An Artificial Distinction: Clean Water Act Tools for Flow Protection

“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.

• An Artificial Distinction: Addressing water quantity concerns under the Clean Water Act

• You may also be interested in (or even prefer!) our webinar which covers the basic topics of the Artificial Distinction paper. Listen to the June 2010 webinar here.

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:

• Robert Adler, The Two Lost Books in the Water Quality Trilogy: The Elusive Objectives of Physical and Biological Integrity (2003).

• Robert W. Adler and Michele Straube, Watersheds and the Integration of U.S. Water Law and Policy: Bridging the Great Divides, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 1 (2000).

• Reed Benson, Pollution Without Solution: Flow Impairment Problems Under Clean Water Act Section 303 (2005). Stanford Environmental Law Journal, Vol. 24, No. 2, pp. 199-267, 2005.

• Scott Smithline, Section 401 of the Clean Water Act and its Application to Nonpoint Source Pollution in California, 30 Golden Gate U. L. Rev. (2000).

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.

• James Karr and Chris Yoder. Biological Assessment and Criteria Improve Total Maximum Daily Load Decision Making. Journal of Environmental Engineering. 130:594-604. 2004.

• James Karr and Dudley. Ecological perspective on water quality goals. Environmental Management 5: 55-68. 1981. (We couldn't find a link to a free copy of this online, but it is available for purchase.)

• B.D. Richter, et. al. A Presumptive Standard for Environmental Flow Protection. River Res. Applic. Published online in Wiley Online Library. 2011.