(Washington, DC) — A new report by the Environmental Law Institute sheds light on the deep divide between surface water quality and quantity management in the American West and suggests ways to bridge that gap. At the Confluence of the Clean Water Act and Prior Appropriation details the impact that water quantity law and practice has had on water quality and vice versa, explains the relative strength of surface water quality and quantity authorities in the Western U.S., and discusses many options for states and USEPA to address these two aspects of water more holistically and ultimately with better results for both.
Water quality and quantity are intimately intertwined: the quantity of water in a natural system often affects the quality of that water, and the quality of water influences what we can do with the amount we have. Yet, quality and quantity are managed separately. The federal Clean Water Act (CWA) is the foundation for surface water quality regulation while water quantity is regulated primarily by state law. Although state agencies are critical to the implementation of both water quantity and quality laws, most western states separate these authorities. The degree of compartmentalization appears to have so divided management of this resource that damage has been done to both sides.
The ELI report analyzes the legal authorities of western states and the federal government over water quantity and quality, respectively, and briefly recaps the current state of takings law relevant to appropriative rights and the CWA, revealing that many of the justifications for the divide between water quality and quantity management are not the great obstacles many believe them to be. The report then identifies examples of laws, practices, government structures, and other factors that can advance relationships between, and ultimately the outcomes for, water quality and quantity management.
“The water quality-quantity disconnect is deeply engrained in law, administrative structure, policies, programs, or perception. When these two areas are at odds, the common response has been to avoid conflict to the extent possible. While an admirable approach, it is not a solution. Growing demand and uncertainty in supply on top of existing quality-quantity conflicts make finding solutions necessary for the future of this critical resource,” says Adam Schempp, Director of ELI’s Western Water Program. “Progress has been made, but the number of water quality impairments attributable to water quantity, as well as instances of water quality decisions affecting water quantity, indicate that we have a very long way to go.”