GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2012

Status

Accepted

Abstract

The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation’s surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure that it does. This paper assesses the implementation of the anti-degradation policy for protecting water quality as good as or better than that required by state water quality standards. It traces the history of the policy, and analyzes the rationales for precluding degradation of high quality environmental resources reflected in both the Clean Water Act and the Clean Air Act. It assesses how successful the Clean Water Act’s anti-degradation mechanisms have been in practice, identifying several flaws in the design and implementation of the program. To address these deficiencies, the article compares the Clean Water Act’s anti-degradation 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 Clean Water Act, the paper recommends several reforms to strengthen the Act’s anti-degradation policy’s capacity to promote its goals.

GW Paper Series

GWU Legal Studies Research Paper No. 2012-45

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