How To Make the Clean Water Act Work Better

Writing in The Regulatory Review, Jackson Nichols outlines an argument by law professor Erin Ryan that the federal Clean Water Act (CWA), in its current state, doesn’t do enough to protect and preserve increasingly threatened U.S. waterways.

“In a recent article, Ryan contends that, by addressing quality alone, federal water governance fails to connect the ‘inextricably intertwined’ elements of water quality and quantity.” Ryan notes that “the regulation of water quantity—how much water remains within a regulated waterway—occurs almost entirely through state allocation laws independent of the CWA,” limiting the impact of the federal law.

For Ryan, “The roadblocks hindering the creation of comprehensive national standards are jurisdictional barriers, historical practice, pure practicality, and constitutional limits on federal power.” Thus, the CWA is ‘necessary but not sufficient’ to protect stretched water supplies and preserve bodies of water to protect from pollution.

Ryan recommends several legal tools that can be used to ‘plug the holes’ in the CWA and make it more effective legislation, including the public trust doctrine and the rights of nature movement, which call for the protection of natural resources for the benefit of both humans and nature. “Both speak to concerns “underserved” by conventional environmental law, both protect values underappreciated in cost-benefit analyses, and both embody last resort arguments in court.”