The two lost books in the water quality trilogy: the elusive objectives of physical and biological integrity.

• Author: Adler, Robert W.

1. INTRODUCTION II. DEFINING THE WATER QUALITY TRILOGY: THE OBJECTIVE AND GOALS OF THE CLEAN WATER ACT A. What Did Congress Say? B. Did Congress Understand and Mean What It Said? 1. Textual Evidence a. Definitions b. Operative Provisions 2. Legislative 3. Tentative Conclusions III. ACHIEVING THE CLEAN WATER ACT OBJECTIVE AND GOALS--HAS THE TRILOGY BEEN WRITTEN? A. Progress in Controlling Pollutants B. Trends in Ambient Water Quality C. Trends in Physical and Biological Integrity D. Aquatic Ecosystem Integrity--An Historical Postscript IV. THE UNWRITTEN BOOKS IN THE WATER QUALITY TRILOGY--A SEARCH FOR EXPLANATIONS A. Federalism, Water Pollution, and Nonpoint Sources B. Knowledge, Uncertainty, and Pollution Control C. Aspirations and Reality D. Implementation: EPA as Reluctant Master E. Implementation: The Latent Potential of Biological Water Quality Standards V. CONCLUSION: TOWARD IMPROVED FOCUS ON PHYSICAL AND BIOLOGICAL INTEGRITY I. INTRODUCTION

   The opening provisions of many federal environmental laws contain broad, laudable goals. (1) Saying and doing, however, are two entirely different matters. (2)

   In the 1972 amendments to the Federal Water Pollution Control Act, now known as the Clean Water Act (CWA or the Act), (3) Congress articulated one of the broadest ecosystem restoration and protection aspirations in all of environmental law: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (4) Courts have referred to this broadly stated objective as the "guiding star" of the statute, (5) or otherwise invoked the language as the main starting point for their analysis. (6) But while progress has been made in moving toward "chemical" integrity, and while significant resources and programs have been directed at discharges of chemical pollutants, both the "physical" and "biological" integrity books in the trilogy have remained largely hortatory Empirical evidence shows measurable gains in reducing chemical pollution, but in the thirty years since the law was passed, the overall health of the nation's freshwater aquatic ecosystems has declined dramatically. (7)

   Disturbing and ongoing trends in the health of our aquatic ecosystems, relative to the lofty objective announced by Congress three decades ago, suggest several threshold questions First, did Congress understand the implications of its tri-part "integrity" objective? It is possible, at least, that in 1972 Congress believed--erroneously but perhaps understandably--that "chemical, physical, and biological integrity" could be "restored and maintained" largely by stemming the flow of chemical pollutants from various sources. Perhaps Congress did not understand fully that by invoking physical and biological as well as chemical factors, it was implicating a far broader range of human insults to aquatic ecosystems, such as dams and diversions, channels and levies, bridges and culverts, and waterside construction of roads, homes, resorts, and other structures.

   Second, if Congress did understand those implications of the Act's threshold objective, did it really mean what it said? It is all too easy for Congress to purport to address environmental problems in aspirational declarations, but either to leave the hard and important choices and details of implementation to the Environmental Protection Agency (EPA) and other federal and state entities, or to omit adequate implementation strategies altogether. Perhaps Congress intended to identify physical and biological integrity as desirable, if not essential, objectives; but recognizing the significant political and implementation barriers to achieving those objectives, intentionally failed to match them with effective implementation tools.

   Third, if Congress both understood the implications of the Act's overarching objective and actually meant what it said, why have those objectives not been met? Are the statutory tools provided in the Act inadequate to the task, or have they been implemented poorly? Is EPA largely responsible for the failure, or do the states share a large portion of the blame? If the problem is the latter, should more authority in the realm of physical and biological integrity be shifted from the states to the federal government? In short, what can we do better or differently to reverse persistent declining trends in the health of aquatic ecosystems, and to move toward the goal of chemical, physical, and biological integrity of the nation's waters?

   This Article is organized largely to track the questions stated above. Part II examines the text and legislative history of the Act to identify what Congress said about chemical, physical, and biological integrity, what it apparently meant that language to accomplish, and the real-world implications of those requirements, if fully and properly implemented. Part III reviews empirical evidence suggesting some progress toward the goal of chemical integrity but abject failure even to make serious progress toward the goals of physical and biological integrity. Part IV explores a series of possible explanations for those failures, and Part V concludes with proposed regulatory and legislative solutions.

   This analysis finds that Congress did mean what it said in establishing the broad, tri-part aquatic ecosystem protection objective of the CWA. However, neither the federal nor the state agencies charged with implementing the CWA have taken full advantage of their existing legal authority to address the physical and biological books in the water quality trilogy. Of course, in the 1972 Act and later amendments, Congress did provide far more precise tools to address the chemical as opposed to the physical and biological integrity aspects of the water quality trilogy, entrusting authorship of the latter two books largely to the states. As a result of both factors--inadequate statutory authority and inadequate implementation of the authority that does exist--the health of the nation's aquatic ecosystems has continued to decline precipitously over the past three decades. It is time for EPA to revisit its virtually exclusive focus on chemical impairments to our aquatic ecosystems, and for Congress to revisit its policy of deference to the states in areas other than point source control of chemical pollutants.

2. DEFINING THE WATER QUALITY TRILOGY: THE OBJECTIVE AND GOALS OF THE CLEAN WATER ACT

   1. What Did Congress Say?

      Congress divided its CWA aspirations into a broadly defined, overarching objective, followed by a series of subsidiary or, sometimes, interim goals. In section 101(a), Congress announced boldly that "[t]he objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (8) "In order to achieve this objective," (9) Congress identified a list of seven goals, one of which is particularly relevant to this article: "[I]t is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983...." (10) As discussed below, it appears this "interim" water quality goal, often referred to by the misleadingly narrow shorthand "fishable and swimmable waters," (11) has become the de facto ultimate water quality objective in lieu of the broader objective defined by Congress. (12)

      An obvious threshold question is whether and how Congress intended the broader statutory objective to be effectuated relative to the Act's subsidiary goals. (13) One potential answer is found in section 303(c) of the Act, which establishes minimum requirements for states (or EPA) (14) in adopting ambient water quality standards (WQS):

      [R]evised or new water quality standard(s) shall consist of the designated uses of the navigable waters ... and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. (15) Clearly, the reference to "propagation of fish and wildlife" alludes to a key portion of the interim water quality goal set forth in section 101(a)(2). (16) The requirement that WQS be adopted to "serve the purposes of the Act," however, goes further to require those standards to effectuate all of the statutory purposes, including both the subsidiary goals and the overarching objective. Thus, section 303(c) converts an advisory statement of legislative intent, which normally has no legal force and effect, (17) into an operative provision of substantive law As discussed below, however, EPA adopts this view only in part. (18)

      Congress reinforced the distinction between the release of chemical pollutants and the broader notion of restoring aquatic ecosystem integrity by adopting different definitions of "pollution" and "pollutant" in the 1972 law. It defined "pollution" as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," (19) language obviously intended to embrace the full agenda articulated in the overall statutory objective. The term "pollutant," by contrast, is defined more narrowly as specified categories of discrete substances, (20) the discharge of which into water is either prohibited, allowed, or qualified according to various provisions of the Act. (21) The pollution/pollutant distinction, therefore, is a linguistic surrogate for the breadth of issues addressed in the overall objective of the CWA compared to its more finely focused subsidiary goals Indeed, of the seven...