Clean Water Act: overall goal long way from being met

For those interested in the Clean Water Act, I thought I would share an overview of a chapter of a book looking at the sustainability of this 35-year old federal law. Bob Adler is an environmental legal expert and professor at the SJ Quinney College of Law at the University of Utah. His bio follows the chapter excerpt.

The Clean Water Act (CWA) has been one of the Nation’s most successful environmental laws in cleaning up some of the most blatant discharges of pollution from factories and sewage treatment plants. Toxic chemical releases into surface waters have dropped dramatically, and water bodies that were once virtually dead are coming back to life. Nevertheless, the overall goal of the law to restore the chemical, physical, and biological integrity of the nation’s waters is a long way from being met. The following facts (and sources) give just a few examples:

· Impaired waters. States are required to identify all water bodies that are impaired for one or more reasons. According to the U.S. Environmental Protection Agency’s (EPA) most recent national compilation of this information (2004), states reported almost 40,000 impaired water bodies throughout the country. Leading sources of impairment were pathogens, mercury, sediment, other metals, nutrients, oxygen depletion, pH, temperature, habitat alteration, polychlorinated biphenyls (PCBs), turbidity, pesticides, and salinity.[i]

· Contaminated fish. The most recent complete EPA listing of fish advisories (for 2004) identifies 3,221 advisories covering more than one third of the nation’s lake acreage, and about one quarter of its river miles (over 14 million lake acres and about 840,000 river miles).[ii] Bioaccumulative contaminants include mercury, PCBs, chlordane, dioxins, and DDT. EPA detected mercury, PCBs, dioxins and related compounds, DDT, chlordane, and dieldrin in lake fish taken from 486 sites out of 500 lakes sampled from 2000 to 2003.[iii]

· Unhealthy aquatic ecosystems. In a comprehensive recent survey, EPA concluded that 42% of the nation’s stream length is in poor biological condition, 25% in fair condition, and only 28% in good biological condition (5% not assessed).[iv] The most significant causes of impairment were nutrients, riparian disturbance, streambed sediments, and loss or alteration of in-stream fish habitat and riparian vegetation.

Although some pollution from industrial and municipal sources remains, the leading unresolved cause of water pollution, and one that is poorly addressed by the Clean Water Act as written, is so-called “nonpoint source pollution,” or polluted runoff from farms and other intensive land uses such as urbanization, logging, and mining. Loss and degradation of aquatic and riparian (streamside) habitat also contributes significantly to the deteriorating health of aquatic ecosystems.

As the Associate Dean for Academic Affairs and James I. Farr Chair in Law at the S.J. Quinney College of Law, Robert Adler’s goal is “to stimulate more interdisciplinary work in this increasingly global world … [and] to prepare students for that world — an environment that changes almost continuously, and which demands skills that go far beyond what has been traditionally taught in law schools.” As a scholar, Adler urges a broader, more holistic approach to the restoration and protection of aquatic and other ecosystems than is used in traditional environmental laws alone, which focus on discrete kinds of environmental harm. After completing a B.A. from Johns Hopkins University (1977) and a J.D. from Georgetown University Law Center (1980 cum laude), Adler practiced environmental law for 15 years. He has published dozens of articles and reports in law, policy and science journals including Vanderbilt Law Review, Harvard Environmental Law Review, Utah Law Review, and George Washington Law Review, and a book on the history and impact of the Clean Water Act. He will publish two books in 2007 — Environmental Law: A Conceptual and Pragmatic Approach (with David Driesen, Aspen Publishers) and Restoring Colorado River Ecosystems: A Troubled Sense of Immensity (Island Press). He regularly teaches courses in civil procedure and environmental law, and is currently co-designing an interdisciplinary course called “Environmental Law and Engineering,” in which law students and environmental engineering graduate students will work together on real-world environmental problems in Utah. Adler loves to spend time in Utah’s outdoors, and in 2005 completed the Wasatch Front 100-mile trail race through Utah’s beautiful Wasatch Mountains.
[i] U.S. Environmental Protection Agency, 2004 National Assessment Database, available at http://www.epa.gov/waters/305b/index_2004.html (visited June 6, 2007).
[ii] Id.
[iii] U.S. Environmental Protection Agency, Office of Water, Fact Sheet: 2005 Update, The National Study of Chemical Residues in Lake Fish Tissue, EPA-823-F-05-012 (2005).
[iv] U.S. Environmental Protection Agency, Wadeable Streams Assessment, A Collaborative Survey of the Nation’s Streams, EPA 841-B-06-002, at ES-5 (2006).