A Regime Fragmented: division in authority over water quality and water quantity

Water law and policy in the United States is fragmented in many ways. One major fragmentation of water policy is the division between water quality and water quantity regulatory regimes.[i] Due to this fragmentation, decisions regarding water allocation rarely take into account the effect those decisions will have on water quality protection efforts, creating several issues for managing water resources.[ii]

Today, water law is divided into two separate schemes: one scheme for regulating the allocation and right to water (water quantity) and another distinct scheme for regulating water pollution and water quality maintenance.[iii] Not only are water quality and quantity regulated separately, but they are further divided at the federal/state level. Water quality, for the most part, is regulated by the federal government through the Clean Water Act (CWA) and states are generally responsible for policy regarding water quantity.[iv]

Water quality is primarily governed by the federal government under the Clean Water Act (CWA), although the states do play a role as well. The CWA was enacted in 1972 with the goal “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[v]Through the CWA, Congress authorized the Environmental Protection Agency (EPA) to establish a national scheme for the “prevention, reduction, and elimination of pollution,”[vi] and thus to regulate the quality of surface waters throughout the country.[vii]States are obligated to take action and establish policies to implement the CWA and must meet the minimum treatment standards for pollutants set by EPA.[viii] This process is overseen by EPA, and the agency has the ability to step in and substitute its own program if state action has been or will be insufficient.[ix]

In contrast to the national scheme set by the CWA, water quantity regulation is governed by the states.[x]The CWA also reaffirmed the primacy of states in water quality decisions. The statutory language expressly dictates that Congress did not intend for the CWA to usurp the authority of states “to allocate quantities of water within its jurisdiction.”[xi] This is also true for numerous other federal statutes that impact water resources. The Federal Power Act, as just one example, similarly acknowledges the deference given to state law regarding water quantity, in that it does not “affect or in any way interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water.”[xii]

First, when EPA sets pollution standards under the CWA, they are generally based on how much of a pollutant may be present in a certain quantity of water. This is impacted by how much pollution is discharged into the water and how much water exists to dilute those pollutants.[xiii]The system fails, however if there is no coordination between water quality and water quantity regulators. If the states allocate too much water, that policy choice can interfere with CWA attainment and compliance.[xiv]

Second, water withdrawals and diversions impact the quality of water and the ecosystem greatly.[xv]Power plants use huge amounts of water in the cooling process, where some evaporates, and the rest is discharged back into the water source at a different temperature and with a different biological content, which can be detrimental to the environment.[xvi] Water withdrawn for agricultural irrigation eventually returns to our water resources through runoff, bringing with it salts and toxic metals.[xvii] Dams and other water diversion projects also have huge impacts on aquatic ecosystems, which creates issues for the overall water body health.[xviii]

Today, the availability of water has become a focal point of discussion and policy in the United States, particularly on the west coast as water supply levels are beginning to dwindle. Authority over water quality policy was given to the federal government under the CWA because intervention would be better and more efficiently addressed at the national level.[xix] With growing concern over water availability and the impact climate change can have on water levels, a federal response may be required to best address the impact on water supplies and integrate the regimes.[xx] The US has already seen conflict between states over water resources. In 2013, Florida filed a lawsuit against Georgia, which is currently pending in the Supreme Court, seeking injunctive relief against Georgia to “sustain an adequate flow of fresh water”into the state.[xxi] In 2007, Texas also attempted to sue Oklahoma for access to water resources, although their claim was rejected by the Supreme Court.[xxii] As water shortages continue, these battles are likely to continue as well. The federal government will likely be required to step in and begin working towards an integrated national water policy.

These issues show the need to coordinate and integrate management of water quality and quantity as each effects the other. Water allocation and distribution can have detrimental effects on the quality of the water, and as water quality deteriorates, the quantity of clean fresh water available for states to use for drinking water and other allocations decreases.

 

Sarah Ladin is a General Member on MJEAL. She can be reached at sladin@umich.edu. 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Robert W. Adler & Michele Straube, Watershed and the Integration of U.S. Water Law and Policy: Bridging the Great Divides, in 25 WM. & Mary Envtl. L. & Pol’y Rev. 1, 1-2 (2000).

[ii] Id. at 4-5.

[iii] Id. at 1-2.

[iv] Id.

[v] 33 U.S.C. §1251(a) (2013)

[vi] 33 U.S. §1254 (2013).

[vii] Summary of the Clean Water Act, EPA.Gov, http://www2.epa.gov/laws-regulations/summary-clean-water-act (last visited March 24, 2015).

[viii] Robert W. Adler, Climate Change and the Hegemony of State Water Law, in 29 Stan. Envtl. L.J. 1, 26-7 (2010).

[ix] Id

[x] Adler & Straube, supra note 1, at 4-5.

[xi] 33 U.S.C. §1251(g) (2013).

[xii] Adler, supra note 8, at 4 n.10.

[xiii] Id. at 5-6.

[xiv] Adler, supra note 8, at 27.

[xv] Adler & Straube, supra note 1, at 6.

[xvi] Michael E. Webber, Catch 22: Water vs. Energy, in Scientific American, 37 (2008).

[xvii] Adler & Straube, supra note 1, at 6.

[xviii] Id. at 6-7.

[xix] Adler, supra note 8, at 32-3.

[xx] Id.

[xxi] Florida v. Georgia, SCOTUSblog.com, http://www.scotusblog.com/case-files/cases/florida-v-georgia-2/ (last visited March 24, 2015).

[xxii] Tarrant Regional Water District v. Herrmann et al., 133 S. Ct. 2120 (2013).

 

One Reply to “A Regime Fragmented: division in authority over water quality and water quantity”

  1. The dysfunction resulting from the division of regulatory authority is obvious, but behind it are broader problems with our nation’s food systems and the regulatory regime, that simply consolidating authority or creating a new agency will not fix.

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