Exploring big picture Clean Water Act thinking...

On a slow Saturday night, I was delighted to find a new piece of writing on the Clean Water Act from Utah’s own Robert Adler on Legal Theory Blog. Professor Adler (of the University of Utah) is one of the big thinkers on the Clean Water Act, and this piece is an interesting demonstration of his on-going and interesting relationship with the Act.

Resilience, Restoration and Sustainability: Revisiting the Fundamental Principals of the Clean Water Act covers quite a bit of ground but is still very readable for watershed advocates. In a very overly simplified summary, Adler addresses four main needs for the next iteration of the Clean Water Act:

1.) Reinterpret the use of the word “integrity” in the overall objective of the Act (“…restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”). Adler points out that in the Clean Water Act context we have historically translated integrity into ecological ideas of stability or equilibrium, and suggests a reinterpretation that would lead us to define integrity in terms of resilience or dynamic change.

2.) Expand traditional focus on maintenance to better address restoration. This interesting section is hard to do just in short-form, because it contains many interesting ideas. As a teaser, concepts raised include the need the need to amend 303(d) and 319 to clarify the need to restore rivers impaired by all violations of water quality standards, whether pollutant-specific or biologically/ecologically-based and the need for a restoration grants program on par with the construction grants program for point sources in the 70s/80s.

3.) Expand pollution controls from point sources to nonpoint sources. We all know this needs to happen, but Adler’s section on this topic is well-worth reading for the historical context he provides as well as for the short but thought provoking discussion of a “best practices” system for nonpoint source control (“…analogous but not identical to the system of mandatory, technology-based controls on…point sources…”).

4.) Address the jurisdiction problem. Lastly, Adler proposes ideas for better defining the scope of waters covered by the Act. Adler proposes changing the problematic “navigable waters” language to language which focuses on the sustainability of aquatic ecosystems.

Personally, I was most excited to ponder Adler’s points 1 and 2. His thinking here supports and further develops a whole new area of thinking in the Habitat Program under River Network’s new strategic plan. One of our new lead strategies in the Habitat Program is a direct hit on Adler’s points:

Strengthen Clean Water Act implementation to include but go beyond chemical concerns and better integrate physical and biological integrity.

What would this mean on the ground? The plan envisions this as our wonky outcome:

Ten states establish and implement new biologically-oriented policies that help stabilize or improve ecosystem health in multiple rivers statewide.

Over the course of the next year, Gayle and I will be talking with our Partners, agency staff and others about how to best implement this strategy. Current ideas for making the concept into concrete action includes focusing on biocriteria development and implementation, better utilizing 401 water quality certification, 4C impaired waters restoration, strengthening wetland permit programs, and more. I encourage watershed advocates to read Adler’s paper, think about how these ideas relate to your own work, and share those thoughts with us so we can provide analysis, tools, trainings, , etc. to make these ideas into a reality for your favorite river.