An Artificial Distinction: Clean Water Act Tools for Flow Protection

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finalartificialdistinction.pdf349.55 KB

“Petitioners also assert…that the Clean Water Act is only concerned with water “quality,” and does not allow the regulation of water “quantity.” This is an artificial distinction.”

Justice O’Connor writing for the Supreme Court
in 511 U.S. 700(1994) (writing for the majority)

We couldn't agree with the Justice more. Although fish and others who rely on our rivers don’t see the separation, our legal system has long treated water quality and quantity as unrelated concerns. Water quality is regulated by the federal Clean Water Act, while state laws govern water quantity.

River Network is providing research, analysis, and strategy support to watershed and river groups interested in better using the Clean Water Act to protect and restore flows. While the Act doesn't provide any magical solutions, it can be far better utilized than it has been.

River Network Introductory/Intermediate Analysis of the Issue

In 2011, River Network released a white paper summarizing our analysis of the issue of flow and the Clean Water Act. The goal of the paper is to identify Clean Water Act and related tools that could be better used to drive in-stream flow and habitat restoration and protection efforts. Our research focuses heavily on flow protection and restoration, but touches on habitat issues where appropriate.

Additional Legal Resources

Our paper does not present a detailed legal argument in support of breaking down the wall between the Clean Water Act and flow protection and restoration. For those interested in the legal arguments generally supporting the idea that the Clean Water Act can in fact address flow concerns (at least in some contexts) may appreciate reading some of the resources cited in our paper. The following links will take you to some of the best thinking we've found on this issue:

Additional Technical Resources

Again, River Network's paper on this issue doesn't pretend to be a scientific study of the need to better integrate flow, habitat and water quality concerns. However, we are providing resources here (some of which were referenced in the paper; others of which were not but are very useful) to help advocates explore the more scientific side of these issues.