program should maintain flexibility to accommodate regional institutions and dynamics.(800) Moreover, there is no need to re-invent watershed programs that already exist, and each region should be free to determine and implement the appropriate system of smaller nested watershed programs that can and should incorporate, rather than re-invent or restructure, existing successful programs and initiatives.
Similarly, the need for equity and accountability suggests that overall performance goals and requirements should maintain a national scale, while still allowing regional and lower levels of scale to determine more specific goals. Conversely, questions of actual program implementation to achieve these goals will more likely succeed and encourage innovation if they are designed and adopted at the more local scale.
Finally, there remains the question of federal consistency with state and regional watershed programs and requirements. As noted by some regarding CZMA,(801) additional state and local control over federal activities may serve as a quid pro quo that encourages the development of comprehensive environmental planning programs.(802) Yet many past consistency provisions have been weak or equivocal, giving discretion to federal agencies to avoid state or regional requirements.(803) Except perhaps for matters of national security or other issues of paramount national interest, or those at the discretion of the President (as opposed to agency officials),(804) there is no reason why, once states and regions adopt watershed protection requirements designed to meet national as well as regional aquatic ecosystem restoration and protection goals, federal activities should not be subject to those requirements in full.
B. An Evolving Standard Model for Watershed Programs
Slowly, a standard but flexible model for watershed protection is evolving, ironically out of diverse sources of experimentation around the country. The term "model' is important because models are flexible and iterative rather than rigid and static. Models allow for the input of different variables to address varying conditions, but assure a consistent general approach and maintain designs that reach consistent results. Thus, the use of a standard model rather than a uniform set of rules can accomplish the balance between the competing objectives discussed above.
Gleaned from the program descriptions in Watershed `93, current watershed program proposals, lessons learned from past and existing federal statutes and programs, and other sources, the most successful watershed programs increasingly appear to share the following common characteristics:
1) Comprehensive watershed-wide resource inventories and evaluations form the basis for program design. Before making final decisions or committing resources, program implementors catalogue and evaluate the status of the resource, its potential health, existing sources of impairment, and potential solutions.(805) Scientific tools such as GIS, biocriteria, and satellite imagery are useful in this process, and are most cost-effective at larger watershed scales. Smaller-scale inventories and assessments require more localized, on-the-ground techniques.
2) Planners first establish specific goals and objectives using numeric or other objective performance standards wherever possible. The standards can change over time, but specificity is critical to ensure program accountability and appropriate revisions. Goals and objectives should focus on environmental rather than bureaucratic terms. For example, performance ratings should value biological conditions and environmental results rather than the number of BMPS installed or the number of permits issued.
3) Careful targeting should help select solutions and allocate resources. In a perfect world with unlimited resources, program planners could implement all viable solutions. In the real world, and one of increasingly scarce public means, this is not possible. For example, after setting goals for habitat restoration, planners can then order projects based on potential watershed benefits, cost, likelihood of success, and other factors, to implement the best projects first. As the highest priority projects end, others can then follow until the program meets its goals. Similarly, once the program identifies target pollutants and sources and calculates load reductions (beyond those imposed by technology-based requirements), planners can then select the most cost-effective mix of source reduction that still achieves overall total reductions.
4) Participants make decisions collectively and wherever possible by consensus, but ultimate program goals and objectives remain paramount. Binding, enforceable commitments to implementation are essential. All affected interest groups should retain full involvement, using consensus decision making wherever possible and Alternative Dispute Resolution methods when necessary. Ultimately, however, accountability to national, regional, and local goals requires the existence of some process to resolve impasses and to mandate decisions and implementation when necessary. 5) The process must be iterative rather than static. Watershed programs must be dynamic to account for changing environmental and artificial factors, including shifting goals and values, and to modify programs as needed. This process requires ongoing evaluation of program implementation and results, so that implementers can modify or retain programs and strategies when necessary.
VI. Postscrip: A Thousand and One Watersheds
The Sultan of the Indies could not but admire the prodigious and inexhaustible memory of the sultaness, his wife, who had entertained him for a thousand and one nights with such a variety of interesting stories.
His temper was softened and his prejudices removed. He was not only convinced of the merit and great wisdom of the sultaness Scheherezade, but he remembered with what courage she had offered to be his wife, without fearing the death to which she knew she exposed herself, and which so many sultanesses had suffered within her knowledge.
These considerations, and the many other good qualities he knew her to possess, induced him at last to forgive her. ....
The grand vizier was the first who learned this agreeable intelligence from the sultan's own mouth. It was instantly carried to the city, towns, and provinces: and gained the sultan, and the lovely Scheherezade his consort, universal applause, and the blessings of all the people of the extensive empire of the Indies.(806)
The story of Scheherezade is one not only of courage but of persistence and skill. The Sultan's prejudices were erased not in a single night, but gradually, through the richness and diversity as well as the interest and imagination of Scheherezade's tales. The continuing, persistent, and skillful efforts to develop and implement watershed programs around the country--while obviously not as colorful as the stories of Aladdin and Sinbad and Ali Baba--slowly appear to be eroding prejudices against cooperative, comprehensive planning as a tool for watershed protection and restoration. Difficult legal, political, social, and technical barriers remain to nationwide implementation of watershed protection, but with persistence, those barriers can be overcome. (1) See Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. Colo. L. Rev. 293, 333 (1994); U.S. Gen. Accounting Office, Ecosystem Management: Additional Actions Needed To Adequately Test A Promising Approach 3 (1994). The trend is recent only in the political sense, as ecosystem-based environmental analysis has been known to scientists, and to some federal agency biologists and policy makers, for some time. See Alisa L. Gallant et al., Regionalization as a Tool for Managing Environmental Resources 12, 20 (1989) (describing the development and use of ecoregion maps); Lynton K. Caldwell, The Ecosystem as a Criterion for Public Land Policy, in The Ecology of Man: An Ecosystem Approach 410 (Robert Leo Smith ed., 1972) (advocating an ecosystem-based approach to public land policy over traditional economic and demographic analyses). (2) An expert panel convened by the National Research Council, for example, noted that "restoration ecology applied to aquatic ecosystems is in a very early stage of development." Committee on Restoration of Aquatic Ecosystems, National Research Council, Restoration of Aquatic Ecosystems: Science, Technology, and Public Policy 5 (1992) [hereinafter Aquatic Restoration]. Some ecologists believe that most researchers give lip service to ecosystems while actually studying ecosystem components such as individuals, populations, or species. John Cairns, Jr., The Current State of Watersheds in the United States: Ecological and Institutional Concerns, in Watershed '93: A National Conference on Watershed Management 11, 11-12 (1993) [hereinafter Watershed '93]. (3) Martin Reuss, Introduction to Water Resources Administration in the United States: Policy, Practice and Emerging Issues 1 (Martin Reuss ed., 1993) [hereinafter Water Administration]; see also Gary D. Weatherford, Natural Resources Law Ctr., Western Water Policy Project Discussion Series No. 5, From Basin to "Hydrocommons": Integrated Water Management Without Regional Governance 1 (1990) (Citing Charles H.W. Foster & Peter P. Rogers, Federal Water Policy: Toward an Agenda For Action 81 (1988)) (arguing that river basin management, while conceptually sound, failed because society is not organized around hydrological boundaries); Leo M. Eisel, Implications for the Water Resources Council, in Unified River Basin Management 45, 45 (Ronald M. North et al. eds., 1980) [hereinafter Unified Management I] ("[W]e can all point to plans whose ignoble end was to become a permanent fixture on someone's bookshelf."). (4) The Arabian Nights' Entertainments (G. Flyer Townsend trans., Darf Publishers 1985) (English translation first published 1884). (5) Id. (6) Regarding the distinction between a "watershed" and a "watershed ecosystem," see discussion infra part II.A.1. (7) Aquatic Restoration supra note 2, at 524. The same concept applies to the surface area that drains a bay or estuary. Charles A. Simenstad et al., Impacts of Watershed Management on Land-Margin Ecosystem: The Columbia River Estuary, in Watershed Management: Balancing Sustainability and Environmental Change 266, 267 (Robert J. Naiman ed., 1992) [hereinafter Watershed Management]. Similarly, the U.S. Geological Survey (USGS) defines "[d]rainage basin" as the "[l]and area drained by a river." U.S. Geological Survey, National Water Summary 1990-91: Hydrologic Events and Stream Water Quality 579 (1993).
USGS has divided the nation into four nested layers of increasingly smaller hydrological units: 1) regions, 2) subregions, 3) accounting units, and 4) cataloging units. Id. at 588-90. Some scientists distinguish between "watershed" (the boundary line defined by the "ridgeline or elevation contour that delimits drainage basins or catchments") and the "catchment" or "drainage basin" bounded by the watershed. J.A. Stanford & J.V. Ward, Management of Aquatic Resources in Large Catchments: Recognizing Interactions Between Ecosystem Connectivity and Environmental Disturbance, in Watershed Management, supra, at 91, 93. (8) See, e.g., William Goldfarb, Watershed Management: Slogan or Solution?, 21 B.C. Envtl. Aff. L. Rev. 483, 483 (1994). (9) 42 U.S.C. [subsections] 1962a-1962d (1988 & Supp. V 1993). (10) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [sections] 1288 (1988 & Supp. V 1993). (11) Water Quality 2000, Water Env't Fed'n, A National Water Agenda For The 21st Century: Phase III Report (1992) [hereinafter Water Quality 2000]. Water Quality 2000 was a multi-interest group forum, convened by the Water Pollution Control Federation (renamed the Water Environment Federation) to negotiate consensus on long-range U.S. water quality policy. The final report was ratified by representatives of industry, agriculture, environmental groups, all levels of government, educators, scientists, and professionals. See id. at app. A; see also id. at app. C, app. E. (12) Sarah F. Bates et al., America's Waters: A New Era of Sustainability, Report of the Long's Peak Working Group on National Water Policy, 24 Envtl. L. 125, 133-44 (1994). The Long's Peak effort was convened by the Natural Resources Law Center of the University of Colorado to propose changes in water policy for the Clinton-Gore Administration. While somewhat less representative than Water Quality 2000, the effort nevertheless included individuals from academia, state agencies, Native American groups, environmental groups, Congress, and others. Id. at 126. (13) Mark O. Hatfield, The Long's Peak Working Group and River Basin Trusts, 24 Envtl. L. 145, 151-56 (1994) (proposing river basin trusts that would be funded by government and private interests and would integrate resource management and conservation at the federal, state, and local levels). (14) Aquatic Restoration, supra note 2, at 5-6 (describing how to select which aquatic systems to repair and how to plan and monitor the project). (15) Association of Metro. Sewerage Agencies, The Comprehensive Watershed Management Act of 1993, Tab 1 (1993) [hereinafter Proposed AMSA Bill (proposing to make cost-effective, site-specific decisions that achieve the level of water quality that protects the designated beneficial uses of a watershed). (16) U.S. Envtl. Protection Agency, The Watershed Protection Approach: Annual Report 1992, at 1 (1993) (proposing a watershed protection approach that would focus on hydrologically defined drainage basins); U.S. Envtl. Protection Agency, NPDES Watershed Strategy 1 (1994) [hereinafter NPDES Watershed Strategy] (proposing to focus on the hydrological drainage basin rather than on individual pollutant sources); Memorandum from Robert Perciasepe, Assistant Administrator for Water, U.S. Environmental Protection Agency, to Various Agency Directors (Oct. 7, 1994) (on file with author) [hereinafter Perciasepe Memorandum]. Indeed, the watershed focus and similar ecosystem-based approaches are integral to the EPA's current overall strategy to achieve sustainable environmental and economic quality. U.S. Envtl. Protection Agency, Five-Year Strategic Plan: The New Generation of Environmental Protection 9-12, 115-16 (1994). (17) Bob Doppelt et al., Entering the Watershed: A New Approach to Save America's River Ecosystems at xxviii-xxx (1993) (proposing an approach that begins with protecting healthy water systems, moves on to restoring polluted areas, and then encourages the community to participate); Robert W. Adler et al., The Clean Water Act 20 Years Later 227-57 (1993) (proposing a national watershed agenda, including improving standards, strengthening enforcement, and protecting healthy water systems). (18) Water Quality 2000, supra note 11, at 33 ("[I]ndividual watersheds are the most logical geographic units to use to identify holistic cause-and-effect water quality relationships, link upstream uses to downstream effects, develop reasonable water cleanup plans, target limited resources, and educate and involve the public."); Bates et al., supra note 12, at 130 ("Watersheds should form the basic unit of analysis and activity in order to protect and sustain aquatic biological diversity, including instream, wetland, riparian, and related upland resources."); Doppelt et al., supra note 17, at 27 ("It is now time to expand beyond the more narrow, fragmented approach and add watershed-level, ecosystem-based protection and restoration approaches and policies to the river conservation tool box"); Aquatic Restoration, Supra note 2, at 147 ("From a technical standpoint, the watershed is the most logical scale at which to undertake restoration."), 524 (defining watershed-scale approach as "[a] consideration of the entire watershed, including the land mass that drains into the aquatic ecosystem"). (19) Reauthorization of the Clean Water Act: Hearings Before the Subcomm. on Environment and Public Works, 103d Cong., 1st Sess. 5321-23 (1993). (20) Congress has grappled unsuccessfully with the question of how to address runoff pollution since the Clean Water Act was enacted in 1972. See Clean Water Act Amendments: Non-Point Source Management Program: Hearings Before the Senate Comm. on Environment and Public Works, 98th Cong., 1st Sess. 31 (1983); Dardel R. Mandelker, Controlling Nonpoint Source Water Pollution: Can It Be Done?, 65 Chi-Kent L. Rev. 479, 480 (1989). The most recent effort to tackle runoff pollution was section 319 of the CWA, added in 1987. 33 U.S.C. [sections] 1329 (1988). On the proposed change in terminology, see Paul Thompson et al., Poison Runoff: A Guide to State and Local Control of Nonpoint Source Water Pollution 4 (Natural Resources Defense Council ed., 1989). (21) S. 2093, 103d Cong., 2d Sess. (1994); see also S. Rep. No. 257, 103d Cong., 2d Sess. (1994) (report on Senate Bill 2093, the Water Pollution Prevention and Control Act of 1994). (22) Senator Baucus was the Chair and Senator Chafee was the ranking minority member of the Senate Committee on Environment and Public Works, which has jurisdiction over the Clean Water Act. These roles reversed in the 104th Congress after the Republicans captured the Senate majority. The U.S. Congress Handbook 1995, 104th Congress (First Session) 9, 46 (1995). (23) S. 2093, 103d Cong., 2d Sess. tit. III (1994) (enacted). Additional elements of watershed protection were included in other aspects of the bill, such as little VII dealing with wetlands, and proposed amendments to the National Estuary program. Id. [sections] 801. (24) Carol M. Browner, The Administration's Proposals: We Must Embrace a Watershed Approach, EPA J., Summer 1994, at 6, 7. (25) Waterahed '93, supra note 2 (The conference was convened by 14 federal agencies in cooperation with 33 other public and private entities. . (26) See, e.g., Aquatic Restoration, supra note 2, at app. A (restoration case studies); U.S. Envtl. Protection Agency, The Watershed Protection Approach: 1993/94 Activity Report (1994); U.S. Envtl. Protection Agency, Institutional Frameworks for Watershed Management Programs (1994) [hereinafter Instrumental Frameworks]; Wildland Resources Ctr., Report No. 22, Case Studies and Catalog of Watershed Projects in Western Provinces and States (Robert Z. Callaham ed., 1990). (27) See Claudia Copeland, Congressional Research Service (CRS), Clean Water Legislation in the 103rd Congress: A Legislative Rollercoaster (1994) (analyzing why the Clean Water Act was not reauthorized in the 103d Congress). 28 For an overview of the political shift, see Robert J. Samuelson, Changing the Mainstream, Wash. Post, Nov. 30, 1994, at A27; The GOP Response. "Join Us as We Change America," Wash. Post, Jan. 25, 1995, at A29 (text of New Jersey Governor Christine Todd Whitman's (R) response to President Clinton's State of the Union address); Cindy Skrzycki, Hill Republicans Promise a Regulatory Revolution: Lawmakers Target Rules and Rulemakers, Wash. Post, Jan. 4, 1995, at A1, A6. (29) Aquatic Restoration, supra note 2, at 524. (30) Stanford & Ward, supra note 7, at 93; Robert J. Naiman et al., Fundamental Elements of Ecologically Healthy Watersheds in the Pacific Northwest Coastal Ecoregion, in Watershed Management, supra note 7, at 127, 173; Simensted et al., supra note 7, at 267-79; Gallant et al., supra note 1, at 21; Doppelt et al., Supra note 17, at 8-9, 15; Adler et al., supra note 17, at 171. (31) American Water Resources Ass'n, Unified River Basin Management-State II, at 3 (David J. Allee et al. eds., 1981) [hereinafter Unified Management II]; see also Aquatic Restoration, supra note 2, at 343 (arguing that integrated resource management requires consensus-building at all political levels in order to overcome the jurisdictional boundaries that fragment watersheds). Minnesota, for example, covers four distinct river basins. Helen M. Ingram, The Political Economy of Regional Water Institutions, Am. J. Agric. Econ. 10, 13 (1973). (32) Stanford & Ward, supra note 7, at 92 (internal citation omitted). (33) Id. at 97. This four-dimensional view of watershed ecosystems is also described in Doppelt et al., Supra note 17, at 7, and in James R. Karr, Biological Integrity: A Long-Neglected Aspect of Water Resource Management, 1 Ecological Applications 66, 80-81 (1991) [hereinafter Karr, Biological Integrity]. (34) For example, the cumulative effects of upstream impairments degrade the health of estuaries far downstream. Simenstad et al., supra note 7, at 267-68. (35) Jerry F. Franklin, Scientific Basis for New Perspectives in Forests and Streams, in Watershed Management, supra note 7, at 25, 27-29 (reviewing the ecological benefits of the whole riparian zone, which provides essential food, structure, light and energy, and habitat structure); Doppelt et al., supra note 17, at 8-11 (describing the nature of "riverine-riparian"--as opposed to purely "riverine"--ecosystems); Karr, Biological Integrity, supra note 33, at 80-81 (discussing trends in the analysis of structure and function in stream ecosystems).
Robert Adler, Associate Professor, University of Utah College of Law. The author formerly was Director of the Clean Water Program at the Natural Resources Defense Council; Chair of the Clean Water Network, and Vice-Chair of Water Quality 2000, a multi-interest group forum that convened over several years to reach consensus on long-range recommendations for U.S. water quality policies. All three groups promoted integrated watershed protection. The author gratefully acknowledges the help of research assistants Barbara Schuster and Paul Wake and the efforts of the staff of the University of Utah Law Library. This Article was funded in part by the University of Utah (36) Cairns, supra note 2, at 11 ("[T]he institutional focus is on components of whole eco- systems, such as wetlands, lakes, rivers, etc."). As discussed infra Part IV, many current watershed-based programs, such as the National Estuary Program, 33 U.S.C. [sections] 1330 (1988), the Clean Lakes Program, 33 U.S.C. [sections] 1324 (1988), and wetlands protection, 33 U.S.C. [sections] 1344 (1988) (permits for dredged or fill material), address individual aquatic ecosystem components separately. (37) Aquatic Restoration, supra note 2, at 341. (38) Id. at 342. (39) Id. passim; see also Doppelt et al, supra note 17, at 26-27, 34-41, 63, 72 (arguing that a national, comprehensive watershed policy is needed to restore aquatic habitat); Peter A. Bisson et al., Best Management Practices, Cumulative Effects, and Long-term Trends in Fish Abundance in Pacific Northwest River, Systems, in Watershed Management, supra note 7, at 189, 216-21. (40) Under this approach, all discharges of pollutants into the waters of the United States from point sources require permits. See, eg., 33 U.S.C. [sections] 1342 (1988) (establishing a national pollutant discharge elimination system). The permits define, at a minimum, pollution controls using notions of "best technology" available and affordable to that category of discharger, regardless of impact to the specific receiving water. EPA v. California, 426 U.S. 200, 202-05 (1976), superseded on other grounds by 33 U.S.C. [sections] 1323(a) (1988); Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1316 (9th Cir. 1990); Ford Motor Co. v. EPA, 567 F.2d 661, 663 (6th Cir. 1977). (41) See, e.g., William F. Pedersen, Jr., Turning the Tide on Water Quality, 15 Ecology L.Q. 69, 82-84 (1988) (arguing that the marginal benefits of technology-based standards do not justify the high costs). (42) Adler et al., supra note 17, at 16-17 (estimating that technology-based industrial controls have reduced discharges of toxic pollutants by roughly one billion pounds per year, with far larger reductions of conventional pollutants). (43) Water quality standards decline the designated uses (such as fishing and swimming) of particular water bodies and specific water quality criteria deemed necessary to protect such designated uses. See 33 U.S.C. [sections] 1313 (1988). (44) Designated uses, however, must include "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." 33 U.S.C. [sections] 1251(a)(2) (1988). These are the so- called "fishable and swimmable" uses. (45) Adler et al., supra note 17, at 126-27, 158-64 (wide latitude given to states by EPA allows political considerations to play a significant role in determining water quality standards). For an instructive example of dramatic differences in state water quality criteria for toxic pollutants not related to differences among ecosystems, see Jeffrey A. Foran, Regulating Toxic Substances in Surface Waters 69-80, 100-17 (1993) (discussing steady-state wasteload allocation development in the Great Lakes Basin). (46) See, eg., James R. Karr, Biological integrity and the Goal of Environmental Legislation: Lessons for Conservation Biology, 4 Conservation Biology 244, 246-47 (1990) [hereinafter Kart, Conservation Biology] (discussing methods used to measure and protect biological integrity of aquatic ecosystems); Karr, Biological Integrity, supra note 33, at 69- 70 (same); Adler et al, supra note 17, at 124-28 (noting the CWA's failure to protect the biological health of surface waters). The objective of the CWA is "chemical, physical, and biological integrity of the Nation's waters," 33 U.S.C. [sections] 1251(a) (1988), but little attention is paid to biological as opposed to chemical integrity.
Biological integrity is defined as "[t]he capability of supporting and maintaining a balanced, integrated, adaptive community of organisms having a species composition and functional organization comparable to that of natural habitat of the region." Karr, Conservation Biology, supra, at 245 (quoting James R. Karr & D.R. Dudley, Ecological Perspective on Water Quality Goals, 5 Envtl. Mgmt. 55-68 (1981)). An ecosystem achieves "ecological health ... when its inherent potential is realized, its condition is [relatively] stable, its capacity for self-repair when perturbed is preserved, and minimal external support for management is needed." Id. (alteration in original) (quoting James R. Karr et al., Assessing Biological Integrity in Running Waters: A Method and its Rational (Special Publication 5, Illinois Natural History Survey, Urbana, Illinois, 1986)). (47) This process involves the identification of reference systems organized by ecosystem type and function; the development of an index of ecosystem characteristics, such as species abundance, diversity, and composition at multiple trophic levels; and a quantitative comparison of impaired and relatively healthy ecosystems based on those characteristics. U.S. Envtl. Protection Agency, Biological Criteria: National Program Guidance for Surface Waters 13-17 (1990) [hereinafter EPA Biological Criteria]; Karr, Biological Integrity, supra note 33, at 70-79. For an in-depth evaluation of the recent trend toward the development and use of biological water quality criteria, see generally Biological Assessment and Criteria: Tools for Water Resource Planning and Decision Making 3-77 (Wayne S. Davis Thomas P. Simon eds., 1995) [hereinafter Biological Assessment and Criteria]. (48) See generally U.S. Envtl. Protection Agency, Report of the Ecoregions Subcommittee of the Ecological Processes and Effects Committee, Evaluation of the Ecoregion Concept (1991) (describing the ecoregion concept in watershed policy); James M. Omernik, Ecoregions of the Conterminous United States, 77 Annals Ass'n Am. Geographers 118 (1987) (ecoregion map and supplement); Robert M. Hughes et al., A Regional Framework for Recovery Criteria, 14 Envtl. Mgmt. 673 (1990) (demonstrating the use of a regional framework for stratifying natural variation and determining realistic biological criteria); Gallant et al., supra note 1 (explaining the concept and nature of regions and the utility of a regional framework for resource management). (49) An ecoregion is "a region of relative homogeneity in ecological systems or in relationships between organisms and their environments." Gallant et al., supra note 1, at 1; see also Omernik, supra note 48, at 118-20 (discussing various national ecoregion areas); Hughes et al., supra note 48, at 675 (describing ecoregions drawn from landscape characteristics). (50) As of 1995, 15 years after initial creation of the methodology to develop biocriteria, only 24 states use any form of ambient biological monitoring, and only 3 had adopted biocriteria formally into regulations. Mark T. Southerland & James B. Stribling, Status of Biological Criteria Development and Implementation, in Biological Assessment and Criteria, supra note 47, at 81, 85-89. Another 23 states, however, are developing biocriteria for use in water quality and water management programs. Id. at 85. (51) See, e.g., Mark T. Pifher, Biocriteria: Just When You Thought It Was Safe to Go Back in the Water, [Current Developments] Env't Rep. (BNA) 1201-05 (Aug. 30, 1991) (arguing that biocriteria programs, if adopted by states, will exceed the original purpose of the CWA). For a legal defense of biocriteria, see Robert W. Adler, Filling the Gaps in Water Quality Standards: Legal Perspectives on Biocriteria, in Biological Assessment and Criteria, supra note 47, at 345. (52) See Foran, supra note 45, at 137 (explaining potential for biocriteria to "dilute" chemical-specific requirements). To date, EPA has taken a firm stand that biocriteria may only be used to supplement and not supplant applicable water quality criteria based on numeric, narrative, or toxicological methods. EPA Biological Criteria, supra note 47, at 4-7. Thus far, the use of biocriteria has expanded the universe of waters identified for restoration and protection. In Ohio, for example impairment was identified in only 6% of waters surveyed using chemical but not biological methods, while impairment, was found in 36% of waters surveyed using biological but not chemical methods. Chemical and biosurvey methods agreed for the remaining 58% of waters surveyed. Id. at 4. (53) Hughes et al., supra note 48, at 675. (54) Id. at 681; see also Gallant et al., Supra note 1, at 9 (observing that "hydrologic units are management cataloguing units that are based somewhat on surface hydrologic basins, but correspond poorly, if at all, to patterns of factors that cause spatial differences in the quality or quantity of surface waters"), 15 (contending that ecoregions better reflect the "type, quality, and quantity of water resources"); Omernik, supra note 48, at 119 (noting that "topographic drainage areas do not correspond closely to the causal and integrative characteristics that help to define regional patterns in ecosystem quality). Conversely, ecoregion boundaries should not be flatly accepted because other boundaries, including river basins and physiographic provinces, may be important." Karr, Biological Integrity, supra note 33, at 70. (55) Maps of hydrological units in varying levels of detail are available from the U.S. Geological Survey. (56) Omernik, supra note 48, at map supplement; Gallant et al., Supra note 1, at plate 1. (57) See supra notes 28-33 and accompanying text. (58) This section draws heavily on a previous work by the author and colleagues on the status of U.S. aquatic ecosystem health, Adler et al., supra note 17, as well as similar surveys in other sources, especially Aquatic Restoration, supra note 2, and Doppelt et al, supra note 17. (59) "Point sources" are defined broadly as "any discernible, confined and discrete convey- ance," but "do not include agricultural stormwater discharges and return flows from irrigated agriculture." 33 U.S.C. [sections] 1362(14) (1988). Discharges from point sources are prohibited except in compliance with a permit and substantive control requirements of the CWA. 33 U.S.C. [sections] 1311(a) (1988). (60) Adler et al., supra note 17, at 14-29. (61) Id. at 30-37. In 1992, U.S. ocean and bay beaches were closed or advisories were issued against swimming on more than 2600 occasions in coastal states that monitor beach water quality. Natural Resources Defense Council, Testing the Waters III: Closings, Costs, and Cleanups at U.S. Beaches 6,(1993) (relying upon data from surveys of state and local health officials). Furthermore, over 7700 closures or advisories have occurred since 1988. Id. High bacteria levels were responsible for the overwhelming majority of closures. State water quality reports indicate that a third of assessed rivers and lakes, and nearly a fifth of assessed estuaries, do not fully or consistently meet water quality standards for swimming. U.S. Envtl. Protection Agency, National Water Quality Inventory: 1992 Report to Congress, at A-6, B-6, C-7 (1994) [hereinafter 1992 Inventory). (62) Adler et al., supra note 17, at 3742. Not including the massive outbreak of cryptosporidiosis in 1993 that left over 100 people dead and hundreds of thousands ill in Milwaukee, the Centers for Disease Control (CDC) identified 554 disease outbreaks (affecting almost 136,000 people) relating to public drinking water supplies from 1972 to 1990. Id. at 38 (citing W.C. Levine et al., Waterborne Disease Outbreaks, 1986-1988, in Morbidity and Mortality Weekly Report No. 39, CDC Surveillance Summaries, at SS-1 (1990); and Barbara L. Herwaldt et al., Outbreaks of Waterborne Disease in the United States: 1989-90, J. Am. Waterworks Ass'n 129, 132 (1992)). Over 28 million Americans drank water from public supply systems that violated health-based drinking water standards in 1990 and 1991. Robert W. Adler, Reauthorizing the Clean Water Act: Looking to Tangible Values, 30 Water Resources Bull. 1, 2 (1994) [hereinafter Adler, Tangible Values] (citing Natural Resources Defense Council, Think Before You Drink: The Failure of the Nation's Drinking Water System to Protect Public Health 3 (1993) [hereinafter Think Before You Drink] (Citing data from EPA's database of violations of drinking water standards)). (63) Adler et al., Supra note 17, at 42-58. In 1993, EPA reported over 1200 fishing bans and advisories resulting from pollutants such as PCBs, pesticides, dioxin, mercury, and organic chemicals, yet these data are incomplete due to inconsistencies and gaps in state monitoring. 1992 Inventory, supra note 61, at 85. Moreover, there is increasing evidence that levels of certain types of chlorinated organic compounds pose greater risks of a wider range of human, fish, and wildlife illnesses than previously believed See, e.g., Theo Colborn et al., Developmental Effects of Endocrine-Disrupting Chemicals in Wildlife and Humans, 101 Envtl. Health Persp. 378, 381 (1993) (summarizing the research linking endocrine-disrupting chemical releases with harm to wildlife and humans). The National Shellfish Regis- ter shows a 6% increase in estuarine waters closed to shellfish harvest from 1985 to 1990. By 1990, less than two-thirds of coastal shellfish waters were unconditionally approved for harvest. Adler, Tangible Values, supra note 62, at 2 (citing National Oceanic & Atmospheric Admin., The 1990 National Shellfish Register of Classified Estuarine Waters 5 (1991)). (64) Adler et al., Supra note 17, at 58-69; Doppelt et al., supra note 17, at 1-3; U.S. Envtl. Protection Agency, Biological Populations as Indicators of Environmental Change 140- 44 (1992); Robert M. Hughes & Reed F. Noss, Biological Diversity and Biological Integrity: Current Concerns for Lakes and Streams, Fisheries, May-June 1992, at 11-19. (65) Adler et al., Supra note 17, at 60-61 (citing Larry Master, The imperiled Status of North American Aquatic Animals, 3 Biodiversity Network News 7 (1990)). (66) For an evaluation of the status of Pacific salmon stocks, see Wina Nehlsen et al., Pa- cific Salmon at the Crossroads: Stocks at Risk from California, Idaho, and Washington, Fisheries, Mar.-Apr. 1991, at 4. By 1991, Columbia River Basin salmon and steelhead runs had declined an estimated 75 - 84% (from 10 - 16 million to 2.5 million fish), 70% of which were hatchery fish. Adler et al., supra note 17, at 68. Based on the continued listing of more fish populations as threatened or endangered, protection and restoration efforts are hardly succeeding. See, eg., 60 Fed. Reg. 14,253 (Mar. 16, 1995) (proposed listing of natural steelhead stocks as threatened from Cape Blanco, Oregon to the Klamath River Basin); 60 Fed. Reg. 38,011 (July 25, 1996) (proposed listing of three populations of Coho salmon as threatened in Oregon and California); 59 Fed. Reg. 66,784 (Dec. 28, 1994) (proposed reclassification of Snake River spring/summer Chinook salmon from threatened to endangered). (67) Adler et al., supra note 17, at 61-63 (citing Jack E. Williams et al., Fishes of North America Endangered, Threatened, or of Special Concern, Fisheries, Nov.-Dec. 1989, at 12)); see also R. Dana Ono et al., Vanishing Fishes oF North America 3-7 (1983) (discussing the threatened or endangered status of 15 North American fish populations). (68) Adler et al., supra note 17, at 63. (69) Between 1970 and 1989, harvest of oysters dropped by 44% and landings of spiny lobster declined by 34%; commercial landings of striped bass have declined continuously since 1973, with a fall of 92% since 1982; between 1983 and 1989, landings of bay scallops fell by 8896; scallop landings also dropped by 50% from 1975 to 1985, with catch per unit effort in 1985 reaching historic lows; duck breeding populations in North America dropped continually from 1955 to 1989-the ten species with over 97% of North Americas breeding populations showed declines of 34% from 1970 to 1989; and a significant number of waterdependent species have declining population trends. Id. at 67-69. (70) As discussed further infra Part IV.C.1, this narrow focus is not consistent with the CWA's overriding goals of maintenance and restoration. 33 U.S.C. [sections] 1251 (1988). (71) Adler et al., supra note 17, at 85-86. (72) Id. at 58-86; Aquatic Restoration, supra note 2, at 14; Doppelt et al., supra note 17, at 1-3; Karr, Biological Integrity, supra note 33, at 66. (73) Thomas E. Dahl & Craig E. Johnson, U.S. Fish & Wildlife Serv., U.S. Dep't of Inte- rior, Report to Congress, Wetlands: Status and Trends in the Conterminous United States mid-1970's to mid-1980's, at 3 (1991) [hereinafter Dahl & Johnson]. (74) Id. (75) Adler et al., Supra note 17, at 78-80 (citing Dahl & Johnson, supra note 73, at 1-2). (76) Dahl & Johnson, Supra note 73, at 8-13. (77) Id. (78) Adler et al., supra note 17, at 80-82 (citing Federal Interagency Floodplain Mgmt. Task Force, Floodplain Management in the United States: An Assessment Report 16, 18- 19, 21 (1992)). (79) Aquatic Restoration, supra note 2, at 26. The Bureau of Census estimates that 85% of our inland surface water is manipulated for human needs, id. at 22, leaving only a tiny percentage of U.S waters in a remotely "natural" state. Adler et al, Supra note 17, at 82-83 (citing A.C. Benke, A Perspective on North America's Vanishing Streams, 91 J. N. Am. Benthological Soc'y 77-88 (1991)); see also Doppelt et al., Supra note 17, at 15-17 (estimating the miles of American streams and rivers affected by dams, channelization, and levies). (80) 1992 Inventory, supra note 61, at 19-21; Adler et al., Supra note 17, at 171-83; Thompson et al., supra note 20, at 1-3 (1989); Aquatic Restoration, supra note 2, at 33, 192-93; Doppelt et al., supra note 17, at 20-22; Karr, Biological Integrity, supra note 33, at 66. (81) Karr, Biological Integrity, supra note 33, at 67-68; Aquatic Restoration, supra note 2, at 166; Doppelt et al., supra note 17, at 15-16; Simenstad et al., supra note 7, at 268-60; Adler et al., supra note 17, at 82-83. (82) Karr, Biological Integrity, supra note 33, at 68; Deborah Moore & Zach Willey, Water in the American West: Institutional Evolution and Environmental Restoration in the 21st Century, 62 U. Colo. L. Rev. 775, 775 (1991); Charles F. Wilkinson, Aldo Leopold and Western Water Law. Thinking Perpendicular to the Prior Appropriation Doctrine, 24 Land Water L. Rev. 1, 1 (1989). (83) PUD No. 1 v. Washington Dep't of Ecology, 114 S. CL 1900, 1912 (1994) (stating that it is inaccurate to contend that the CWA is concerned only with water quality and not water quantity). (84) Kait, Biological Integrity, supra note 33, at 66-69; Doppelt et al., supra note 17, at 15-20; Aquatic Restoration, supra note 2, at 21-27, 166-69, 190-201; Robert J. Naiman, New Perspectives for Watershed Management: Balancing Long-term Sustainability with Cumulative Environmental Change, in Watershed Management, supra note 7, at 3, 4; Stanford Ward, supra note 7, at 91-92, 102; Simenstad et al., supra note 7, at 266, 267. (85) See infra part IV. (86) William Whipple, Jr., Future Direction for Water Resources, in Water Management in the 21st Century 9, 10 (A. Ivan Johnson & Warren Viessman, Jr. eds., 1989) [hereinafter Water Management] (giving a description by Henry P. Caulfield, Jr., Emeritus Professor of Political Science, Colorado State University). (87) See, e.g., Kw, Biological Integrity, supra note 33, at 68-69; Aquatic Restoration, supra note 2, at 343; Charles F. Wilkinson & Daniel Conner, A Great Loneliness of the Spirit, in Western Water Made Simple 54, 62 (Ed Marston ed., 1987); Watershed Management, supra note 7, at 4, 8; David J. Allee et al., Editor's Introduction and Summary Notes, in Unified Management II, supra note 31, at 3, 22; Ingram, supra note 31, at 10; Water Administration, supra note 3, at 19; Leonard B. Dworsky & David J. Aflee, Unified/Integrated River Basin Management: Evolution of Organizational Arrangements, in Unified Management I, Supra note 3, at 28; Joseph W. Haas, Managing Natural Resources in the 1980's, in Unified Management I, supra note 3, at 55, 55-56; Warren Viessman, Jr., The Dynamics of Water Policy, in Water Management, supra note 86, at 41, 4143; Water Quality 2000, supra note 11, at 7. (88) Professor William Goldfarb organizes similar conflicts into slightly different categories: "transboundary water management problems," "implications of federalism and separation of powers," and "water law variability among political units." Goldfarb, supra note 8, at 484-86. (89) See generally U.S. Advisory Comm'n on Intergovernmental Relations, Intergovern- mental Decisionmaking For Environmental Protection and Public Works 1, 1 (1992) [hereinafter ACIR] (identifying the need for greater cooperation among government entities); Eisel, supra note 3, at 46 (arguing for more regional and unified water management). A notable exception, of course, has been the willingness of states to cede authority to the federal government when Congress is willing to pay for water development projects the states otherwise could not afford. David J. Allee et al., United States Water Planning and Management, in Unified Management II, supra note 31, at 11, 22. (90) Aquatic Restoration, supra note 2, at 343; see also Karr, Biological Integrity, supra note 33, at 68 (noting the political fragmentation and complexity of watershed management in the United States); Karr, Conservation Biology, supra note 46, at 244 (same); Stanford Ward, supra note 7, at 116 (same). (91) See, eg., ACIR, supra note 89, at 66 (analyzing the relationship between federal and state environmental programs); L. Scott Tucker, Flood Control, Urban Stream Corridors, and Clean Water Strategies, in Water Administration, supra note 3, at 158, 166-67 (questioning the wisdom of national clean water requirements). (92) See supra note 45. (93) This statement is overbroad, as the term "watershed." does not address the issue of scale. The smaller the watershed unit, the more likely that land ownership will be concentrated. But this distinction is not important for most purposes because, as discussed earlier, ecological imperatives dictate that units of watershed management cut across units of watershed scale, from small headwater watersheds to larger river basins. In the West, whole watersheds may fall within large areas of federal domain. Doppelt et al., supra note 17, at 13. However, this has not eliminated problems with integrated watershed management. See infra part IV. (94) Dworsky & Allen, supra note 87, at 32. In addition to the major federal and state agencies, the public entities include more than 3000 Soil and Water Conservation Districts, most of the 18,862 municipalities and 16,822 townships, 1610 sewerage agencies, 2480 water supply entities, and 6595 natural resource districts. Id. This estimate was made in 1981; undoubtedly the number has increased rather than decreased since then. Moreover, at least with respect to some types of entities, these figures are conservative. For example, EPA data show nearly 59,000 community water supply systems in the United States. Think Before You Drunk, supra note 62, at 1. There are approximately 26 federal agencies involved in flood damage reduction alone. Neil R. Fulton, Reducing the Risks: The Need for Comprehensive flood Damage Reduction Policies, in Water Administration, Supra note 3, at 244, 245. (95) Wilkinson & Conner, supra note 87, at 62 ("The very institutions designed to protect the resource have now, by virtue of their number and unwieldiness, become an additional threat."). (96) National Water Comm'n, A Summary-Digest of the Federal Water Laws and Programs 3 (1973). This summary was prepared pursuant to the 1968 National Water Commission Act, 42 U.S.C. [sections] 1962a (1988). The U.S. Army Corps of Engineers (Corps) alone now operates, according to the Corps's official historian, pursuant to approximately 100 federal laws, 22 Executive Orders, over 50 interagency agreements, and over 60 Office of Management and Budget (OMB) circulars. Joseph L. Arnold, U.S. Army Corps of Eng'rs, The Evolution of the 1936 Flood Control Act 94 (1988). (97) Doppelt et al., supra note 17, at 61. (98) Karr, Biological Integrity, supra note 33, at 68; Goldfarb, supra note 8, at 82. (99) Kenneth I. Rubin, Managing Community Wastewater in the 1990s: What Is Needed to Attain National Water Quality Goals and Why, in Water Administration, supra note 3, at 231, 234-35; Haas, supra note 87, at 55-56. (100) Karr, Biological Integrity, supra note 33, at 68. (101) Doppelt et al., supra note 17, at 153-54. (102) See infra part III. (103) Aquatic Restoration, Supra note 2, at 49. The specific legal authorities under which these federal entities operate are discussed infra parts HI and IV. (104) Naiman, supra note 84, at 4 (discussing management of timber, fish, wildlife, and water in the Pacific Northwest); Doppelt et al., Supra note 17, at 61 (calling for alignment of agency policies and programs within watersheds); Haas, supra note 87, at 55-56 (calling for cooperation and coordination of watershed policy at all levels of government). (105) See infra part III; see generally Mark Reisner, Cadillac Desert (rev. ed. 1993). (106) Allee et al., supra note 89, at 21. But see Ingram, supra note 31, at 13-14 (arguing that agencies have occasionally been willing to work through coordinating entities merely to avoid antagonizing Congress and thereby obtain leverage against opponents of water development projects). According to some involved in the complex controversy over restoration and protection of the Columbia River system, "many state and federal agencies are purposely fostering an insular approach to resource management. Each wants to ... minimize influence of other agencies. Local and regional fragmentation of management authority is guaranteed to result in interference management, which in turn fragments catchment ecosystems." Stanford & Ward, supra note 7, at 114. (107) See Adler et al., supra note 17, at 171-98; Thompson et al., supra note 20, at 15-16; Karr, Biological Integrity, supra note 33, at 68-69; Rubin, supra note 99, at 231-36; NPDES Watershed Strategy, supra note 16, at 1. (108) 33 U.S.C. [subsections] 1288, 1319 (1988). (109) See Peter S. Menell & Richard B. Stewart, Environmental Law and Policy 504-07 (1994); Mandelker, supra note 20, at 511. (110) A possible exception is the new coastal nonpoint source control program enacted as part of the Coastal Zone Amendments and Reauthorization Act in 1990. 16 U.S.C. [sections] 1455b(g) (1994) (discussed infra part IV). However, the relative success of this promising program will not be known for several years. (111) Adler et al., supra note 17, at 158-61 (citing U.S. Gen. Accounting Office, Water Pollution: More Action Needed to Improve the Quality of Heavily Polluted Waters 4 1989)); see also Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 982 (9th Cir. 1994) (upholding an order forcing EPA to set TMDLs); Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1316-20 (9th Cir. 1990) (discussing the water quality program of the CWA and the failure of EPA and the states to set TMDLs); Scott v. City of Hammond, 741 F.2d 992, 996-97 (7th Cir. 1984) (holding that EPA has a nondiscretionary duty to establish TMDLs when states refuse or do not act for a significant period of time). For a description of TMDLs and WLAs, see infra note 419. (112) Permit writers could divide a state into watersheds for permitting and other purposes, divide the watersheds into x number of parts, and concentrate each year on issuing and reissuing permits in 1/x of the watersheds each year. See Water Quality 2000, supra note 11, at 37-38; NPDES Watershed Strategy, supra note 16, at 6-7. North Carolina cites both program improvements and cost effectiveness achieved through this approach. North Carolina Basinwide Approach to Water Quality Management at i-v, 25-27 (1991). For other examples of the use of watershed programs to facilitate the development of TMDLs and wasteload allocations, see Geoffrey W. Harvey, Application of a Nonpoint Source TMDL Approach to a Complex Problem of Mining Waste Pollution--South Fork Coeur d'Alene River, in Watershed '93, supra note 2, at 355, 355-59; John D. Suppnick, A Status Report on Michigan's Comprehensive Water Quality Plan for Sycamore Creek, in Watershed '93, supra note 2, at 361, 361-65; David W. Dilks et al., Development of the San Luis Obispo Creek Demonstration TMDL, in Watershed '93, supra note 2, at 367, 367-72. (113) Bruce D. Long, Water Resources Development at a Crossroads, in Water Administration, supra note 3, at 258, 258-61. On current shortfalls in clean water funding, see Adler et al., supra note 17, at 109-10. (114) Adler et al., supra note 17, at 87-115 (evaluating the economic value of water resources); Doppelt et al., supra note 17, at 4-6 (same). This is not meant to imply agreement with the notion that economic "benefits" of water resources can be measured precisely and offset against costs of protection. Then-Senator Al Gore aptly quoted Oscar Wilde: "A cynic is one who knows the price of everything but the value of nothing." Al Gore, Jr., Earth in the Balance 190 (1992). In a similar vein, Aldo Leopold wrote, "[n]ow we face the question whether a still higher 'standard of living' is worth its cost in things natural, wild, and free." Aldo Leopold, A Sand County Almanac at xvii (Ballantine Books 1988). For more perspectives on economics and environmental quality, see generally Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (1988). (115) See, e.g., John B. Braden et al., Incentive-Based Nonpoint-Source Pollution Abatement in a Reauthorized Clean Water Act, 30 Water Resources Bull. 781, 783 (1994) (evaluating the Clinton Administration's approach to limiting nonpoint-source pollution); Pedersen, supra note 41, at 82-94 (alleging inefficiency of technology-based standards), 92 (arguing there is a need for better nonpoint source controls), 95-96 (calling for flexibility to achieve water quality standards), 101 (calling to phase out technology-based controls). (116) For examples of calls to evaluate water protection strategies in light of their costs, see Braden et al., supra note 115, at 781; Tucker, supra note 91, at 158-59; A. Myrick Freeman III, Clean Water Act Reauthorization: How Far Have We Come?, 30 Water Resources Bull. 793, 797 (1994). (117) Again, this does not imply agreement with the notion that current cost-benefit analysis or cost-effectiveness evaluation methods capture fully the economic costs and values of clean water and healthy aquatic ecosystems. For a critique of these concepts, see Adler, Tangible Values, supra note 62, at 6-8. (118) Adler et al., supra note 17, at 14-17. The federal government invested $56 billion in municipal sewage treatment facilities from 1972 to 1989, with total federal, state, and local expenditures of more than $128 billion. Id. at 14. In 1990, EPA estimated additional municipal sewerage needs in excess of $110 billion through the year 2010. Id. Total industrial point source controls between 1973 and 1986 alone exceeded $57 billion, with both capital and operating expenditures expected to continue at high rates as EPA issues new point source effluent guidelines. Id. at 16-17, 139-44. (119) In 1987, Congress authorized only $400 million for implementation of the entire new polluted runoff control program under section 319 of the CWA. 33 U.S.C. [sections] 1329(j) (1988). However, even these figures turned out to be optimistic, as actual appropriations of only half this amount were made in the following four federal fiscal years. Adler et al., supra note 17, at 189. (120) In 1972, total point source expenditures exceeded those for nonpoint sources by a factor of 15:1; this rose to 34:1 in 1980 and 43:1 in 1987. As of EPA's 1990 estimate, the ratio was expected to rise to 59:1 by 2000. Adler et al., supra note 17, at 110-11 (citing U.S. Envtl. Protection Agency, Environmental Investments: The Cost of a Clean Environment 4-4 (1990)). Nonpoint source control expenditures may rise somewhat from these estimates, developed before enactment of the coastal nonpoint runoff program. Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. [sections] 1455b (1994). The CZMA is discussed in part IV. (121) Proposed AMSA Bill, supra note 15, at Tab 1. Perhaps surprisingly, industrial point sources have not endorsed watershed programs or other such methods to strengthen controls on polluted runoff. See Water Quality 2000, supra note 11, app. B at 141 (minority report of the Chemical Manufacturers' Association, Adolph Coors Co., Nat'l Agricultural Chemcial Association, and the Proctor and Gamble Co. objecting, inter alia, to excessive reliance on "mandatory, enforceable [nonpoint source] solutions and sanction rather than voluntary solutions, incentives and education"). But see Panel Discussion, Addressing Multiple Interests, in Watershed '93, supra note 2, at 26 (highlighting support for watershed approach from forest industry representatives). The vertical integration in U.S. industry may cause major corporations to oppose new environmental controls that might affect their related land use activities, such as logging, mining, oil and gas extraction, and corporate farming. Arguably, this perspective is adverse to corporate interests in the long-run because, in the context of water quality-driven controls, industry should be concerned about controlling pollution at the least cost. (122) See NPDES Watershed Strategy, supra note 16, at 4 ("A focus on environmental priorities allow NPDES programs to achieve the greatest environmental benefit with the maximum efficiency in use of resources."); Tucker, supra note 91, at 167 (arguing for the establishment of goals on a watershed basis to achieve maximum cost effectiveness); ACIR, supra note 89, at 7 (proposing to improve the public works process and protect the environment); Perciasepe Memorandum, supra note 16, at 3 (stressing the importance of coordination at all levels of government). (123) Under current law, retreat from existing permit requirements is limited. 33 U.S.C. [sections] 1342(o) (1988). One exception to this antibacksliding provision exists where a WLA is revised and "where the cumulative effect of such revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters." Id. [sections] 1342(o)(2)(E). When this occurs, some point sources may qualify for lower effluent limitations. Id. (124) See supra note 112 and accompanying, text (examples of such watershed-based TMDLs and WLAs that account for both point and nonpoint sources). (125) Rubin, supra note 99, at 236 (citing estimates that maintaining current levels of environmental quality will cost nearly 6% of household income by 2000); Jonathan C. Kaledin National Water Educ. Council, Cause for Concern: America's Clean Water Funding Crisis 4-6 (1992). (126) The proposed Association of Metropolitan Sewerage Agencies bill and the proposed Senate bill in the 103d Congress gave rise to legitimate concerns that point source controls would be weakened in return for watershed-based controls on polluted runoff and related restoration efforts. See discussion infra part V. (127) NPDES Watershed Strategy, Supra note 16, at 4; Perciasepe Memorandum, supra. note 16, at 3; Rubin, supra note 99, at 238-40; Water Quality 2000, supra note 11, at 32-39. (128) Tucker, supra note 91, at 167. L. Scott Tucker is Executive Director of the Urban Drainage and Flood Control District in Denver, Colorado. (129) Id. at 166. (130) See, e.g., Derek B. Booth & Lorin E. Reinelt, Consequences of Urbanization on Aquatic Systems--Measured Effects, Degradation Thresholds, and Corrective Strategies, in Watershed '93, supra note 2, at 545, 545-50 (discussing efforts to restore aquatic system degradation in western Washington); Robert W. Brashear et al., Development of a Regional Framework for Storm Water Permitting in North Central Texas, in Watershed '93, supra note 2, at 565, 565-69 (discussing urban storm water management of seven North Central Texas Metroplex cities); Jean Ochsner & Tom Davis, Multiple Objectives Planning for the Balch Creek Watershed, in Watershed '93, supra note 2, at 641, 641-50 (discussing storm water management planning efforts in Portland, Oregon); Adler et al., Supra note 17, at 193-98 (discussing urban watershed restoration efforts for the Anacostia River in Maryland and Washington, D.C.). (131) This author has heard more extreme versions of this position, such as the view that urban waters should be "downzoned," foregoing minimum fishable and swimmable use requirements of the CWA if attainment is viewed as impracticable or too expensive. E.g., George Barnes, former Municipal Sewerage Director, Atlanta, Ga., Oral Statement at the 1995 AMSA Winter Technical Conference, Tucson, Ariz. (Feb. 14-17, 1995). The CWA and EPA regulations establish the much stricter (and more appropriate) requirement of fishable and swimmable uses "wherever attainable." 33 U.S.C. [sections] 1251(a)(2) (1988); 40 C.F.R. [sections] 131.2 (1994). Some commentators argue that such minimum use designations should be eliminated except for waters of national significance, thus allowing states more latitude in choosing designated uses. Pedersen, supra note 41, at 73, 95-100. (132) Adler et al., supra note 17, at 36-37. (133) Id. at 56-58. (134) E.g., Rubin, supra note 99, at 240; Leonard Shabman, Bargaining, Markets, and Watershed Restoration Some Elements of a New National Water Policy, in Water Administration Supra note 3, at 94, 99-102. (135) See U.S. Gen. Accounting Office, Water Pollution: Pollutant Trading Could Reduce Compliance Costs if Uncertainties are Resolved (1992); Esther Bartfield, Point-Nonpoint Source Trading. Looking Beyond Potential Cost Savings, 23 Envtl. L. 43 (1993); David Letson, Point/Nonpoint Source Pollution Reduction Trading. An Interpretive Survey, 32 Nat. Resources J. 219 (1992). (136) See Moore & Willey, supra note 82, at 803-06; see generally Water Pricing and Marketing (James E.T. Moncur & Duane D. Baumann, eds.), 92 Water Resources Update (1993). (137) For a critique of the wetlands mitigation banking idea, see Michael C. Blumm, The Clinton Wetlands Plan: No Net Gain in Wetlands Protection, 9 J. Land Use & Envtl. L. 203 (1994). (138) Rubin, supra note 99, at 240. (139) See Shabman, supra note 134, at 100. (140) Panel Discussion, Visions for the future, in Watershed '93, supra note 2, at 57, 61 (statement of Jimmie Powell, Professional Staff, U.S. Senate Committee on Environment and Public Works). (141) See Perciasepe Memorandum, supra note 16, at 1 (acknowledging that EPA supports over 130 place-based water initiatives). (142) Doppelt et al., supra note 17, at 34. (143) A few of the many examples include Great Lakes United, the Long Island Sound Alliance, the Alliance for the Chesapeake Bay, and the relatively new Mississippi River Watershed Alliance. (144) For histories and philosophical explanations of bioregionalism, see James J. Parsons, On "Bioregionalism" and "Watershed Consciousness," 37 Prof. Geographer 1 (1985); Donald Alexander, Bioregionalism: Science or Sensibility?, 12 Envtl. Ethics 161 (1990); Jonathan Z. Cannon, Geographic Approaches to Environmental Management: Bioregionalism Applied, in Watershed '93, supra note 2, at 281, 281-86; Weatherford, Supra note 3, at 1, 17. (145) Ingram, supra note 31, at 11. Ingram identified New England and the Old South each as having a "particular sense of identity and a long history of cooperation." Id. (146) Id. (147) Id. at 17. (148) Parsons, supra note 144, at 1. (149) Id. at 4. (150) Cannon, supra note 144, at 281; see also Parsons, supra note 144, at 3 (discussing bioregionalist views, including distrust of central authority). (151) Parsons, supra note 144, at 1. (152) Kirkpatrick Sale, Dwellers in the Land: The Bioregionalism Vision 43 (1985), quoted in Alexander, supra note 144, at 162. (153) Alexander, supra note 144, at 167-69. (154) According to one scholar, "[b]ioregionalism, in essence, is the regional fulfillment of Aldo Leopold's 'land ethic."' Id. at 162; see also Cannon, supra note 144, at 281. I refer to Leopold's land ethic as "evasive" because of the large gap between Leopold's land ethic vision and its actual practice in American society. (155) See Ingram, supra note 31, at 12-13; Alexander, supra note 144, at 170. (156) Weatherford, Supra note 3, at 17-18; see also David C. Harrison, Basinwide Perspective. An Approach to the Design and Analysis of Institutions for Unified River Basin Management, in Unified Management I, Supra note 3, at 427, 431 ("The task in the broadest sense is to design a holistic human political system that is capable of managing a holistic natural system."). (157) Harrison, supra note 156, at 435. (158) Such funding can come in the form of public support for increased governmental spending to protect place-based water resources or public willingness to pay higher water and sewer fees if citizens believe those funds are being used to protect special water bodies. In the Chesapeake Bay region, for example, area residents were willing to pay additional automobile license fees to support water body protection programs. The original goal of the Chesapeake Bay license Fund was to sell 100,000 special plates within two years. The Fund met this goal in three months, and it sold 430,000 plates in two years. Ann Pesiri Swanson, The Chesapeake Bay: A Case Study in Watershed Management, in Watershed '93, supra note 2, at 43, 44. (159) Again using the Chesapeake Bay as an example, more than 160 citizens monitor 135 sites in 3 states through the Chesapeake Bay Citizen Monitoring Program. Kathleen Ellett et al., Involvement of Citizen Volunteers in Region, in Watershed '93, supra note 2, at 873, 873. Similar citizen monitoring efforts are in place around the country. See Karen Firehock, The Save Our Streams (SOS) Program, in Watershed '93, supra note 2, at.447, 447-50. (160) Water Quality 2000, supra note 11, at 5; see also Rubin, supra note 99, at 234. (161) In contrast to implementation of command and control principles, "there is far less need for coercion and formal social control when people voluntarily, or habitually, adhere to patterns of behavior." Robert G. Lee, Ecologically Effective Social Organization as a Requirement for Sustaining Watershed Ecosystems, in Watershed Management, supra note 7, at 73, 80. (162) Leopold, Supra note 114, at 246, 258. The concepts of "individual and collective responsibility for water resources" and pollution prevention by all sectors of the economy were imbedded in the Water Quality 2000 recommendations in concert with watershed-based approaches. Water Quality 2000, supra note 11, at 15-32. (163) Lee, supra note 161, at 79. (164) In a wonderful essay, Professor Eric Freyfogle described "place people" as individuals who
have roots to a particular spot, people who have the knowledge and sensitivity to note
evidence of illness and to challenge claims that degradation will bring overall good.
People who know a place intimately develop an emotional bond that transcends the
personal and the temporary. . . . Place people are most likely to sense that the land is
not simply a tool, not simply something to put to use according to our latest economic
Eric T. Freyfogle, Ownership and Ecology, 43 CASE W. Res. L. Rev. 1269, 1291 (1993). (165) Introductory Letter from Vice-president Al Gore to the Participants of Watershed '93 (Mar. 24, 1993), in Watershed '93, supra note 2, at xxi. (166) A number of histories have been written on water resource programs in the United States. Among the most detailed accounts are Beatrice Hort Holmes, U.S. Dep't of Agric., Pub. No. 1233, A History of Federal Water Resources Programs, 1800-1960 (1972) [hereinafter Holmes, 1800-1960 History], and Beatrice Hort Holmes, U.S. Dep't of Agric., Pub. No. 1379, History of Federal Water Resources Programs and Policies, 1961-1970 (1979). Many more concise versions e3dst as well. See Norman Wengert, A Critical Review of the River Basin as a Focus for Resources, Planning, Development, and Management, in Unified Management I, Supra note 3, at 9, 9-24; Warren D. Fairchild, A Historical Perspective on Watershed Management in the United States, in Watershed '93, supra note 2, at 5, 5-10; Amy Doll, Evolution of Watershed Planning and Management in National Water Policy, in Watershed '93, supra note 2, at 107, 107-113; Aquatic Restoration, supra note 2, at 41-54; Allee et al., supra note 89, at 11, 11-17; Arnold, Supra note 96; Ingram, supra note 31, at 10-11; Theodore M. Schad, Past, Present, and future of Water Resources Management in the United States, in Water Management, supra note 86, at 1, 1-8. Former Water Resources Council Director Theodore Schad relates how interstate agreements to resolve disputes over interstate waters predate the Constitution. Schad, supra, at 1. George Washington-retired from public service after the war for independence-invited representatives from Maryland and Virginia to Mount Vernon to resolve disputes over tolls levied by Maryland against navigational users of the Potomac River. The ensuing compact was the "first institutional manifestation of water resources management in the United States." Id.; see also Water Quality 2000, supra note 11, at 13 (historical overview of water resources planning in the United States).
Early federal water projects were controversial and the federal role in water policy expanded only gradually. Many believed that the federal government was prohibited from spending funds that would provide benefits only to discrete populations. See Schad, supra, at 2; Dworsky & Allee, supra note 87, at 31; Arnold, supra note 96, at 4. The Supreme Court resolved this constitutional dispute by ruling that Congress could regulate navigation as part of its authority to regulate interstate and foreign commerce. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 216 (1824) (construing Article I, section 8 of the U.S. Constitution). The federal role was limited during the 19th century mostly to regional flood control programs, including the Swamp Lands Acts, 43 U.S.C. [subsections] 981-994 (1984), in which Congress ceded lands to states for reclamation and sale for private use, with proceeds to be used to build flood controls. See Leovy v. United States, 177 U.S. 621 (1900); Schad, supra, at 2-3; Dworsky Allee, supra note 87, at 32; Aquatic Restoration, supra note 2, at 41; Arnold, supra note 96, at 3, 5-6, 8-9. These laws began a long history of programs to "develop" water resources at the ultimate expense of aquatic ecosystem health. Some still laud the Swamp Lands Act for putting millions of acres of swamp lands to "productive agricultural use," Arnold, supra note 96, at 5-6, not realizing that filling these wetlands would exacerbate--not prevent--flooding, and destroy other environmental values as well. (167) The three categories of watershed programs borrow from, but for various reasons are organized and analyzed differently than, Wengert's "three eras" of water resource management. See Wengert, supra note 166, at 9-24 "identifying the "three eras" as 1900-1933, 1933-1965, and 1965-1990). Wengert's "three eras" are borrowed thereafter by many analysts, including Professor Goldfarb. See Goldfarb, supra note 8, at 486-89. (168) Schad, supra note 166, at 3; Wengert, supra note 166, at 11; Rutherford H. Platt, Geographers and Water Resource Policy, in Water Administration, Supra note 3, at 36, 37-38. Platt credits George Perkins Marsh as well, but notes that Marsh championed a preservation ethic while Powell promoted what would become the Progressive Era's conservation doctrine of "wise use" of land and water resources. Platt, supra, at 37. For a more colorful account, see Reisner, supra note 105, at 34-51. (169) 43 U.S.C. [subsections] 372-600e (1988 & Supp. V 1993). (170) 16 U.S.C. [subsections] 791a-823b (1994). (171) 33 U.S.C. [subsections] 701-709b (1988 & Supp. V 1993). (172) Schad, supra note 166, at 3; Wengert, supra note 166, at 1 1; Arnold, supra note 96, at 12; Water Quality 2000, Supra note I 1, at 13; Doll, supra note 166, at 107; Aquatic Restoration, supra note 2, at 42-43. Congress authorized but never organized the Newlands Commission--named after Nevada's Senator Francis Newlands, author of the 1902 Reclamation Act--because World War I preoccupied President Wilson and Senator Newlands died shortly thereafter. Arnold, Supra note 96, at 15; Water Qualm 2000, supra note 11, at 13; Don, supra note 166, at 107. (173) Though developed in the early 1900s, "[m]any of the recommendations of the reports of the Inlands Waterways Commission in 1908 and the National Conservation Commission in 1909 are as pertinent today as when they were first released. . . ." Schad, supra note 166, at 3. These proposals would have put us "well on the way to a comprehensive water resources management program." Id. (174) The argument for a basin planning approach is not new; what is new is the goal of comprehensive aquatic ecosystem restoration and protection. AQUATIC Restoration, supra note 2, at 356-57. (175) Schad, supra note 166, at 3. (176) Id.; Doll, supra note 166, at 107; Arnold, supra note 96, at 12; Wengert, supra note 1661 at 11. One proponent of watershed planning was Senator Newlands, who was described as "the indefatigable proponent of a multipurpose inland waterways program that would encompass flood control, navigation, water power, and irrigation." Arnold, supra note 96, at 11. (177) Schad, supra note 166, at 3; Doll, supra note 166, at 107; see also Water Quality 2000, supra note 11, at 13. (178) Arnold, supra note 96, at 11-13; Schad, supra note 166, at 3-4; Wengert, supra note 166, at 11. (179) 16 U.S.C. [sections] 803(a) (1994). (180) Schad, supra note 166, at 4; Arnold, supra note 96, at 15. (181) 33 U.S.C. [sections] 701 (1988) (repealed 1994). (182) Schad, supra note 166, at 4; Arnold, supra note 96, at 15-16, 80-82; Wengert, supra note 166, at 11; Doll, supra note 166, at 108. (183) Congress received the reports and recommendations in H. Taylor & O.C. Merrill, Estimate of Cost of Examinations, Etc., of Streams Where Power Development Appears Feasible:, H.R. Doc. No. 308, 69th Cong., 1st Sess. (1926). Holmes, 1800-1960 History, supra note 166, at 11. (184) Arnold, supra note 96, at 17. (185) Doll, supra note 166, at 108. (186) Arnold, supra note 96, at 16. Arnold acknowledges that other water resource professionals dispute this view. Id. at 81-82. (187) Schad, supra note 166, at 4 (asserting the plans "could hardly be considered as advancing the science of water resources management as they focused almost entirely on structural water resources development projects"). Schad acknowledges that the 308 reports led to basinwide approaches in the Tennessee River Basin, through the Tennessee Valley Authority, and in the Columbia River Basin. Id. Of course, the massive programs of dam construction and resulting. environmental alteration in those basins hardly stand as a testament to the ultimate wisdom of those approaches. (188) Doll, supra note 166, at 108. (189) Schad, supra note 166, at 4; Wengert, supra note 166, at 12-13; Aquatic Restoration, supra note 2, at 4243; Dworsky & Allee, supra note 87, at 37-39; Doll, supra note 166, at 108. (190) Wengert, supra note 166, at 12. (191) President Franklin Roosevelt, Message to Congress (June 3, 1937), quoted in Dworsky & Allee, supra note 87, at 38. (192) Wengert, supra note 166, at 12-13, 18-19; Arnold, Supra note 96, at 23-24; Doll, supra note 166, at 108. (193) See infra notes 511-21. (194) The NRPB itself was attacked as "un-American" and was eliminated in 1942. Wengert, supra note 166, at 13. TVA, by contrast, succeeded because it "managed the politics of support well." Id.; see also Ingram, supra note 31, at 15 (explaining TVA's strategy of catering to local and private interests to muster support for its programs). Similarly, Congress abandoned the NRC in 1943 as "part of a general reaction against the whole concept of centralized federal planning in which the rivers-harbors-flood control bloc was only one factor." Arnold, supra note 96, at 92 (footnote omitted). (195) One observer described the increased attention given to river basin planning as the "flowering of the river basin focus" following World War II. Wengert, supra note 166, at 13. (196) This proposal is particularly notable for its introduction of a cooperative federal-state planning process, rather than one dominated by federal agencies or commissions. Doll, supra note 166, at 109; Schad, supra note 166, at 4. (197) Doll, supra note 166, at 109i Water Quality 2000, supra note 1 1, at 13; Schad, supra note 166, at 4; Wengert, supra note 166, at 13-14. (198) Doll, supra note 166, at 109; Schad, supra note 166, at 4. (199) Wengert, supra note 166, at 14 ("No talk here of environmental preservation, of ecological balance, of optimization, of B/C ratios, just maximum development!"). The possible exception was the Eisenhower Committee, which for reasons of fiscal conservatism wanted to use basin planning to reduce federal water project spending. (200) Water Quality 2000, supra note 11, at 13. (201) Id.; Doll, supra note 166, at 109; Schad, supra note 166, at 7; Allee et al., supra note 89, at 23. (202) Allee et al., supra note 89, at 23; Weatherford, supra note 3, at 8 (noting that John F. Kennedy proposed 150 comprehensive river basin studies and comprehensive plans); Doll, supra note 166, at 109. (203) As noted in the Senate Report on S. 1111, the Water Resources Planning Act of 1963, the "Nation had for 55 years unsuccessfully sought a formula for comprehensive river basin planning." S. Rep. No. 668, 88th Cong., 1st Sess. 3 (1963), quoted in Allee et al., supra note 89, at 23. (204) Pub. L. No. 89-80, 79 Stat. 244 (1965) (codified as amended at 42 U.S.C. [sections] 1962 (1988 Supp. V 1993)). (205) 42 U.S.C. [sections] 1962 (1988). (206) A 1970 amendment to the Flood Control Act of 1970 added the following statement of Congressional objectives:
It is the intent of Congress that the objectiv-es of enhancing regional economic development, the quality of the total environment, including its protection and improvement, the well-being of the people of the United States, and the national economic development are the objectives to be included in,federally financed water resource projects, and in the evaluation of benefits and cost attributable thereto, giving due consideration to the most feasible alternative means of accomplishing these objectives. Pub. L. No. 91-611, [sections] 209, 84 Stat. 1818, 1829 (1970) (codified at 42 U.S.C. [sections] 1962-2 (1988)). (207) 42 U.S.C. [sections] 1962-1(a)-(c) (1988). This section also prohibits the use of the law to study interbasin transfers. Id. [sections] 1962-1(d), (208) Membership in WRC originally included the Chairs of the FPC and the Secretaries of the following Departments: Interior; Agriculture; Army; and Health, Education, and Welfare (HEW). Later, Congress added the Secretaries of Housing and Urban Development; Commerce; and Transportation. Congress also substituted the EPA Administrator for the Secretary of HEW, and the Secretary of Energy for the FPC Chairman. See id. [sections] 1962a, see also 42 U.S.C.A. [sections] 1962a Historical and Statutory Notes (West 1988). (209) 42 U.S.C. [sections] 1962a-l (1988). (210) Id. [sections] 1962a-3. Title I also directed WRC to establish the "principles, standards, and procedures" for federal participation in the pr-eparation of comprehensive regional or river basin plans, and standards and criteria for economic evaluation of water projects similar to those introduced in OMB Circular A47. Id. [sections] 1962a-2. For a brief history of the "Principles and Standards," see Doll, supra note 166, at 111-12. (211) 42 U.S.C. [sections] 1962b (1988). (212) Id. [subsections] 1962b(b)(2), 1962b-3. (213) Doll, supra note 166, at 111. (214) The hortatory statement of policy identifies the following as goals: "conservation, development, and utilization." 42 U.S.C. [sections] 1962 (1988). The plans themselves, however, were to achieve "optimum development of water and related land resources," id. [sections] 1962b(b)(2), and WRC was to review each plan "with special regard to" this utilitarian goal as well as the effect of the plan on "other programs for the development" of national resources, id. [sections] 1962a-3. (215) See supra text accompanying note 207. (216) Federal officials chaired the commissions and federal agency members dominated. In addition, the plans themselves needed approval first by WRC, then by the President, and then finally by Congress. 42 U.S.C. [sections] 1962a-3 (1988). Note, though, that Executive Order delegated that presidential function to the Chairman of WRC. Exec. Order No. 11,747, 38 Fed. Reg. 30,993 (Nov. 9, 1973), amended by Exec. Order No. 12,608, 52 Fed. Reg. 34,617 Sept. 14, 1087). (217) The rationale typically was that Congress accepted the results of a CBA when it authorized funding for the project-another manifestation of the distortions caused by Congress's project-specific approval process. See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 380 (D.C. Cir. 1981) (denying review under WRPA but allowing review under the National Environmental Policy Act (NEPA)), cert. denied, 454 U.S. 1092 (1981); Environmental Defense Fund v. Marsh, 651 F.2d 983, 1001 (5th Cir. 1981) (holding that EDF could not challenge the accuracy of the Corps's CBA for a navigation project). (218) 42 U.S.C. [sections] 1962d(17)(b) (1988) (legislatively ratifying previous administrative interest rate for projects authorized before January 3, 1969, if nonfederal interests agreed to pay the relevant local share of costs). For cases consistent with this view, see Environmental Defense Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 492 F.2d 1123, 1134 (5th Cir. 1974); Enos v. Marsh, 616 F. Supp. 32,49 CD. Haw. 1984), affd, 769 F.2d 1363 (9th Cir. 1985); Mardis v. Big Nance Creek Water Mgmt. Dist., 578 F. Supp. 770, 776 (N.D. Ala. 1983), affd, 749 F.2d 732 (11th Cir. 1984); Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp. 742, 760 (N.D. buss. 1980). However, for cases holding that realistic interest rates must be included for purposes of NEPA, see Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1499 (9th Cir. 1987), rev'd in part on other grounds, 490 U.S. 360 (1989); Johnston v. Davis, 698 F.2d 1088, 1092 (10th Cir. 1983); Environmental Defense Fund v. Marsh, 651 F.2d 983, 1001 (5th Cir. 1981); Atchison, T. & S.F. Ry. v. Callaway, 480 F. Supp. 972, 978 (D.D.C. 1979); see also Alabama ex rel. Baxley v. Corps of Eng'rs of the U.S. Army, 411 F. Supp. 1261, 1267 (N.D. Ala. 1976) (applying larger interest rate identified by WRC when project not authorized on time). One analyst noted that the Principles and Standards required more extensive project scrutiny "in theory if not in fact." Viessman, supra note 87, at 42. (219) Allee et al., supra note 89, at 25. While the Act attempted "to give a degree of unity and consistency to the river basin concept. . . ., the processes of disintegration and fragmentation" began almost immediately after enactment and thus WRPA "did not measurably improve regional integration and coordination." Wengert, supra note 166, at 21-22. An analyst who worked with the New England River Basin Commission agreed, but also made a broader point, noting that the commissions were responsible for linking basin managers with basin constituencies, although the practice was more limited to attempted coordination between managers. Harrison, supra note 156, at 436. (220) Eisel, supra note 3, at 45-46; see also Allee et al., supra note 89, at 25 (claiming all levels of government are reluctant to relinquish authority to regional river basin entities "for the purpose of unified river basin management and planning"); Harrison, supra note 156, at 429 (discussing how efforts to achieve better integrated watershed management in the Connecticut River Basin and Chesapeake Bay "have been thoroughly frustrated"). Ironically, just one year before WRC and the Title II River Basin Commissions were disbanded, Eisel continued to express optimism that "we will continue to do planning in the 1980's and . . . we will attempt more comprehensive unified river basin management than in the past." Eisel, supra note 3, at 46. (221) Allee et al., supra note 89, at 24; Aquatic Restoration, supra note 2, at 44 (discussing WRPA's exclusive focus on hydrology and water supply rather than broader environmental concerns). (222) Section 209 states: "The President, acting through the Water Resources Council, shah, as soon as practicable, prepare a Level B plan under the Water Resources Planning Act for afl basins in the United States. All such plans shall be completed not later than January 1, 1980. . . ." 33 U.S.C. (223) Schad, supra note 166, at 6; Weatherford, Supra note 3, at 9. The Commissions all were terminated by Executive Order. Exec. Order No. 12,319, 46 Fed. Reg. 45,591 (Sept. 14, 1981). (224) Eg., Viessman, supra note 87, at 44 (suggesting reestablishment of a board like WRC to fill the "vacuum" in federal water policy left by WRC's demise). (225) National Water Comm'n, Water Policies for the Future, (1973). (226) Schad, supra note 166, at 5; Viessman, supra note 87, at 4142. To some, WRPA "ushered in a new era in water management. It signaled a more comprehensive federal attitude toward water resources programs and provided the foundation for many states to begin active water resources planning endeavors of their own." Viessman, supra note 87, at 42. (227) A core belief of the era was that trained scientists and engineers could solve society's problems in an impersonal and nonpolitical way. Robert Kelley, The Context and the Process: How They Have Changed Over Time, in Water Administration, supra note 3, at 10, 14-15. Kelley noted the existence of a critical paradox as well, however, asking, "[h]ow, in a ferociously democratic society, could experts be given the free hand that successful planning required? In fact, they were not." Id. at 16. (228) Henry P. Caulfield, Jr., future Water Management Problems: The Federal Role in Their Solution, in Water Management, supra note 86, at 21, 22; see also Aquatic Restoration, supra note 2, at 43 (discussing scientific expertise that resided in federal government). (229) Aquatic Restoration, note 2, at 43 (stating individual projects within the mission of the Corps, Bureau of Reclamation, TVA, and the Soil Conservation Service "in fact defined the contents of watershed plans"); Dworsky & Allee, supra note 87, at, 40 ("Basin planning in the past was not to impose the logic of a central authority but to improve the inventory of, and support for, project proposals."). (230) Reuss, supra note 3, at 1, 2; Weatherford, supra note 3, at 3; Wengert, supra note 166, at 11-19. (231) "The only congressional policy that can be identified in those early years was 'if you vote for my project, I'll vote for yours.'" Schad, supra note 166, at 2 (referring to canal projects of the early 19th century). (232) Aquatic Restoration, supra note 2, at 43 (describing endemic log-rolling, with federal government paying the costs); Arnold, supra note 96, at 36 (discussing Franklin D. Roosevelt's effort to end pork-barrel politics through a nonpartisan, nonpolitical planning commission with planning authority extending for 25-50 years). Arnold also describes congressional flood control debate in which individual members added project after project, regardless of its merit, Arnold, supra note 96, at 52-54, and mentions Abel Wolman's denouncement of the 1936 flood control bill as "thoroughly rotten' due to pork-barrel projects. Id. at 84. Other authors acknowledge these problems as well. See, e.g., Kelley, supra note 227, at 17-19 (discussing triumph of politics over cost-benefit ratios); Helen Ingram, Comments, in The Flood Control Challenge: Past Present, and Future 49, 50 (Howard Rosen Martin Reuss eds., 1986) [hereinafter Flood Control Challenge] (commenting that log-rolling cannot be avoided); Eisel, supra note 3, at 46 (acknowledging that Congress will continue to allocate money to projects by line item); Dean E. Mann, Political Science. The Past and future of Water Resources Policy and Management, in Water Administration, supra note 3, at 55, 57 (using U.S. water policy as quintessential example of pork-barrel politics). (233) See Harrison C. Dunning, Confronting the Environmental Legacy of Irrigated Agriculture in the West: The Case of the Central Valley Project, 23 Envtl. L. 943, 943 (1993) (referring to the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600 (1992), as pork-barrel legislation). (234) See generally Reisner, supra note 105; Hamilton Candee, The Broken Promise of Reclamation Reform, 40 Hastings L.J. 657, 657 (1989); Aquatic Restoration, supra note 2, at 43 (describing problems inherent in having the federal government pay most project costs). (235) See supra text accompanying notes 214-15; see also Arnold, supra note 96, at 53-54 (congressional addition of projects for which cost-benefit ratios were not calculated); Wengert, supra note 166, at 11 ("Justification [of projects] was polemical rather than analytic, and effects were asserted as items of faith rather than proved, with no attention to possible consequences or benefit/cost relationships."), 14 ("No talk here ... of B/C ratios."), 24 ("[P]ressures to manipulate and overstate benefits and understate costs must be recognized."); Viessman, supra note 87, at 42 (Principles and Standards imposed rigorous review "in theory if not in fact."); Kelley, supra note 227, at 19 (valuing political culture and human nature as more important than C/B ratios); Ingram, supra note 232, at 51 (commenting that B/C principle is "open to enormous discretion by implementers"). Courts, in reviewing CBAs under NEPA, have expressed the view that slanted CBAs that exalt benefits over costs are simply the expected result when individual agencies evaluate their own projects. See Environmental Defense Fund, Inc. v. Corps of Eng'rs of the U.S. Army, 470 F.2d 289, 295 (8th Cir. 1972) ("NEPA assumes as inevitable an institutional bias within an agency proposing a project . . . ."), cert. denied, 412 U.S. 931 (1973); Upper W. Fork River Watershed Ass'n v. Corps of Eng'rs of the U.S. Army, 414 F. Supp. 908, 923 (N.D. W. Va. 1976) ("It goes without saying that expected project benefits are stressed in the EIS ... [though] a fair reading of the EIS as a whole reveals a reasonably balanced discussion...."), aff'd, 556 F.2d 576 (4th Cir. 1977), cert. denied, 434 U.S. 1010 (1978). (236) Viessman, supra note 87, at 41; see also Weatershed, supra note 3, at 11 (acknowledging "the influence of elites and organized constituencies"); Wengert, supra note 166, at 11 ("Throughout American history, some individuals have sought windfalls from public actions."). (237) See Jimmy Bates, U.S. Army Corps of Engineers, in Watershed '93, supra note 2, at 151, 151; Leon Hyatt, U.S. Bureau of Reclamation, in Watershed '93, supra note 2, at 155, 155; Gary Margheim, USDA Soil Conservation Service, in Watershed '93, Supra note 2, at 159, 159. (238) Pub. L. No. 57-161, ch. 1093, 32 Stat. 390 (1902) (codified as ammended in scattered sections of 43 U.S.C.). (239 ) Schad, supra note 166, at 3; Wengert, supra note 166, at 11; see also Aquatic Restoration, supra note 2, at 41. As discussed below, federal involvement in rivers and harbors projects (navigation) predates the Reclamation Act, but changes in navigation programs ultimately paralleled those in the reclamation and flood control laws. (240) Candee, supra note 234, at 657; see also id. at 660-62 (explaining the original goals of the Reclamation Act); see generally Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275 (1958) (resolving state law conflict with the Act's provisions to achieve its overriding goal), overruled in part by 438 U.S. 645 (1978). (241) Caulfield, supra note 228, at 22. (242) Eg., 43 U.S.C. [sections] 384 (1988) (extension of time for payments); id. [sections] 390cc (1982 provision allowing amended contracts); id. [sections] 461-485k (construction charges and payment schedules, with innumerable exceptions and extensions). Reisner, supra note 105, chronicles fully the tale of persistent congressional forgiveness of reclamation project repayment schedules. (243) See, e.g., 43 U.S.C. [sections] 390b (1988) (Development of water supplies for domestic, municipal, industrial, and other purposes" was added July 3, 1958.). (244) The Act sought to achieve this goal by setting maximum acreage, 43 U.S.C. [subsections] 431 (160 acres), 390dd (960 acres as of 1982) (1988); adding residency requirements, id. [sections] 431 (program limited to residents of land or neighborhood); and insisting that projects be built only where "adaptable for actual settlement and farm homes," id. [sections] 412. These provisions, however, were circumvented in numerous ways. See, eg., Reisner, supra note 105, at 33742; Candee, supra note 234, at 661-63 (noting abuses of the 160-acre limitation); Bryant v. Yellen, 447 U.S. 352 (1980) (rejecting application of the 160-acre limitation to certain private lands in Imperial Valley, California). BOR regulatory implementation also appears to have thwarted Congress's efforts to reform the law. Candee, supra note 234, at 658-59. (245) Reisner, Supra note 105; Candee, supra note 234, at 658; Moore & Willey, supra note 82, at 803-04. (246) Damage from reclamation projects includes massive flow alteration and habitat loss, obstruction of fish passage, and pollution due to salinity and toxics from irrigation return flows. For example, habitat losses and changes in hydrology resulting from the massive series of reclamation dams on the Colorado River threaten the mass extinction of endemic Colorado River fish species. Ono et al., supra note 67, at 87-91. For a description of the impacts on the Colorado River from massive increases in salinity from irrigation return flows, see Joseph F. Friedkin, The International Problem with Mexico over the Salinity of the Lower Colorado River, in Water and the American West 31 (David Getches ed., 1988); Jose Trava, Sharing Water with the Colossus of the North, in Western Water Made Simple, supra note 87, at 171, 171-81; David H. Getches, From Askhabad, to Wellton-Mohawk, to Los Angeles: The Drought in Water Policy, 64 U. Colo. L. Rev. 523, 531-34 (1993); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981). For a description of the major fishery losses and toxic contamination of Kesterson National Wildlife Refuge and other areas by selenium and other contaminants in irrigation return flows from the Central Valley Project in California, see Dunning, supra note 233, at 950-54; see also Moore & Willey, supra note 82, at 776-80 (discussing decline in water quality as a result of urban, industrial, and agricultural development). (247) The Secretary of the Interior is authorized and directed to make examinations and surveys for, and to locate and construct ... irrigation works for the storage, diversion, and development of waters . . . ." 43 U.S.C. [sections] 411 (1988) (original 1902 provision). Later, Congress added additional use-oriented purposes. Eg., id. [subsections] 390b (domestic, municipal and industrial water supply, navigation, flood control), 485h (water supply and electric power). (248) The right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." Id, [sections] 372. (249) Eg., Wilkinson, supra note 82, at 12-19; Moore & Willey, supra note 82, at 781. (250) 43 U.S.C. [sections] 383 (1988); see also California v. United States, 438 U.S. 645, 647 (1978) (upholding state conditions on the use of water impounded in reclamation project). (251) Joseph L. Sax et al., Legal Control of Water Resources 9-10 (1991). (252) While reservation of state water rights is taken as a given now, this result was not a foregone conclusion in 1902. Congress was deciding to embark on a massive program of federal spending to develop interstate water bodies for the mutual benefit of western states and territories, using the Commerce Clause as the fundamental rationale. See Arizona v. California, 283 U.S. 423, 464 (1931) (validating Congress's power to grant authority to construct a dam and reservoir on the Colorado River). Consistent with the "comprehensive river basin planning and development" underpinnings of the Reclamation Act, Congress could have decided in 1902 that it made more sense to allocate these navigable waters, especially interstate waters, through a unified system of federal control. In retrospect, this may have reduced decades of interstate conflict over allocation of the Colorado River and other interstate waters, as well as various federal-state conflicts over water allocation. (253) On efforts to protect instream uses of water through federal reserve water rights and federal and state statutory authorities, see generally Agehael C. Blumm, Unconventional Waters: The Quiet Revolution in Federal and Tribal Minimum Streamflows, 19 Ecology L.Q. 445 (1992). (254) The Reclamation Act provides:
Expenditures shall not be made for carrying out the purposes of the reclamation law except out of appropriations made annually by Congress therefor, and there shall annually, in the Budget, be submitted to Congress estimates of the amount of money necessary to be expended for carrying out any or all of the purposes authorized by the reclamation law, including the extension and completion of existing projects and units thereof and the construction of new projects. 43 U.S.C. [sections] 414 (1988). As discussed infra at note 364, Congress began this practice in the Rivers and Harbors Acts by providing authority for navigation projects. (255) Eg., Boulder Canyon Project Act, 43 U.S.C. [subsections] 617-617v (1988 & Supp. V 1993); Colorado River Storage Project Act, 43 U.S.C. [sections] 620 (1988 & Supp. V 1993); Colorado River Basin Project Act, 43 U.S.C. [subsections] 1501-1556 (1988 & Supp. V 1993); Legislation Applicable to Particular Projects Generally, 43 U.S.C. [subsections] 591-616 (1988). (256) Eg., 43 U.S.C. [sections] 617e (1988). (the Boulder Canyon Project Act uses are navigation, flood control, irrigation, and power); 43 U.S.C. [sections] 620 (1988 & Supp. V) (the Colorado River Storage Project Act uses are comprehensive development of water resources, including flow regulation, storage for beneficial uses, reclamation, flood control, and power). (257) Eg., Boulder Canyon Project Act, 43 U.S.C. [sections] 617q (1988); Boulder Canyon Project Adjustment Act, 43 U.S.C. [sections] 618m (1988). (258) See, e.g., 43 U.S.C. [sections] 620g (1988) (Colorado River Storage Project Act recreational and fish and wildlife facilities); 43 U.S.C. [subsections] 1501(a), 1521 (inclusion of fish and wildlife and recreation as purposes of Colorado River Project Act); Harrison, supra note 156, at 943-44, 961 (identifying provisions of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600 (1992), providing for fish and wildlife purposes, including [subsections] 200-212 (Central Utah Project), and 3406(a) (Central Valley Project)). (259) For example, under the Grand Canyon Protection Act of 1992, Pub. L. No. 102-57.5, 106 Stat. 4669 (1992), incorporated as Title XVIII of the Reclamation Projects Authorization and Adjustment Act, Pub. L. No. 102-575, 106 Stat. 4600 (1992), the Bureau of Reclamation recently announced plans to revise power plant operations at the Glen Canyon Dam on the Colorado River in an effort to modify seasonal hydrology in ways that will help to restore the downstream aquatic ecosystem in the Grand Canyon stretch of the Colorado River. Jim Woolf, Grand Plan for Grand Canyon If New Flow Is a "Go", Salt Lake Trib., Mar. 23, 1995, at 1; Operation of Glen Canyon Dain, Colorado River Storage Project, 60 Fed. Reg. 15,581-82 (Mar. 24, 1995). Similarly, in Pub. L. No. 101-618, 104 Stat. 3289 (1990), Congress authorized modifications to operation of the Newlands Reclamation Project on the Carson and Truckee Rivers in Nevada to help increase instream flows necessary to restore endangered fisheries. See Frank Dimick, Stillwater/Truckee and Carson Rivers, in Watershed '93, supra note 2, at 47, 49. Congress also passed a special program, and has spent considerable amounts of money, to address the severe problem of increased salinity in the Colorado River caused by six decades of "reclamation" of lands in the Colorado River Basin and beyond. See infra notes 547-59 and accompanying text. (260) In the Colorado River Storage Project Act, 43 U.S.C. [sections] 620 (1988 & Supp. V 1993), recreational and fish and wildlife facilities are included as a separate section, rather than as primary project purposes, and hence have been construed as having lower priority. Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1139 (10th Cir. 1981). In the Colorado River Basin Project Act, 43 U.S.C. [subsections] 1501-1556 (1988 & Supp. V 1993), passed a decade later and reflecting somewhat greater environmental concerns, environmental purposes made it into the basic declaration of purposes along with other project uses, id. [subsections] 1501 (general), 1521 (Central Arizona Project), but were arguably sabotaged by later provisions of the law, which give first priority to other uses. Eg., id. [subsections] 1512 (first priority to Mexican Water Treaty), 1524(e) (preference to certain users), 1551 (preservation of water rights and requirements of Colorado River Compact and prior statutes), 1552 (criteria for reservoir operation to give priority to Compact and other uses). Similarly, fish and wildlife mitigation and enhancement were afforded second and third tier priorities in the recent Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4706 (1992). Harrison, supra note 156, at 961. Even if fish and wildlife were stated as having equal priority--or "parity"--with other uses, there is some question how much better they would fare given the historical purposes and operation of Colorado River and Central Valley projects. Cf. Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise. Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl. L. 657 (1991) (arguing that legislative parity for fish resources in the Columbia Basin has not resulted in equal consideration with hydroelectric power operation). (261) See, e.g., Bisson et al., supra note 39, at 189, 197 (hatcheries), 221 (failure of mitigation versus restoration and protection strategies); Doppelt et al., supra note 17, at 36-38, 4142 (criticizing habitat "improvements" through structural engineering and artificial instream structures as "bandaid restoration"). (262) 16 U.S.C. [subsections] 791-82ge (1994). The original law was entitled the Federal Water Power Act, but was changed in 1935 to the Federal Power Act. Id. [sections] 791a. (263) Department of Energy Organization Act, 42 U.S.C. [sections] 7172(a) (1988). (264) John Echeverria et al., Rivers AT Risk 16 (1989). The Commission issues licenses for various purposes, including
constructing, operating, and maintaining dams, water conduits, reservoirs, power
houses, transmission lines, or other project works necessary or convenient for the
development and improvement of navigation and for the development, transmission,
and utilization of power across, along, from, or in any of the streams or other bodies
of water over which Congress has jurisdiction under its authority to regulate commerce
... or upon any part of the public lands and reservations of the United States. 16 U.S.C. [sections] 797(e) (1994). (265) The Commission was directed to investigate the "utilization of... water resources," 16 U.S.C. [sections] 797(a) (1994), make findings about whether projects were "desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce," id. [sections] 797(e), propose the development of water resources for public purposes by the United States, id. [sections] 800(b), and approve licenses for projects "best adapted to . . . improving or developing a waterway or waterways ... [and] for the improvement and utilization of water-power development," id. [sections] 803(a). (266) See Chemehuevi Tribe of Indians v. Federal Power Commn, 420 U.S. 395, 404 (1975) (stating that the Act was for the development and regulation of "water-power"); First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S. 152, 180-81 (1946) (observing that ft was 'the intention of Congress to secure a comprehensive development of natural resources"); Echeverria et al., supra note 264, at 16. (267) 16 U.S.C. [sections] 803(a) (1994) (emphasis added). (268) See supra note 172 and text accompanying note 176. (269) Schad, supra note 166, at 4. (270) 16 U.S.C. [sections] 797(g) (1994). (271) See Arnold, Supra note 96, at 16 (Corps historian noting absence of effort to coordinate FPC efforts with those of other agencies for other purposes, including the Corps's flood control efforts). (272) 16 U.S.C. [sections] 797(a) (1994). (273) Compare National Wildlife Fed'n v. Federal Energy Regulatory Comm'n, 801 F.2d 1505, 1507-08 (9th Cir. 1986) (comprehensive plan necessary before final licensing) with National Wildlife Fed'n v. Federal Energy Regulatory Comm'n, 912 F.2d 1471, 1473-76 (D.C. Cir. 1990) (no error in licensing phase I of project without considering phase R expansion planned for 10 to 15 years in the future) and Washington State Dept of Fisheries v. Federal Energy Regulatory Comm'n, 801 F.2d 1516, 1518-19 (9th Cir. 1986) (Commission must consider the need for a comprehensive plan and the Northwest Power Planning Council's fish program.), amended, 17 Envtl. L. Rep. 20,842 (9th Cir. 1986). On the Commission's failure to hnplement the comprehensive planning requirement generally, see Nuchael C. Blumm, A Trilogy of Tribes v. FERC. Reforming the Federal Role in Hydropower Licensing, 10 Harv. L. Rev. 1, 3, 52-55 (1986). (274) The statute provides:
Nothing contained in this chapter shall be construed as affecting or intending to affect
or in any way to interfere with the laws of the respective States relating to the control,
appropriation, use, or distribution of water used in irrigation or for municipal or other
uses, or any vested right acquired therein. 16 U.S.C. [sections] 821 (1994). (275) Under the Reclamation Act, the Court has ruled that states can impose water use restrictions so long as they do not conflict with congressional directives with respect to the project in question. California v. United States, 438 U.S. 645, 647, 675-79 (1978). Under the FPA, the Court has ruled that a state water permit is not needed to apply for a license, so long as the Commission finds that water will be returned to the stream without harmful diminution. First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S. 152, 170 (1946). Furthermore, states cannot, under a state water permit, demand higher minimum flows than required by FERC. California v. Federal Energy Regulatory Comm'n, 495 U.S. 490, 506 (1990); see also California ex rel. State Water Resources Control Bd. v. Federal Energy Regulatory Comm'n, 966 F.2d 1541, 1548-49 (9th Cir. 1992) (holding that FERC is not required to adopt California's minimum stream flow license conditions). The principal difference between the language of the two laws, which may explain the different results, is that the Reclamation Act includes the additional requirement that the "Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws." 43 U.S.C. [sections] 383 (1988). Compare 16 U.S.C. [sections] 821 (1994) (FPA savings clause providing that the federal statute is not to affect state water control laws), See generally Roderick E. Walston, State Regulation of Federally-licensed Hydropower Projects: The Conflict Between California and First Iowa, 43 Okla. L. Rev. 87, 101 (1990) (asserting that the Supreme Court's contradictory decisions stem from issues of federalism). (276) See PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900 (1994), discussed infra notes 449-54 and accompanying text. (277) 16 U.S.C. [sections] 803(a) (1994). (278) 387 U.S. 428, 450 (1967) (holding that a decision to license a hydroelectric power project can be made only after investigating "all issues relevant to 'the public interest,' including ... preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife"). (279) According to the group American Rivers,
FERC thinks of itself as a hydropower promoter. During the agency's first 60 years, it
only once turned down a project in order to protect recreational and aesthetic values
of a river... Between 1978 and 1985, FERC received 6,500 dam proposals. Many
were uneconomic, but construction nonetheless increased dramatically. Echeverria et al., supra note 264, at 8. Professor Blumm criticizes FERC for ignoring the environmental impacts of dams, and he describes the Commission in less than flattering terms as a "federal hydroelectric czar." Blumm, supra note 273, at 3. Both Echeverria and Blumm attribute recent increases in hydropower licensing to congressional tax and other incentives favoring small hydroelectric power project development, as well as to the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. [subsections] 2601-2645 (1994). Id. at 47-48; Echeverria et al., supra note 264, at 8, 24-25. (280) Electric Consumers Protection Act of 1986, Pub. L. No. 99495, 100 Stat. 1243 (1986) codified as amended in scattered sections of 16 U.S.C. . (281) Id. [sections] 3(a), amending 16 U.S.C. [sections] 797(e) (emphasis added). In addition, in section 10(a), Congress added the following language to the list of purposes by which projects were to be judged: "for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat)." Id. [sections] 3(b), amending 16 U.S.C. [sections] 803(a). 282 See, e.g., California v. Federal Energy Regulatory Comm'n, 495 U.S. 490, 507 (1990) (determining that states cannot demand higher minimum flows than required by FERC); Sayles Hydro Assocs. v. Maughan, 985 F.2d 451, 456 (9th Cir. 1993) (holding that the FPA preempts a state agency's authority to require a permit for a hydroelectric power project in a national forest); California ex rel. State Water Resources Comn'n, 966 F.2d 1541, 1562 (9th Cir. 1992) (stating that FERC's jurisdiction over federal hydroelectric power development precludes the Bureau of Land Management's authority to issue a permit for a hydroelectric project right-of-way); United States Dep't of the Interior v. Federal Energy Regulatory Comm'n, 952 F.2d 538, 549 (D.C. Cir. 1992) (holding that the "equal consideration' provision of the Electric Consumers Protection Act of 1986 does not give preemptive force to environmental factors in FERC licensing decisions). (283) See, e.g., National Wildlife Fed'n v. Federal Energy Regulatory Comm'n, 912 F.2d 1471, 1486 (D.C. Cir. 1990) (holding that FERC need not consider environmental consequences of the second phase of a hydroelectric power project in determining whether to license the first phase). (284) 16 U.S.C. [subsections] 839-839h (1994). The Act states that the Bonneville Power Administration and other federal agencies responsible for managing hydroelectric facilities are to exercise such responsibilities consistent with the purposes of this chapter and other applicable laws, to adequately protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, affected by such projects or facilities in a manner that provides equitable treatment for such fish and wildlife with the other purposes for which such system and facilities are managed and operated. Id. [sections] 839b(h)(11)(a)(i). (285) Blumm & Simrin, supra note 260, at 711-13. (286) For example, the Corps's official historian observes that "[t]he Flood Control Act of 1936 is a good example of congressional legislation that is fairly clear in its general goals, but confusing and even irrational in its specific policies and administrative machinery." Arnold, Supra note 96, at viii. Arnold also noted that the 1936 Act left four separate federal agencies (the Corps, Bureau of Reclamation, the Soil Conservation Service (SCS), and FPC) in charge of separate aspects of water resources policy, with little coordination over several ensuing decades. Id. at 92-93; see also Martin Reuss, Comments, in Flood Control Challenge, supra note 232, at 99, 101 (asserting that the 1936 law was arguably the most important water resources act ever passed, but left most control in one agency and failed to address hydropower, reclamation, or any other related water resource issues), 101 (the Act in theory required cooperation between the Corps and SCS, but included no mechanism to ensure coordination). (287) Ch. 688, [subsections] 1-9, 49 Stat 1570-1596 (codified as amended at 33 U.S.C. [subsections] 701a-701f, 701h (1988 & Supp. V 1993)). The 1936 Act was not, however, Congress's first effort at flood control legislation. Beginning as early as 1848, Congress attempted several times to address flooding in the Mississippi River Valley, which was particularly susceptible to flood damage because early communities had located in the volatile floodplain. See Schad, supra note 166, at 2-3; Arnold, supra note 96, at 7-9, 13. Two of the more notable congressional efforts are the Act of 1879, ch. 43, [subsections] 1-6, 21 Stat. 37 (1879) (codified as amended at 33 U.S.C. [subsections] 641-647 (1988)) (creating the Mississippi River Commission) and the Mississippi River Flood Control Act, ch. 569, [subsections] 1-13, 45 Stat. 534 (1928) (codified as amended at 33 U.S.C. [subsections] 702a-702m, 704 (1988 & Supp. V 1993)). There were similar early legislative attempts to control flooding of the Sacramento River, which experienced major erosion problems caused by hydraulic mining. See Schad supra note 166, at 3; Arnold, supra note 96, at 13. Congress established the California Debris Commission with the Act of 1893, ch. 183, [subsections] 1-25, 27 Stat. 507 (1893) (codified as amended at 33 U.S.C. [subsections] 661-685 (1988)), and authorized projects under the Flood Control Act of 1917, ch. 144, [sections] 2, 39 Stat. 949 (1917) (codified as amended at 33 U.S.C. [sections] 703 (1988)). However, it was the generic survey provision of the Flood Control Act of 1917, under which the Corps prepared the "308 reports," that was ultimately used as the basis for most of the structural flood control projects. Arnold, supra note 96, at 15-17. (288) Arnold, Supra note 96, at 23-90. For a concise version of the politics involved in the passage of the Flood Control Act of 1936, see Joseph L. Arnold, The Flood Control Act of 1936: A Study in Politics, Planning, and Ideology, in Flood Control Challenge, supra note 232, at 13 [hereinafter Arnold, A Study in Politics]. (289) Arnold, supra note 96, at 24. (290) Id. (291) Id. at 24-25, 36, 39, 80. (292) See, e.g., id. at 33-34 (views of Secretary of War George H. Dern). According to Professor Arnold, NRC Water Planning Committee Chair Morris Cooke 'took an enthusiastic and somewhat naive interest in watershed control--believing that it offered a better solution to flood control than large flood control dams." Id. at 39. (293) Id. at 44 (the Corps provided list of over 1600 projects in 1935), 72 (similar submission in 1936). (294) Id. at 27. (295) In 1935, concern about "[t]he roaring waters, of the nation's river basins brought on another flood--an inundation of flood control bills in Congress." Id. at 51; see also id. at 65 (noting that additional floods in the spring of 1936 "virtually assured the passage of some sort of national flood control legislation") 82 (arguing that the move for comprehensive water resources policy was overshadowed by flood emergencies); Theodore M. Schad, Evolution and Future of Flood Control in the United States, in Flood Control Challenge; supra note 232, at 28, 31. (296) Arnold, supra note 96, at 4244, 52-54, 84-85. (297) Id. at 84 (quoting Chairman Abel Wolman of the Water Resources Committee of the National Resources Committee, 1935-1939). This effort succeeded to the extent that the President notified the Senate Majority leader that he opposed the pending bill as "thoroughly unsound." Id. at 85. Nevertheless, the President signed the 1936 Act. Id. at 90. (298) Id. at 86-87. "Little Waters" refers to a short poem written by H.S. Person, E. Johnston Coil, and Robert T. Beall in the fall of 1935, arguing for the value if controlling runoff in small headwater streams as a supplement or alternative to large dams for flood control, hydropower, navigation, and irrigation. Id. (299) Id. at 78, 80, 86-87. (300) Id. at 87-90. While one can only speculate as to why President Roosevelt signed a bill he regarded as "thoroughly unsound," possible reasons include the compromise between the Corps and SCS, strong public demand for flood control action, and higher administration priorities. (301) 33 U.S.C. [subsections] 701a-1, 701b-1, 701b-2, 701b-6 (1988 & Supp. V 1993). Specifically, the Corps had "jurisdiction over investigations and improvements of rivers and other waterways for flood control and allied purposes." Schad, supra note 295, at 31. Meanwhile, SCS held "jurisdiction over the investigation of watersheds, the measures for runoff and waterflow retardation, and the prevention of soil erosion." Id. (302) Douglas Helms, Small Watersheds and the USDA: Legacy of the flood Control Act of 1936, in Flood Control Challenge, supra note 232, at 67, 67-85 [hereinafter Helms, Small Watersheds]; see also Douglas Helms, Watershed Management in Historical Perspective. The Soil Conservation Service's Experience, in Watershed '93, supra note 2, at 89, 89-93 [hereinafter Helms, Historical Perspective]; Reuss, supra note 286, at 103. (303) Helms, Small Watersheds, supra note 302, at 77-99. (304) 16 U.S.C. [subsections] 1001-1007 (1994) "originally enacted as Act of August 4, 1954, ch. 656, [subsections] 1-10, 68 Stat. 666) (1954). (305) Id. [sections] 1005. (306) Helnis, Small Watersheds, supra note 302, at 84 ("The new program had decreased emphasis on total river basin planning."); Reuss, supra note 286, at 103 (describing how SCS responded by becoming more of an engineering than an agricultural agency). (307) The law instructs that "[a]ll examinations and surveys of projects relating to flood control shall include a comprehensive study of the watershed or watersheds." 33 U.S.C. [sections] 701 (1988). (308) Id.; see also Pub. L. No. 78-534, 58 Stat. 887 (1944) (codified at 33 U.S.C. [sections] 701-1 1998)) (1944 amendment asserting policy "to facilitate the consideration of projects on a basis of comprehensive and coordinated development"). This provision, of course, promotes comprehensive analysis only to review "projects" for "development" (309) Any federal agency could (detail representatives ... [to assist the Corps] in the study and examination of such watersheds, to the end that duplication of work may be avoided." 33 U.S.C. [sections] 701 (1988). (310) Id. Nonetheless, the absence of mandatory coordination procedures made this provision relatively ineffective.. (311) 33 U.S.C. [sections] 701a (1988) (The statute is to "improve ... the ... navigable waters or their tributaries, including watersheds thereof, for flood-control purposes."). While the law was initially written for the purpose of flood control, the Corps's authority was expanded to include other utilitarian purposes. See, e.g., Pub. L. No. 75-761, 52 Stat. 1216 (1938) (codified at 33 U.S.C. [sections] 701j (1988)) (1938 amendment allowing installation of "[p]enstocks or other similar facilities adapted to possible future use in the development of hydroelectric power"); Pub. L. No. 78-534, 58 Stat. 890 (1944) (codified at 33 U.S.C. [sections] 708 (1988)) (1944 amendment allowing sale of surplus water consistent with existing water uses). (312) The term "watershed improvements" suggests some attention to land-based controls instead of an exclusive focus on dams, channelization, and other engineered approaches (however, "improvements" suggests engineering rather than changes in land use). Nevertheless, as implemented, structural controls far exceeded land use changes, and the 1936 Act generally led to almost a 100 percent Federal program of dam and levee construction, with emphasis on control of flood waters, not management of water resources." Schad, supra note 166, at 4.
In lauding the program's successes, even Corps advocates testified to this result: Since 1936 Congress has authorized the Corps of Engineers to construct hundreds of miles of levees, flood walls, and channel improvements and approximately 375 major reservoirs. These remarkable engineering projects today comprise one of the largest single additions to the nation's physical plant-rivaled only by the highway system. They have saved billions of dollars in property damage and protected hundreds of thousands of people from anxiety, injury and death. They stand today as one of the more significant marks of our technical skill and humane spirit. Arnold, supra note 96, at 91. (313) 33 U.S.C. [sections] 701a (1988) (originally enacted as Act of June 26, 1936, ch. 688, [sections] 1, 49 Stat. 1570) (projects are appropriate 'if the benefits to whomsoever they may accrue are in excess of the estimated costs".) (314) See Pub. L. No. 83-780, 68 Stat. 1256 (1954) (codified at 33 U.S.C. [sections] 70lb-8 (1988)) (1954 amendment providing that no project would be authorized unless the Corps submits required report). But see Pub. L. No. 80-771, 62 Stat. 1182 (1948) (codified at 33 U.S.C. [sections] 701s (1988)) (1948 amendment authorizing the Corps to proceed only with small flood control projects absent project-specific authorization from Congress). (315) See supra note 230 and accompanying text. (316) Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 353 (8th Cir. 1972) (permitted limited review under NEPA); United States v. West Va. Power Co., 122 F.2d 733, 738 (4th Cir.), cert. denied, 314 U.S. 683 (1941); Mardis v. Big Nance Creek Water Mgmt. Dist., 578 F. Supp. 770, 789 (N.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984) ("Congressional action based upon a specific CBR [cost-benefit ratiol forecloses judicial review of that CBR."); Sierra Club v. Froeldke, 392 F. Supp. 130, 143 (E.D. Mo. 1975), aff'd, 534 F.2d 1289 (8th Cir. 1976) (permitted limited review under NEPA). (317) 33 U.S.C. [sections] 701-1 (1988 & Supp. V 1993). This amendment followed the Supreme Court's decision that federal supremacy over flood control projects on navigable waters was constitutional under the Commerce Clause. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 516 (1941). (318) 33 U.S.C. [sections] 701-1(b) (1988 & Supp. V 1993). (319) Id. [sections] 701-1(a). Given that the proponents of major projects were likely to be members of Congress ftom the project state, however, state concerns may have had a better chance of receiving congressional attention than the views of dissenting federal agencies. (320) In the original 1936 law, states and localities were required to pay up to one-half of the total project costs. Doll, supra note 166, at 108; Schad, supra note 295, at 32. (321) Doll, supra note 166, at 108; Schad, supra note 295, at 33. States and localities were (and still are) required to donate lands and rights-of-way necessary for project construction and operation. 33 U.S. C. [sections] 70 le (1988). This is, a rather small price to pay for otherwise fully funded federal water projects. (322) 33 U.S.C. [sections] 701c-1 (1988). (323) Doll, supra note 166, at 108. (324) Act of April 27, 1935, ch. 85, 49 Stat. 163 (1935) (codified as amended at 16 U.S.C. [sections] 590a (1994)); id. [sections] 590q (short title identified), [sections] 590e (creation of SCS); see also Helms, Historical Perspective, supra note 302, at 89. SCS changed its name in 1995 to the Natural Resources Conservation Service. Rules and Regulations Department of Agriculture: Natural Resources Conservation Service, 60 Fed. Reg. 28,511 (June 1, 1995). (325) 16 U.S.C. [sections] 590a (1994). (326) Id. [sections] 590b. (327) Id. [subsections] 590c (permitting controls), 590h (permitting grants). (328) See id. [sections] 590h (listing over 30 amendments). (329) Id. [sections] 590h(b). The seminal idea of "targeting" resources to areas of environmental concern, instead of automatic benefits independent of need or harm, has resurfaced recently in proposed nonpoint source water pollution control programs, in which the number of potential sources of harm far exceeds available federal and state assistance funding; See Adler et al., supra note 17, at 197. (330) 16 U.S.C. [sections] 590h(b) (1994). (331) James R. Fisher, Public Law 83-566 and Water Quality, in Watershed '93, supra note 2, at 115, 115. (332) See Thompson et al., Supra note 20, at 40-55 (discussing voluntary cost-sharing, mandatory programs, management measures necessary for grant assistance, and alternatives to voluntary cost sharing). (333) Helms, Historical Perspective, supra note 302, at 89-90. (334) Id. (335) Helms, Small Watersheds, supra note 302, at 69. Helms explains elsewhere the role of Aldo Leopold in convincing SCS to hire a wildlife biologist to combine wildlife enhancement with soil erosion control activities. Helms, Histrical Perspective, supra note 302, at 90. (336) 16 U.S.C. [sections] 1001 (1994). In 1972, Congress added the goal of 'conservation and utilization of land and thereby of preserving, protecting, and improving the Nation's land and water resources and the quality of the environment" Id. (337) Id. [sections] 1002. Again, however, "works of improvement" implies engineering controls rather than restoration of land and water systems, functions, and interactions. (338) Helms, Historical Perspective, supra note 302, at 90 ("[T]he current total figures ... are flood prevention 1,324, drainage 303, irrigation 89, rural water supply 5, recreation 274, fish and wildlife 96, municipal and industrial water supply 169, and watershed protection (236). The major objectives of watershed protection projects are distributed among erosion control 156, water quality 61, and water conservation 9."). (339) "Local organizations" are defined broadly to include a wide range of possible entities, including water conservation districts, water users associations, and Indian tribes. 16 U.S.C. 1002 (1994). (340) SCS awards grants to assist local organizations in investigations, planning, and implementation, 16 U.S.C. [sections] 1003(1)-(4) (1994), and to individual landowners for implementation of conservation plans established as part of the overall watershed plan, id. [sections] 1003(6). Individual landowner plans include such land treatment methods as "conserv[ation] and develop[ment] [of] the soil, water, woodland, wildlife, energy, and recreation resources of lands within the area. Id. (341) The general conditions are set out in section 4 of the 1954 law, 16 U.S.C. [sections] 1004 (1994), and amplified in regulations at Water Projects, 7 C.F.R. [sections] 622 (1995). (342) Absent approval by the congressional committee with jurisdiction, small watersheds cannot exceed 250,000 acres (approximately 390 square miles), while single-project appropriations are limited to $5 million and to no greater than 2500 acre-feet of total capacity. 16 U.S.C. [sections] 1002 (1994). However, the legality of congressional approval is in doubt given the Supreme Court's decision declaring legislative veto provisions unconstitutional. See INS v. Chadha, 462 U.S. 919, 959 (1983). (343) There are almost 3000 sofl and water conservation districts around the country. Fisher, supra note 331, at 116. In Iowa, for example, there are 20 small operational watershed programs with 17 subwatershed programs. Lyle W. Asell, Mushing Watershed Programs Together in Iowa, in Watershed '93, supra note 2, at 611, 611. The size and flexibility of the programs have both pluses and minuses for watershed management Prograin boundaxies may, but are not required to, reflect watershed boundaries. See, e.g., id. at 611-12 (of 70 water quality projects in Iowa, 50 are organized on a watershed basis). While small size allows better analysis of the links between land practices, and water resources, individual programs of 250,000 acres alone, without coordination, cannot address the larger basinwide ecological and hydrological connections. See supra part II. (344) The cost-share provisions of the law vary, depending on the type of project benefits and beneficiaries. See 16 U.S.C. [subsections] 1002 (maximum federal share), 1003(6) (cost-sharing with individual landowners), 1004 (cost-sharing with local programs) (1994). (345) Arnold, supra note 96, at 91. (346) Id. at v, 91. (347) See Reuss, supra note 3, at ix, xii (nonstructural methods are preferred, but structural controls still needed in large cities). Of course, even this view assumes that relocation out of floodplains was not possible in at least some cases. (348) See supra part II. (349) Reuss, supra note 3, at ix; Schad, supra note 295, at 38.
(350) Leopold, supra note 114, at 197-98. (351) White wrote that floods are acts of God, but flood losses result from acts of man. Schad, supra note 295, at 33. White predicted that, unless supplemented by land use controls, structural controls would produce only short-term benefits, but that increased development would cause net losses in the long run. Id. at 34. As a result, he proposed many of the nonstructural controls that only the foundation for today's programs, such as erosion control, forest management, and land management techniques; adequate forecasting and emergency procedures; flood-proofing existing structures; land use controls to prevent new development; and public relief and flood insurance. Id. (352) Flooding continues as a very serious problem in the United States, resulting in loss of life and significant property damage. In inflation-adjusted 5-year averages, annual flood damage increased from under $1 billion during the 1920s to peaks between $3 and $6 billion in the 1960s, and dropped somewhat to between $2 and $3 billion thereafter. Fulton, supra note 94, at 244. Adjusted for inflation and population, flood damage continues to increase at a rate of about 1.5% a year. Reuss, supra note 3, at ix (4000 lives lost to flooding over past 4 decades with flood losses still increasing); Schad, supra note 295, at 38. But see Leonard Shabman, The Benefits and Costs of flood Control: Reflections on the flood Control Act of 1936, in Flood Control Challenge, Supra note 232, at 112, 114 (arguing that flood damages are constant as a percentage of gross national product while floodplain construction has continued, indicating large benefits from structural flood control). (353) See Fulton, supra note 94, at 250 "If we truly want comprehensive management of surface waters, which is crucial to reducing the risk of flooding, we need to recognize the need to manage the water from where it hits the ground."); Reuss, supra note 3, at 3" (noting that experts now recommend structural controls only where nonstructural controls are not feasible); James M. Wright & Don L. Porter, floodplain Management and Natural Systems, in WATER Administration, Supra note 3, at 151 (observing that single-objective floodplain management approaches are inadequate to control flooding). In reflecting on the 1936 Act, White recently wrote:
Its concept of man controlling nature presented more vividly than either navigation or irrigation the notion of technological dominance in resource management, and thereby set the scene for later challenges to the belief that good engineering and plenty of money were all that was required to foster harmonious interactions of natural and social systems. Gilbert F. White, When May a Post-Audit Teach Lessons?, in Flood Control Challenge, supra note 232, at 53, 56-57. (354) Nonstructural controls that must be considered, although not necessarily adopted, include floodproofing of structures; flood plain regulation, acquisition of flood plain lands for recreation, fish and wildlife, and other public purposes; and relocation with a view toward formulating the most economically, socially, and environmentally acceptable means of reducing or preventing flood damages." 33 U.S.C. [sections] 701b-11(a) (1988 & Supp. V 1993). (355) Id. [sections] 701b-11(b). (366) In a review of over 170 flood control new starts since NEPA, major nonstructural components were included in only 3. Bory Steinberg, Flood Control in Urban Areas: Past, Present and future, in Flood Control Challenge, Supra note 232, at 89, 97. (357) Aquatic Restoration, Supra note 2, at 48. For the most recent version, see Inter-Agency Floodplain Mgmt. Review Comm., Sharing the Challenge: Floodplain Management into the 21st Century (1994) [hereinafter sharing the challenge]. (358) Pub. L No. 90-448, tit. XHI, [sections] 1302, 82 Stat 572 (1968) (codified as amended at 42 U.S.C. [sections] 4001-28 (1988 & Supp. V 1993)). (359) 42 U.S.C. [subsections] 4022 prohibition against new coverage in locality after 1971 absent adoption of controls), 4023 (no new coverage of any property in violation of applicable state or local laws or regulations), 4102 (requirement for promulgation of federal criteria for states and localities) (1988). (360) Since program adoption in 1968, the federal government has prepared floodplain maps for over 20,000 communities, and nearly 18,000 have enrolled in the program and adopted floodplain regulations. Aquatic Restoration, supra note 2, at 48; see also Wright & Porter, supra note 353, at 143 (noting that over 18,000 of approximately 22,000 flood-prone localities participate in NFIP). (361) See, e.g., Schad, supra. note 295, at 37. (362) Ironically, some experts continued to view the Mississippi River flood control program as a success just a few years before the massive summer floods of 1993. See Steinberg, supra note 356, at 91 (asserting that) [t]oday a comprehensive flood control system keeps the Mississippi River within its banks during major events"); Dworsky & Allee, supra note 87, at 28-29 ("Initial goals of controlling the devastating floods of the Mississippi and its heartland drainage have been substantially achieved."). On the extensive damage caused by the 1993 Mississippi River floods, see David W. Moody, Fresh-water resources of the United States, 9 Natl Geographic Res. & Exploration 81, 83-85 (Nov. 1993), and Sharing the Challenge, supra vote 357, at 15-19. However, Steinberg, a career Corps official, acknowledges that massive flooding continues, and that the Corps obviously does not have all the answers." Steinberg, supra note 356, at 93. (363) See Wright & Porter, supra note 353, at 143 (observing that new development in floodways continues). (364) See, e.g., Rivers and Harbors Appropriation Act of 1884, Act of July 5, 1884, ch. 229, [sections] 4, 23 Stat. 147, as amended by Act of March 3, 1909 current version at 33 U.S.C. [sections] 5 (1988)). (365) See 33 U.S.C. [sections] 1 (1988). (366) Id. [subsections] 401-776; see also id. [subsections] 401 (regarding construction of bridges, causeways, dams, or dikes), 403 (obstruction of navigable waters). (367) Id. [sections] 407 (regulating deposit of refuse in navigable waters). (368) River and Harbor Improvements Act, 33 U.S.C. [subsections] 540-653 (1988 & Supp. V 1993); Water Resources Development Act, 33 U.S.C. [subsections] 2201-2329 (1988 & Supp. V 1993). (369) 33 U.S.C. [subsections] 540 'improvements of rivers, harbors, and other waterways ... [but with due regard for wildlife conservation" , 541 (projects for works of river and harbor improvement'), 545 (surveys and investigations to evaluate improvements for navigation, commerce, and water power), 546 ("conformity with rational plans for the improvement of the streams for navigation") (1988). (370) Id. [sections] 546. (371) Id. [sections] 540 (requiring "due regard for wildlife conservation" . (372) The statute provides: Whenever river and harbor improvements shall be found to operate (whether by lock and dam or otherwise), as obstructions to the passage of fish, the Secretary of the Army may, in his discretion, direct and cause to be constructed practical and sufficient fishways, to be paid for out of the general appropriations for the streams on which such fishways may be constructed. Id. [sections] 608. (373) Id. [sections] 609. (374) Id. [subsections] 545 (surveys and reports to Congress), 568 five-year period for Congress to act on reports). However, as in the flood control laws, Congress showed the Corps to build small projects without specific approval. Id. [sections] 577a. (375) Id. [sections] 547. (376) Id. [sections] 561& For small projects that proceeded without congressional authorization, cost-sharing was entirely within the Corps's discretion. Id. [sections] 577d. (377) This included the efforts of the Carter (based relatively more on environmental concerns) and Reagan (based relatively more on fiscal concerns) Administrations to reign in congressional pork-barrel spending on water projects. See Schad, supra note 166, at 5-7. (378) See id. at 6; Caulfield, supra note 228, at 22; Viessman, supra note 87, at 42-43. (379) Pub. L. No. 99-662, 100 Stat. 4082 (1986) codified as amended at 33 U.S.C. [subsections] 2201-2329 (1988 & Supp. V 1993)). (380) Eg., 33 U.S.C. [subsections] 2263 (study of Corps capability to conserve fish and wildlife), 2281 planning to consider broader range of uses and effects, including the quality of the total environment,' and cost-benefit analysis to display "both quantified and unquantified" costs and benefits), 2282(a) (feasibility reports to address nonstructural alternatives), 2283(a) (mandatory fish and wildlife navigation), 2284 (statutory presumption that benefits of fish and wildlife expenditures exceed costs), 2285 creation of environmental protection and navigation fund), 2309(a), (b) (discretionary authority to modify existing projects for environmental improvements), 2317(a) (wetlands mitigation provision establishing short-term goal of "no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function," and action plan with EPA and FWS) (1988 & Supp. V 1993). (381) Id. [subsections] 2211 (nonfederal share of harbor projects), 2212 (nonfederal share of inland waterway projects), 2213 (nonfederal share of flood control projects, including cost-sharing parity between structural and nonstructural projects). (382) See Schad, supra note 166, at 6; Caulfield, supra note 228, at 22; Viessman, supra note 87, at 4243; Aquatic Restoration, Supra note 2, at 50. The Kissimmee River restoration in Florida is an example of congressional funding for water body restoration. The Kissimmee River system was straightened and channelized over the years with significant resulting harm to the aquatic ecosystem, but will now be restored to approximate its original hydrology. Viessman, supra note 87, at 43; Aquatic Restoration, Supra note 2, at 52-53. (383) 33 U.S.C. [sections] 2263 (1988 & Supp. V 1993) (referring to) engineering or construction capabilities to create alternative habitats, or to improve, enlarge, develop, or otherwise beneficially modify existing habitats of such fish and wildlife" . (384) See supra notes 280-85 and accompanying text. (385) See 33 U.S.C [sections] 2282 (1988) (Supp. V 1993). (386) id. [subsections] 2283(a), 2309(a), 2317(d). (387) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 & 1988 Supp. V 1993). (388) These include the Fish and Wildlife Coordination Act, 16 U.S.C. [subsections] 661-666(c) (1994), the National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1988 & Supp. V 1993), the Endangered Species Act, 16 U.S.C. [subsections] 1531-1544 (1994), and the Safe Drinking Water Act, 42 U.S.C. [subsections] 300f-300j (1988 & Supp. V 1993), discussed infra part FV.B. (389) These include the Coastal Zone Management Act of 1972, 16 U.S.C. [subsections] 1451-1464 (1994), the Tennessee Valley Authority Act of 1933, 16 U.S.C. [subsections] 831-831d (1994), the Pacific Northwest Electric Power PI&MG and Conservation Act, 16 U.S.C. [subsections] 837, 838i, 838k, 839-839h (1994), the Colorado River Basin Salinity Control Act, 43 U.S.C. [subsections] 620d, 1543, 1571-1580, 1591-1599 (1988), several place-based provisions of the Clean Water Act, 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993) (including Chesapeake Bay and Great Lakes programs, [subsections] 1267-1268, Long Island Sound Improvement Act of 1990, [sections] 1269, Lake Champlain Special Designation Act of 1990, [sections] 1270, National Estuary Program, [sections] 1330, Clean Lakes Program, [sections] 1324)), and several interstate water pollution compacts, see 33 U.S.C. [subsections] 567a (authorizing interstate flood and pollution control compacts), 567b, 567b-l (approving the Potomae River Basin Compact) (1988); Act of July 11, 1940, ch. 581, 54 Stat. 752 (1940) (approving the Ohio Sanitation Compact); see also discussion infra part IV.C. (390) These include the National Park Service Organic Act, 16 U.S.C. [subsections] 1-4 (1994), the Multiple Use and Sustained Yield Act of 1960, 16 U.S.C. [subsections] 528-531 (1994), the National Forest Management Act, 16 U.S.C. [subsections] 1600-1614 (1994), the Federal Land Policy and Management Act, 43 U.S.C. [subsections] 1701-17s4 (1988 & Supp. v 1993), the Wildemess Act, 16 U.S.C. [subsections] 1131-1136 (1994), and the Wild and Scenic Rivers Act, 16 U.S.C. [subsections] 1271-1287 (1994). See discussion infra part TV.D. (391) This approach is implemented through effluent limitations adopted under sections 301 and 304 and enforced through permits issued under section 402. 33 U.S.C. [subsections] 1311, 1314, 1342 (1988 & Supp. V 1993). (392) This approach is implemented through water quality standards recommended by EPA under section 304 and adopted by states (or EPA) under section 303, id. [subsections] 1313', 1314, through permits issued under section 402 (or, rarely, imposed under section 302), id. [sections] 1344, and through water quality certifications under section 401, id. [subsections] 1341-1342. (393) See Will H. Rodgers, JR., Environmental law 259-62 (2d ed. 1994) commenting on the philosophical split between water quality and effluent standards approaches). (394) 33 U.S.C. [sections] 1251(a) (1988). (395) Compare id. [sections] 1362(19) (defining "pollution" with id. [sections] 1362(6) defining pollutant). (396) See supra note 46 for ecologists' definitions of "biological integrity" and "ecosystem health.' (397) Water quality standards must protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter." 33 U.S.C. [sections] 1313(c)(2)(a) (1988 & Supp. V 1993). EPA properly interprets this to mean that water quality standards must meet the goals and objectives stated in section 101 of the CWA. EPA Water Quality Planning and Management, 40 C.F.R. [sections] 130.3 (1994); EPA Water Quality Standards, 40 C.F.R. [sections] 131.2 (1994). The link between water quality standards and the biological integrity goal of the law is supported by the breadth of biological factors that EPA must consider when writing water quality criteria guidance for states under section 304(a)(1). These factors include 'all identifiable effects on health and welfare, including, but not fitted to, plankton, fish, shellfish, wildlife, plant life, shorelines"; dispersion through biological, physical, and chemical processes"; and "biological community diversity, productivity, and stability." 33 U.S.C. [sections] 1314(a)(1) (1988 & Supp. V 1993). The CWA also requires EPA to develop information on 'the factors necessary to maintain the chemical, physical, and biological integrity of all navigable waters" and those factors that are necessary for the protection and propagation of shellfish, fish, and wildlife." Id. [sections] 1314(a)(2). In fact, the 1972 Senate report describes water quality criteria in the language of ecosystem protection: Criteria establish the effects of pollutants on health or welfare, including the effects of pollutants on receiving water ecosystenu and man, and identify the natural chemical, physical and biological integrity of the Nations waters. The concentration and dispersal of pollutants and their by-products through biological, physical and chemical processes and any related changes in the diversity, productivity, or stability of receiving water ecosystems would be part of the information provided. 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. S. REP. No. 414, 92d Cong., 2d Sess. 50 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3716 [hereinafter 1972 S. Report] (emphasis added). This legislative history strongly supports the growing use of biocriteria to achieve the goals of the Act. See supra text at notes 4749; Biological Assessment supra note 47, at 345-46. (398) The CWA, originally dubbed the Federal Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155 (1948) codified as amended at 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993)), began federal subsidies for local sewage treatment plants. Subsequent amendments gradually increased federal funding, but water quality standards did not appear until 1965. Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903 (1965) (codified as amended at 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993)). Major federal regulatory and enforcement provisions were not added until 1972. See Federal Water Pollution Control Act of 1972, Pub. L. No. 92-500, 86 Stat. 816 codified as amended at 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993)); Adler et al., supra note 17, at 6; Rodgers, Supra note 393, at 252-53. (399) Pub. L. No. 92-500, tit. U, 86 Stat. 816, 83344 (1972) (codified as amended at 33 U.S.C. [subsections] 1251-1377 (1988 & Supp. V 1993)). (400) Pub. L. No. 100-4, tit. V, 101 Stal 7, 22-28 (1987) codified as amended at 33 U.S.C. [subsections] 1381-1387 (1988 & Supp. V 1993)). (401) See Adler et al., Supra note 17, at 14 (measuring success by increases in numbers of treatment systems and the resulting increases in pounds of pollutants removed). (402) Rubin, supra note 99, at 238 alleging grants program created "perverse incentives for over-investment" . (403) Richard G. Cohn-Lee & Diane M. Cameron, Urban Stormwater Runoff Contamination of the Chesapeake Bay. Sources and Mitigation, 14 Envtl. Prof. 10, 10-11 (1992) (sewage treatment gains are offset by stormwater pollution due to poorly managed growth). (404) The legislative history of the 1972 Act is replete with references to the principles of watershed protection described in part 11 of this Article. Eg., 1972 S. Report, supra note 397, at 12, reprinted in 1972 U.S.C.C.A.N. at 3679 (need for comprehensive river basin planning), 24-25, reprinted in 1972 U.S.C.C.A.N. at 3691 (no amount of sewage treatment would protect waters adequately, absent stormwater controls), 37, reprinted in 1972 U.S.C.C.A.N. at 3703 (need to coordinate land use planning and water pollution control), 3940, reprinted in 1972 U.S.C.C.A.N. at 3705 recognizing nonpoint sources as major contributors to water pollution), 40, reprinted in 1972 U.S.C.C.A.N. at 3706 (reduction of fresh water flows causing salt water intrusion). Most notably, in explaining the Senate version of the area-wide waste treatment management process (section 209 in the Senate bill; section 208 of the from law), the 1972 Senate Committee wrote:
Perhaps the principal cause of inefficiency and poor performance in the management of waste in the metropolitan regions is the incoherent and uncoordinated planning and management that prevails in many areas of the Nation. Adjacent communities and industries are under no mandate to coordinate land use or water quality planning activities. This results in poor overall performance and the proliferation of many direct and indirect discharge sources into receiving waters. Such diffuse and divergent programs not only intensify pollution problems but they prevent the use of economies of scale, efficiency of treatment methods, and, most importantly, coherent, integrated and comprehensive land use management. Id. at 36, reprinted in 1972 U.S.C.C.A.N. at 3703. Similarly, with respect to nonpoint sources, the Committee state:
One of the most significant aspects of this year's hearings ... was the information presented on the degree to which nonpoint sources contribute to water pollution. Agricultural ranoff, animal waste, 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 the major source of pollution. Id. at 39, reprinted in 1972 U.S.C.C.A.N. at 3705. (405) 33 U.S.C. [sections] 1251(g) (1988). (406) Id. [sections] 1251(b), (g). (407) Section 102(a) directed EPA, in cooperation with other federal agencies, states, and dischargers, to "prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters" with due consideration to fish and wildlife, recreation, water supply and other uses. Id. [sections] 1252(a). Section 102(b) directed federal agencies (the Corps, BOR, and others) to consider the use of reservoirs for regulation of stream flow, with an admonition that such water releases would not substitute for adequate waste treatment. Id. [sections] 1252(b)(1). This concession, of course, ignored the more direct relationship between dams and the alteration or destruction of aquatic habitat, and the role of Corps and BOR water projects in depleting overall stream flows-especially in the West. Sections 102(c) and (d) provided for 5096 federal grants to states to develop comprehensive water quality control plan[sl' for each basin, in coordination with the still extant basin planning process under the Water Resources Planning Act. Id. [sections] 1252(c), (d). Notably, the definition of "basin" includes not only the water bodies, but "the lands drained thereby." Id. [sections] 1252(c)(3). As discussed earlier, section 209 on its face also appears to have translated the discretionary basin planning authority in the Water Resources Planning Act into a mandatory nationwide program, id. [sections] 1289, a provision that was not only ignored but flaunted when President Reagan eliminated even the existing river basin commissions. (408) Id. [sections] 1253. Other threads of comprehensive planning in Tittle I included interdisciplinary river basin research, id. [subsections] 1254(r), 1254(s), 1255(b), and comprehensive watershed or river basin approaches to control of acid mine drainage, with associated restoration of affected lands, id. [sections] 1257(a). (409) Id. [sections] 1281(c). While the call for central area-wide planning and treatment was bold and reminiscent of the comprehensive planning proposals of the New Deal, it was mild compared to some contemporaneous proposals, which called for the unification of all municipal and industrial waste treatment within each river basin in a single public agency. Mare J. Roberts, River Basin Authorities: A National Solution to Water Pollution, 83 Harv. L. REV. 1527, 1544 (1970)" [A] single agency would own and operate all of the treatment plants in a region both for industrial and municipal wastes."). (410) 33 U.S.C. [sections] 1288 (1988). As evidence of Congress's view of the importance of comprehensive planning to success of the overall statutory scheme, the House Public Works Committee identified section 208 as the most important aspect of a water pollution control strategy." H.R. REP. No. 911, 92d Cong., 2d Sess. 95 (1972). (411) Natural Resources Defense Council, Inc. v. Costle, 564 F.2d 573, 578 (D.C. Cir. 1977) (holding that section 208 planning was required for all areas of each state, not just those designated' under section 208(a)(2) as having substantial water quality problems); see also Shanty Town Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 791 (4th Cir. 1988) discussing the legislative history behind section 208). But see Evans v. Train, 460 F. Supp. 237, 245 (S.D. Ohio 1978) finding that Congress encouraged but did not mandate regional planning). EPA's principal means of enforcing this requirement is the withholding of grant funds. See 33 U.S.C. [sections] 1288(f) (1988); Shanty Town, 843 F.2d at 791-92. This authority became a bulletless weapon after Congress eliminated section 208 funding in 1981. However, EPA was not left without recourse; it just chose not to use it. Technically, EPA could withhold construction grants for projects not consistent with section 208 plans (a more potent weapon than 208 funding itself, given the much larger magnitude of the funding at stake). 33 U.S.C. [subsections] 1284(a), 1288(d) (1988) Moreover, section 208(e) prohibits the issuance of any NPDES permit in conflict with any section 208 plan. Id. [sections] 1288(e). EPA could enforce this requirement through its permit veto authority under section 402(d). Id. [sections] 1342(d). EPA has chosen not to use this authority. (412) plans were to address municipal and industrial waste treatment; construction priorities; and a broad (though not necessarily complete) array of nonpoint sources, including agriculture, silviculture, irrigation return flows, mine drainage, construction, salt water intrusion, residual waste, and land and subsurface disposal. Id. [sections] 1288(b). While this list is broad, the most notable omissions are hydrological and habitat modifications, including datu, dredging, and channelization. See discussion supra part III. EPA now considers hydrological and habitat modification to be a significant nonpoint source of pollution, contributing 7% of the total impairment to rivers. 1992 Inventory, supra note 61, at 20. EPA also found that hydrological and habitat modification contributes 2396 of the total impairment to lakes. Id. at 33. (413) Shanty Town, 843 F.2d at 791 (commenting that there is no direct mechanism by which EPA can force the states to adopt adequate nonpoint source pollution control programs," but Congress intended EPA to do so through threatened grant withholding). (414) Section 208 says nothing about water quantity. Section 209, 33 U.S.C. [sections] 1289(a) (1988), and section 102(b), id. [sections] J252(c), created a vague link between section 208 planning and water resources plans under the Water Resources Planning Act. Of course, even these connections became meaningless with the demise of the basin planning program. This leaves only the vague requirement in section 101(g) for federal agencies to cooperate with states to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources." Id. [sections] 1251(g). (415) Section 208 includes some isolated mention of groundwater quality, such as the requirement for plans to include a "process to control the disposal of pollutants on land or in subsurface excavations . . . to protect ground and surface water quality." Id. [sections] 1288(b)(2)(k). Section 102(a) included a general directive for EPA to prepare or develop comprehensive programs for waters and ground waters and improving the sanitary condition of surface and underground waters." Id. [sections] 1252(a). (416) The Senate Environment and Public Works Committee reports that 225 section 208 plans were developed. S. Rep. No. 257, 103d Cong., 2d Sess. 46 (1994). (417) Id.; Adler et al., supra note 17, at 185. (418) It is inaccurate to proclaim the program entirely dead (as some would prefer). For example, section 208 planning forms the ongoing basis for a comprehensive bi-state water quality protection and restoration program for Lake Tahoe, although that program is sustained as well by the Tahoe Regional Planning Compact, Pub. L. No. 91-148, 83 Stat. 360 (1969). See Tahoe Regional Planning Agency, 1994 Annual Water Quality Report (July 1994). For a more complete description of efforts to protect Lake Tahoe, see Richard J. Fink, Public Land Acquisition for Environmental Protection. Structuring a Program for the Lake Tahoe Basin, 18 Ecology L.Q. 485 (1991). (419) 33 U.S.C. [sections] 1313(d) (1988). Section 303(d) requires states to identify waters for which technology-based effluent limitations are inadequate to achieve water quality standards, and to calculate the total maximum daily loads (TMDLs) (total pollutant discharges from all sources) necessary to achieve water. quality standards. EPA is required to promulgate TMDLs in states that fail to do so, or which do so inadequately. Id. [sections] 1313(d)(2). TMDLs are incorporated into the state's continuing planning process under section 303(e) and are used to calculate wasteload allocations (WLAs), which then are supposed to be translated into individual water-quality-based permit limitations. 40 C.F.R. [sections] 130.2-.6 (1994). On a national scale, the success of this program has been less than remarkable. Adler et al., supra note 17, at 160; U.S. Gen. Accounting Office, Water Pollutions: More EPA Action Needed to Improve the Quality of Heavily Polluted Waters 24 (1989). Congress's 1987 effort to invigorate the process of water-quality-based permitting through new section 304(1), 33 U.S.C. [sections] 1314(1) (1988 & Supp. V 1993), has prompted only marginal improvements. Adler et al., supra note 17, at 160-61; see Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1324 (9th Cit. 1990) (requiring EPA to mandate state identification of toxic pollutants for all of the waters listed pursuant to CWA section 304(1)). Citizens have had some success forcing EPA to issue TMDLs through litigation. E.g., Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 987 (9th Cir. 1994) (upholding district court's order "that the EPA develop a long term schedule for the development of TMDLs"); Scott v. City of Hammond, 741 F.2d 992, 998 (7th Cir. 1984) (requiring EPA to set its own TMDLs where state has failed to act). Cases seeking to strengthen the content of Tmdls, however, have been less successful. See, eg., Environmental Defense Fund, Inc. v. Cosde, 657 F.2d 275, 294-95 (D.C. Cir. 1981) (EPA need not identify and establish Tmdls where it has not had the opportunity to review state TMDL submissions); Dioxin/Organochlorine Ctr. v. Clark, 57 F.3d 1517, 1525 (9th Cir. 1995) (rejecting DOC's arguments that EPA TMDLs for dioxin emissions in the Columbia River were inadequate). But see City of Las Vegas v. Clark County, 755 F.2d 697, 704 (9th Cir. 1984) (holding no redressable injury results from EPA's failure to promulgate TMDLs where plaintiff made no allegation of insufficient protection by state effluent limitations). Comprehensive watershed programs, along with better-coordinated permitting within watersheds, could facilitate improved compliance with this statutory requirement. Water Quality 2000, supra note 11, at 37; NPDES Watershed Strategy, supra note 16, at 6-7. (420) 33 U.S.C. [sections] 1313(e) (1988 & Supp. V 1993). In theory, section 303(e) and section 208 plans are to be coordinated, id. [sections] 1313(e)(3)(b), although this provision requires only "the incorporation of all elements of any applicable area-wide waste management plans . . . " Id. (emphasis added). (421) S. Rep. No. 257, 103d Cong., 2d Sess. 46 (1994); see also Adlet et al., supra note 17, at 184 (explaining that congressional hearings in 1979 pointed to nine problems for the failure of the section 208 program); Rodgers, supra note 393, at 296-97 (describing "EPA's early decision to de-emphasize the Section 208 plans"); Water Quality 2000, supra note 11, at 35 (explaining 208 failures due to inadequate EPA guidance, federal funding that favored point over nonpoint sources, and the reluctance of states and localities to use section 208 for land use controls). (422) Lawrence P. Wilkins, The Implementation of Water Pollution Control Measures--Section 208 of the Water Pollution Control Act Amendments, 15 Land & Water L. Rev. 479, 481 ("[L]ocal governments ... disfavor conferral of power to government entities having regional jurisdiction."), 489 (political sensitivities of local governments" contribute to the lack of plans that use a regional form of government), 491 (explaining "[l]ocal resistance to a specialized regional government concept" stems from strong home nile traditions), 494 (discussing the importance of home rule traditions) (1980). Professor Wilkins was project manager for the Northeast Ohio Four-County Regional Planning and Development Organization's 208 Water Quality Management Study. Id. at 479. Wilkins argues that Congress and EPA's requirements for regional governance were at the root of the problem, and that "local governments would be more inclined to employ those techniques on a consensual, cooperative basis than they would if they felt regionalism was being forced upon them." Id. at 495. Wilkin's views are somewhat inconsistent, however, as he at times appears to argue that section 208 failed because of too much flexibility. Id. at 487-88. (423) Pub. L. No. 1004, [sections] 319(a), 101 Stat. 52 (1987) (adding CWA [sections] 319, codified at 33 U.S.C. [sections] 1329 (1988)). (424) While section 208 called for comprehensive integration of point source and nonpoint source controls, in coordination with point source controls under Title III, section 319 is limited to the control of nonpoint sources. Section 319(a)(2) allows, but does not require, some integration of sections 319 and 208 (and other pre-eidsting) planning requirements 'to the extent such elements are consistent with and fulfill the requirements of tids section." 33 U.S.C. [sections] 1329(a)(2) (1988 & Supp. V 1993). (425) "A State shall, to the maximum extent practicable, develop and implement a management program under this subsection on a watershed-by-watershed basis within such State." Id. [sections] 1329(b)(4). (426) Adler et al., supra note 17, at 188-89 (citing and quoting Office of Policy, Planning & Evaluation, U.S. Envt'l. Protection Agency, State Implementation of Nonprofit Source Programs (June 1992) (draft)). The OPPE report includes a comprehensive critique of the EPA Office of Water's approach to review of state 319 programs. (427) The section 319 program has helped States address nonpoint source pouution. However, it has not been successful because some State plans are inadequate and funding has been lacking." S. Rep. No. 257, 103d Cong., 2d Sess. 47 (1994); see also Adler et al., supra note 17, at 188-91 (discussing various reasons for section 319 failures). In addition to the lack of watershed focus of 319 plans, reasons include weaknesses in the provision itself and in EPA's implementation of that language. Section 319 is only moderately more aggressive than section 208. For example, best management practices (BMPs) under section 319 in theory must reduce runoff pollution to the "maximum extent practicable," 33 U.S.C. [sections] 1329(a)(1)(c) (1988 & Supp. V 1993), as opposed to the "extent feasible" standard in section 208. But like section 208, section 319 leaves it largely to state discretion to determine the categories of sources for which runoff controls are required, and the applicable implementation mechanism (mandatory controls as opposed to the traditional voluntary approaches such as education or cost-sharing). Id. [sections] 1329. Thus, because BMPs themselves are not mandatory for any specific sources of runoff pollution, the theoretical tightening of the BMP standard lacked any real significance. Through its approval process, EPA could have taken a somewhat stricter view. For example, EPA was authorized to disapprove state section 319 plans, for failure "to satisfy, in whole or in part, the goals and requirements" of the Act. Id. [sections] 1329(d)(2)(a). If EPA interpreted the "goals and requirements" language as adequate measures to attain and maintain water quality standards, see supra note 394 and accompanying text, it could have taken a harder line on program approval and prodded adoption of stricter and more mandatory BMPs. EPA's only leverage was to withhold section 319 grant funds (as opposed to EPA's broader mandate under section 303 to adopt federal water quality standards and implementing mechanisms when a state version is lacking), but for political reasons EPA elected not to play hardball. (428) Eg., National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 175 (D.C. Cir. 1982) (holding water quality impacts by dams are not regulated as point sources under the CWA because they do not create additional pollutants); National Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 585 (6th Cir. 1988) (holding water quality impacts by fish remains are not regulated as point sources under the CWA because the fish, then living, were already in the water and therefore were not additional pollutants). (429) 33 U.S.C. [subsections] 1343, 1344 (1988 & Supp. V 1993). (430) Id. [sections] 1343(a). (431) Id. [sections] 1343(c)(1). The criteria are codified in 40 C.F.R. [sections] 125.124 (1994). (432) 33 U.S.C. [sections] 1343(c)(2) (1988 & Supp. V 1993). (433) 40 C.F.R. [sections] 125.123(c) (1994). The regulation allows ocean discharges, notwithstanding inadequate data to judge impacts, so long as EPA finds that no "irreparable harm" will occur. (434) Adler et al., supra note 17, at 219 (quoting U.S. Envt'l. Protection Agency, Report to Congress on Implementation of Section 403(c) of the Federal water Pollution Control Act 5 (1990)). (435) Adler et al., supra note 17, at 220-21. (436) U.S.C. [sections] 1344 (1988 & Supp. V 1993). Under section 404, dischargers of dredged or fill material into navigable waters must obtain a permit from the Corps, pursuant to guidelines issued by EPA under section 404(b). EPA also has the authority under section 404(c) to veto discharges to particular sites based on a finding of "an unacceptable adverse effect" on the environment (437) The section 404(b) giddelines are supposed to be based on "criteria comparable to' those issued under section 403(c). 33 U.S.C. [sections] 1344(b) (1988 & Supp. V 1993). The guidelines are codified at 40 C.F.R. [sections] 230.10(B) (1995). (438) 474 U.S. 121 (1986). (439) Id. at 134-35. The Court relied in part on the interconnectedness of wetlands to other components of the watershed ecosystem, stating: We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up with the `waters' of the United States ... is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands, provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.
... The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands... [T]he Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Id. (440) 33 U.S.C. [sections] 1344(b)(2) (1988 & Supp. V 1993.) (441) 33 C.F.R. [sections] 323.6 (1995). (442) See Adler et al., supra note 17, at 205-16 (describing problems such as exempt programs, few pen-nit denials, poor understanding of wetlands loss impacts, difficult wetlands restoration, and poorly enforced permits as hampering efforts to protect wetlands); Oliver A. Houck, Hard Choices: The Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L. Rev. 773 (1989) (analyzing the "alternatives test" of section 404 and its ineffectiveness); Michael C. Blumm & D. Bernard Zahela, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. Colo. L. Rev. 695, 761 (1989) (voicing concern over section 404's jurisdictional scope, permit criteria, and enforcement aspects). (443) This problem is particularly acute with respect to general and nationwide permits under section 404(e), which requires no individual, much less cumulative, impact scrutiny. Adlet et al., supra note 17, at 210-11. (444) See, eg., Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 Fed. Reg. 12,286, 12,286-93 (proposed Mar. 6, 1995) (encouraging establishment of mitigation banks under section 404 and "swampbuster" programs, and giving guidance on satisfying mitigation bank requirements). (445) Arkansas v. Oklahoma, 503 U.S. 91 (1992). (446) Nor, for that matter, did Congress repeal companion provisions of the CWA related to comprehensive watershed planning and management, such as sections 102 (comprehensive programs for water pollution control), 201 (comprehensive waste treatment management plans and practices), and 209 (basin planning). 33 U.S.C. [subsections] 1252, 1281, 1289 (1988 & Supp. V 1993). (447) Arkansas v. Oklahoma, 503 U.S. at 107-08. (448) Id. at 108 ("Thus, rather than establishing the categorical ban announced by the Court of Appeals--which might frustrate the construction of new plants that would improve existing conditions--the Clean Water Act vests in the EPA and the States broad authority to develop long-range, areawide programs to alleviate and eliminate existing pollution."). At least one other court has discussed the continuing effect of section 208. Shanty Town Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 791-92 (4th Cir. 19,88) (citing section 208 as authority for EPA to condition sewage treatment construction grant on restrictions on sewer connections in coastal wetlands and floodplains, and to restrict further nonpoint source pollution). (449) 114 S. Ct. 1900, 1914 (1994); see generally Katherine P. Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 25 Envt'l. L. 255 (1995). (450) 33 U.S.C. [sections] 1341 (1988). Under section 40 1, applicants for federal licenses and permits for any activity "which may result in any discharge into the navigable waters" must seek certification from the state in which the discharge origins for compliance with relevant water quality requirements. Id. [sections] 1341(a)(1). Relevant requirements include specific listed provisions of the Act (sections 301, 302, 303, 306, and 307), id., as well as "any other appropriate requirement of State law," id. [sections] 1341(d). The state may deny certification, in which case the permit must be denied, id. [sections] 1341(a), or impose conditions that are binding on the permitting agency, id. [sections] 1341(a), (d). Other states also have somewhat more limited opportunities to impose conditions relevant to interstate water quality impacts. Id. [sections] 1341(a)(2); see generally Katherine P. Ransel & Erik Meyers, State Water Quality Certification and Wetland Protection: A Call to Awaken the Sleeping Giant, 7 Va. J. Nat. Resources L. 339 (1988) (explaining the history and scope of section 401 and recommending its use as a wetlands conservation tool). (451) Some courts limited section 401's application to discharges of pollutants from point sources while others took a more expansive view. Compare Commonwealth, Dept of Envtl. Resources v. City of Harrisburg, 578 A.2d 563, 567 (Pa. Commnw. Ct. 1990) (excluding physical and biological impacts of proposed dam from section 401 certification analysis) and Power Auth. of N.Y. v. Williams, 457 N.E.2d 726, 731 (N.Y. 1983) (excluding economic, energy, and environmental factors other than those listed in New York's water quality standards) with United States v. Marathon Dev. Corp., 867 F.2d 96, 101 (1st Cir. 1989) (broadening certification analysis to reflect state's ability to set more stringent water quality standards, particularly for general wetlands permits) and Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274, 1279 (Or. Ct. App. 1986) (expanding certification analysis to include consideration of water-quality-related land use restrictions), rev. denied, 726 P.2d 377 (Or. 1986) and Roosevelt Campobello Intl Park Comm'n v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982) (expanding conditions of certification to include consideration of state imposed methods of oil spill prevention). (452) 114 S. Ct. at 1912-13. (453) Id. at 1910-11. The Court also justified its holding based on the state's argument that minimum stream flows were necessary to implement its antidegradation policy. Id. at 1912. (454) In the one major case purporting to follow Jefferson County, the Ninth Circuit reversed its earlier decision and ruled that citizens may challenge water quality standards violations caused by combined sewer overflow discharges regardless of whether such standards were implemented through water-quality-based limits in the NPDES permit. Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 990 (9th Cir. 1995). (455) 16 U.S.C. [subsections] 661-666(c) (1994). (456) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370d (1988 & Supp. V 1993). (457) Shannon E. Cunniff, The National Environmental Policy Act Process: A Tool for Watershed Analysis and Planning, in Watershed '93, supra note 2, at 135, 138. (458) Act of March 10, 1934, ch. 55, 48 Stat. 401 (1934) (codified as amended at 16 U.S.C. [subsections] 661-666(c) (1994)). (459) The Act's purpose is to "provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development programs. 16 U.S.C. [sections] 661 (1994). (460) The Act states: [W]henever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service ... with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as providing for the development and improvement thereof in connection with such water-resource development
Id. [sections] 662(a). This language provides not only for mitigation in lieu of avoidance, but for the familiar "improvement" of fish and wildlife resources through hatcheries and other artificial protection and restoration strategies. FWS views and recommendations must be included in project reports to Congress or other decision makers for project approval, but the water resource agencies need only "give full consideration" to such reports and "include such justifiable means and measures for wildlife purposes as the reporting agency finds should be adopted to obtain maximum overall project benefits." Id. [sections] 662(b). Moreover, the accompanying substantive requirement to protect wildlife resources applies only to the extent "consistent with the primary purposes of" the underlying water project. Id. [sections] 663(a). Thus, while couched in language of parity, the Act provides for water resource development first and fish and wildlife protection only when consistent with this primary goal. (461) Eg., Udall v. Federal Power Comm'n, 387 U.S. 428 (1967) (suspending license granted by FPC to build hydroelectric power project because of failure to adequately address federal development of the site). A more skeptical view of this law, however, is that by identifying fish and wildlife or recreational purposes of federal water projects, the federal (as opposed to state and local) cost share would increase. Schad, supra note 166, at 4. (462) FWCA requires only the consideration, not the adoption, of FWS or state fish and wildlife agency views and recommendations. Lake Erie Alliance for Protection of Coastal Corridor v. United States Army Corps of Eng'rs, 526 F. Supp. 1063, 1081 (W.D. Pa. 1981) upholding permit issued by Corps even though final Environmental Impact Statement (EIS) did not incorporate agency requests), aff'd, 707 F.2d 1392 (3d Cir.), cert. denied, 464 U.S. 915 (1983); Sierra Club v. Alexander, 484 F. Supp. 455 (N.D.N.Y.) (approving of Corps permit issued despite FWS objections), aff'd, 633 F.2d 206 (2d Cir. 1980). (463) Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 356 (8th Cir. 1972) (upholding dismissal of FWCA complaint but finding the EIS vague, general, and conclusory); Missouri ex ret. Ashcroft v. Departmnent of the Army, Corps of Eng'rs, 526 F. Supp. 660, 677 (W.D. Mo. 1980), aff'd, 672 F.2d 1297 (8th Cir. 1982); see also Sierra Club v. Morton, 400 F. Supp. 610, 640 (N.D. Cal. 1975) (holding no private right of action existed under FWCA). (464) Section 102(2)(C) of the law requires the preparation of an EIS for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. [sections] 4332(2)(C) (1988 & Supp. V 1993). An EIS must address the environmental impaact of the project, unavoidable adverse impacts, alternatives to the proposal, the relationship between short-term environmental uses and long-term productivity, and "irreversible and irretrievable commitments of resources" involved. Id. The bare-bones requirements of the statute are fleshed out in regulations issued by the Council on Environmental Quality (CEQ). 40 C.F.R. pts. 1500-1508 (1995). For a discussion on the usefulness of NEPA in promoting ecosystem management, see Keiter, supra note 1, at 312-14. (465) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980). (466) 42 U.S.C. [sections] 4332(2)(C)(iii) (1988 & Supp. V 1993); 40 C.F.R. [sections] 1502.14 (1995); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827,833,34 (D.C. Cir. 1972). Alternative courses of action must be studied even when a full EIS is not required. 42 U.S.C. [sections] 4332(2)(E) (1988 & Supp. V 1991); see Strycker's Bay Neighborhood Council, 444 U.S. at 227. (467) 42 U.S.C. [sections] 4332(2)(C) (1988 & Supp. V 1993); 40 C.F.R. [subsections] 1501.5-.6, 1502.9, 1502.25, 1506.6, pts. 1503-1504 (1995). (468) Many of the water resource development programs discussed in part III.B require consultation. As with FWCA, however, these procedures are largely voluntary and nonbinding. 42 U.S.C. [sections] 4332(2)(C) (1988 & Supp. V 1993). (469) 40 C.F.R. pts. 1503, 1505 (1995). In addition, agencies who believe their comments have been given short shrift have an express right to "elevate" the decision to CEQ. Id. pt. 1504. (470) Id. [subsections] 1502.16, 1508.8; Sierra Club v. Marsh, 769 F.2d 868, 877-78 (lst Cir. 1985). (471) 40 C.F.R. [subsections] 1502.20, 1508.7, 1508.25, 1508.28 (1995); I(leppe v. Sierra Club, 427 U.S. 390, 412-15 (1976); Laflamme v. Federal Energy Regwatory Comm'n, 852 F.2d 389, 401 (9th Cir. 1988); Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985). (472) Cunniff, supra note 457, at 135. (473) Id. at 135-37. (474) For example, the Corps suspended its permitting process along the Red River of the North in North Dakota pending a programmatic EIS, and BOR is engaged in a comprehensive, cooperative water resources initiative with Califonia for the San Joaquin River. Id. at 138. EPA suggests that programmatic NEPA evaluations cowd provide a watershed focus for the large number of forthcoming FERC relicensings and BOR water supply contract renewals. Id. TVA also cites its use of NEPA in its reservoir operating plan reassessments as a valuable tool to consider and mitigate watershed impacts, and to increase public involvement in such reevaluations. Robert L. Herbst, River Basin Management in the Tennessee Valley, in Watershed '93, supra note (475) See Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971) (holding that courts have power to require agencies to comply with procedural directions of NEPA). (476) Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976). (477) Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978). (478) See Rodgers, supra note 393, at 801; William L. Andreen, In Pursuit of NEPA's Promise. The Role of Executive Oversight in the Implementation of Environmental Policy, 64 Ind. L.J. 205 (1989); Joseph L. Sax, The (Unhappy) Truth About NEPA, 26 Okla. L. Rev. 239 (1973). (479) 42 U.S.C. [sections] 4332(c) (1988). (480) Examples of water project EISs or Environmental Assessments (EAs) largely approved include Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir. 1977) Cache River-Bayou DeView Channelization Project); Save Our Invaluable Land (SOIL), Inc. v. Needham, 542 F.2d 539 (10th Cir. 1976) (Hillsdale Dam Project), cert. denied, 430 U.S. 945 (1977); Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973) (Melons Dam Project), cert. denied, 416 U.S. 974 (1974); West Branch Valley Flood Protection Ass'n v. Stone, 820 F. Supp. 1 (D.D.C. 1993) (Flood Protection Project).
Examples of water projects for which agency decisions not to prepare an EIS were rejected include Mississippi ex rel. Moore v. Marsh, 710 F. Supp. 1488 (S.D. Miss. 1989) (holding Corps's decision not to prepare EIS for river maintenance project was unreasonable); Simmans v. Grant, 370 F. Supp. 5 (S.D. Tex. 1974) (requiring EA for documentary support for decision to forego EIS for stream channelization project); Montgomery v. Ellis, 364 F. Supp. 517 (N.D. Ala. 1973) (requiring EIS for stream channelization project).
Even when NEPA litigation initially succeeds, the ultimate impact on the project may be small or nonexistent. The initial Tellico Dam NEPA litigation resulted in an injunction pending completion of an adequate EIS. Environmental Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164 (6th Cir. 1972). However, the subsequent EIS was adequate. Environmental Defense Fund v. Tennessee Valley Auth., 492 F.2d 466 (6th Cir. 1974). It is hard to judge, however, how often the EIS actually resulted in project changes or mitigation that served watershed protection goals. (481) Successful challenges due to inadequate analysis of multiple projects or impacts include Washington State Dep't of Fisheries v. Federal Energy Regulatory Comm'n, 801 F.2d 1516, 1518 (9th Cir.), amended, 17 Envtl. L. Rep. 20,842 (9th Cir. 1986); Environmental Defense Fund, Inc. v. Higginson, 655 F.2d 1244, 1247-48 (D.C. Cir. 1981); Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829, 834 (D.D.C. 1974), aff'd, 527 F.2d 1386 (D.C. Cir. 1976).
Examples of unsuccessful challenges include Trout Unlimited v. Morton, 509 F.2d 1276, 1283-84 (9th Cir. 1974); Sierra Club v. Stamm, 507 F.2d 788, 793 (10th Cir. 1974); Sierra Club v. Callaway, 499 F.2d 982, 993 (5th Cir. 1974); Upper W. Fork River Watershed Ass'n v. Corps of Eng'rs, U.S. Army, 414 F. Supp. 908, 930 (N.D. W.Va. 1976), aff'd, 556 F.2d 576 (4th Cir. 1977), cert. denied, 434 U.S. 1010 (1978); United Family Farmers, Inc. v. Kleppe, 418 F. Supp. 591, 598 (D.S.D. 1976). (482) 16 U.S.C. [subsections] 1531-1544 (1994). (483) See Cis Meyers, Utility Planning and the Endangered Species Act, in Watershed '93, supra note 2, at 119, 123; Mike Spear et al., U.S. Fish and Wildlife Service, in Watershed 93 at 163, 163 (citing the ESA as providing FWS's strongest requirement to take an ecosystem perspective). (484) For a comprehensive evaluation of the ESA, see Symposium, Endangered Species Act at Twenty-One: Issues of Reauthorization, 24 Envtl. L. 321 (1994). (485) The purposes of the law include "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. [sections] 1531(b) (1994). Under section 4, the Interior Secretary (in the case of terrestrial and freshwater species) and the Commerce Secretary (for marine and anadromous species), identify species as threatened or endangered. Id. [sections] 1533(a)(1), (2). For each listing, the agencies identify "to the maximum extent prudent and determinable" the "critical habitat" of the species "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact of specifying any particular area as critical habitat." Id. [sections] 1533(a)(3), (b)(2). Interested persons may petition the Secretary to add or remove a species from the list. Id. [sections] 1533(b)(3)(A). The Secretary is required to promulgate regulations necessary for the conservation of such species, id. [sections] 1533(d), and develop recovery plans "unless he finds that such a plan will not promote the conservation of the species," id. [sections] 1533(f). The Secretary is directed to cooperate with state programs to protect threatened and endangered species. Id. [sections] 1535(a). (486) In Tennessee Valley Authority v. Hill, the U.S. Supreme Court blocked completion of the Tellico Dam to preserve the habitat of the snail darter, finding "[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in [sections] 7 of the Endangered Species Act" and "Congress intended endangered species to be afforded the highest of priorities." 437 U.S. 153, 173-74 (1978), superseded by 16 U.S.C. [sections] 1536 (1994). Ultimately, the dam was built anyway, due to political intervention. See Sequoyah v. Tennessee Valley Auth., 480 F. Supp. 608, 612 (E.D. Tenn. 1979), aff'd, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980). The ESA was also revised to provide a loophole, discussed below, whereby a panel of Cabinet-level officials can avoid application of the law on a case-by-case basis.
Sections 7 and 9 contain the two sharpest teeth in the ESA. Section 7, benignly entitled "Interagency cooperation," requires all federal agencies to insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. 16 U.S.C. [sections] 1536(a)(2) (1994). This requires each agency to consult with the Secretary of Interior before commencing any agency action likely to jeopardize any endangered species. Id. [sections] 1536(a)(2), (4). The Secretary can prohibit activities that may jeopardize a species, or may establish mandatory conditions necessary to prevent such jeopardy. Id. [sections] 1536(b), (c). Pending the results of the consultation, the agency "shall not make any irreversible or irretrievable commitment of resources ... which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures" to protect the species. Id. [sections] 1536(d).
Section 9 contains a long list of prohibited acts that might jeopardize a threatened or endangered species, including provisions that prohibit anyone to "take" any such species within the United States or on the high seas. Id. [sections] 1538. "Take" is defined broadly, meaning to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. [sections] 1532(19). Recently, the Supreme Court upheld regulations interpreting the "harm" component of this definition to include significant habitat modification or degradation. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2418 (1995). (487) Tennessee Valley Auth., 437 U.S. at 174. In United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992), the court enjoined an irrigation district from pumping water purchased from a Bureau of Reclamation water project, because of the impact on endangered Sacramento River winter chinook salmon. The salmon were killed not by low flows, but by being sucked into and impinged on the screens of the irrigation project. Id. at 1135. In Carson-Truckee Water Conservancy Dist. v. Watt, 549 F. Supp. 704 (D. Nev. 1982), the court upheld the Interior Department's decision not to sell water under the Reclamation Act when it determined the flows were needed to protect two endangered Pyramid Lake fishes, the cui-ui and the Lahontan cutthroat trout. Id. at 711. A Corps decision to deny a nationwide permit (and therefore, to require project proponents to apply for individual permits) under section 404 of the CWA was upheld where the proposed dam would have lowered water flows to the detriment of endangered whooping cranes on the Platte River. Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir. 1985). FERC was directed to consider and impose environmental conditions on interim hydropower permits for the Wyoming Dam and also to protect endangered crane, eagle, and tern habitat on the Platte River. Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Comm'n, 876 F.2d 109, 114 (D.C. Cir. 1989). On appeal after remand, however, the court upheld FERC's decision that it lacked the authority to impose unilateral revised permit conditions in a Federal Power Act permit absent a re-opener clause in the original license. Platte River Whooping Crane Critical Habitat Maintenance Trust v. Federal Energy Regulatory Comm'n, 962 F.2d 27, 33 (D.C. Cir. 1992). And in Alabama Power Co. v. Federal Energy Regulatory Comm'n, 979 F.2d 1561 (D.C; Cir. 1992), the court upheld FERC's order to increase flows from a dam to protect rare tulotoma snails. Id. at 1565. Most recently, in O'Neill v. United States, the court ruled the federal government was not liable for breach of contract for reducing water deliveries from the Central Valley Project because the contracts were modified by Congress in the ESA and the Central Valley Improvement Act. 50 F.3d 677, 688 (9th Cir. 1995). (488) See, e.g., Mike Bader, 7he Need for an Ecosystem Approach for Endangered Species Protection, 13 Pub. Land L. Rev. 137 (1992). (489) Protective regulations are required "as [the Secretary] deems necessary and advisable." 16 U.S.C. [sections] 1533(d) (1994). Recovery plans are required "unless [the Secretary] finds that such a plan will not promote the conservation of the species." Id. [sections] 1533(f). (490) "Critical habitat" is defined as areas essential to the conservation of the species, id. [sections] 1532(5)(A), and generally does not include the entire geographic range of the species, id. [sections] 1532(5)(C). (491) Actions "authorized, funded, or carried out" by a federal agency require consultation. Id. [sections] 1536(a)(2). (492) Section 7 includes exemptions for national security, id. [sections] 15360), declared disaster areas, id. [sections] 1536(p), and special pardons granted by the ESA Committee, id. [sections] 1536(h). Section 10 includes numerous additional exceptions, the most important of which are permits issued by the Secretary for scientific purposes, id. [sections] 1539(a)(1)(A), and "incidental take" permits, id. [sections] 1539(a)(1)(B). Incidental take permits must be for actions that are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," id., and must "minimize and mitigate" the impacts of the incidental take and "not appreciably reduce the likelihood of the survival and recovery of the species in the wild," id. [sections] 1539(a)(2). (493) For a description of the plight of these fisheries, see Nehlsen et al., supra note 66. The related issue of protection under the Pacific Northwest Power Planning Act is discussed infra part IV.C. (494) In Pacific Northwest Generating Coop. v. Brown, 38 F.3d 1058 (9th Cir. 1994), for example, plaintiffs challenged a wide range of activities in the watershed as inconsistent with the ESA: 1) harvest of listed species as part of a mixed-stock fishery; 2) grazing; 3) timber harvest; 4) road building; 5) recreation on public lands; 6) hatchery releases; 7) transportation and trade of listed species; and 8) operation of power facilities in the Columbia River Power System. Id. at 1061-62. In Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), remanded, 56 F.3d 1071 (9th Cir. 1995), the court remanded the defendants' biological opinion on the operation of the Federal Columbia River Power System as inadequate to protect and restore the fishery. Id. at 900-01. In Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995), the court approved and expanded an injunction pending more extensive ESA consultation regarding the impact of logging activities on Snake River Chinook salmon. Id. at 1051-52. And in Pacific Rivers Council v. Thomas, 873 F. Supp. 365 (D. Idaho 1995), the court issued an injunction requiring the Forest Service to consult with the National Marine Fisheries Service (NMFS) regarding impacts on salmon. Id. at 374. (495) Although the construction and operation of the massive array of hydroelectric facilities in the watershed arguably is the single, dominant cause of the salmon's decline, other causes do contribute to the problem. See Quentin J. Stober & Roy E. Nakatani, Water Quality and Biota of the Columbia River System, in Water Quality in North American River Systems 51 (C. Dale Becker & Duane A. Netzel eds., 1992) [hereinafter North American River Systems]; Nehlsen et al., supra note 66, at 8. The cases also highlight the broad mixture of impacts that affect salmon in particular and the health of the watershed in general. (496) See supra note 494. (497) In Pacific Northwest Generating Coop. v. Brown, 38 F.3d 1058 (9th Cir. 1994), claims raised by a coalition of industry groups were dismissed for lack of standing. In Northwest Resources Info. Ctr. v. National Marine Fisheries Serv., 25 F.3d 872 (9th Cir. 1994), claims raised by a coalition of environmental groups were rejected on the basis of statutory jurisdiction. (498) See Keiter, supra note 1, at 307-09. (499) On August 18, 1994, for example, NMFS published an emergency interim rule changing the status of the Snake River spring/summer and fall runs of chinook salmon from threatened to endangered. Status of Snake River Chinook Salmon, 59 Fed. Reg. 42,529 (Aug. 18, 1994) (to be codified at 50 C.F.R. pts. 222, 227). NMFS found that populations and escapement were much lower than anticipated and that the danger of extinction was accordingly much higher than anticipated. NMFS cited as contributing factors hydropower development, overharvest, disease, predation, inadequacy of existing regulatory mechanisms, drought, and other factors. On March 16, 1995, NMFS proposed to list natural steelhead as threatened over a wide range in Oregon and northern California. Proposed Threatened Status for Southern Oregon and Northern California Steelhead, 60 Fed. Reg. 14,253 (Mar. 16, 1995) (to be codified at 50 C.F.R. pt. 227). (500) See Petition from the Pacific Rivers Council et al., to the National Marine Fisheries Service (Oct. 7, 1993) (petitioning under the ESA for a rule to list, for designation of critical habitat, and for a status review of Coho Salmon throughout its range in Washington, Oregon, Idaho, and California). (501) See, e.g., American Rivers v. National Marine Fisheries Serv., No. 94-940-MA, 1995 WL 464544 (D. Or. Apr. 14,1995); Utility Challenges NPPC Salmon Plan, Envtl. News Briefing, Mar. 1995, at 5 (describing the Idaho Power Company's challenge to the Snake River salmon recovery plan). (502) 42 U.S.C. [subsections] 300f,300j (1988 & Supp. V 1993). (503) See generally Sarah J. Meyland, Land Use & the Protection of Drinking Water Supplies, 10 Pace Envtl. L. Rev. 563 (1993) (arguing that improving watershed quality will improve tap water quality). (504) 42 U.S.C. [sections] 300h-6(f)(1) (1988). This program is a voluntary demonstration program under which state and local governments may apply for approval of a demonstration program, for which federal grants are available, to protect a "critical aquifer protection area." Id. [sections] 300h-6(c). (505) For example, plans must identify the full array of point and nonpoint sources of groundwater pollution, assess the relationship between land use and ground water quality, and develop "[s]pecific actions and management practices" to protect ground water quality. Id. [sections] 300h-6(f)(1)(B), (D). (506) For example, "the plan may be designed to maintain, to the maximum extent possible, the natural vegetative and hydrogeological conditions." Id. [sections] 300h-6(f)(1) (emphasis added). While some plan components are mandatory, id. [sections] 300h-6(f)(1)(A)-(E), other key elements may be included, including land use planning and management to protect ground water quality. Id. [sections] 300h-6(f)(2)(A)-(I). (507) Maximum program authorizations were $17.5 million in fiscal year 1991, and authorizations have not been renewed since that time. Id. [sections] 300h-6(n). (508) Id. [sections] 300g-l(b)(7)(c)(i). (509) Id. (510) The estimated cost of filtering New York City's drinking water ranges from $1.5 to $10 billion in capital costs, and $300 to $900 million per year in operating costs. The U.S. General Accounting Office estimates that on a national basis, filtration requirements for over 10,000 public drinking water systems could exceed $528 billion per year in annualized capital, operating, and monitoring costs. Adler et al., supra note 17, at 100-01; see also Meyland, supra note 503, at 569-71 (presenting similar estimates of compliance costs). (511) Meyland, supra note 503, at 564 ("Currently, the debate rages on regarding whether costly drinking water supply filtration and remediation can be avoided by the implementation of better land use management and the regulation of watersheds surrounding water supplies."); see also [Current Developments] Env't Rep. (BNA) 2376 (Mar. 31, 1995) (proposal to promote watershed approach as the key, cost-effective approach to drinking water protection). (512) National Primary Drinking Water Regulations, 40 C.F.R. [sections] 141.71 (1994); Meyland, supra note 503, at 566. (513) See 40 C.F.R. [sections] 141.71 (1994). (514) Examples include the Coastal Zone Management Act of 1972, 16 U.S.C. [subsections] 1451-1464 (1994), the Tennessee Valley Authority Act of 1933, 16 U.S.C. [subsections] 831-831d (1994), the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. [subsections] 839-839h (1994), the Colorado River Basin Salinity Control Act, 43 U.S.C. [subsections] 620d, 1543, 1571-1580, 1591-1599 (1988), several place-based provisions of the CWA (Chesapeake Bay and Great Lakes Programs, 33 U.S.C. [subsections] 1267-1268 (1988); Long Island Sound Improvement Act of 1990, 33 U.S.C. [sections] 1269 (1988 & Supp. V 1993)), and several interstate water pollution compacts); 33 U.S.C. [subsections] 567a (1988) (authorizing interstate flood and pollution control compacts); id. [subsections] 567b, 567b-1 (approving the Potomac River Basin Compact)). (515) Pub. L. No. 73-17, 48 Stat. 58 (1933) (codified as amended at 16 U.S.C. [subsections] 831-831dd (1994)). TVA was created as a unique hybrid entity: a statutory corporation that remains an instrumentality of the United States for purposes of providing governmental services. Id. [subsections] 831, 831c. (516) Schad, supra note 166, at 4; Arnold, supra note 96, at 27-34 (TVA-type programs in other major river basins rejected); Wengert, supra note 166, at 13-14 (comparing successful efforts to create TVA with unsuccessful efforts to create other comprehensive nationwide watershed proposals that were attacked as "un-American"). (517) For further discussion on the role of TVA in water resources management, see Richard M. Freeman & Edward H. Lesesne, TVA Revisited: Implications for Long Range Water Resources Management in the Tennessee River Valley, in Unified Management I, supra note 3, at 62; Herbst, supra note 474, at 101. (518) According to Reisner, the Tennessee River wins this dubious distinction. Reisner, supra note 105, at 167 ("No river in the entire world has as much of its course under reservoirs as the Tennessee; by the late 1960's, it was hard to find a ten-mile free-flowing stretch between dams."). In less than a half century, TVA built or acquired 51 dams and reservoirs on the Tennessee River and its tributaries. Freeman & Lesesne, supra note 517, at 64, 68. (519) 16 U.S.C. [subsections] 831, 831h-1 (1994); see also Herbst, supra note 474, at 101; Freeman Lesesne, supra note 517, at 70; Grant v. Tennessee Valley Auth., 49 F. Supp. 564, 565 (E.D. Tenn. 1942) (stating that the primary purposes of the TVA Act are flood control and navigation). Among TVA's catch-all powers, however, is the "protection of watersheds." 16 U.S.C. [sections] 831c(l) (1994). (520) In part, disagreements over the Tellico Dam and other water projects, along with increasing fiscal conservatism, made it politically and economically infeasible to build more dams. In addition, TVA was so successful in construction during its first half century that there was actually little left to build. As noted by Robert L. Herbst, TVA's representative at the Watershed '93 Conference, "[w]e've finished developing the water resources of the Tennessee Valley. And now our job is to manage the water control system we have put into place." Herbst, supra note 474, at 105. (521) Freeman & Lesesne, supra note 517, at 66. (522) Id. at 67. (523) Herbst, supra note 474, at 105. Whether one views this change under a skeptical "nothing left to build anyway" or a less cynical lens, TVA'S energies and resources now appear to be devoted to more protectionist ends. (524) Herbst, supra note 474, at 103-05. (525) Ralph H. Brooks, Bear Creek and the Origins of TVA's Clean Water Initiative, in Watershed '93, supra note 2, at 39. (526) For example, the Initiative sets the ambitious but laudable goal of "making the Tennessee the cleanest and most productive commercial river system in the United States by the year 2000." Id. at 3. As described below, this vague overall goal is translated into specific project objectives through a nested approach that focuses on incrementally smaller units of analysis and implementation. (527) Multidisciplinary groups known as River Action Teams (RATS) are planned for each of the Valley's 12 subwatersheds, with 6 teams already in operation as of late 1994. Id. at 3. The teams include experts from aquatic biology, limnology, environmental engineering, hydrology, planning, land management, communications, forestry, and other disciplines. Id. at 22-24; Brooks, supra note 525, at 41. (528) TVA conducts watershed assessments by categorizing watersheds into "nested" units, from the Tennessee River watershed (41,000 square miles), to subwatersheds (several thousand square miles), to resource area delineations (RADS) (several hundred square miles) to resource units (less than 100 square miles). This allows the assessment of conditions at multiple scales, while still addressing the "continuity and interconnectedness of water bodies and their uses." Water Quality 2000 Model Watershed Comm., Evaluation of a Watershed Approach to Clean Water: A Site Visit to the Tennessee Valley Authority and Evaluation of Their Clean Water Initiative 7 (1994) [hereinafter TVA Evaluation]. Assessments are based upon multiple data sources (including state-of-the-art methods such as rapid bioassessments and satellite photographic analysis) according to a set of eight resource value criteria. These criteria include ecological uniqueness, number of threatened and endangered species, existing ecological integrity, potential ecological condition, drinking water supply status and potential, recreational fishery status and potential, swimming status and potential, and alternative beneficial uses. Id. at, 8. Water Quality 2000 found, however, that many of these evaluations were based on professional judgment rather than hard data. Id. at 11. Existing resource impacts are based on the best available scientific methods, including biotic indexes, trophic status evaluations, and geographic information systems. Id. at 12. (529) TVA ranks the importance of problems based on significance to human health, ecological integrity, degree of human resource use, downstream impacts, and economic sustainability. Id. at 13-14. TVA also assesses the likelihood of project success based on institutional and other factors, and then uses a decision matrix to select protection and restoration projects. Id. at 13-16. While it lauded them in general, Water Quality 2000 found that projects tend to focus primarily on mitigation of existing harm rather than protection and enhancement of resources. Id. at 16. (530) TVA communicates with the public through user-friendly publications and is trying to build coalitions with, and encourage participation by, diverse interest groups. TVA acknowledges, however, that these efforts have had mixed success and that greater efforts are needed. Id. at 17-18. (531) TVA has achieved limited success in moving beyond assessment and planning to project implementation, but Water Quality 2000 described the projects as being "in the initial or demonstration phase of implementation." Id. at 19. However, it is difficult to judge implementation until more time elapses. A more serious critique is that the demonstration phase to date has involved relatively simple projects, rather than the more difficult but essential "cooperative efforts with local and state governments to employ remedies such as comprehensive planning, land use zoning and regulation." Id. at 20. In addition, "[f]ull implementation will require funding and staffing beyond what can be provided by TVA." Id. (532) TVA has developed short-term assessments but not long-term monitoring programs (although it acknowledges the need to do both). Id. at 21-22. Ultimately, TVA will measure program success based on the number of stream miles with impaired uses. Id. at 22. (533) TVA Evaluation, Supra note 528, at 1. In addition to evaluating the TVA program in particular, this report suggests a set of generic criteria by which to evaluate any watershed protection program. Id. at 4-6, 28-29. (534) Wengert, supra note 166, at 13 (asserting that "TVA managed the politics of support well"). (535) Ingram, supra note 31, at 15-16. (536) For example, water disputes often arise over water allocation. See, e.g., Colorado v. New Mexico, 459 U.S. 176, 177 (1982) (Vermejo River); Arizona v. California, 373 U.S. 546, 550-51 (1963) (Colorado River); New Jersey v. New York, 347 U.S. 995, 996 (1954) (Delaware River); Nebraska v. Wyoming, 325 U.S. 589, 591 (1945) (North Platte River), modified, 345 U.S. 981 (1953); Wyoming v. Colorado, 259 U.S. 419, 455 (1922) (Laramie River), modified, 260 U.S. 1 (1922), vacated, 353 U.S. 593 (1957). Interstate disputes also frequently arise over water pollution issues. See, e.g., Arkansas v. Oklahoma, 503 U.S. 91, 95 (1992) (Illinois River); International Paper Co. v. Ouellette, 479 U.S. 481, 483 (1987) (Lake Champlain); Milwaukee v. Illinois, 451 U.S. 304, 308-09 (1981) (Lake Michigan); Illinois v. Milwaukee, 406 U.S. 91, 93 (1972) (Lake Michigan), superseded by Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972); Missouri v. Illinois, 200 U.S. 496, 518 (1906) (Mississippi River), superseded by Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972). (537) See supra note 166. (538) See Sax et al, supra note 251, at 701-31 (Colorado River Compact), 73342 (Pecos River Compact), 742-46 (Delaware River Compact). Interstate compacts must be approved by Congress as well as the signatory states. U.S. CONST. art. I, [sections] 10, cl. 3 (No State shah, without the consent of Congress. . . . enter into any agreement or compact with another State."). (539) See 33 U.S.C. [subsections] 567a (1988) (authorizing interstate flood and pollution control compacts), 567b-l (approving the Potomac River Basin Compact) (1988); Act of July 11, 1940, Pub. L. No. 76-739, 54 Stat. 752 (1940) (approving the Ohio River Sanitation Compact (ORSANCO)). (540) As one commentator has observed,
more than 30 compacts have been negotiated among states dealing with associated
water problems in a variety of ways. Many, particularly those in the West, have been
water allocation compacts. Others have been aimed at limited coordinating efforts
such as flood and pollution control. A few compacts have established commissions
with limited regulatory authority such as the Ohio River Valley Water Sanitation Compact
(ORSANCO). Compacts with the most comprehensive authority are the federal-regional
compacts including the Delaware and Susquehanna compacts and the . . .
Ingram, supra note 31, at 10. (541) Sax et al, supra note 251, at 743 ("[T]he Commission is empowered to control every important aspect of river management: water quality, water allocation, hydroelectric power generation, recreational use, flood control and watershed preservation."). (542) The oldest of the interstate water pollution compacts, the Ohio River Valley Water Sanitation Compact, was adopted on June 30, 1948. Institutional Framework, supra note 26, at A-16. (543) Ingram, supra note 31, at 17. ORSANCO issued uniform pollution control standards in 1990 and reviews states' permits to determine compliance. 1992 Inventory, supra note 61, at 141. It also has the authority to enforce these standards, although it uses this authority sparingly. Institutional Frameworks, supra note 26, at 5, A-15. Conversely, the Potomac River Basin Commission lacks any regulatory power and focuses on cooperative monitoring and other voluntary approaches. Id. at 5, A-11. (544) Institutional Frameworks, supra note 26, at 5. (545) See William D. Pearson, Historical Changes in Water Quality and Fishes of the Ohio River, in North American River Systems, Supra note 495, at 215-27 (describing the availability of long-term coordinated trend data on water quality and aquatic resources as a result of ORSANCO efforts). (546) Institutional Frameworks, supra note 26, at A-8. (547) Id. (548) For authorities on both sides of the issue, see Sax et al., supra note 251, at 743-44. (549) Robert Hanley, A Pataki Trim Could fire Up Old Water Wars, N.Y. TIMES, Apr. 9,1995, at A41. (550) See Arizona v. California, 373 U.S. 546, 550-51 (1963). (551) See ONO et al., supra note 67, at 87-108. (552) See Friedkin, supra note 246, at 31-51; Trava, supra note 246, at 171-81. (553) Grand Canyon Protection Act of 1992, Pub. L. No. 102-575, 106 Stat 4669 (1992). (554) Pub. L. No. 93-320, 88 Stat. 266 (1974) (codified as amended at 43 U.S.C. [subsections] 1571-1599 (1988)). (555) 43 U.S.C. [sections] 1571(a) (1988); see also Friedkin, supra note 246, at 35. (556) The principal mechanism for delivering water to Mexico with acceptable salt content was the construction of large, federally funded desalinization plants. 43 U.S.C. [subsections] 1571(b), 1592 (1988). (557) See, e.g., Getches, supra note 246, at 531-34 (describing the government's investment in desalination control projects rather than in stopping irrigation). (558) Over half a billion federal dollars have been authorized for implementation of these projects. 43 U.S.C. [subsections] 1578, 1598 (1988). (559) DOI estimates that over a quarter million tons of salt annually are removed from the river system, but that over five times those removal levels will be needed to maintain treaty requirements. U.S. Dep't of Interior, Quality of Water: Colorado River Basin, Progress Report No. 16, at 42 (1993). (560) For a description of the full range of projects being implemented throughout the watershed, see id. at 36-58. (561) 43 U.S.C. [subsections] 1571(f) (return flow reduction), 1572 (canal lining), 1573 (land acquisition) (1988). (562) 43 U.S.C. [sections] 1592(c) (1988). (563) 16 U.S.C. [subsections] 1451-1464 (1994). For a more detailed discussion of CZMA, see Linda A. Malone, The Coastal Zone Management Act and the Takings Clause in the 1990's: Making the Case for Federal Land Use to Preserve Coastal Areas, 62 U. Colo. L. Re:v. 711 (199 1); Ronald J. Rychlak, Coastal Zone Management and the Search for Integration, 40 DePaul L. Rev. 981 (1991). A complete program description and status report is provided in U.S. Dept of Commerce, 1992-1993 Biennial Report to Congress on the Administration of the Coastal Zone Management Act (1994) [hereinafter CZMA Administration]. (564) The policy of the law is to "preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone." 16 U.S.C. [sections] 1452(l) (1994). (565) As with CWA section 319, 33 U.S.C. [sections] 1329 (1988 & Supp. V 1993), enforcement is limited to the withholding of federal grants and not to the adoption of a federal coastal zone program. 16 U.S.C. [sections] 1455(b) (1994). Some have argued persuasively that this limitation, based largely on principles of federalism and the traditional role of states and localities to control land use, should be abandoned, at least with respect to environmental impacts with greater than local or state reach. See: e.g., Malone, supra note 563, at 766-73. (566) 16 U.S.C. [sections] 1453(l) (1994). (567) Id. The delineation of the coastal zone within a state is left first to state discretion, id. [sections] 1455(d)(2)(a), subject to federal review as part of overall program approval, id. [sections] 1455(d). CZMA can function on an ecosystem basis if the state treats its coastal zone as an integrated ecosystem and not as a geographically delineated area. (568) Most coastal and Great Lakes states have approved CZMA programs. Georgia, Texas, Ohio, Indiana, and Minnesota are in the process of developing programs, and only Illinois has elected not to participate. CZMA Administration, Supra note 563, at 1-3. (569) The congressional findings draw a strong link between coastal use and zone protection. 16 U.S.C. [sections] 1451 (1994). To receive federal approval and grants, state programs must define permissible land and water uses, designate areas of particular concern, identify mechanisms for control of land and water use, and prioritize uses in particular areas. Id. [sections] 1455(d)(2). States must provide for preservation and restoration of areas with special conservation, recreational, ecological, historic, or esthetic values," id. [sections] 1455(d)(9), and for resources of national significance, id. [sections] 1455(d)(13). (570) Management programs must be developed and adopted after public hearings, id. [sections] 1455(d)(4), and "after notice, and with the opportunity of full participation by relevant Federal agencies, State agencies, local governments, regional organizations, port authorities, and other interested parties and individuals, public and private," id. [sections] 1455(d)(1). The program must be coordinated with other relevant local, areawide, and interstate plans, and provide for ongoing consultation among all affected agencies, Id. [sections] 1455(d)(3). The program must also allow for public participation in all permitting and similar decisions regarding individual activities. Id. [sections] 1455(d)(14). (571) Id. [sections] 1456(c). Federal activities must be consistent "to the maximum extent practicable with the enforceable policies of approved State management programs." Id. [sections] 1456(c)(1)(a). Private individuals who engage in activities that require a federal license or permit must obtain a certification from the state that the activity is consistent with the program, but the state's determination may be overridden if the Secretary of Commerce determines that "the activity is consistent with the objectives of [the Act] or is otherwise necessary in the interest of national security." Id. [sections] 1456(c)(3)(a). The reach of the consistency provision was expanded in 1990 to include any federal activity "within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone." Id. [sections] 1456(c)(1)(a). This provision was changed to overrule the Supreme Court's narrow construction of the earlier standard of federal activities "directly affecting the coastal zone." Secretary of the Interior v. California, 464 U.S. 312, 320-43 (1984) (holding that the outer continental shelf oil leases were excluded from CZMA consistency requirement). (572) The effectiveness of this incentive, however, is proportional to the federal government's willingness to comply and the frequency with which the exemptions are used. See Rychlak, supra note 563, at 994 ("[S]tates have a basic distrust of the federal government's willingness to comply with the consistency provisions of the CZMA."). (573) It is more difficult to judge, of course, whether this decline would have been even more severe but for CZMA implementation. (574) The report focuses instead on bureaucratic goals like numbers of approved plans, numbers of research reserves, construction of public recreation access points, program funding, and qualitative program descriptions. CZMA Administration, Supra note 563, at 1-3 to 1-5, 2-3; see also Rychlak, supra note 563, at 990-91 (arguing that CZMA effectiveness is difficult to ascertain). (575) Adler et al., supra note 17, at 83-85; see also Oliver Houck, Ending the War. A Strategy to Save America's Coastal Zone, 47 MD6 L. Rev. 358 (1988) (asserting that the coastal environment continues to rapidly deteriorate despite the protection of federal law). (576) If anything, a state's ability to limit development in the coastal zone is constrained somewhat by the Act's requirement to accommodate the "national interest" in the siting of energy facilities. 16 U.S.C. [sections] 1455(d)(8) (1994). (577) See discussion supra part IV.A. (578) Professor Malone describes CZMA as "perhaps the most comprehensive effort to combine state and federal land use planning." Malone, supra note 563, at 711. (579) As one commentator observed, "[w]e are expecting state regulation, such as that under the CZMA, to overcome formidable economic and political pressures without the safeguard of a clear national mandate." Houck, supra note 575, at 359. Of course, the firmer the substantive mandate in CZMA, the more the law would bear the mantle of federal land use control. Malone, supra note 563, at 727, 766. (580) Pub. L. No. 101-508, [sections] 6217, 104 Stat. 1388 (1990) (current version at 16 U.S.C. [sections] 1455b (1994)). (581) 16 U.S.C. [sections] 1455b (1994). This new program is also described in Adler et al, Supra note 17, at 191-93; and in CZMA Administration, Supra note 563, at 1-6, 2-36 to 2-38. (582) 33 U.S.C. [subsections] 1288, 1326 (1998); see supra notes 410-28 and accompanying text. (583) 16 U.S.C. [sections] 1455b(b)(1) (1994). (584) Id. [sections] 1455b(g). (585) Id. [sections] 1455b(b)(3). (586) Id. [sections] 1455b(a)(2). (587) CZARA provides as follows: For purposes of this subsection, the term "management measures" means economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives. Id. [sections] 1455b(g)(5). Compare 33 U.S.C. [subsections] 1311(b)(2)(a), 1314(b) (1988) (detailing technology-based controls for point sources). (588) 16 U.S.C. [sections] 1455b(g) (1994). (589) See U.S. Envtl. Protection Agency, Guidance Specifying Management Measures For Sources of Nonpoint Pollution in Coastal Waters 1-7 to 1-13 (1993) (discussing categories of nonpoint sources and management measures developed and implemented to control nonpoint source pollution). (590) 16 U.S.C. [sections] 1456(c) (1994). (591) See Adler et al., supra note 17, at 192 (for example, EPA and NOAA were urged to use the "T-soil loss tolerance standard," but instead they chose a measure that provided little objective guidance). (592) See id. at 221-24 (discussing sections 117 and 118 of the CWA, which were implemented to protect the Great Lakes and Chesapeake Bay regions). (593) Id. at 582. (594) Id. at 224. (595) 33 U.S.C. [subsections] 1267-1270 (1988). The Chesapeake Bay and Great lakes Programs were adopted in 1987. Water Quality Act of 1987, Pub. L. No. 1004, [subsections] 103-104, 101 Stat. 10-11 (1987) (codified as amended at 33 U.S.C. [subsections] 1267-1268 (1988)). The Long Island Sound and Lake Champlain programs were added in 1990. Long Island Sound Improvement Act of 1990, Pub. L. No. 101-596, [sections] 202, 104 Stat. 3004 (1990) (codified as amended at 33 U.S.C. [sections] 1269 (1988 & Supp. V 1993)); Lake Champlain Special Designation Act of 1990, Pub. L. No. 101-596, [sections] 303, 104 Stat 3006 (1990) (codified as amended at 33 U.S.C. [sections] 1270 (1988 & Supp. V 1993)). Other provisions in the Act are specific to individual water bodies, but are too single-focused to qualify as integrated watershed protection initiatives. See, e.g., id. [sections] 1266 (Hudson River demonstration project). (596) 1992 Inventory, supra note 61, at 180,81. (597) 33 U.S.C. [sections] 1267 (1988). (598) For more detailed descriptions of the Bay, its problems, and the Chesapeake Bay Program, see 1992 Inventory, supra note 61, at 194-200; Tom Horton & William Eichbaum, Turning the Tide: Saving The Chesapeake Bay (1991); Adler et al., supra note 17, at 223-24. (599) Section 117 creates a Chesapeake Bay Office within EPA to collect and disseminate information, study various environmental problems in the Bay, and "coordinate Federal and State efforts to improve the water quality of the bay." 33 U.S.C. [sections] 1267(a) (1988). In addition, the provision provides up to 50% federal grant funding for states to implement management mechanisms contained in the Chesapeake Bay management plan. Id. [sections] 1267(b). The only condition attached to this funding, and to the federal program as a whole, is the submission of biennial progress reports. Id. [sections] 1267(c). (600) The Chesapeake Bay Agreement of 1983, reprinted in Citizen's Program for The Chesapeake Bay, Choices for the Chesapeake: An Action Agenda 17 (1984). (601) The Chesapeake Bay Agreement of 1983, reprinted in Chesapeake Executive Council, The First Progress Report Under The 1987 Chesapeake Bay Agreement 1 (1989). The Chesapeake Bay Commission was created in 1980 by Maryland and Virginia. Pennsylvania was added in 1985, and the District of Columbia and EPA later joined as signatories. For a complete history, see Chesapeake Bay Comm'n, Annual Report to the General Assemblies of Maryland, Pennsylvania & Virginia (1991); Chesapeake Bay Found., A Review of the Chesapeake Bay Program's First Decade and Recommendations for the Future (1993) [hereinafter CBF Review). (602) The goals, objectives, and commitments address living resources; water quality; population growth and development; public information, education, and participation; public access; and governance. For a review and critique of these goals, see CBF Review, supra note 601, at 27-40. (603) See Adler et al., supra note 17, at 223; 1992 Inventory, supra note 61, at 194. (604) CBF Review, supra note 601, at 31. Another specific target identified by the program is restoration of submerged aquatic vegetation from 70,000 to 114,000 acres by 2025. 1992 Inventory, supra note 61, at 200; CBF Review, supra note 601, at 2, 29. (605) CBF Review, Supra note 601, at 1 ("[M]ost of the Bay Program commitments to produce strategies, policies, and plans have been met. Now the challenge is to implement them."); id. at 9 (noting that most commitments were for development of strategies or plans). (606) Adler et al., supra note 17, at 223-24. (607) Chesapeake Executive Council, Population Growth and Development in the Chesapeake Bay Watershed to the Year 2020 (1988) (report of the Year 2020 Panel). The report identified six major "visions" for protecting the Bay ecosystem through improved land use management: 1) concentrating development in suitable areas; 2) protecting sensitive areas; 3) directing growth to existing population centers to preserve rural and resource areas; 4) creating a "universal ethic" to protect the Bay and its land resources; 5) conservation of resources through recycling an4 reduced use of automobiles, water, and power; and 6) funding. Id. at 4-8. (608) Swanson, supra note 158, at 4345. While it is usually difficult to complain of too much public participation, the Bay Program may actually suffer from an excessively complicated structure, including 50 subcommittees and 60 workgroups designed "to ensure that all . . . interests are represented and the goals of the program are ultimately achieved." Id. at 44. (609) CBF Review, supra note 601, at 4. (610) The Executive Director of the Chesapeake Bay Commission, for example, after citing significant program accomplishments, notes that "our 'to do list' is far longer than our 'accomplishments list.'" Swanson, supra note 158, at 45. The Chesapeake Bay Foundation (a citizen group) lauds program achievements where appropriate, but also identifies a significant gap between successful planning and inadequate or nonexistent implementation. CBF Review, supra note 601, at 1-2, 4, 9-11. For example, even the strongest aspect of the program, the 40% nutrient reduction target, is well behind schedule. Id. at 15; see also 1992 Inventory, supra note 61, at 196-98. (611) CBF Review, supra note 601, at 10. The Chesapeake Bay Foundation also argues that "[p]arochialism . . . is an ongoing challenge for the Bay program." Id. Thus, for example, Maryland and Virginia both have state land use control statutes designed to protect the Bay, but the laws vary considerably in approach and stringency. Compare Maryland Chesapeake Bay Critical Area Protection Program, MD. Code Ann., Envir. [subsections] 8-1801 Supp. 1994) with Virginia Chesapeake Bay Preservation Act, Va. Code Ann. [subsections] 10.1-2100 to 2115 (Michie 1993). Both statutes mandate the adoption and implementation of specific growth controls, but neither applies to the entire Bay watershed. In general, the Maryland law adopts stricter controls, but for a smaller area than the Virginia version. Of course, but for the Chesapeake Bay Agreement and the 2020 Report, it is doubtful that these states would have any programs to control growth in the Bay watershed. For additional descriptions and comparisons of individual state laws to implement the Bay Agreement, see Philip J. Tierney, Maryland's 2020 Proposals: Strong Medicine for a Life Threatening Illness, 1991 U. Balt. J. Envtl. 24 (1991); Richard H. McNeer, Nontidal Wetlands Protection in Maryland and Virginia, 51 MD. L. Rev. 105 (1992); Marshall Groom, Comment, The Chesapeake Bay Preservation Act: A Status Report, 2 Dick. J. Envtl. L. & Pol'y 217 (1993). (612) For a more detailed description and analysis of the Great Lakes Program, see 1992 Inventory, supra note 61, at 184-93; International Joint Comm'n, Seventh Biennial Report on Great Lakes Water Quality (1994) [hereinafter IJC Report]; Theodora E. Colborn et al., Great Lakes, Great Legacy? 1990); National Wildlife Fed'n & Canadian Inst. for Envtl. Law & Pol'y, A Prescription for a Healthy Great Lakes (1991); Final Water Quality Guidelines for the Great Lakes System, 60 Fed. Reg. 15,366 (Mar. 23, 1995); Adler et al., supra note 17, at 221-23; Anthony S. Earl, Protecting the Great Lakes: The Case for a Regional Approach, 24 U. Tol. L. Rev. 271 (1993); Barry G. Rabe & Janet B. Zimmerman, Cross-Media Environmental Integration in the Great Lakes Basin, 22 Envtl. L. 253 (1992). (613) See James G. Chandler & Michael J. Vechsler, The Great Lakes-St. Lawrence River Basin from an IJC Perspective, 18 Can.-U.S..L.J. 261 (1992) (describing the scope of IJC's. role in implementing the Great Lakes Water Quality Agreement). (614) Agreement Between the United States of America and Canada on Great Lakes Water Quality, Apr. 15, 1972, U.S.-Can., 23 U.S.T. 301. (615) Agreement Between the United States of America and Canada on Great Lakes Water Quality, Nov. 22, 1978, U.s.-Can., 30 U.S.T. 1383. (616) Protocol Amending the 1978 Great Lakes Water Quality Agreement, Nov. 18, 1987, U.S.-Can., tit. II, 30 U.S.T. 1383. (617) 33 U.S.C. [sections] 1268 (1988). (618) Adler et al., supra note 17, at 20-21, 221. (619) The Agreements provide that [e]nsuring the integrity of the Great Lakes ecosystem requires attention to many complex and dynamic components that must be understood and incorporated into an effective plan to achieve the objectives of the Agreement. These interrelated components include the atmosphere, the surrounding land, a wide variety of biological species and their interrelationships and, of course, human activities. LJC REPORT, supra note 612, at 1; see also Adler et al., supra note 17, at 222; Colborn et al., supra note 612, at 3-5. (620) LJC Report, supra note 612, at 1-2, 7-9. (621) 33 U.S.C. [sections] 1268(b), (c)(1), (d), (e) (1988). (622) The Office is directed to "develop and implement specific action plans to carry out the responsibilities of the United States under the Great Lakes Water Quality Agreement of 1978." Id. [sections] 1268(c)(1)(a). This difference reflects the need to provide specifically for U.S. compliance with the international treaty, a role that cannot simply be relegated to the states. (623) The statute provides:
Such guidance shall conform with the objectives and provisions of the Great Lakes
Water Quality Agreement, shall be no less restrictive than the provisions of this [Act)
and national water quality criteria and guidance, shall specify numerical limits on
pollutants in ambient Great Lakes waters to protect human health, aquatic life, and
wildlife, and shall provide guidance to the Great Lakes States on minimum water
quality standards, antidegradation policies, and implementation procedures for the
Great Lakes System. Id. [sections] 1268(c)(2)(A). Presently, state water quality standards and procedures vary considerably even for the same water body in the Great Lakes, producing illogical and potentially unfair results. See. supra note 45. (624) Final Water Quality Guidance for the Great Lakes System, 60 Fed. Reg. 15,366 Mar. 23, 1995) (to be codified at 40 C.F.R. pts. 9, 122, 123, 131-132). A second round of guidance will address nonpoint source pollution. (625) Id. The guidance sets water quality standards for 29 pollutants, with specific criteria to protect human health, aquatic life, and wildlife; bioaccumulation methodologies; specific implementation procedures governing site-specific modifications, variances, TMDLs, mixing zones, additivity, intake credits, whole effluent toxicity, levels of quantification, and compliance schedules; and detailed antidegradation provisions and procedures. Id. (626) 33 U.S.C. [sections] 1268(c)(2)(c) (1988 & Supp. V 1993). By contrast, while EPA normally issues water quality criteria guidance under CWA section 304(a), id. [sections] 1314(a), state water quality standards adopted under section 303 need only be consistent with the requirements of the Act in general and not with EPA's recommended criteria, id. [sections] 1313(c). Thus, the Great Lakes provision appears to mandate greater consistency for water quality standards and procedures in the Great Lakes. (627) Id. [sections] 1268(c)(3). (628) Id. [sections] 1268(a)(3)(j). A total of 43 areas of concern have been designated for the RAP process. 1992 Inventory, supra note 61, at 192. For more detailed descriptions of the broad-based restoration efforts that are being planned and implemented under this process, see generally Under RAPS: Toward Grassroots Ecological Democracy in the Great Lakes Basin (John H. Hartig & Michael A. Zarull eds., 1992). (629) 33 U.S.C. [sections] 1268(a)(3)(1) (1988 & Supp. V 1993). (630) 1992 Inventory, supra note 61, at 199. (631) 33 U.S.C. [sections] 1268(c)(4) (1988 & Supp. V 1993). U.S. Review of Lake Michigan Lakewide Management Plan, 60 Fed. Reg. 22,381 (May 5, 1995). For a discussion of the numerous revisions of the plan and the 1993 revised draft, see U.S. Envtl. Protection Agency, Revised Draft Lake Michigan Lakewide Management Plan For Toxic Pollutants (1993); U.S. Envtl. Protection Agency, Summary of Public Comments to January 1992 Draft of Lake Michigan Lakewide Management Plan and EPA Responses to Comments (1993). (633) 33 U.S.C. [sections] 1269 (1988 & Supp. V 1993). (634) Id. [sections] 1270. (635) The Conference must be comprised of the governors of Vermont and New York; representatives of up to five interested federal agencies; state legislators; local governments; representatives of diverse interest groups, including citizens advisory committees in New York, Quebec, and Vermont; affected industries; nongovernmental organizations; and the general public. Id. [sections] 1270(b). (636) The plan must identify "corrective actions and compliance schedules addressing point and nonpoint sources of pollution," incorporate existing environmental management plans, clarify the responsibilities of all federal and state agencies, identify funding sources and strategies, and include a 'strategy for pollution prevention and control." Id. [sections] 1270(e)(2). After public notice and comment and EPA approval, the plan qualifies as an approved management plan under section 319(h) and under the National Estuary Program, 33 U.S.C. [sections] 1330 (1988). Id. [sections] 1270(e)(3)-(4). (637) For example, the Long Island Sound Management Plan provides:
Degradation of the Sound will be halted. Many of the Sound's uses, impaired and
impeded over time, will be recovered. Beach closings will be reduced, shellfish harvest
acreage will expand, and there will be more life-sustaining oxygen and fewer fish
kills. Habitats will be reclaimed and restored, diverse and healthy plant and animal
life, including endangered species, will be supported. U.S. Envtl. Protection Agency, Long Island Sound Study: Summary of the Comprehensive Conservation and Management Plan 8 (1994) [hereinafter Long Island Sound Study]. (638) These include six priority areas of concern: 1) low dissolved oxygen (hypoxia), 2) toxics, 3) pathogens, 4) floatable debris, 5) health of living resources, and 6) land use and development resulting in habitat loss and water quality degradation. Id; at 2, 5. (639) Id. at 9. (640) Id. at 14 (phased improvement targets), 16-18 (source-specific, numeric reductions in nutrients needed), 27 (provisions for TMDLs and WLAs for point sources in the New York-New Jersey Harbor), 33-36 (loadings analysis and specific upgrades needed in sewage and stormwater controls). (641) See id. at 23-26 (toxics still largely in study phase), 49 (acknowledging that water quality protection is neglected in land use policies). (642) Id. at 2. (643) As noted above, the Great Lakes Program adopted a similar strategy. The Great Lakes signatories focused on the more complex problem of toxic pollution only after the problem of severe oxygen depletion was solved. See supra notes 612-13 and accompanying text. (644) 33 U.S.C. [sections] 1324 (1988 & Supp. V 1993). (645) See 1992 Inventory, supra note 61, at 27-33. (646) 33 U.S.C. [sections] 1324 (1988 & Supp. V 1993). (647) Adler et al., supra note 17, at 216-17; Aquatic Restoration, supra note 2, at 6, 72, 147-50. (648) 33 U.S.C. [sections] 1330 (1988 & Supp. V 1993); see also U.S. Envtl. Protection Agency, The National Estuary Program After Four Years: A Report to Congress (1992) [hereinafter NEP Report]; 1992 Inventory, supra note 61, at 201-09. (649) The 17 estuaries in the original program included a drainage area of only 73,300 square miles. NEP Report, supra note 648, at 9. Four additional estuaries were added to the program in 1992. 1992 Inventory, supra; note 61, at 202. While the program still includes only a fraction of the nation's estuaries, it nevertheless covers a far higher percentage of waters than the Clean Lakes Program, 33 U.S.C. [sections] 1324 (1988). Adler et al., supra note 17, at 216-17. (650) They are the Long Island Sound, New York and Connecticut; Narragansett Bay, Rhode Island, Buzzards Bay, Massachusetts; Massachusetts Bay, Massachusetts; Puget Sound, Washington; New York-New Jersey Harbor, New York and New Jersey; Delaware Bay, Delaware and New Jersey; Delaware Inland Bays, Delaware; Albemarle Sound, North Carolina; Sarasota Bay, Florida; San Francisco Bay, California; Santa Monica Bay, California; Galveston Bay, Texas; Barataria-Terrebonne Bay, Luisiana; Indian River Lagoon, Florida; and Peconic Bay, New York. 33 U.S.C. [sections] 1330(a)(2)(b) (1988 & Supp. V 1993). (651) Id. [sections] 1330(a)(1). (652) Id. [sections] 1330(g)-(j). (653) Id. [sections] 1330(b). As with the Lake Champlain Management Conference, the statute specifies that management conferences must include representatives of diverse governmental and nongovernmental interest groups. Id. [sections] 1330(c). (654) See Katherine Minsch, Watershed Management in Puget Sound: A Case Study, in Watershed '93, supra note 2, at 243 (describing the comprehensive approach, broad-based participation and coordination, and firm commitments to implementation in the Puget Sound Plan). Puget Sound had a head start in NEP planning and implementation due to the pre-existing efforts of the Puget Sound Water Quality Authority. (655) 33 U.S.C. [sections] 1330(f)(2) (1988) ("Upon approval of a conservation and management plan under this section, such plan shall be implemented."). (656) NEP Report, supra note 648, at i, 25 (Puget Sound and Buzzard's Bay). The program description in EPA!s most recent National Water Quality Inventory does not indicate whether further implementation has been initiated. See 1992 Inventory, supra note 61, at 201-09. (657) CWA watershed programs should, of course, and in some cases do, address physical sources of impairment such as dams and other obstructions. The Long Island Sound Management Program, for example, identifies dams on the Connecticut River as impediments to the passage of alewives, smelt, blueback herring, shad, and salmon. Long Island Sound Study, supra note 637, at 44. (658) 16 U.S.C. [subsections] 839-839h (1994). (659) More detailed descriptions of this law can be found in articles written by Professor Blumm and others. Eg., Blumm & Simrin, supra note 260; Michael C. Blumm, Reexaminting the Parity Promise: More Challenges Than Successes to the Implementation of the Columbia Basin Fish and Wildlife Program, 16 Envtl L. 461 (1986); Terence L. Thatcher, The Pacific Northwest Electric Power Planning and Conservation Act: Fish and Wildlife Protection Outside the Columbia River Basin, 13 Envtl L. 517 (1983); Mihael C. Blumm & Brad L. Johnson, Promising a Process for Parity: The Pacific Northwest Electric Power Planning and Conservation Act and Anadromous Fish Protection, 11 Envtl. L. 497 (1981). (660) See Blumm & Johnson, supra note 659, at 548-49. The "parity" amendment to the Federal Power Act, discussed supra, came six years after the Northwest Power Act. (661) Weatherford, supra note 3, at 10. (662) Blumm & Simrin, supra note 260, at 660-62. (663) 16 U.S.C. [sections] 839b(a)(1) (1994). (664) Id. [sections] 839b(a)(2)-(3). (665) Energy resources are prioritized in the order of 1) conservation, 2) renewable energy sources, 3) generation using waste heat or high efficiency fuels, and 4) all other resources. Id. [sections] 839b(e)(1). (666) Consideration must be given to environmental quality; compatibility with the existing regional energy system; "protection, mitigation, and enhancement of fish and wildlife and related spawning grounds and habitat," including adequate instream flows; and other criteria. Id. [sections] 839b(e)(2). (667) Id. [sections] 839b(h)(1)(a) (emphasis added). Historically, resources of the Columbia River Basin have not been "managed as an ecosystem." John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, the Endagered Species Act, and Adaptive Management, 23 Envtl. L. 1249, 1250 (1993). (668) Id. [sections] 839b(h)(5) (emphasis added). Other substantive environmental protection requirements appear subject to this balancing art between energy and environmental needs. For example, the Council must include measures to provide for fish survival at hydroelectric facilities and "flows of sufficient quality and quantity between such facilities to improve production, migration, and survival of such fish" but such decisions are to be determined "on the basis set forth in paragraph (5)." Id. [sections] 839b(h)(6)(e). For discussion on the quest for an appropriate balance between restoration and protection of salmon and the economic needs of the Columbia Basin, see Volkman & McConnaha, supra note 667, at 1272. (669) The law requires that the Bonneville Power Administration and other federal agencies that manage, operate, or regulate hydro facilities in the basin
exercise such responsibilities consistent with the purposes of this [Act] and other
applicable laws, to adequately protect, mitigate and enhance fish and wildlife ... in a
manner that provides equitable treatment for such fish and wildlife with the other
purposes for which such system and facilities are managed and operated. 16 U.S.C. [sections] 839b(h)(11)(a)(i) (1994). More specifically, the federal agencies must exercise their responsibilities "taking into account at each relevant stage of the decisionmaking process to the fullest extent practicable, the program adopted by the Council under this subsection." Id. [sections] 839b(h)(11)(a)(ii) (emphasis added). The "fullest extent practicable" language, coupled with the absence of a specific consistency review process similar to that in CZMA, opens this requirement to some degree of unchecked federal agency discretion. (670) Eg., Northwest Resource Info. Ctr. v. Northwest Power Planning Council 35 F.3d 1371 (9th Cir. 1994) (successfully challenging fish and wildlife plan for failure to provide adequate instream flows and otherwise to protect salmon), cert. denied, 116 S. Ct. 50 (1995); Public Utility Dist. No. 1 v. Bonneville Power Admin., 947 F.2d 386 (9th Cir. 1991), cert. denied, 503 U.S. 1004 (1992) (disputing eligibility for reimbursements for implementing fish and wildlife mitigation and enhancement measures); Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987) (challenging the constitutionality of the Council under the Appointments Clause of the U.S. Constitution). For a discussion of related litigation under the ESA, see supra note 480. (671) See supra notes 410-22 and accompanying text. (672) See 16 U.S.C. [sections] 839b(g)-(h) (1994) (providing extensive process for consultation by regional fish and wildlife agencies, Indian tribes, and the public, but leaving the final decision to the Council). But see Northwest Resource Info. Ctr., 35 F.3d at 1386-89 (commenting that the inadequacy of the plan is based in part on the Council's failure to heed advice given by expert agencies). (673) Blumm & Simrin, supra note 260, at 712. (674) 16 U.S.C. [sections] 839b(g)-(h) (1994). (675) 35 F.3d 1371 (9th Cir. 1994), cert.denied, 116 S. Ct. 50 (1995). (676) Id. at 1386-89. For a more detailed discussion of this decision, see Michael C. Blumm, Columbia Basin Salmon and the Courts: Reviving the Parity Promise, 25 Envtl. L. 351 (1995). (677) These include primarily the National Park Service Organic Act, 16 U.S.C. [subsections] 14, 22, 43 (1994); the Multiple Use and Sustained Yield Act, 16 U.S.C. [subsections] 528-531 (1994); the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended in scattered sections of 16 U.S.C. ; the Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2744 (codified as amended in scattered sections of 7, 16, 30, 40, 43 U.S.C. ; the Wild and Scenic Rivers Act, 16 U.S.C. [subsections] 1271-1287 (1994); and the Wilderness Act, 16 U.S.C. [subsections] 1131-1136 (1994). Management of federal lands, of course, is subject to a long list of additional laws. (678) See, eg., Richard H. Braun, Emerging Limits on Federal Land Management Discretion: Livestock, Riparian Ecosystems, and Clean Water Law, 17 Envtl L. 43, 52-53 (1986) (explaining that BLM and the Forest Service control 29 million of approximately 62 million acres in the State of Oregon). (679) Eg., Keiter, supra note 1; Robert L. Glicksman, Pollution on the Federal Lands II. Water Pollution Law, 12 UCLA J. Envtl. L. & Policy 61 (1993); Peter M.K Frost, Protecting and Enhancing Wild and Scenic Rivers in the West, 29 Idaho L. Rev. 313 (1992-93); George Cameron Coggins, Watershed as a Public Natural Resource on the Federal Lands, 11 VA. Envtl. L.J. 1 (1991); Tony Arjo, Watershed and Water Quality Protection in National Forest Management, 41 Hastings L.J. 1111 (1990); Brian E. Gray, No Holier Temples: Protecting the National Parks Through Wild and Scenic River Designation, 58 U. Colo. L Rev. 551 (1988); H. Michael Anderson, Water Quality Planning for the National Forests, 17 Envt. L. 591 (1987); Braun, supra note 678. (680) Much of this earlier analysis, however, focused more on specific authorities that may be used--through litigation or otherwise--to force federal agencies to protect watershed values in individual cases and decisions than on the potential for federal land management laws to promote, facilitate, or contribute to comprehensive watershed protection initiatives. (681) See generally National Parks & Conservation Ass'n Park Waters in Peril 5-8 (1993) (describing such threats as dams and other diversions upstream of parks). (682) See Keiter, supra note 1, at 305 n.56. (683) 16 U.S.C. [subsections] 1-4 (1994). (684) National Park lands must be managed "to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same m such manner and by such means as will leave them unimpaired for the enjoyment of future generations." Id. [sections] 1. (685) Keiter, supra note 1, at 304-05. (686) Id. (687) Management plans must include ecosystem-type components such as "measures for the preservation of the area's resources," types and intensities of park development, visitor carrying capacities, and potential unit boundary modifications. 16 U.S.C. [sections] 1a-7(b) (1994). This provision was added by Pub. L. No. 94-458, [sections] 2, 90 Stat. 1942 (Oct. 7, 1976). (688) Fish and Wildlife Refuges managed by the U.S. Fish and Wildlife Service (FWS) are subject to similarly vague requirements. Keiter, supra note 1, at 306-07; National Wildlife Refuge Administration Act, 16 U.S.C. [subsections] 668dd-668ee (1994). Refuges are less important to watershed management because, except in Alaska, most are quite small relative to overall watershed size. Nevertheless, there are some notable cases in which refuges have faced severe impacts from outside activities, such as the massive return flow contamination of the Kesterson National Wildlife Refuge. Dunning, supra note 233, at 953. Compared to national parks, it is somewhat more likely that activities within refuges will pose serious threats to waters outside the refuge because oil, gas, mining, and other activities may be permitted within refuges so long as they are "compatible with the major purposes for which [the Refuge was] established." 16 U.S.C. [sections] 668dd(d)(1)(a) (1994); see Keiter, supra note 1, at 306 n.67 (noting recent criticism of FWS for allowing harmful uses within refuges). (689) See generally Braun, supra note 678 (explaining how grazing has affected public lands); Glicksman, supra note 679 (explaining what types of activities are most likely to cause nonpoint source pollution on public lands); Anderson, supra note 679 (discussing the effects of logging on Forest Service lands). (690) See Keiter, supra note 1, at 309-11 (noting the effects of the Multiple-Use Sustained Yield Act and the National Forest Management Act on the Forest Service's decision-making process); Coggins, supra note 679, at 4-7 (explaining early history of the Forest Service); Anderson, supra note 679, at 591-99 (showing how Forest Service decisions are affected by the National Forest Management Act, the CWA, and the National Environmental Policy Act); Arjo, supra note 679, at 1112-25 (discussing the effects of the Organic Act of 1897, the Multiple-Use Sustained Yield Act, and the National Forest Management Act). (691) Act of June 4, 1897, ch. 2, 30 Stat. 34 (1897) (codified as amended at 16 U.S.C. [subsections] 473-482, 551 (1994)) (partially repealed 1976, 1988) [hereinafter Organic Act]. (692) Coggins, supra note 679, at 4. In fact, some commentators argue that watershed values were more important to the late 19th century Congress than timber supply, as reflected in enactments predating the Organic Act. See id.; Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests, 64 OR. L. Rev. 1, 202-04 (1985). (693) 16 U.S.C. [sections] 475 (1994). (694) Coggins, supra note 679, at 4-5. As Professor Coggins notes, the Supreme Court rejected the government's position that Organic Act watershed protection included instream flows for ecosystem purposes. Instead, the Court held that the Act's purpose was the preservation of water supply for traditional utilitarian uses such as irrigation and municipal consumption. Id. at 5-6 (discussing United States v. New Mexico, 438 U.S. 696 (1978)). (695) Pub. L. No. 86-517, 74 Stat. 215 (1960) (codified as amended at 16 U.S.C. [subsections] 528-31 (1994)). (696) Michael C. Blumm, Public Choice Theory and the Public Lands: Why "Multiple Use" Failed, 18 Harv. Envtl. L. Rev. 405, 413 n.53 (1994). However, multiple use was the basic principle of federal land management long before its codification. Id. "Multiple use" and sustained yield" are defined at 16 U.S.C. [sections] 531 (1994). (697) Keiter, supra note 1, at 309; Arjo, supra note 679, at 1116-17; Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979) (MUSYA poses no concrete limits on agency discretion); Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975) (Act "breathe[s] discretion at every pore"); National Wildlife Fed'n v. United States Forest Serv., 592 F. Supp. 931 (D. Or. 1984) (holding that as long as the Forest Service considers other competing uses, it has the authority to decide which areas and resources to emphasize). (698) Eg., Keiter, supra note 1, at 296-300. For a general discussion of the failure of the multiple use" concept to protect natural resources (including water) on public lands, see Blumm, supra note 696. (699) 16 U.S.C. [sections] 528 (1994). (700) Pub. L. No. 94-588, 90 Stat. 2949-63 (1976) (codified as amended in scattered sections of 16 U.S.C. . Technically, NFMA was enacted as an amendment to the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. [subsections] 1600-1687 (1994). (701) 16 U.S.C. [sections] 1604 (1994); Keiter, supra note 1, at 309-12. Among the planning provisions consistent with watershed or ecosystem management are coordination with land and resource planning by states and localities, id. [sections] 1604(a); an interdisciplinary approach, id. [sections] 1604(b), (f)(3); mandatory public participation, including fun NEPA compliance, id. [sections] 1604(d), (g)(1); incorporation of the MUSYA mandate to consider all forest uses (not just logging), id. [sections] 1604(e), (g); area-wide planning based on full resource inventories and impacts, id. [sections] 1604(g)(2); mandatory consistency of later actions with the plans, id. [sections] 1604(i); and identification of areas unsuitable for timber harvest, id. [sections] 1604(k). However, plans are to be developed for individual forest system units, id. [sections] 1604(f)(1), which are the 'antithesis of ecosystem [or watershed] management," Keiter, supra note 1, at 309. (702) Timber may only be harvested where
(i) soil, slope, or other watershed conditions will not be irreversibly damaged;
(iii) protection is provided for streams, streambanks, shorelines, lakes, wetlands,
and other bodies of water from detrimental changes in water temperatures,
blockages of water courses, and deposits of sediment, where harvests are likely to
seriously and adversely affect water conditions or fish habitat . . . .
16 U.S.C. [sections] 1604(g)(3)(e) (1994). Clearcutting may be allowed only where 'such cuts are carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource." Id. [sections] 1604(g)(3)(f)(v). The limited degree to which the Forest Service has incorporated these requirements into its regulations has been controversial but was upheld by one federal court. Sierra Club v. Robertson, 810 F. Supp. 1021, 1025-27 (W.D. Ark. 1992) (referring to Forest Service regulation, 36 C.F.R. [sections] 219.27(e) (current version at 36 C.F.R. [sections] 219.27(e) (1995)), that disallows detrimental changes to water temperature, blockages, or deposits of sediment); see also Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1994) (allowing challenge to Forest Service clearcutting decision if it is improperly endorsed as the harvest method, which would be inconsistent with the findings of the Forest Service's interdisciplinary team). (703) Even though forest plans are to be issued for each unit, the Forest Service still could coordinate, on a watershed basis, the preparation of plans for units in the same watershed. Where a system unit shares a watershed with other federal, state, and private lands, the Act requires that planning be done in coordination with other governments. 16 U.S.C. [sections] 1604(a) (1994). It makes little sense to interpret this mandate to require the Forest Service to coordinate with all government entities besides other units of the Service itself (704) Arjo, supra note 679, at 1120-24. (705) 43 U.S.C. [subsections] 1701-1784 (1988 & Supp. V 1993). (706) Id. [sections] 1712(a). (707) Id. [sections] 1712(c). As with the Forest Service, earlier BLM statutes made only passing reference to watershed protection with few, if any, judicially enforceable substantive mandates. Coggins, supra note 679, at 7-8, 21-22; Keiter, supra note 1, at 311-12. (708) Congress identified water resource protection in its declaration of policy. 43 U.S.C. 1701(a)(8) (1988). "[W]atershed" is identified in the definition of "multiple use," id. 1702(c), but is not listed among the "principal or major uses" to be considered in FLPMA, and "fish and wildlife development and utilization" is listed in lieu of protection, id. [sections] 1702(i). The law requires compliance with applicable water and other pollution control laws. Id. [sections] 1712(c)(8). (709) Id. [sections] 1712(c)(9). "Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act." Id. This consistency rather than coordination requirement is somewhat stricter here than in NFMA, Keiter, supra note 1, at 315 n.105, though subject to some amount of BLM discretion. (710) 16 U.S.C. [subsections] 1131-1136 (1994). (711) 16 U.S.C. [subsections] 1271-1287 (1994). (712) Wilderness lands must "be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness." Id. [sections] 1131(a). By definition, wilderness lands are undeveloped, id. [sections] 1131(c), leaving little possibility that activities will cause watershed impairment, id. [sections] 1133(a)-(c), except for certain vested existing rights, id. [sections] 1133(d). (713) See Sierra Club v. Block, 622 F. Supp. 842 (D. Colo. 1985) (dismissing claim against Department of Agriculture and the Forest Service alleging unlawful failure to assert water rights in wilderness areas and violation of "public interest doctrine"), vacated on ripeness grounds sub nom. Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir. 1990); see generally United States v. New Mexico, 438 U.S. 696 (1978) (holding that the United States reserved water rights for the specific purposes for which the national forest system was created--timber and water flow preservation); Cappaert v. United States, 426 U.S. 128 (1976) (holding that the United States acquired reservation water rights in unappropriated appurtenant water, whether surface or groundwater, in accordance with the purpose of declaring Devil's Hole a national monument-preservation of scientific value). Arguably, wilderness areas should presumptively be subject to strict antidegradation requirements under the CWA, see 40 C.F.R. [sections] 131.12 (1994), but as discussed above these requirements have been implemented more as the exception than as the rule. Professor Keiter can find "little evidence that the Forest Service or the courts will extend the Wilderness Act beyond defined boundaries to provide ecosystem-level protection for wilderness resources." Keiter, supra note 1, at 306. (714) For a more complete analysis of this law, see Frost, supra note 679; Gray, supra note 679, at 551. (715) Wild and scenic rivers are "selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, [and] shall be preserved in free-flowing condition" so that "they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. [sections] 1271 (1994). Wild and scenic rivers must be set aside formally by either an act of Congress or by a state legislature with approval of the Secretary of Interior. Id. [sections] 1273(a). The Act designates, by name and location, specific river segments to be included in the system. Id. [sections] 1274(a). (716) FERC is prohibited from licensing 'the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, on or directly affecting any river which is designated in section 1274." Id. [sections] 1278(a) (citation omitted); see Swanson Mining Corp. v. Federal Energy Regulatory Comm'n, 790 F.2d 96, 102 (D.C. Cir. 1986). However, the Act does not prohibit the licensing of projects "on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area." 16 U.S.C. [sections] 1278(a) (1994). Similar rules apply to rivers designated for potential inclusion during the period of study and consideration by Congress and the President. Id. [sections] 1278(b). (717) Id. [sections] 1274(d). The amendments also required cooperation with EPA and state water pollution control agencies "for the purpose of eliminating or diminishing the pollution of waters of the river." Id. [sections] 1283(c). (718) At least one court has ruled that plans are not necessarily required for rivers designated before the 1986 amendment. See Wilderness Soc'y v. Tyrrel, 918 F.2d 813, 820 (9th Cir. 1990). However, that court did remand for a determination of whether the challenged logging activities would affect fish habitat. Id. at 819. On remand, the district court found that such damage would occur. Frost, supra note 679, at 330-31. (719) 33 U.S.C. [sections] 1323(a) (requiring compliance with the Act to the same extent as any nongovernmental entity), 1329(k) (requiring compliance with nonpoint source programs) (1988 & Supp. V 1993); see generally Glicksman, supra note 679 (discussing the relationship between pollution control laws and federal lands). (720) Compare Marble Mountain Audubon Soc'y v. Rice, 914 F.2d 179, 183 (9th Cir. 1990) (holding that citizens properly challenged Forest Service interpretation of state water quality objectives) and Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir. 1986) (upholding District Court finding that Forest Service proposed timber sale would violate water quality standards), rev'd on other grounds, 485 U.S. 439 (1988) with Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1425 (9th Cir. 1989) (upholding District Court finding certain Forest Service projects would not violate water quality standards), amended, 899 F.2d 1565 (9th Cir. 1990). (721) These issues could be grouped logically in a number of ways, and a certain amount of overlap is inevitable. This organization was distilled from a much longer list of issues, all of which are incorporated into these admittedly artificial but hopefully useful categories. (722) See supra note 11 and accompanying text. (723) See supra note 12 and accompanying text. (724) See supra note 21 and accompanying text. (725) See supra note 15 and accompanying text. (726) See infra part IV.A.3. (727) The comprehensive river basin management proposals of the Progressive and New Deal Eras and Water Resources Policy Act of 1965 sought this approach, as does the Water Quality 2000 Report. Current examples of this approach include the Great Lakes and Chesapeake Bay programs in the Clean Water Act, and the Northwest Power Act. (728) As Aldo Leopold observed,
To learn the hydrology of the biotic stream we must think at right angles to evolution
and examine the collective behavior of biotic materials. This calls for a reversal of
specialization; instead of learning more and more about less and less, we must learn
more and more about the whole biotic landscape.
Leopold, supra note 114, at 189. (729) A few of many possible examples include the relationship between regional water use and efficiency on instream flows far downstream, the impacts of dams and other obstructions on the migration of anadromous and other species of fish and wildlife, and the cumulative impacts of development and land use patterns (forestry and paving) on regional hydrology and aquatic habitat. (730) Some expensive, high-technology methods are feasible when resources are pooled, but probably would be less readily available to smaller watershed programs with a smaller funding base and less access to expertise. The use of technology to facilitate the Chesapeake Bay Program is a good example. Eg., Veronica Kasl, Using a Geographic Information System as a Targeting Tool for Pennsylvania's Chesapeake Bay Program, in Watershed '93, supra note 2, at 203; Lynn R. Shuyler, Cost Analysis for Nonpoint Source Control Strategies in the Chesapeake Basin, in Watershed '93, supra note 2, at 339; Ed Stigall et al., Application of the Hydrologic Simulation Program--Fortram (HSPF) Model to the Potomac River Basin, in Watershed '93, supra note 2, at 767. (731) Each political jurisdiction adds more than one new player, since each is likely to have multiple affected offices or entities even at the most local scale (water, sewer, flood and stormwater control, zoning and land use, etc. . Each new state similarly adds multiple players (water quantity, water quality, fish and wildlife, transportation, commerce, energy, etc.). (732) See e.g., Loring Bullard, Building Local Partnerships, in Watershed '93, supra note 2, at 267 (Committee of the Ozarks); Thomas H. Wakeman III, Partnerships in Decision Making Within the San Francisco Bay/Delta, in Watershed '93, supra note 2, at 271; Brashear et al., supra note 130, at 565. (733) The organizational chart for the Chesapeake Bay Program, for example, looks more like that of the Pentagon than of a watershed protection effort. See Swanson, supra note 158, at 44 (describing complex structure of 50 subcommittees and 60 workgroups). (734) For example, as discussed supra at note 616, the Great Lakes currently are each subject to vastly different water quality standards and implementing policies for the same pollutants and the same basic waters--a problem that Congress and EPA sought to correct through the Great Lakes Water Quality Initiative. Other technical challenges facing large watershed efforts include determining methods to analyze impacts caused by large numbers and diversities of sources over long distances on a broad array of ecosystem types, and determining TMDLs and WLAs for a large number of sources with greater uncertainties and external environmental influences. (735) See Fisher, supra note 331, at 115 (describing the Small Watershed Program); see also Michael J. Hambrock & Patty Murto, The St. Louis River." A Grass-Roots Approach to Protection, in Watershed '93, supra note 2, at 51, 53 (arguing a locally based plan for the St. Louis River would benefit property owners, government officials, and the river); Beth K. Stewart et al., Citizens Take the Lead." Elkhorn Creek Watershed Planning and Action Through Consensus, in Watershed '93, supra note 2, at 249, 250-52 (listing benefits of planning effort, including a cost-sharing program, demonstration projects, and a cleanup program). (736) See supra part H.D. (737) See Stanford & Ward, supra note 7, at 112 (explaining how the introduction of forage stimulant for sport species interfered with natural food web and displaced important population of bald eagles; and expressing concern that some efforts to restore downstream anadromous fisheries in Columbia River Basin might adversely affect resident fish in headwaters). (738) See generally Adler et al, supra note 17, at 5-12 (discussing reasons for enactment of the CWA); Rodgers, supra note 393, [sections] 4.1 (giving overview of CWA history and substance); Lynda A. Butler, State Environmental Programs: A Study in Political lnfluence and Regulatory Failure, 31 Wm. & Mary L Rev. 823 (1990) (arguing that state and local regulation of natural resources has been ineffective). (739) See Water Quality 2000, supra note 11, at 11-12, 15, 24, 34 (describing an integrated water quality program). (740) Both the Senate and AMSA bills would allow watershed delineations to vary at the discretion of the governors of various states. S. 2093, 103d Cong., 2d Sess. [sections] 303 (1994) (proposing to add CWA [sections] 321(a)); Proposed AMSA Bill, supra note 15, [sections] 3 (also proposing to add CWA [sections] 321(a)). (741) Water Quality 2000 recommended that the nested watershed programs be organized using the USGS cataloging system. Water Quality 2000, supra note 11, at 34-37. While this approach would be convenient because USGS watersheds are already delineated and mapped, it is not necessarily the only valid organization of planning units nested at multiple scales. Another author expressed a similar idea as an admixture of "down and out" with "up and out" integration. Weatherford, supra note 3, at 13. (742) The TVA Clean Water Initiative, while lacking other desirable components of watershed programs, uses this nested approach. Brooks, supra note 525, at 39. (743) Examples would be the issuance of consistent or at least coordinated water quality standards for water bodies common to the basin, as in the GIA and the Delaware River Basin, or evaluation of basinwide impacts and control targets, such as the regional nutrient evaluation of Chesapeake Bay and the resulting 40% nutrient reduction target. Swanson, supra note 158, at 45. (744) Good examples are the efforts of the Great Lakes Program to promote consistent water quality standards and implementing procedures throughout the Great Lakes ecosystem, see supra note 604, and the precise identification of numeric pollutant load reduction goals and accompanying implementing measures in the Long Island Sound Program. 33 U.S.C. [sections] 1269 (Supp. V 1993). (745) Problems that are amenable to, and most equitably addressed by, relatively uniform national requirements, such as technology-based controls for point sources, should remain subject to those programs. A more flexible approach makes the most sense in the context of management practices to address runoff pollution, for which successful solutions at the national scale have been elusive, and for habitat restoration and protection efforts that are highly site-specific. Even using the somewhat more prescriptive model of the Coastal Zone Runoff Program, 16 U.S.C. [sections] 1455b(g) (1994), the nested approach could allow adequate flexibility at the field implementation level while providing accountability and sufficient consistency if program goals are set and management measures to meet those goals are reviewed at higher levels of scale. See Helms, Historical Perspective, supra note 302, at 91-92. (746) See Water Quality 2000, supra note 11, at 33. For more on collaborative decision-making and dispute resolution techniques, see Stewart et al., supra note 735 (describing a consensus-building process for total resource planning within the Elkhorn Creek Watershed); Bullard, supra note 732 (describing the efforts of the Watershed Committee of the Ozarks to coordinate watershed management between state and local government and to educate the community about water quality); Wakeman, supra note 732 (describing decision-making processes of three watershed management agencies in the San Francisco Bay area); Kevin Campbell & Karl Niederwerfer, Improving Local Efforts to Resolve Watershed Management Problems, in Watershed '93 Supra note 2, at 615, 617-18 (listing 10 principles to successfully resolve watershed management problems); Trudie Wetherall & C. Mark Dunning, Consensual Decision Making for Watershed Management, in Watershed '93, supra note 2, at 625 (describing ADR procedures to resolve water resource issues). (747) Stated differently, while implementation should address local variables, the missions and goals of all entities need to be "aligned" in the same direction. Doppelt et al, supra note 17, at 61, 68. (748) See Ruth Patrick, Past, Present, and Future of Water Use and Management, in Water Management, supra note 86, at 15, 18. Patrick states:
The laws and regulations necessary to maintain suitable water quality in sufficient
quantities must be universal, but tailored to natural variations in various parts of
the United States. The commonality through all states must be by Federal the individuality resulting from natural variations must be the focus of state regulations. Id. (749) See supra part II. (750) Eg, Water Quality 2000, supra note 11, at 3240. Even a purely hydrological delineation does not account for dramatic inconsistencies between surface watershed and groundwater aquifer boundaries. See Map Supplement, Water: Reflections on a Critical Resource, Nov. 1993 (special "Water Issue" of National Geographic's quarterly publication, Research & Exploration). (751) Gallant et al, supra note 1, at 23. (752) Aquatic Restoration, supra note 2, at 341, 345. (753) Id. at 347. The Endangered Species Act focuses on the critical habitat of individual listed species, which necessarily excludes other related ecosystem components. (754) See Weatherford, supra note 3, at 11 ("[P]eople tolerate only so much governance."). (755) Stated differently, watershed and ecosystem management may be such a sound idea, and embraced by so many different entities, that it falls on its own weight and complexity. Scientists rather than law professors are best suited to solve this paradox. (756) This suggests significant related legal and political issues of federalism, which are beyond the scope of this Article. (757) See Harrison, supra note 156, at 427, 436-37 (discussing the tension between watershed managers and watershed constituents). (758) See Water Quality 2000, supra note 11, at 12, 33, 36-37, 117-26. (759) Id. at 33, 36. (760) Eg., Eisel, supra note 3, at 46; Harrison, supra note 156, at 429; ACIR, supra note 89, at 1, 67. Further, it is often difficult to distinguish between legitimate opposition to forms of central control that impose unnecessary or counterproductive rigidity, and opposition based on pure parochialism or resistance to valid, democratically determined national goals. (761) Edward L. Rogers et al., The Future of Unified River Basin Management, in Unified Management I, supra note 3, at 54. (762) See Dworsky & Allee, supra note 87, at 40 (balance needed between "water system rationality" and "political rationality); Harrison, supm note 156, at 432 ("If it makes good sense to respect the integrity of a natural system, ft is equally sensible to respect the integrity of the social and institutional system."). (763) All of the major current watershed proposals, including Water Quality 2000 and the Senate and AMSA bills, try to strike such a balance, although in somewhat different ways. The Senate bill, for example, allows programs to be designed at the state and local levels, but in accordance with EPA guidance and subject to EPA approval (or state approval if this function is delegated to the state). S. 2093, 103d Cong., 2d Sess. [sections] 303 (1994) (proposing to add CWA [sections]321); see 33 U.S.C. [sections] 321(b)(2), (b)(3), (c)(1), (c)(3), (c)(4)(E). As discussed infra in part V.A.5, the critical difference between these approaches is in their relative willingness to waive or dilute existing substantive requirements in the name of watershed flexibility. (764) The CWA point source control program is the principal example of the wisdom and efficacy of uniformity, but other examples exist as well, such as the ESA. (765) Examples include the core goal of the CWA to restore and protect aquatic ecosystem integrity, along with its related "fishable and swimmable" and zero-discharge goals, 33 U.S.C. [sections] 1251(a) (1988 & Supp. V 1993), and the mandates of the ESA to conserve threatened and endangered species and their habitat, 16 U.S.C.[sections] 1531(a), (c) (1994). Given the severe aquatic ecosystem problems that have resulted from a virtual state monopoly on control over water quantity and allocation, some minimum national requirements for instream water flows may be desirable as well. (766) The development and use of biocriteria may be particularly helpful in addressing such variations. (767) 16 U.S.C. [sections] 1455b(g) (1994). (768) Eg., Keiter, supra note 1, at 319-20; Malone, supra note 563, at 746-65. (769) Individual stewardship remains necessary to watershed restoration and protection, but it is insufficient taken alone. (770) See generally Doppelt et al., supra note 17 (recommending a new community- and ecosystem-based approach); Peter M. Lavigne, Challenges in Watershed Activism--Changing Our River Legacies, in Watershed `93, supra note 2, at 305, 312 (encouraging mobilization of grass-roots groups). (771) See supra part II.D. (772) For example, in addition to citizen watershed monitoring, the U.S. Fish & Wildlife Service Breeding Bird Survey has produced reliable national data on avian populations at a national scale for more than a quarter century. See Adler et al., Supra note 17, at 69-70. (773) See Jeffrey Frillmer, Successful Grass-Roots Strategies for Public Education and Participation in Watershed Protection Policy Making, in Watershed `93, supra note 2, at 425 (describing a volunteer teacher network established in Manassas, Virginia in 1992); Dennis W. Hall, Operation. Future--Creating Tomorrow's Agriculture, in Watershed `93, supra note 2, at 431 (reviewing three examples of grass-roots public education programs on watershed protection conducted by the Citizens Campaign for the Environment in Smithtown, New York); Molly MarGregor, Green Shores for Mississippi Headwaters, in Watershed `93, supra note 2, at 435; Elaine Andrews, Educating Youth About Watersheds: Options and Actions, in Watershed `93, supra note 2, at 441 (outlining the Cooperative Extension Water Curriculum Needs Assessment Project in Madison, Wisconsin); Firehock, supra note 159; Amy S. Johnson & Michael Stifier, The Grand Traverse Bay Watershed Initiative: A Local Partnership at Work, in Watershed `93, supra note 2, at 451; Jennifer Smith et al., Public Survey and Pollutant Model for Prince George's County, in Watershed `93, supra note 2, at 459; Steven K Taylor, The Missouri SALT Program: Local People Solving Local Problems, in Watershed `93, supra note 2, at 467. (774) For examples of successful integration of citizen participation in both decision making and implementation with broader-scale government watershed program, see Swanson, supra note 158; Hambrock & Murto, supra note 735; Minsch, supra note 654, at 243; Stewart et al., supra note 735; Bullard, supra note 732; Wakeman, supra note 732. (775) See Aquatic Restoration, supra note 2, at 49. (776) 5 U.S.C. [subsections] 500-596, 701-706 (1994). (777) Blumm, supra note 696, at 415-22; Weatherford, supra note 3, at 17-19. (778) Eg., Harrison, supra note 156, at 431; Ingram, supra note 31, at 10-11, 17; Allee et al., supra note 89, at 20-21, 27; Doppelt et al., supra note 17, at 27. (779) These include, with varying degrees of success, the Chesapeake Bay Program, the Great Lakes Program, and the National Estuary Program. Water Quality 2000 and the AMSA bill specify broad, participatory representation in future watershed programs. S. 2093, by contrast, would allow governors to designate existing or new planning entities of state or local design, as was the case in CWA section 208, with public participation afforded only by the notice and comment process. S. 2093, 103d Cong., 2d Sess. (1994). The Northwest Power Act fails the broad representation test because the Council is comprised of politically appointed members, with other interest groups playing more of an advisory role, although the recent court decision in Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), cert. denied, 116 S. Ct 50 (1995), may remedy this flaw to some degree. (780) See, e.g., Frank Gaffney, Complicated Questions, Creative Solutions, in Watershed 93, supra note 2, at 621, 621-23; Wetherall & Dunning, supra note 746, at 625-29. (781) Eg., Goldfarb, supra note 8, at 504. (782) 16 U.S.C. [subsections]1452(2)(H)-(I), 1452(4)-(5), 1456(a), 1457 (1994). (783) 42 U.S.C.[sections] 4332 (1988); 16 U.S.C. [subsections] 661, 662(a), 665, 667(c) (1994). (784) See supra part II.A. (785) Some water resource experts still believe that the underlying purpose of watershed management is to maximize water resource use and development. Reuss, supra note 229, at 2. (786) The AMSA bill would expressly facilitate changes to designated water body uses as part of the watershed management process. Proposed AMSA Bill, supra note 15, [sections] 3 (proposing to add CWA [sections] 321(e)(4)). The bill also would allow explicit weakening of point source permitting and enforcement requirements, id. (proposing to add CWA [sections]321(k), (n)), as would S. 2093, [sections] 303 (proposing to add CWA [sections]321(d)(3), (4)). (787) The Supreme Court in PUD No. 1, for example, left open the question of what would happen if the state's 401 certification ultimately conflicts with the provisions of the FERC license. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1914 (1994). (788) Most current watershed proposals would continue to retain, without qualification, all aspects of state water law. Eg., Proposed AMSA Bill, supra note 15, [sections] 3 (proposing to add CWA [sections] 321(o)); S. 2093, [sections] 303 (proposing to add CWA [sections] 321(e)). (789) Professor Keiter makes a similar suggestion in the context of ecosystem management on public lands. Keiter, supra note 1, at 325-32. (790) The AMSA bill, for example, remains focused largely on pollutants rather than on a broader definition of ecosystem impairment. Proposed AMSA Bill, supra note 15, [sections] 3 (proposing to add CWA [sections] 321 (e)(1)). While "pollutant of concern" is defined as a "chemical, material or physical property that is of sufficient concentration, mass or intensity to interfere with or be reasonably expected to interfere with the attainment or maintenance of designated uses in the watershed," id. (proposing to add CWA [sections] 321(a)(2)), it is unclear whether this definition would encompass such factors as habitat loss and alteration, or reduced instream flows. (791) Eg., Water Quality 2000, supra note 11, at 11-12. (792) Id. at 12, 15, 23-24, 34, 71-75, 99. (793) S. 2093, 103d Cong., 2d Sess. (1994). The AMSA bill adopts an intermediate approach, whereby states have the authority to designate watersheds of various categories, but must adopt and implement formal programs for a minimum percentage of watersheds. Proposed AMSA Bill, supra note 15, [sections] 3 (proposing to add CWA [sections] 321(c)). (794) See discussion supra part IV.A. As suggested above, some of this resistance might fade if one could design a system of watershed programs that was national in scope but managed jointly by multiple levels of government, as opposed to the federally dominated organization in WRPA. See discussion supra part III.A.3. (795) Watershed programs implemented under the auspices of federal statute should not be confused with those that are required by federal law. For example, the specific place-based initiatives in the CWA, such as the Great Lakes, Chesapeake Bay, and National Estuary Programs, all assume voluntary participation by member states, and in many of these cases an interstate program preceded the federal provision. See discussion supra part IV.C.5. By contrast, CWA section 208 demanded basin planning around the country and drew serious state and local resistance. See discussion supra part IV.A. (796) Wilkins, supra note 422, at 493-95. (797) See supra text accompanying note 738. (798) For example, compare the Brandywine watershed in Delaware, see David C. Yaeck, The Brandywine: Managing a Watershed in an Urban/Rural Environment, in Watershed `93, supra note 2, at 677, with the absence of such programs for the Schuykill and Delaware Rivers in urban Philadelphia and Elkhom Creek in Kentucky's bluegrass country, see Stewart et al., supra note 735, with equally degraded watersheds in the nearby depressed Appalachians; or the historical preference to spend limited available dollars restoring the Potomac River at the expense of the Anacostia on the poorer and predominantly African-American side of Washington, D.C., see Richard J. Lazarus, The Meaning and Promotion of Environmental Justice, 5 Md. J. Contemp. Legal Issues 1, 5-6 (1993/1994). (799) See Adler et al., Supra note 17, at 36-37, 56-58, 193-98. (800) See Water Quality 2000, supra note 11, at 36-37. (801) 16 U.S.C. [subsections] 1451-1464 (1994). (802) See Malone, supra note 563, at 731; Rychlak, supra note 563, at 987-88. (803) The consistency provisions of CZMA, NPA, section 319 of the CWA, and other laws provide considerable discretion to federal agencies to comply "to the extent practicable" or to exempt themselves from compliance based on a variety of factors. See discussion supra part IV.C. Similarly, S. 2093 would require federal activities to be consistent with watershed plans "to the maximum extent practicable." S. 2093, 103d Cong., 2d Sess. [sections] 303 (1994) (proposing to add CWA [sections] 321(d)(1)(A)). (804) See CWA [sections] 313(a), 33 U.S.C. [sections] 1323(a) (1988); S. 2093, [sections] 303 (proposing to add CWA [sections] 321(d)(1)(B)) (reserving right of President to exempt federal activities for reasons of paramount federal interest). (805) However, managers must avoid the tendency to delay implementing restoration and protection strategies until scientific understanding of the watershed and available options is perfect or even fully comprehensive. As suggested by element five below, the process must be iterative, with reasonable initial choices based on a preliminary survey, and corrections as more data are analyzed and as lessons are learned from initial approaches.
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|Author:||Adler, Robert W.|
|Date:||Sep 22, 1995|
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