The Decline and (possible) Renewal of Aspiration in the Clean Water Act

• Publication year: 2021

THE DECLINE AND (POSSIBLE) RENEWAL OF ASPIRATION IN THE CLEAN WATER ACT

Robert W. Adler(fn*)

Abstract: In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act-creating what is commonly known as the Clean Water Act (CWA)-the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(fn1) Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward the CWA's goals has stalled in the past two decades. This Article explores several possible reasons for that failure. Those reasons include subversion of the statutory goals at the administrative, judicial, and legislative levels due to an imbalance in power between groups interested in how the law is implemented; the degree to which the statutory goals are perceived as unrealistic by those charged with implementation; and the potential that Congress intended those ambitious goals to serve as prods for as much progress as possible, but did not actually expect them to be achieved. The Article then proposes that significantly more progress can be made if we take advantage of available means of defining the ecological integrity of aquatic ecosystems more clearly and more precisely, using as examples biological water quality criteria, functional assessment methods for wetlands restoration and protection, and the use of real-world desired future condition definitions for watersheds. Better definition of what the somewhat imprecise statutory goals mean in the real world might help to overcome the apparent belief that those goals are impossible or infeasible to attain.

INTRODUCTION ................................................................................ 760

I. THE CLEAN WATER ACT IS AN ASPIRATIONAL STATUTE .................................................................................... 763

A. Chemical, Physical, and Biological Integrity ..................... 763

B. Subsidiary Goals and Policies ............................................ 764

1. The Zero-Discharge Goal ............................................. 765

2. The Fishable and Swimmable Goal .............................. 766

3. No Toxics in Toxic Amounts ....................................... 767

C. Aspiration Versus Operation in the Clean Water Act ........ 769

II. THERE HAS BEEN A NOTABLE DECLINE OF ASPIRATION IN IMPLEMENTATION OF THE CLEAN WATER ACT ............................................................................... 775

A. Relative Attainment of CWA Aspirations .......................... 775

1. Progress Toward Zero Discharge ................................. 776

2. Progress Toward Fishable and Swimmable Waters ..... 777

3. No Toxics in Toxic Amounts ....................................... 778

B. Possible Reasons for Failure of Aspiration ........................ 779

1. Subversion Due to Imbalance of Power ....................... 780

a. Legislative Changes to Implementing Tools .......... 781

b. Administrative Tempering of Statutory Goals ....... 785

c. Judicial Deference .................................................. 792

2. The Pathology of Excessive Aspiration? ...................... 794

3. Aspiration as Asymptote .............................................. 798

III. WE MIGHT RESTORE ASPIRATION TO THE CWA BY ADOPTING MORE PRECISE AND MORE MEANINGFUL DEFINITIONS OF GOALS FOR WATER BODIES ................. 800

A. Alternative Definitions of CWA Aspirations ..................... 802

1. Biological Water Quality Criteria ................................. 803

2. Hydro-Geomorphic Method of Wetland Assessment ... 806

3. Desired Future Conditions for Watersheds ................... 808

B. Moving from Aspiration to Attainment .............................. 810

CONCLUSION .................................................................................... 812

"It's not enough that we do our best; sometimes we have to do what's required." (fn2)

-Winston Churchill

INTRODUCTION

The federal Clean Water Act (CWA)(fn3) is a mammoth of a statute.(fn4) Over the course of its long history,(fn5) the CWA has spawned an equally impressive battery of implementing regulations(fn6) and guidance documents,(fn7) and a huge body of case law interpreting and enforcing the statute.(fn8)

This massive level of statutory and regulatory detail is explained, perhaps, by the reality that water pollution control is a very complex undertaking. Hundreds of thousands of municipal and industrial "point source[s]"(fn9) discharge a diverse array of "pollutant[s]"(fn10) into the "navigable waters."(fn11) An even larger set of human activities known somewhat inelegantly as "nonpoint sources"(fn12)-indeed virtually every human use of land-contributes further to the impairment of the rivers, lakes, and coastal waters that Congress enacted the CWA to protect. Efforts to control each of those pollution sources involve technical, economic, political, and other complexities. The intricate, layered set of principles Congress adopted to distinguish fairly among those sources while still providing sufficient control to protect human health and welfare and the quality of aquatic environments reflect those complications.

At times, however, this degree of complexity obscures the relatively straightforward-although admittedly ambitious-overarching objective of the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(fn13) Thus, while many scholars and practitioners (including me, in both capacities) have written a tremendous body of doctrinal commentary on virtually all aspects of the CWA's implementation, and offered many specific proposals for improvement,(fn14) my purpose in this essay honoring the fortieth anniversary of the pivotal 1972 CWA amendments is far more basic, but hopefully equally important.

Most analysis of CWA implementation suggests that there has been significant progress in implementing many of the statute's discrete technical commands, although other parts of the law have been far less effective. Despite this progress, however, it is equally apparent that the principle aspirations of the statute remain unfulfilled. I explore two main questions in this Article: (1) why do the CWA's principal aspirations remain unmet?; and (2) what can be done to restore the spirit of aspiration that Congress embedded in the statute in 1972?

Part I of this essay will identify the attributes of the CWA that characterize it as a highly aspirational statute. Part II will demonstrate briefly that those aspirations have not been met, despite four solid decades of dedicated effort and commitment by federal, state, and local governments as well as the private sector, not to mention billions of dollars in public and private investment in water pollution control. Part III will posit three theories to explain why the law's major aspirations have not been fulfilled, and attempt to explain the Act's failures by reference to each of those theories. Part IV will suggest a new perspective on how to convert the philosophy of aspiration in the CWA to reality, supported by several brief examples of existing, uncelebrated programs that illustrate the concept. Part V will conclude that the key to restoring aspiration to the CWA-and to restoring the chemical, physical, and biological integrity of the Nation's waters-may be to focus on affirmative definitions of the future condition of aquatic ecosystems instead of simply implementing a series of negative prohibitions.

I. THE CLEAN WATER ACT IS AN ASPIRATIONAL STATUTE

What do I mean by "aspirational"? To some extent, all statutes (or more precisely, those who propose and adopt them) are aspirational in that they propose to achieve specific goals, for example, to punish or to deter individual acts of homicide. An aspirational national homicide statute, however, might set a goal of "a murder-free America by 2050" rather than simply criminalizing specific actions.

A. Chemical, Physical, and Biological Integrity

In this sense, the CWA is manifestly an aspirational statute, as reflected most notably in the opening words of section 101.(fn15) Rather than simply prohibiting specific actions that cause water pollution, Congress established an ambition-affirmative goal: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(fn16)

The degree of ambition reflected in this aspiration depends on the meaning of the word "integrity," which I have discussed in an earlier work.(fn17) Briefly, Congress made clear in the legislative history of the 1972 amendments, in which this language was adopted, that "chemical, physical, and biological integrity" means something approximating natural aquatic ecosystem structure and function. The 1971 Senate Report, for example, indicated that integrity "requires that any changes . . . in a pristine water body be of a temporary nature, such that by natural processes, within a few hours, days or weeks, the aquatic ecosystem will return...