Protecting Flow with the Clean Water Act
Science tells us that healthy rivers need water flows that follow natural patterns. These patterns are defined by the timing, magnitude, duration and frequency of rising and falling flow levels. The greater the departure from the natural flow regimen, the greater the impact to the river and its values.
Explicit standards recognizing water flow as essential to supporting existing and classified designated uses are crucial to meeting the goals of the Clean Water Act. While water flows are implicitly protected, in practice some State agencies charged with implementing the Clean Water Act focus on the chemical component of the water quality and provide only cursory review of how their decisions will affect physical and biological integrity.
The results can be paradoxical decisions where a waterway is deemed “suitable for primary and secondary recreational contact” because it meets chemical standards, but there is not enough water volume in the stream to swim or boat, or the timing and delivery of the water prevents aquatic life from completing key lifestages.
When only chemical integrity is considered, a waterway could be deemed “suitable for recreation” when in reality, most conceivable forms of recreation are impossible because of insufficient water flow or high flows that threaten public safety. This is just one example of the problems that arise when implementation of the Clean Water Act focuses too narrowly on only one of the three inter-related components of chemical, physical, and biological integrity necessary to achieve water quality.
Flow and the Clean Water Act
The objective of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The goal is to achieve, “whenever attainable”, “water quality which provides for the protection and propagation of fish, shellfish, and wildlife” Id. at § 1251(a)(2). The water quality components of the Clean Water Act are aimed at protecting the full scope of benefits that clean and abundant water provide to society at large. The parameters for success of this goal are water quality standards that protect existing and classified designated uses. The Clean Water Act does not allow the impairment of existing and classified designated uses of streams and rivers in favor of off-stream uses.
The courts have been clear that water quality standards can be affected by water flow and that regulation of flows necessary to protect a designated use contained in a water quality standard, such as propagation of fish and wildlife, falls under the authority of the Clean Water Act.
Additional Flow Resources
In May 2011, American Rivers organized a workshop on Flow Protection through Federal Water Quality Law and Regulation at the FLOW 2011 Conference.
- Richard Roos-Collins from the Water and Power Law Group PC provided an overview of flow protection under laws other than the Clean Water Act [PDF]
- Ralph Abele from EPA Region 1 presented on approaches to flow protection in New England [PDF]
- Paul E. Davis, P.E. from the Tennessee Dept. of Environment and Conservation presented on Tennessee’s Flow Protection Program [PDF]