Washington Law Review

Article

The Decline and (Possible) Renewal of Aspiration in the Clean Water Act

October 01, 2013 | 88 Wash. L. Rev. 759

Abstract:  In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward the CWA’s goals has stalled in the past two decades. This Article explores several possible reasons for that failure. Those reasons include subversion of the statutory goals at the administrative, judicial, and legislative levels due to an imbalance in power between groups interested in how the law is implemented; the degree to which the statutory goals are perceived as unrealistic by those charged with implementation; and the potential that Congress intended those ambitious goals to serve as prods for as much progress as possible, but did not actually expect them to be achieved. The Article then proposes that significantly more progress can be made if we take advantage of available means of defining the ecological integrity of aquatic ecosystems more clearly and more precisely, using as examples biological water quality criteria, functional assessment methods for wetlands restoration and protection, and the use of real-world desired future condition definitions for watersheds. Better definition of what the somewhat imprecise statutory goals mean in the real world might help to overcome the apparent belief that those goals are impossible or infeasible to attain.

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