Addressing barriers to watershed protection.

AuthorAdler, Robert W.
  1. Introduction

    1. Searching for Scheherezade

    2. The Resurgence in the Watershed Approach

    3. Where Do We Go From Here? II. Imperatives for Watershed-Based Restoration and Protection

    4. 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

    5. Institutional Imperatives for Watershed Programs

      1. Political Fragmentation of Water Programs

      2. Issue Fragmentation of Water Programs

      3. Gaps in Program Design and Implementation

    6. Economic Imperatives for Watershed Programs

      1. Equity in Water System Protection and Restoration

      2. Efficiency in Protection and Restoration Efforts

    7. Sociological Imperatives for Watershed Programs--Bioregionalism

      and the Conservation Ethic III. A History of U.S. Watershed Programs and Proposals

    8. 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

    9. 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

        1. Historical Background

        2. The 1936 Flood Control Act

        3. The 1954 Watershed Protection and flood

          Prevention Act and Its Antecedents

        4. 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

        and Restoration

    10. The Clean Water Act

    11. 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

    12. 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

        1. The Chesapeake Bay Program

        2. The Great Lakes Program

        3. Long Island Sound and Lake Champlain

        4. The Clean Lakes and National Estuary Programs

      6. The Pacific Northwest Electric Power Planning and

        Conservation Act (Northwest Power Act)

    13. Federal Land Management Statutes V. Conclusions and Recommendations: Moving Toward a

      Workable Model for Watershed Protection and Restoration

    14. Paradoxes in Watershed Program Design and


      1. Scale

      2. Boundary

      3. Control

      4. Mission

      5. Consistency

    15. An Evolving Standard Model for Watershed Programs VI. Postscript. A Thousand and One Watersheds


    1. 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.

    2. 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.

    3. 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...

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