Date of this Version
JOURNAL OF ENERGY & ENVIRONMENTAL LAW 3 (Winter 2013)
This Article focuses on the Clean Water Act’s relatively neglected maintenance aspects. It assesses whether the statute’s antidegradation policy for protecting superior water quality has fostered the statutory maintenance goal. Part I traces the history of the antidegradation policy and analyzes the rationales for precluding the degradation of high-quality environmental resources. The objectives of, and justifications for, preventing the deterioration of high-quality resources are best illustrated by comparing the antidegradation program adopted under the CWA with the version adopted under the Clean Air Act (“CAA”), which is the most elaborate antidegradation program in domestic federal pollution control legislation. Part II assesses whether the CWA’s antidegradation mechanisms have succeeded in promoting the goals of a well-functioning environmental quality maintenance program, identifying several flaws in the CWA program’s design and implementation. Part III compares the CWA’s antidegradation policy to nonimpairment and nondegradation mandates under the nation’s public natural resource management statutes.
Based on this comparative analysis, and the past four decades of experience with the CWA, Part IV recommends four reforms to strengthen the CWA’s antidegradation policy. First, we recommend a federal regulation requiring all states to designate high-quality waters within their borders for the highest level of protection against degradation of water quality, including waters within parks and wildlife refuges. We also support requiring states to take concrete steps to restore the quality of degraded high quality or exceptional waters so that they can support a full suite of beneficial uses and ecosystem services. Second, the CWA’s antidegradation program should preclude water quality impairment that either results in loss or threatened loss of an existing or potentially viable use—especially fishing, swimming, and higher uses—or adversely affects the ecological resilience of the affected water body. Third, we support extending the scope of antidegradation requirements to cover sources that are exempt in many states, such as nonpoint sources that create polluted runoff. Finally, the CWA’s antidegradation program should include mandatory planning and assessment responsibilities, particularly as applied to the highest quality waters. These reforms would help fulfill the objectives of an antidegradation program, move the nation closer to the goal of ensuring the integrity of our surface waters, and help the CWA function as more than just a rudimentary pollution control regime.